Exhibit 10.7
LANDLORD:
GLENN DALE BUSINESS CENTER,
L.L.C.
TENANT:
TVI CORPORATION, a Maryland
Corporation
LEASE
GLENN DALE BUSINESS
CENTER
Trade Name: TVI
Corporation
LEASE BY AND
BETWEEN
GLENN DALE BUSINESS CENTER,
L.L.C., LANDLORD
and TVI CORPORATION,
TENANT
TABLE OF CONTENTS
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1.
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Payment of
Rental
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1
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2.
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Use
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1
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3.
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Utilities
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2
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4
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Assignment and
Subletting
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2
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5.
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Loading
Capacity
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3
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6.
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Increase in
Landlord’s Insurance Rates
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3
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7.
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Insurance
Indemnification
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3
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8.
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Alterations
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4
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9.
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Ownership of
Alterations
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4
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10
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Repairs and
Maintenance
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4
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11.
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Tax
Escalation
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5
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12.
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Default
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6
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13.
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Total or
Partial Destruction
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7
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14.
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Possession
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7
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15.
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Exterior of
Premises — Signs
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7
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16.
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Relocation
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8
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17
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For Rent/Sale
Signs
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8
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18.
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Right of
Entry
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8
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19.
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Termination of
Term
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8
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20.
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Condemnation
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8
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21.
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Subordination/Estoppel/Non-Disturbance
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8
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22.
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Attornment
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9
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23.
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Parking and
Common Area
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9
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24.
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Compliance with
Laws
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10
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25.
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Notices
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11
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26.
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Non-Waiver
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11
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27.
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Successors and
Assigns
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11
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28.
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Security
Deposit/Construction
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12
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29.
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Accord and
Satisfaction
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12
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30.
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Notices to
Mortgagee
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12
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31.
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Estoppel
Certificate
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13
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32.
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Mechanic’s Liens
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13
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33.
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Waiver of Jury
Trial and Right to Counterclaim
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13
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34.
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Brokerage
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13
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35.
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Tenant
Representative
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13
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36.
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No
Offer
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13
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37.
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Tenant’s
Right To Audit
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13
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38.
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Miscellaneous
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14
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EXHIBITS
Exhibit A – Plat of
Premises
Exhibit B - Construction
Specifications
Exhibit C - Common Facilities
THIS LEASE
Made this 16
th
day of February, 1998,
by and between GLENN DALE BUSINESS CENTER, L.L.C. by Continental
Realty Corp., Agent, having an address at 17 West Pennsylvania
Avenue, Towson, Maryland 21204, (hereinafter called
“Landlord”) and TVI CORPORATION, a Maryland
corporation. having an address at 7100 Holiday Tyler Road, Glenn
Dale Business Center, Glen Dale, Maryland 20769, (herein after
called “Tenant”).
WITNESSETH, that in consideration of
the rental hereinafter agreed upon and the performance of all the
conditions and covenants hereinafter set forth on the part of the
Tenant to be performed, the Landlord does hereby lease unto the
said Tenant, and the latter does lease from the former, the
following Premises (hereinafter sometimes called the
“Premises”):
BEING all those Premises
crosshatched and outlined on the Plat attached hereto as Exhibit A,
which Premises shall be deemed to contain approximately 17,000
square feet, lower level office pod, said Premises being located
within a building known as Glenn Dale Business Center, 7100 Holiday
Tyler Road, Glen Dale, Maryland 20769, which building contains
approximately 310,000 square feet (“Floor
Space”),
for the term of five (5) years;
beginning on April 1, 1998 (“Commencement Date”),
and ending on the last day of March, 2003 at and for the annual
rent of Four Dollars and No Cents ($4.00) per square foot or Sixty
Eight Thousand ($68,000.00) Dollars per annum, payable in advance,
in equal monthly installments, as follows: Five Thousand Six
Hundred Sixty Six Dollars and Sixty Seven Cents ($5,566.67), per
month on the first day of each and every month during the term of
this Lease, without setoff, recoupment, or deduction, for the first
year of the Lease; thereafter, effective each April 1 of the
term, rent shall increase per annum by three percent (3%) over
the rent payable for the preceding lease year. If the term of this
Lease shall commence on a date other than the first day of a month,
the rental for the period from the date of commencement of the term
to the first day of the next full calendar month of the term shall
be prorated and shall be payable on the first day of the term; if
the term of this Lease shall end on a date other than the last day
of month, the rent for the period from the first day of the last
month of the term to the date the term ends shall be prorated and
shall be payable on the first day of the last month of the
term.
