EXHIBIT 10.15
LANDLORD:
CONTINENTAL STEWART WAREHOUSE LIMITED
PARTNERSHIP
TENANT:
JOS. A. BANK CLOTHIERS, INC.
LEASE
Dated: May 11, 1994
Continental Stewart Warehouse
4241 Brookhill Road
Baltimore City, Maryland 21215
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TABLE OF CONTENTS
1. PAYMENT OF RENTAL........................................3
2. USE .....................................................3
3. UTILITIES................................................3
4. COMPLIANCE WITH LAWS.....................................3
5. ASSIGNMENT AND SUBLETTING................................4
6. LOADING CAPACITY.........................................5
7. INCREASE IN LANDLORD'S INSURANCE RATES...................5
8. INDEMNIFICATION - LIABILITY INSURANCE....................5
9. ALTERATIONS..............................................5
10. OWNERSHIP OF ALTERATIONS.................................6
11. REPAIRS AND MAINTENANCE..................................6
12. TAX/INSURANCE ESCALATION.................................7
13. DEFAULT..................................................7
14. DAMAGE OR DESTRUCTION....................................8
15. POSSESSION...............................................9
16. EXTERIOR OF PREMISES - SIGNS.............................9
17. RELOCATION...............................................9
18. FOR RENT/SALE SIGNS......................................9
19. RIGHT OF ENTRY...........................................9
20. TERMINATION OF TERM.....................................10
21. CONDEMNATION............................................10
22. SUBORDINATION...........................................10
23. ATTORNMENT..............................................10
24. PARKING AND COMMON FACILITIES...........................11
25. NOTICES.................................................12
26. NON-WAIVER..............................................12
27. SUCCESSORS AND ASSIGNS..................................12
28. SECURITY DEPOSIT........................................12
29. NOTICES TO MORTGAGEE/TENANT
FINANCIAL STATEMENT...................................13
30. ESTOPPEL CERTIFICATE....................................13
31. TENANT REPRESENTATIVE...................................13
32. NO OFFER................................................14
33. CONSTRUCTION............................................14
34. EXISTING EQUIPMENT......................................14
35. WAIVER OF JURY TRIAL AND
RIGHT TO COUNTERCLAIM.................................14
36. BROKERAGE...............................................15
37. LANDLORD'S DEFAULT......................................15
38. RENEWAL OPTION..........................................15
39. HAZARDOUS SUBSTANCES....................................15
40. MISCELLANEOUS...........................................16
41. EARLY TERMINATION RIGHT.................................17
Exhibit A - Plot Plan
Exhibit A-1 - Space Plan
Exhibit A-2 - Survey
Exhibit B - Tax Bill
Exhibit C - Assessment Notice
Exhibit D - Hart Refrigeration Letter
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LEASE AGREEMENT
THIS LEASE, made this day of 11th day of May, 1994, by and
between CONTINENTAL STE-WART WAREHOUSE LIMITED PARTNERSHIP, a Maryland limited
partnership, having an address at P.O. Box 10147, Baltimore, Maryland 21285,
(hereinafter called "Landlord"), and JOS. A. BANK CLOTHIERS, INC., a Delaware
corporation, having an address at 500 Hanover Pike, Hampstead, Maryland
21074-2095 (hereinafter 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 outlined in red on the Plat attached
hereto as Exhibit A, comprising 51,062 square feet, as shown
on Exhibit A-1 said premises being located within a building
known as Continental Stewart Warehouse, 4241 Brookhill Road,
Baltimore City, Maryland 21215, as shown on the survey
attached hereto as Exhibit A-2,
for the term of ten (10) years, beginning sixty (60) days after delivery of
premises to Tenant with Landlord's Work complete, and ending on the last day of
the 120th full calendar month during the term, subject to the early termination
right set forth in Section 41, at and for the annual rental of One Hundred
Fifty-three Thousand One Hundred Eighty-six Dollars ($153,186.00) per annum,
payable in advance, in equal monthly installments, as follows: Twelve Thousand
Seven Hundred Sixty-five Dollars Fifty Cents ($12,765.50) for the first thirty
(30) months of the term; at and for the annual rental of One Hundred Sixty-five
Thousand Nine Hundred Fifty-one Dollars Fifty Cents ($165,951.40) per annum,
payable in advance, in equal monthly installments, as follows: thirteen Thousand
Eight Hundred Twenty-nine Dollars Twenty-nine Cents ($13,829.29) for the thirty
first (31st) through sixtieth (60th) month of the term; at and for the annual
rental of One Hundred Seventy-eight Thousand Seven Hundred Seventeen Dollars
($178,717.00) per annum, payable in advance, in equal monthly installments, as
follows: Fourteen Thousand Eight Hundred Ninety-three Dollars Eight Cents
($14,893.08) for the sixty first (61st) through ninetieth (90th) month of the
term; at and for the annual rental of One Hundred Ninety-one Thousand Four
Hundred Eighty-two Dollars Fifty Cents ($191,482.50) per annum, payable in
advance, in equal monthly installments, as follows: Fifteen Thousand Nine
Hundred Fifty-six Dollars Eighty-seven Cents ($15,956.87) for the ninety first
(91st) month through the one hundred twentieth (120th) month. Landlord and
Tenant agree that once the commencement date is finally determined, Landlord and
Tenant will enter into a separate Lease Commencement Agreement setting forth the
commencement and expiration dates of the Lease. Payments are due on the first
day of each and every month during the term of this Lease, without setoff or
deduction except as specifically hereinafter Bet forth. In the event the term
commences on other than the first day of any calendar month, rental for such
calendar month shall be payable in an amount equal to the product of $12,765.50
multiplied by a fraction the numerator of which is the number of days within the
term during such calendar month and the denominator of which is the number of
days within such calendar month.