Tenant hereby represents and
warrants to Landlord that Tenant has made its own investigation and
examination of all the relevant data relating to or affecting the
Premises and is relying solely on its own judgment in entering into
this Lease; specifically, and without limitation, Tenant represents
and warrants to Landlord that Tenant has had an opportunity to
measure the actual dimensions of the Premises and agrees to the
square footage figures set forth hereinabove for all purposes of
this lease (except in the event of a condemnation or casualty that
decrease the size of the Premises as more fully provided elsewhere
in this Lease).
All rentals shall by paid to
Landlord at: P.O. Box 10147, Baltimore, Maryland 21285, or at such
other place or to such appointee of the Landlord as Landlord may
from time to time designate in writing.
THIS LEASE IS MADE SUBJECT TO THE
FOLLOWING ADDITIONAL TERMS, COVENANTS AND
CONDITIONS:
1. PAYMENT OF RENTAL. Tenant
covenants and agrees to pay the rental herein reserved and each
installment thereof promptly when and as due, without setoff,
recoupment or deduction whatsoever, except as specifically set
forth herein.
2. USE . Tenant covenants to
use the Premises for the purpose of manufacturing, warehouse, and
incidental office use related to its operation as a manufacturing
facility, making specialty tents, enclosures, and related products
(the “Permitted Use”) and for no other purpose or
purposes. Tenant shall operate the Premises in the name of TVI
Corporation and under no other name or trade name unless approved
in writing by Landlord, which approval shall not be unreasonably
withheld.
Tenant agrees to comply with all
applicable zoning and other laws, regulations, and requirements of
governmental authorities and provide and install at its own expense
any additional equipment or alterations required to comply with all
such laws, regulations and requirements as may be promulgated from
time to time. In addition, if Tenant adds a new function to its
operations or changes the use set forth in this Paragraph 2, even
with if with Landlord’s consent, Tenant agrees further to
comply with any and all requirements of Landlord’s insurance
carrier(s) and applicable law(s).
3. UTILITIES.
Landlord anticipates that it will,
within six (6) months of the commencement of this Lease, meter
or sub-meter Tenant’s utilities so that Tenant will pay based
on sub-meter readings to Landlord or, based on meter readings
directly to the utility company. Until the utilities are
successfully split out, however, Tenant agrees to pay, as
additional rent, its fair share of the water/rent/sewer charges
billed to Landlord, which “fair share” shall be
reasonably determined by Landlord.
(a) Water/Sewer. Once Tenant is
sub-metered, Tenant shall permit Landlord access to the Premises,
at least one (1) time each month, for the purpose of reading
the sub-meter. Within thirty (30) days after receipt of
written notice from Landlord, Tenant shall pay to Landlord all
costs associated with Tenant’s usage of utilities within the
Premises, as determined by Landlord in its reasonable
discretion.
(b) Gas and Electricity. Until
Landlord is able to separately meter the gas and electric service
in the building so that each tenant has its own meter or sub-meter
to measure its gas and electrical usage, Tenant agrees to pay as
additional rent its “fair” share of the gas and
electricity charges billed total building which fair share shall be
reasonably determined by Landlord. When Tenant’s gas and
electrical service is separately metered or sub-metered, Tenant
agrees to pay as additional rent all gas and electrical service
charges for the Premises based on its meter or sub-meter readings,
directly to the utility company in the event of a separate meter
being provided, or to the Landlord promptly after Landlord bills
the Tenant, in the event of a sub-meter.
(c) Miscellaneous. In addition to
the preceding, Tenant shall pay all costs of telephone and any
other utilities used and consumed on the Premises, or by the Tenant
for Tenant’s operations, together with all taxes, levies or
other charges on such utilities, either directly to the utility
supplying said services or to the Landlord, if the Landlord
supplies said services to Tenant.
Wherever Landlord is required to
bill Tenant for any utilities’ charges, Tenant agrees that it
shall pay Landlord within thirty (30) days of its receipt of
Landlord’s billing, and said charges shall be deemed to be
additional rent due.