All rentals shall be 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 or deduction whatsoever, except as specifically set forth herein.
2. Use. Tenant covenants and agrees to use and occupy the
premises solely for the following purpose: office use, warehousing, and cutting
facility of clothing and related materials and for no other purpose or purposes.
3. Utilities. Landlord shall install a water meter or submeter
at Landlord's expense and thereafter Tenant shall pay all water and sewer
charges for the premises based on such meter readings. Tenant will open its own
account with Baltimore Gas and Electric Company for gas and electricity upon
taking possession of the Premises. Tenant shall timely pay all costs of
electricity, gas, telephone and other utilities used or consumed on the
premises, together with all taxes, levies or other charges on such Utilities.
4. Compliance with Laws. Tenant covenants and agrees that it
will, at its own expense, observe, comply with and execute all laws, orders,
rules, requirements and regulations of all governmental agencies, and all rules,
directions, requirements and recommendations of the local board of fire
underwriters and the fire insurance rating organizations having jurisdiction
over the area in which the premises are situated, or other bodies or
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agencies now or hereafter exercising similar functions in the area in which the
premises are situated, in any way pertaining to the premises or the use and
occupancy thereof, provided, however, that Landlord shall be BO obligated with
respect to the building and those portions of the premises for which Landlord is
responsible in accordance with this Lease. If Tenant receives any violation
notices from any governmental agencies regarding the premises, it agrees to
forward a copy of such notice to Landlord for Landlord's records, together with,
if the correction of such violation is Tenant's responsibility, written
information evidencing Tenant's correction of such violation.
5. Assignment.
(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, and which consent may be withheld for any reason or no reason. 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
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 or
otherwise by operation of law shall not be effective to transfer or 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.
(c) In the event Tenant desires to assign this Lease
other than to an assignee for which Landlord's consent is not required 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.
(d) Notwithstanding anything to the contrary
contained in this Lease, Tenant shall be entitled to assign this Lease upon the
following terms and conditions:
(i) Tenant may, without obtaining
Landlord's consent:
(1) assign or otherwise transfer the
leasehold estate created by this Lease to any "affiliate, of Tenant,
which for purposes of this Lease shall be any entity under common
control with Tenant, or to the parent, or any subsidiary or successor
corporation of Tenant, provided said affiliate has a net worth of Five
Million Dollars ($5,000,000.00) or more; and
(2) merge into or consolidate with
any corporation, provided, following such merger or consolidation, the
net worth of the surviving entity shall be Five Million Dollars
($5,000,000.00) or more; and
(3) assign or otherwise transfer the
leasehold estate created by this Lease: (A) to a purchaser of all or
substantially all of the assets of Tenant, as a going business, or (B)
to the purchaser of the assets comprising a substantial number of
Tenant's locations, provided that in any such instance the acquiring
entity, immediately following such acquisition, assumes directly to
Landlord the obligations to perform and be bound by this Lease for all
payments and performances accruing from and after the date of such
acquisition and has a net worth of Five Million Dollars ($5,000,000.00)
or more.
(ii) In the event Tenant seeks to assign or transfer only the
leasehold estate created by this Lease and does not seek to assign or transfer
in conjunction therewith any of the other locations, assets or shares of Tenant,
Tenant shall, subject (ii), be entitled to effect such acquiring entity has a
net worth more and agrees in writing to be obligations of Tenant under this any
such assignment or transfer o the ensuing provisions of this paragraph an
assignment or transfer provided that the of Five Million Dollars ($5,000,000.00)
or bound by all of the covenants, duties and Lease. However, prior to the
consummation of Tenant shall notify Landlord in writing that such transaction is
being considered, which notice ("Tenant's Transfer Notice") shall set forth (1)
the trade name and legal name of proposed assignee or transferee (which trade
name and legal name shall be deemed to be expressly approved by Landlord for use
at the premises if Landlord does not cancel this Lease as hereinafter provided
in this paragraph), and (2) a description of the business conducted by the
proposed assignee or transferee (which business shall be deemed to be expressly
approved by Landlord as the use of the premises if Landlord does not cancel this
Lease as hereinafter provided in this paragraph). In addition, together with
Tenant's Transfer Notice, Tenant shall provide Landlord with an audited
financial statement of the proposed assignee or transferee. Within thirty (30)
days after the date of Tenant's Transfer Notice, Landlord shall have the right
to terminate this Lease by sending Tenant written notice of such termination
("Landlord's Transfer Termination Notice"). In the event Tenant receives
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Landlord's Transfer Termination Notice, Tenant shall, within thirty (30) days
after Tenant's receipt of Landlord's Transfer Termination Notice, notify
Landlord, in writing, of the date upon which this Lease shall terminate, which
date (A) shall thereafter be the Termination Date, and (B) shall not be more
than twelve (12) months after the date Tenant received Landlord's Transfer
Termination Notice. In the event Tenant does not receive Landlord's Transfer
Termination Notice within thirty (30) days after the date of Tenant's Transfer
Notice, Landlord shall be deemed to have approved the proposed assignment or
transfer, and Tenant may proceed to effect same.
(iii) In the event of any permitted
assignment heretofore described in this paragraph (d), Tenant shall be and
remain liable for the full performance of this Lease and for all payments and
performance falling due or accruing up to the date of any such assignment or
transfer, which liability shall survive the permitted assignment, but Tenant
shall be relieved of any responsibility with respect to any and all covenants,
duties and obligations under this Lease occurring or accruing from and after the
date of any such assignment or transfer.
(iv) No transfer or issuance of the shares
of Tenant shall be regarded as an assignment or transfer of the leasehold estate
created by this Lease to which Landlord's consent shall be required.
(v) No consent of Landlord shall be
required to any pledge or assignment of this Lease or Tenant's interest herein
in connection with the Tenant's general corporate financing or a pledge or
assignment of all or substantially all of Tenant's assets, leases or leasehold
interests.
6. Loading Capacity. Tenant covenants and agrees that it
shall not load the premises beyond its present carrying or loading capacity.
7. 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
thereon, 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 reasonable actions and make any reasonable
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 solely by the occupancy of Tenant and the nature of
the business carried on by Tenant in the premises, or otherwise resulting
directly from any act of Tenant, its agents, servants, employees or customers.
Landlord represents that Tenant's uses of the premises as herein above set forth
do not contravene or affect any policy of insurance now existing or the rate
therefore.
8. Indemnification - Liability Insurance.
(a) Except as may be covered by any policy of
insurance carried or required hereunder to be carried by Landlord, 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
or occasioned wholly or in part (in which event the indemnification shall be
proportional) 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.
(b) Tenant covenants and agrees that it will,
throughout the term of this Lease, carry and pay for public liability insurance
in a company reasonably satisfactory to Landlord naming Landlord as an
additional insured, with combined single limits of liability of not less than
$2,000,000 for bodily injury or death for one person and $5,000,000 for bodily
injury or death to any number of persons in any one occurrence, and $1,000,000
for property damage, and will furnish Landlord with a certificate of same
showing a ten (10) days, notice of cancellation clause. In addition, Tenant
agrees to carry casualty and property damage on its property or on any property
of Landlord which is specifically demised to Tenant pursuant to this Lease,
including water damage and sprinkler leakage legal liability, and Tenant
specifically agrees that Landlord shall have no liability to Tenant for any
property damage arising from any cause whatsoever except for any negligence of
or imputed to Landlord.
(c) Except as may be covered by any policy of
insurance carried or required hereunder to be carried by Tenant, Landlord shall
and does hereby indemnify and save harmless Tenant, its permitted 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 Landlord's use thereof
or occasioned wholly or in part (in which event the indemnification shall be
proportional) by any act or omission of Landlord, 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 Tenant, its permitted
successors or assigns, or which it or they may be obligated to
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incur in consequence thereof.
(d) Landlord and Tenant shall each require their
respective insurers to include in all their insurance policies which could give
rise to a right of subrogation against the other, a clause or endorsement
whereby said insurers shall waive any rights of subrogation against Tenant in
the case of Landlord's insurers or against Landlord in the case of Tenant's
insurers.
9. Alterations. Tenant shall not make any 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. Tenant, may,
without Landlord's consent, make any and all interior, non-structural repairs,
replacements, alterations, additions, improvements or changes to the premises
which Tenant may deem necessary or appropriate. Any alterations, additions or
improvements installed or placed by or for Tenant in the premises (except for
movable furniture, other personally, tailor shop equipment, light fixtures,
trade fixtures and any other property that belongs to Tenant which may be
removed without substantial alteration or damage to the premises), regardless of
when made, may, at the termination of this Lease, at the option of the Landlord,
become the property of Landlord and remain upon the premises.
10. Ownership of Alterations. Unless Landlord shall elect that
all or part of any alteration made by Tenant to the premises (including any
alteration consented to by Landlord pursuant to Paragraph 9 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. Landlord and Tenant agree, however, that with
respect to the Tenant Work set forth in Section 33 of this Lease, such Tenant
Work shall be deemed as having been completed prior to the commencement date of
this Lease and therefore Tenant will not have to remove any of such improvements
upon the expiration or earlier termination of this Lease. 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. Tenant, upon the expiration or earlier termination of
the Term, and/or at any time during the Term, shall have the right to remove
from the premises all trade fixtures belonging to Tenant (including, but not
limited to, movable furniture, other personalty, tailor shop equipment, light
fixtures and any other property of Tenant which may be removed without
substantial alteration or damage to the premises) and all personal property of
Tenant. In the event Tenant shall effect any such removal, Tenant shall be
required to repair any damage to the premises caused by such removal.