Landlord shall have the right at
anytime and from time to time during the Lease term to either
contract for service from a different company or companies
providing electric service or gas service or other utilities or to
continue to contract for service from the service provider
currently providing service (variously, “Utility Service
Provider”). In conjunction therewith, Tenant shall cooperate
with Landlord and Utility Service Provider at all times and, as
reasonably necessary, shall allow Landlord and/or Utility Service
Provider reasonable access to the building’s electric lines,
feeders, risers, wiring, plumbing lines, and any other machinery or
equipment located within the Premises. Landlord shall in no way be
liable or responsible for any loss, damage, or expense Tenant may
incur or sustain by reason of change, failure, interference,
disruption, or defect in the supply or character of the electric
energy or gas service or other utility service furnished to the
Premises, or if the quantity or character of the electric energy or
gas service or other utility service supplied by Utility Service
Provider is no longer available or suitable for Tenant’s
requirements, and no such change, failure, defect, unavailability
or unsuitability shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligation
under the Lease. Landlord shall use its best efforts to minimize
disruption to Tenant’s use of the Premises.
4. ASSIGNMENT AND
SUBLETTING
(a) Tenant covenants and agrees not
to assign this Lease, in whole or in part, nor sublet the Premises,
or any part or portion thereof, nor grant any license or concession
for all or any part thereof, without the prior written consent of
the Landlord in each instance first had and obtained, which consent
shall not be unreasonably withheld. If such assignment or
subletting is permitted, Tenant shall not be relieved from any
liability whatsoever under this Lease. In the event that the amount
of the rent or other consideration to be paid to the Tenant by any
assignee or sublessee is greater than the rent required to be paid
by the Tenant to the Landlord pursuant to this Lease, Tenant shall
pay to Landlord any such excess as is received by Tenant from such
assignee or sublessee. An assignment for the benefit of
Tenant’s creditors otherwise by operation of law shall not be
effective to transfer to assign Tenant’s interest under this
Lease unless Landlord shall have first consented thereto in
writing.
(b) In the event this Lease contains
a renewal option exercisable by Tenant, Landlord’s consent to
an assignment or sublease of the Premises or any portion thereof
during the original Lease term shall be deemed to be conditioned
upon the agreement of Tenant and such assignee or sublessee that
such renewal right or option shall terminate and be of no further
force or effect unless Landlord’s consent to such assignment
or sublease expressly provides otherwise.
-2-
(c) In the event Tenant desires to
assign this Lease or to sublease all or any substantial portion of
the Premises, Landlord shall have the right and option to terminate
this Lease, which right or option shall be exercisable by written
notice from Landlord to Tenant within thirty (30) days from
the date Tenant gives Landlord written notice of its desire to
assign or sublease.
5. LOADING CAPACITY . Tenant
covenants and agrees that it shall not load the Premises beyond its
present carrying or loading capacity.
6. INCREASE IN LANDLORD’S
INSURANCE RATES . Tenant will not do, or suffer to be done,
anything in or about the Premises, or keep or suffer to be kept,
anything in or about the Premises which will contravene or affect
any policy of insurance, now existing or which the Landlord may
hereafter place there on, or which will prevent the Landlord from
procuring such policies in companies acceptable to Landlord at
standard rates. Tenant will, at Tenant’s sole expense, take
all such actions and make any installations or alterations as may
be necessary to obtain the greatest possible reduction in the
insurance rates for the Premises and the building in which the
Premises are located, caused by the occupancy of Tenant, the nature
of the business carried on by Tenant in the Premises, or otherwise
resulting from any act of Tenant, its agents, servants, employees
or customers.
7. INSURANCE
INDEMNIFICATION
(a) Tenant shall maintain the
following insurance: (i) comprehensive general public
liability insurance in respect of the Premises and the conduct and
operation of Tenant’s business therein, with Landlord as an
additional named insured and at Landlord’s written request
with the lessor or any ground or underlying lease of all or any
part of the Premises as additional named insured, with limits of
not less than $1,000,000 for bodily injury or death to any one
person, $2,000,000 for bodily injury or death to any number of
persons in any one occurrence, and $1,000,000 for property damage,
including water damage and sprinkler leakage legal liability, (if
sprinklered); (ii) steam boiler, air conditioning, and
machinery insurance, if applicable, protecting Landlord and Tenant,
with limits of not less than $500,000, but only if there is a
boiler or pressure object or other similar equipment in the
Tenant’s Premises; (iii) fire insurance with extended
coverage and broad form all risk endorsement covering all of
Tenant’s stock and trade, fixtures, furnishings, floor
coverings, equipment, signs, and all other property belonging to
Tenant or entrusted to Tenant or demised hereby, including
installations and improvements of Tenant made in, on or about the
Premises in any amounts required by any lender, but not less than
the full insurable replacement value of the property covered and
out less than the amount sufficient to avoid the effect of the
co-insurance provisions of the applicable policy or policies;
(iv) business interruption insurance in an amount sufficient
to meet any co-insurance requirements, but in no event less than
the equivalent of twelve (12) month’s rent (unless
Landlord provides rental insurance and bills Tenant for it pursuant
to Tenant’s obligations to pay increases in Landlord’s
costs of insuring the building, as set forth in Paragraph 23(c)).