11. Repairs and Maintenance.
(a) The premises hereby leased, are leased to Tenant
"As Is," except as specifically provided herein. 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 and replacements to the exterior masonry walls, structural
components, and roof of the premises, 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, provided Landlord commences such repairs within twenty
(20) days (or within the shortest period necessary in order to prevent imminent
death, personal injury or damage, or destruction of property) of written
notification from Tenant and diligently pursues same to completion. Tenant
agrees to carry a maintenance and/or service agreement or policy on the HVAC
system in the premises; provided Tenant carries such policy and supplies
evidence to Landlord of same upon request, Landlord will warrant the repair or
replacement of any major component (e.g. heat exchangers, compressor, condenser,
motors) in the HVAC system during the first twelve (12) months of the Lease.
Tenant will, at the expiration of the term or at the sooner termination, deliver
up the premises and any equipment specifically demised to Tenant hereunder in
the same good order and condition as they were at the beginning of the tenancy,
reasonable wear and tear excepted. 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 at its own expense and will
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keep such refuse in proper containers inside the premises until removed.
Tenant's "proportionate share" of such cost shall be the same percentage of the
total cost as the square foot area demised to Tenant bears to the total square
foot leasable area of the entire building. Tenant further agrees that it will
not install any additional electrical and/or plumbing capacity 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.
The foregoing restrictions shall not apply to any distribution or redistribution
of electrical and/or plumbing capacity exclusively serving the premises by
Tenant within such premises.
(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 twenty (20) days (or within the shortest
period necessary in order to prevent imminent death, personal injury or damage,
or destruction of property) of written notification from Landlord and/or
thereafter diligently pursue such repairs or perform such obligations to
completion, 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 lose or damage resulting from any such
action by Landlord except in the event of negligence of or imputed to Landlord,
and Tenant agrees to pay promptly upon demand any Cost or expense incurred by
Landlord in taking such action.
12. Tax/Insurance Escalation. Notwithstanding the gross
leasable area shown on Exhibit A, Landlord represents and warrants that the
gross leasable area of the building is 160,840, per Landlord's rent roll. The
premises hereby leased comprise approximately thirty-one and seven tenths
percent (31.7%) (51,062/premises square footage divided by 160,840/gross
leasable area of the building as of the date of this Lease) of the total land
and/or buildings within which the premises are located.
(a) Tenant agrees to pay Landlord as additional rent,
thirty-one and seven tenths percent (31.7%) of any increases in real estate
taxes assessed against the land and/or buildings), in excess of the taxes for
the 1994/1995 fiscal year (July 1, 1994 - June 30, 1995), whether as a result of
an increase in the tax rate, or the levy, assessment or imposition of any tax on
real estate as such not now levied, assessed or imposed. Tenant's proportionate
share shall be paid to Landlord within thirty (30) days after being billed
therefor, not more than once per year. The foregoing shall apply to increase in
real estate taxes assessed against the land or buildings) generally, and not
resulting from improvements placed thereon by Tenant. In the event of any
increases in real estate taxes resulting from improvements, alterations or
additions made by Tenant, Tenant shall pay the entire amount of said increase,
provided, however, that increases resulting from improvements, alterations or
additions made by other tenants in the building shall be paid for by Landlord or
such other tenants prior to the calculation of Tenant's share of real estate
taxes. (Appraiser's worksheet shall be the sole determinate of how such
increases resulted.) If this Lease shall be in effect for less than a full
fiscal year, Tenant shall pay its pro rata share of taxes, based upon the number
of months that this Lease is in effect. "Taxes" as used herein shall include,
but not by way of limitation, all paving taxes, special paving taxes,
Metropolitan District Charges, and any and all other benefits or assessments
which may be levied on the premises or the land and/or buildings) in which the
same are situate, and shall also include any reasonable legal fees or costs
incurred by Landlord in contesting any such benefits or assessments, but shall
not include any income tax on the income or rent payable hereunder. Attached
hereto as Exhibits B and C, respectively, are copies of the tax bill for the
land and building for the 1993/1994 fiscal year and all current assessment
notices for the land and building, which notices contain, inter alia, the
assessment for 1994/1995 fiscal year. Landlord represents that such copies are
true, correct and complete reproductions of the originals. Any penalties or
interest for late payments of real estate taxes shall not be included in the
definition of real estate taxes and shall be the sole responsibility of
Landlord. If any real estate taxes may be paid in installments, Landlord shall
cause such real estate taxes to be paid over the longest installment period
permitted and only the installment coming due during the Term shall be included
within real estate taxes hereunder. All refunds, rebates and discounts received
by Landlord in connection with such real estate taxes shall be deducted prior to
the calculation of Tenant's proportionate share of the real estate taxes.
Landlord warrants and represents to Tenant that none of the expenses included
within Tenant's proportionate share of real estate taxes shall be included
within any other charge payable under this Lease. The definition of real estate
taxes shall not include any inheritance, estate, succession, transfer, gift,
franchise, corporation, income or profit tax that is or may be imposed upon
Landlord. Tenant shall have the right to audit Landlord's books and records from
time to time, but not more often than once per tax year and only if Landlord
fails to provide Tenant with a copy of the tax bill from which Landlord computed
Tenant's proportionate share as well as copies of back-up bills for any other
items properly included within the real estate taxes billed to Tenant.
(b) Tenant agrees to pay, as additional rent,
thirty-one and seven tenths percent (31.7%), of any increases in premiums for
any insurance (including but not limited to property and liability premiums)
which shall be maintained by Landlord in respect to the building over the
premiums for such insurance for the first twelve (12) month period covered by
such insurance beginning on or after the commencement date of the term.
Insurance premiums for the base year, October 1, 1993 - September 30, 1994, the
current insurance year, total $8,162.00. Landlord estimates that insurance
premiums for next year's insurance year, October 1, 1994 - September 30, 1995,
will total $9,800.00. Tenant's proportionate share shall be paid to Landlord
within thirty (30) days after being billed therefor, not more than once per
year.
13. Tenant's Default.
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(a) Tenant shall be deemed in default upon the
occurrence of any one or more of the following circumstances: (i) if Tenant
shall fail to pay any rent, fee, charge or other amount due Landlord hereunder
within ten (10) days after notice that the same has become due, all of which
shall be deemed to be "rent" pursuant to this Lease; or (ii) if Tenant shall
fail to commence performance of any non-monetary term, condition or covenant of
this Lease applicable to Tenant within twenty (20) days after written notice of
such failure from Landlord or shall fail to thereafter diligently prosecute
completion thereof; or (iii) if Tenant or an agent of Tenant shall falsify any
report required to be furnished to Landlord pursuant to the terms of this Lease;
or (iv) if Tenant is adjudicated by final non-appealable order 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 contested
within the period allowed by applicable rule or law and thereafter diligently
defended to dismissal, or if Tenant seeks or consents to any of the relief
herein above enumerated in this subparagraph or files a voluntary petition of
bankruptcy or insolvency or makes an assignment of all or substantially all of
its assets for the benefit of creditors or admits in writing its inability to
pay its debts generally as they come 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 shall suffer this Lease to be taken under any writ of execution.
(b) Landlord may exercise any right under this
Section without service of notice except as otherwise set forth herein or resort
to legal process and without being deemed guilty of trespass, or becoming liable
for any lose or damage which may be occasioned thereby. Any notice of default
shall also operate as a Notice to Quit and Tenant hereby expressly waives any
other notice required by law.
(c) Upon default by Tenant, this Lease shall, at
Landlord's option, cease and terminate. Upon default by Tenant, Landlord upon
not less than 3 days' notice may re-enter the premises, using such force as may
be necessary, and remove all persons and chattels therefrom and store such
property in a public warehouse or elsewhere at the cost of, and for the account
of, Tenant. Landlord shall not be liable (except in the event of negligence of
or imputed to Landlord) in damages or otherwise by reason of reentry or
termination of the term of this Lease nor shall such re-entry or termination
waive, bar, or in any way prejudice any other remedies available to Landlord.
Notwithstanding such termination, the liability of Tenant for any rent provided
for herein shall not be extinguished for the balance of the lease term remaining
after said termination, and Landlord shall be entitled to recover immediately as
liquidated damages an amount equal to the present value (calculated at prime) of
the monthly rent and additional rent for the balance of the lease term, times
the number of months remaining in the balance of the lease term.
(d) In the event of any default hereunder by Tenant,
Landlord may upon not less than three (3) days' notice or any time thereafter
cure such default for the account, and at the expense of, Tenant. In the case of
an emergency, Landlord need not give Tenant any notice before undertaking to
cure Tenant's default. If Landlord at any time, by reason of such default, is
compelled to pay or elects to pay any sum of money or do any act that will
require the payment of any sum of money, or is compelled to incur any expense,
the sum or sums so paid by Landlord, plus an additional fifteen percent (15%) of
such sum or sums for administrative or overhead expenses shall be deemed to be
additional rent hereunder and shall be due from Tenant to Landlord on the first
day of the month following Landlord's payment of such respective SUMB or
expenses but not less than thirty (30) days after invoice to Tenant.
(e) Tenant shall, at the expiration or termination of
this Lease, yield possession to Landlord, and, failing to do so, shall pay as
liquidated damages for each day possession is withheld an amount per day equal
to one-fifteenth (1/15th) of the monthly rent, or the highest amount permitted
by law, plus other damages caused by Tenant's failure to yield Possession. All
rights and remedies of Landlord herein enumerated shall be cumulative and none
shall exclude any other right or remedy allowed by law and said rights and
remedies may be exercised and enforced concurrently and whenever and as often as
occasion therefor arises. Notwithstanding anything in this Lease to the
contrary, Landlord hereby forever waives and relinquishes any lien (contractual,
statutory or otherwise) which Landlord may have or claim upon Tenant's chattels,
movable and non-movable fixtures, furniture, equipment, machinery, inventory and
any other property now or hereafter located at the Premises and belonging to
Tenant. In the event Landlord shall take possession of the Premises for any
reason, Landlord shall so notify Tenant and shall permit Tenant to remove such
property therefrom. The waiver of any breach of this Lease shall not constitute
a waiver of the term, covenant or condition breached or of any subsequent breach
of the same or any other term, covenant or condition of this Lease; and the
acceptance of payment or rent during the continuance of any breach of this Lease
shall not constitute a waiver of such breach. Rent including any fee, charge or
other amount due from Tenant hereunder may be recovered by Landlord from Tenant
by distress or action or by any legal process as may at the time be in operation
and force relating to proceedings between landlords and tenants.