Tenant shall deliver to Landlord such fully paid for polices or
certificates of insurance at least ten (10) days before the
Commencement Date of this Lease. Tenant shall procure and pay for
renewal of such insurance from time to time before the expiration
thereof, and Tenant shall deliver to Landlord and any additional
named insured(s) such renewal policy at least thirty (30) days
before the expiration of any existing policy. If Tenant fails to
comply with any portion of this provision, Landlord may, but shall
not be obligated to, obtain insurance for Tenant and keep same in
effect and Tenant shall pay Landlord all costs incurred, upon
demand, plus 15% for overhead/administrative expenses. Landlord
shall not be liable for any damage or loss arising from the
bursting, overflowing, or leaking of the roof or of water,
sprinkler, sewer, or steam pipes, or for malfunctioning heating,
air conditioning or plumbing fixtures or from electric wire or
fixtures or arising from any other cause whatsoever, unless caused
by Landlord’s negligent or willful misconduct.
(b) Tenant shall and does hereby
indemnify and save harmless Landlord, its successors or assigns,
from all claims and demands of every kind, that may be brought
against it, them or any of them for or on account of any damage,
loss or injury to persons or property in or about the Premises or
the building and appurtenances in which the Premises are situated,
arising from or out of Tenant’s use or occupancy thereof
occasioned wholly or in part by any act or omission of Tenant, its
agents, servants, contractors, employees or invitees, and from any
and all costs and expenses, counsel fees, and other charges which
may be imposed upon Landlord, its successors or assigns, or which
it or they may be obligated to incur in consequence thereof. All
personal property and fixtures in the Premises shall remain at
Tenant’s sole risk. Tenant shall insure such property and
fixtures against loss or damage by fire and casualties ordinarily
included in the extended coverage endorsement in use in Maryland in
an amount equal to 100% of the replacement value
thereof.
-3-
(c) Landlord may, in its reasonable
business judgment, maintain insurance on the property including but
not limited to equipment and systems in or pertaining to the
building or property and including but not limited to public
liability insurance, property damage insurance, automobile
insurance, sign insurance, fire and extended coverage insurance,
rent insurance, boiler liability and casualty insurance, flood and
earthquake insurance, and plate glass insurance. For any insurance
maintained by Landlord with respect to the property and/or its
equipment, Tenant agrees to pay as additional rent Tenant’s
proportionate share of said premiums for any insurance carried on
the property or any portion thereof. If this Lease shall be in
effect for less than a full insurance year, Tenant shall pay its
proportionate share of any insurance premiums based upon the number
of months that this Lease is in effect. For purposes of calculating
Tenant’s “proportionate share”, the insurance
premium bill will be multiplied by a fraction, the numerator of
which shall be the Floor Space of the Tenant’s Premises, and
the denominator of which shall be the leaseable Floor Space of the
building. All computations shall be made in accordance with
generally accepted accounting principles and the “Floor
Space” referred to herein will be based upon the Floor Space
occupied or ready for occupancy (whether or not leased) on the
first day of each month during the period in question. The Floor
Space of the building at the time of the Lease execution is 310,000
square feet. Any payment due hereunder shall be deemed to be
additional rental pursuant to this Lease and shall be paid within
(10) days of Landlord’s billing.
8. ALTERATIONS. Tenant shall
not make any structural or non-structural alterations to the
Premises, or any part thereof, without prior written consent of
Landlord in each instance first had and obtained. If Tenant shall
desire to make such alterations, plans for the same shall first be
submitted to and approved by Landlord, and all work and
installations shall be performed by Tenant at its own expense in
accordance with approved plans. Tenant agrees that all such work
shall be done in a good and workmanlike manner, that the structural
integrity of the building shall not be impaired, and that no liens
shall attach to the Premises by reason thereof. Tenant agrees to
obtain, at Tenant’s expense, all permits required for such
alterations.