(f) Landlord may relet the whole or any portion of
the Premises, for any period equal to or greater or less than the period which
would have constitute the balance of the Term, for any sum which Landlord may
deem reasonable, to any tenant(s) which Landlord may deem suitable and
satisfactory, and for any use
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and purposes which Landlord may deem appropriate, and Landlord may grant
concessions of free rent. Landlord shall in no event be liable in any way
whatsoever for its failure or refusal to relet the Premises or any part thereof,
or in the event that the Premises are relet for its failure to collect the rent
under such reletting, and no such refusal or failure to relet or failure to
collect rent shall release or affect Tenant's liability for damages or otherwise
under this Lease. Notwithstanding anything in this Lease to the contrary,
Landlord agrees that it is obligated to act in good faith in dealing with any
prospects proposed by Tenant.
(g) In the event Tenant fails to pay Landlord any
rent including any other charge due hereunder, also deemed to be rent, within
ten (10) days from the date on which any such payment was due, Landlord may, at
its option, charge Tenant a late charge equal to fifteen percent (15%) of the
rental payment or other such charge, which late charge shall also be collectible
as rent and shall be payable by Tenant to Landlord within ten (10) days after
written notice from Landlord to Tenant assessing the same. Landlord agrees,
however, that it shall not assess any late charge against Tenant until the
second time during the Term that Tenant fails to pay Landlord any rent due
hereunder, within ten (10) days from the date on which any such payment was due.
14. Damage or Destruction.
(a) If, during the Lease term, the premises hereby
leased are damaged by fire or other casualty, but not to the extent that Tenant
is prevented from carrying on business in the Premises, Landlord shall promptly
cause such damage to be repaired; if such damage renders any portion of the
premises untenantable, the rent reserved hereunder (except Tenant's share of any
charges for water) shall be reduced during the period of its untenantability
proportionately to the amount by which the area so rendered untenantable bears
to the entire area leased hereunder, and such reduction shall be apportioned
from the date of the casualty to the date when the leased premises are rendered
fully tenantable. Notwithstanding the foregoing, in the event such fire or other
casualty damages or destroys any of Tenant's leasehold improvements,
alterations, betterments, fixtures or equipment, including Landlord's equipment
specifically demised to Tenant hereunder, Tenant shall cause the same to be
repaired or restored at Tenant's sole cost and expense and Landlord shall have
no liability for the restoration or repair thereof.
(b) If, during the Lease term, the premises, or a
substantial portion of the building in which the premises is situated is
rendered wholly untenantable as the result of fire, the elements, unavoidable
accident or other casualty, Landlord shall have the option to terminate this
Lease, such option to be exercised by Landlord by written notice to Tenant
within thirty (30) days after the fire, accident or casualty. If, during the
Lease term, the premises are rendered wholly untenantable as the result of fire,
the elements, unavoidable accident or other casualty, Tenant shall have the
option to terminate this Lease, such option to be exercised by Tenant by written
notice to Landlord within thirty (30) days after the fire, accident or casualty.
If, during the Lease term, a substantial portion of the premises is damaged (as
hereinafter defined) as the result of fire, the elements, unavoidable accident
or other casualty, then either Landlord or Tenant shall have the option to
terminate this Lease, such option to be exercised by written notice to the other
within fifteen (15) days after the expiration of the thirty (30) day period
provided for in the sentence following. For the purpose of the immediately
preceding sentence, a substantial portion of the premises shall be deemed to
have been damaged if Landlord as a result of the extent of the fire, accident or
casualty does not restore the premises within thirty (30) days following the
fire, accident or casualty to its condition on the date Landlord delivered the
premises to Tenant after completion of Landlord's Work pursuant to Section 33(a)
of this Lease. In the event neither party elects to terminate this Lease as
aforesaid, and Landlord has restored the premises as specified herein within
thirty (30) days following the fire, accident or casualty, Tenant shall promptly
and diligently perform the balance of the work necessary to restore the premises
to its condition after the completion of Tenant's Work specified in Section
33(b) herein.
Except in the case of substantial damage, wherein Landlord is
required to complete its restoration work within thirty (30) days following the
date of the casualty, all restoration performed pursuant to this Section 14
shall be completed as promptly as reasonably possible and the rent reserved
hereunder shall abate until the earlier of thirty (30) days after the premises
are again rendered tenantable or the date Tenant recommences manufacturing
operations at the premises; and in the event this Lease is not earlier
terminated and Landlord undertakes to restore the premises and such restoration
is not completed within 180 days after the casualty, Tenant shall have the right
to terminate this Lease.