9. OWNERSHIP OF ALTERATIONS.
Unless Landlord shall elect that all or part of any alteration made
by Tenant to the Premises (including any alterations consented to
by Landlord pursuant to Paragraph 8 hereof) shall remain on the
Premises after the termination of this Lease, the Premises shall be
restored to their original condition by Tenant before the
expiration of this Lease at Tenant’s sole expense. Upon such
election by Landlord, any such alterations, improvements,
betterments or mechanical equipment, including but not limited to,
heating and air conditioning systems, shall become the property of
the Landlord at the expiration or sooner of the termination of this
Lease, and all right, title and interest thereof of Tenant shall
immediately cease, unless otherwise agreed to in writing by
Landlord.
Tenant shall repair promptly, at its
own expense, any damage to the Premises caused by bringing into the
Premises any property for Tenant’s use, or by the
installation or removal of such property, regardless of fault or by
whom such damage shall be caused.
10. REPAIRS AND
MAINTENANCE.
(a) The Premises hereby leased, are
leased to Tenant “As Is,” except as specifically
provided in Exhibit B. Further, except as herein expressly
provided, Landlord shall be under no liability, nor have any
obligation to do any work or make any repairs in or to the
Premises, and any work which may be necessary to outfit the
Premises for Tenant’s occupancy or for the operation of
Tenant’s business therein is the sole responsibility of
Tenant and shall be performed by Tenant at its own cost and
expense. Tenant acknowledges that it has fully inspected the
Premises prior to the execution of this Lease, and Tenant further
acknowledges that Landlord has made no warranties or
representations with respect to the condition or state of repairs
of the Premises.
(b) Tenant will, during the term of
this Lease, keep the Premises and appurtenances (including windows,
doors, plumbing, heating and electrical facilities and
installations), in good order and repair and will make all
necessary repairs thereof at its own expense, except that Landlord
will make all necessary repairs (except painting) to the exterior
walls and roof of the building, after being notified in writing by
Tenant of the need for such repairs, and shall have a reasonable
time in which to complete such repairs. Landlord hereby warrants to
Tenant that the HVAC system shall he in good working order for the
first year of the Lease Term. Landlord agrees to make any major
repairs or replacements to the HVAC system necessary during that
year which cost in excess of $500.00 so long as such repair or
replacement is not necessitated by Tenant’s negligence or
intentional misconduct. Tenant shall be responsible for all day to
day maintenance of the HVAC system. Tenant agrees to carry a
maintenance and/or service agreement
-4-
or policy on the HVAC system in the Premises.
Tenant shall provide Landlord with a copy of such policy or
certificate evidencing such coverage. In the event that the repairs
required to be made by Landlord are necessitated as a result of
negligence or misuse by Tenant, its agents, servants, employees,
licensees or guests, or by any contractor engaged by or on behalf
of Tenant, such repairs shall be made by and be paid for by
Tenant.
Tenant will, at the expiration of
the term or at the sooner termination, deliver up the Premises in
the same good order and condition as they were at the beginning of
the tenancy, reasonable wear and tear and damage by casualty
excepted, (where Lease is terminated due to the casualty provision
of this Lease). In addition, Tenant must remove all of its trade
fixtures and equipment and must fill any and all holes in the floor
after removing said trade fixtures and equipment, topping the
filled holes with a six inch concrete cap, reinforced with a
reinforced steel rebar. Moreover, the Premises must be broom swept
and clean and any office area cleaned and straightened
out.
Tenant further agrees that it will
maintain the Premises at its own expense in a clean, orderly and
sanitary condition, free of insects, rodents, vermin and other
pests; and that it will not permit undue accumulation of garbage,
trash, rubbish or other refuse, but will remove the same an its own
expense and will keep such refuse in proper containers inside the
Premises until removed. At any time after the commencement of this
Lease, Landlord may designate areas outside the Premises for
storage of Tenant refuse/garbage. In the event of any Tenant
default pursuant to this obligation, Tenant specifically agrees
that Landlord can have Tenant’s garbage, trash, rubbish or
other refuse removed and Tenant will be required to pay, as
additional rental, any costs which Landlord incurs in said removal
plus fifteen percent (15%) Landlord administrative/overhead
expenses. Tenant further agrees that it will not install any
additional electrical wiring or plumbing unless it has first
obtained Landlord’s written consent thereto, and, if such
consent is given, Tenant will install the same at its own cost and
expense, and Tenant shall obtain, at Tenant’s expense, all
permits required for such installation.
(c) In the event Tenant shall not
proceed promptly and diligently to make any repairs or perform any
obligation imposed upon it by subparagraphs (a) and
(b) hereof within forty-eight (48) hours, after receiving
written notice from Landlord to make such repairs or perform such
obligation, then and in such event, Landlord may, at its option,
enter the Premises and do and perform the things specified in said
notice, without liability on the part of Landlord for any loss or
damage resulting from any such action by Landlord, and Tenant
agrees to pay promptly upon demand any cost or expense incurred
Landlord in taking such action.
(d) Tenant shall keep all of its
Premises sufficiently heated during freezing weather in order to
keep any water pipes in the Premises or serving the Premises from
freezing.
(e) If governmental regulations
require recycling of any on all of the trash generated in the
Premises, Tenant hereby agrees to participate in any recycling
program and to assume any obligation for recycling which may be
imposed upon Landlord as the property owner, with respect to the
refuse, garbage and trash generated by the Premises’
operation.
11. TAX ESCALATION . As of
the Commencement Date of this Lease, the Premises hereby leased
comprise approximately five and forty eight/hundredths of a percent
(5.48%) of the total land and/or buildings within which the
Premises are located. Tenant agrees to pay as additional rent,
within thirty (30) days of Landlord billing, Tenant’s
proportionate share of any real estate taxes assessed against the
land and/or building, as improved. Real estate taxes shall be
deemed to include any taxes assessed against the land and/or
buildings generally, and not resulting from improvements placed
therein by Tenant. In the event of any increases in real estate
taxes resulting from improvements, alterations or additions made by
Tenant, Tenant shall pay one hundred percent (100%) of the
amount of said increase. If this Lease shall be in effect for less
than a full fiscal year, Tenant shall pay its proportionate share
of the taxes, based upon the number of months that this Lease is in
effect. For purposes of calculating Tenant’s
“proportionate share”, the real estate tax bill with be
multiplied by a fraction, the numerator of which shall be the Floor
Space of the Tenant’s Premises, and the denominator of which
shall be the leasable Floor Space of the building. All computations
shall be made in accordance with generally accepted accounting
principles and the “Floor Space” referred to herein
will be based upon the Floor Space occupied or ready for occupancy
(whether or not leased) on the first day of each month during the
period in question. Any payment due hereunder shall be deemed to be
additional rental pursuant to this Lease and shall be paid within
thirty (30) days of Landlord’s billing.
“Taxes” or “real estate taxes” as used
herein shall include, but not by way of limitation, all paving
taxes, special paving taxes, Metropolitan District [BALANCE
INTENTIONALLY LEFT BLANK]
-5-
Charges, and any and all other benefits or
assessments which may be levied on the Premises or the land and/or
building(s) in which the same are situate, as well as any and all
costs or fees incurred by Landlord in contesting any real estate
tax assessment, but shall not include any income tax on the income
or rent payable hereunder.
12. DEFAULT
(a) Any of the following events
shall constitute a default by Tenant:
(i) If the rent (basic or
additional) shall be in arrears, in whole or in part; or
(ii) If Tenant shall have failed to
perform any other term, condition or covenant of this Lease on its
part to be performed for a period of ten (10) days after
notice of such failure by Landlord; or
(iii) If the Premises are vacant,
unoccupied or deserted for a period of fifteen (15) days or more at
any time during the term; or
(iv) If Tenant is adjudicated a
bankrupt or insolvent by any court of competent jurisdiction, or if
any such court enters any order, judgment or decree finally
approving any petition against Tenant seeking reorganization,
liquidation, dissolution or similar relief or if a receiver,
trustee, liquidator or conservator is appointed for all or
substantially all of Tenant’s assets and such appointment is
not vacated within thirty (30) days after the appointment, or
if Tenant seeks or consents to any of the relief herein above
enumerated in this subparagraph (iv) or files a voluntary
petition in bankruptcy or insolvency or makes an assignment of all
or substantially all of its assets for the benefit of creditors or
admits in writing of its inability to pay its debts generally as
they become due or files Articles of Dissolution, or similar
writing indicating its intention to wind up or liquidate its
business, with the appropriate authority of the place of its
incorporation; or
(v) If Tenant’s leasehold
interest under this lease is sold under execution, attachment or
decree of court to satisfy any debt of Tenant, or if any lien
(including a mechanic’s lien) is filed against Tenant’s
leasehold interest and is not discharged within ten (10) days
thereafter.