15. Possession. In case possession of the premises, in whole or
in part, cannot be given to Tenant on or before sixty (60) days prior to the
commencement date of the term of this Lease, Landlord agrees to abate the rent
and additional rent proportionately until sixty (60) days after possession is
given to Tenant, and Tenant agrees to accept such pro rata abatement as
liquidated damages for the failure to obtain possession on the commencement date
herein specified. The parties hereto covenant and agree that if the term of this
Lease commences on a date other than the date herein specified, they will, upon
the request of either of them, execute an agreement in recordable form setting
forth the new commencement and termination dates of the Lease term. Under no
circumstances shall Landlord be under any liability for failure to deliver
possession of the premises to Tenant on the date herein specified, except that
if Landlord fails to deliver to Tenant possession of the premises with
Landlord's Work as set forth in Section 33, (a), (i)-(iii), completed on or
before July 1, 1994, Tenant shall have the right to terminate this Lease.
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16. Exterior of Premises - Signs.
(a) Tenant covenants and agrees that it will not
place or permit any sign or other thing of any kind, in or about the exterior of
the premises or the building in which the premises are situate, nor paint or
make any change in, to or on the exterior of said premises to change the uniform
architecture, paint or appearance of the building, without in each such instance
obtaining the prior written consent of Landlord.
(b) Tenant further covenants and agrees not to pile
or place anything on the sidewalk, parking lot or other exterior portion of the
building, nor block the sidewalk, parking lot or other exterior portion of the
premises or building, nor do anything that directly or indirectly will interfere
with any of the rights or ingress or egress or of light from any other tenants,
nor do anything which will, in any way, change the uniform and general design of
any property of Landlord in which the premises are situate.
17. Relocation. Deleted.
18. For Rent/Sale Signs. Landlord shall have the right to
place a "For Rent" sign on any portion of the exterior of said premises for six
(6) months prior to termination of this Lease and to place a "For Sale" sign on
the exterior thereof at any time. Subject to Section 19, during such six month
period, Landlord may show the premises and all parts thereof to prospective
tenants between the hours of 9:00 a.m. and 5:00 p.m. on any day except Saturday
(unless Tenant shall otherwise then be operating the premises), Sunday or any
legal holiday on which Tenant shall not be open for business.
19. Right of Entry. Subject to the hereinafter set forth
conditions, Landlord and its agents, servants, employees, including any builder
or contractor employed by Landlord, shall have the right, license and
permission, at any and all reasonable times, to enter and inspect the premises
or any part thereof, and at the option of Landlord, to make such reasonable
repairs and/or changes in the premises to enforce and carry out any provision of
this Lease. Any non-emergency entry by Landlord, or anyone acting by, through or
under Landlord, shall be made at a time when Tenant is open and operating. No
portion of the premises is open to members of the general public and Bo neither
Landlord, nor anyone acting by, through or under Landlord, shall enter upon any
portion of the premises in a non-emergency entry unless accompanied by a
representative of Tenant. No work performed by or on behalf of Landlord in the
premises shall unreasonably interfere with the continuation of Tenant's
operations therein, and such work shall not interrupt the production schedule of
Tenant, and Landlord shall use all reasonable precautions for the protection of
Tenant's property. Landlord shall be responsible for restoring the premises
following, and for any damage caused by, any such work.
20. Termination of Term. It is agreed that the term of this
Lease shall expire and terminate at the end of the original term hereof (or at
the expiration of the last renewal term, if this Lease contains a renewal option
and the same is properly exercised), without the necessity of any notice by or
to any of the parties hereto, unless otherwise provided herein. If Tenant shall
occupy the premises after such expiration or termination, it is understood that
Tenant shall hold the premises as a tenant from month-to-month, subject to all
the other terms and conditions of this Lease.
21. Condemnation.
(a) If, during the term of this Lease, all of the
premises or such portion thereof such that the remainder is insufficient (in
Tenant's reasonable judgment) for the continuation of operations therein shall
be taken by or under power of eminent domain, this Lease shall terminate as of,
and the rent (basic and additional) shall be apportioned to and abate from and
after, the date of taking. Tenant shall have no right to participate in any
award or damages for such taking and hereby assigns all of its right, title and
interest therein to Landlord.
(b) If, during the Lease term, less than such
portion of the premises is taken by or under power of eminent domain, this Lease
shall remain in full force and effect according to its terms; and Tenant shall
not have the right to participate in any award or damages for such taking and
Tenant hereby assigns all of its right, title and interest in and to the award
to Landlord. In such event Landlord shall, at its expense, promptly make such
repairs and improvements as may be necessary to make the remainder of the
premises adequate to permit Tenant to carry on its business to substantially the
same extent and with substantially the same efficiency as before the taking;
provided that in no event shall Landlord be required to expend an amount in
excess of the award received by Landlord for such taking. If, as a result of
such taking, any part of the premises is rendered permanently unusable, the
basic annual rent reserved hereunder shall be reduced in such amount as may be
fair and reasonable, which amount shall not exceed the proportion which the area
so taken or made unusable bears to the total area which was usable by Tenant
prior to the taking. If the taking does not render any part of the premises
unusable, there shall be no abatement of rent.