(b) In the event of default as
defined in paragraph (a) hereof, Landlord, in addition to any
and all legal and equitable remedies it may have, shall have the
following remedies:
(i) To distrain for any rent or
additional rent in default; and
Intentionally deleted.
Not withstanding any such reentry
and/or termination, Tenant shall immediately be liable to Landlord
for the sum of the following: (a) all rent and additional rent
then in arrears, without apportionment to the termination date,
including but not limited to Tenant’s contribution to taxes
and utilities under Paragraphs 3 and 11 and Tenant’s
contribution to common area costs under Paragraph 23 for the year
of termination; (b) all other liabilities of Tenant and
damages sustained by Landlord as a result of Tenant’s
default, including, but not limited to, the reasonable costs of
reletting the Premises and any broker’s commissions payable
as a result thereof; (c) all of Landlord’s costs and
expenses (including reasonable counsel fees) in connection with
such default and recovery of possession; (d) the rent and
additional rent reserved under this Lease at the times herein
stipulated for payment of rent and additional rent for the balance
of the term, less any amount received by Landlord during such
period from others to whom the Premises may be rented on such terms
and conditions and at such rentals as Landlord, in its sole
discretion, shall deem proper; and (e) any other damages
recoverable by law. In the event Landlord brings any action against
Tenant to enforce compliance by Tenant with any covenant or
condition of this Lease, because of Tenant’s default in
performing any such covenant or condition, Tenant shall pay to
Landlord all costs and expenses incurred by Landlord and bringing
and prosecuting such action against Tenant, including reasonable
attorneys’ fees.
(c) In the event Tenant fails to pay
Landlord any rental payment or other charge due hereunder within
ten (10) days from the date on which such payment was due,
Landlord may, an its option, charge Tenant a late charge equal to
ten percent (10%) of the rental payment or other such charge,
which late charge shall be collectible as additional rent and shall
be payable by Tenant to Landlord after written notice from Landlord
to Tenant assessing the same. In addition, Tenant shall be liable
for an administrative charge of Twenty-Five Dollars ($25.00) for
each check or draft which is not honored by the drawee for any
reason.
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13. TOTAL OR PARTIAL
DESTRUCTION.
(a) Tenant shall give prompt notice
to Landlord in case of any fire or other damage to the Premises. If
(i) the Premises shall be damaged by fire or other occurrence
to the extent of more than seventy-five (75%) of the cost of
replacement thereof, or (ii) if the entire building shall be
damaged by fire or other occurrence to the extent of more than
seventy-five percent (75%) of the aggregate cost of
replacement of the entire building, or (iii) the building
shall be damaged by fire or other occurrence and the loss shall not
be covered by Landlord’s insurance or the net insurance
proceeds (after deducting all expenses in connection with obtaining
same) shall, by reasonable anticipation, be insufficient to pay for
the repair or restoration work to be done by Landlord, or
(iv) the Premises shall be damaged by fire or other occurrence
to the extent of more than fifty percent (50%) of the cost of
replacement thereof during the last two (2) years of the term,
then in any such event Landlord may terminate this Lease by notice
given within ninety (90) days after such event and upon the
date specified in such notice, which shall be not less than thirty
(30) days nor more than sixty (60) days after the giving
of said notice, this Lease shall terminate. If the Premises shall
be damaged by fire or other casualty to the extent of more than
fifty (50%) percent of the cost of replacement thereof during
the last two years of the term, Tenant may terminate this Lease by
notice given before Landlord commences any repair or restoration
work and in any event within thirty (30) days after such
damage, and this Lease shall terminate upon the giving of such
notice.
(b) If this Lease shall not be
terminated after damage by fire or other casualty pursuant to the
preceding sub-paragraph, Landlord and Tenant shall, promptly after
receipt of insurance proceeds for such damage and to the extent
that insurance proceeds are available, proceed with the restoration
of the Premises and the building to substantially the condition in
which the same existed prior to the damage with such changes or
additions as Land