(c) Nothing herein shall be deemed to prevent
Tenant from claiming and receiving from the condemning authority, if legally
payable, compensation for the taking of Tenant's own tangible property and such
amount as may be payable by statute or ordinance toward Tenant's damages for
Tenant's loss of business,
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removal and relocation expenses.
22. Subordination. Provided the holder of such mortgage or deed of
trust agrees not to disturb Tenant in its use and occupancy of the premises
hereunder, this Lease shall be subject to and subordinate at all times to the
lien of any mortgages and/or deeds of trust now or hereafter to be made
thereunder unless the mortgagee or holder of the deed of trust elects to have
Tenant's interest hereunder superior to the interest of the mortgagee or holder
of such deed of trust. This subordination provision shall be self-operative and
no further instrument of subordination shall be required. Landlord covenants and
agrees to make best efforts to obtain for and provide to Tenant from each
lender, mortgagee, trustee under a deed of trust, beneficiary under a deed of
trust, underlying landlord or other party whose title is now or might hereafter
become superior to the title of Landlord, or who may have perfected or may
perfect any title that might otherwise cause a termination of this Lease, a
written agreement, providing that Tenant's use, occupancy and possession of the
premises, and other rights, under this Lease will not be disturbed so long as
Tenant is not then deemed to be in default hereunder at the time any such
superior party (or anyone taking under such superior party) shall succeed to the
interest of Landlord hereunder.
23. Attornment.
(a) If Landlord assigns this Lease or the rents
hereunder to a creditor as security for a debt, Tenant shall, after notice of
such assignment and upon demand by Landlord or the assignee, make all sums
thereafter becoming due Landlord hereunder payable both to Landlord and such
assignee and shall mail such sums as set forth in said notice. Tenant shall
also, upon receipt of such notice, have all policies of insurance required
hereunder endorsed so as to protect the assignee's interest as it may appear and
shall deliver such policies, or certificates thereof, to assignee. Tenant shall
be entitled to rely upon any notice from any such assignee, or any individual
acting or apparently acting on behalf of such assignee, and Tenant shall not be
obligated to ascertain whether such assignee, under the circumstances then
existing, has the right to demand payment of the rent. In the event of any
conflict between the terms of this Lease and the terms of such notice, the terms
of this Lease shall control.
(b) In the event the premises are sold at any
foreclosure sale Or Bales, or by deed in lieu of foreclosure, by virtue of any
judicial proceedings or otherwise, this Lease shall continue in full force and
effect and Tenant agrees, upon request, to attorn to and acknowledge the
foreclosure purchaser or purchasers at such sale as the landlord hereunder;
provided such purchasers) agrees to assume Landlord's obligations and to
recognize Tenant's rights hereunder.
24. Parking and common Facilities.
(a) Landlord hereby further demises and leases to
Tenant the right to use the parking spaces within the parking lot adjacent to
the building (which parking spaces are outlined in red on the site plat attached
hereto) for the use solely of Tenant's employees, agents, officers and invitees
and Landlord agrees to restripe a portion of such spaces for handicapped parking
space(s), as required by law, before June 15, 1994. Section 16(b) herein to the
contrary notwithstanding, Tenant shall have the right to install, at Tenant's
sole expense, and subject to Landlord's prior approval as to size and type,
sign(s) designating the parking area or spaces reserved for Tenant's exclusive
use. Tenant agrees not to use, and not to permit its employees, agents, officers
and invitees to use, any other parking spaces except the parking spaces made
available to Tenant by Landlord and such other parking spaces on the site which
are not dedicated from time to time to the exclusive use of other tenants of the
building, and which such other parking, if any, will be in common with all other
tenants of the building. Tenant agrees that it will, at Landlord's request,
furnish Landlord with a list of license plate numbers of all automobiles
regularly used by Tenant's employees, agents, officers and invitees. Tenant
further agrees that if any automobiles of Tenant's agents, employees, officers
or invitees are found in parking areas designated for use by other tenants in
the building, Landlord shall have the right to have such improperly parked
vehicles towed away by a towing company designated by Landlord, and Tenant shall
pay Landlord, upon demand, all costs incurred by Landlord. Landlord reserves the
right to relocate (but not to an area farther from the premises than the
original spaces) any of Tenant's parking spaces by reassigning to Tenant other
parking spaces within the property shown on the site plan attached hereto for
the exclusive use of Tenant's employees, agents, officers and invitees; provided
Landlord gives Tenant written notice of such reassignment at least ten (10) days
prior to the effective date thereof. In the event Landlord gives such notice to
Tenant, Tenant shall instruct all of its employees, agents, officers and
invitees to use only the reassigned spaces and to cease use of the spaces
formerly assigned. Landlord further demises and leases to Tenant the exclusive
right to use that portion of the common area outlined in green on the location
plan attached hereto as Exhibit A. Such area shall be used by Tenant for loading
and unloading and for the permanent location of one or more trash dumpsters.
(b) For purposes of this Lease, common areas and
facilities shall mean all areas, space, equipment and services provided by
Landlord for the common use and benefit of tenants of the building, their
employees, agents, servants, customers and other invitees; such common
facilities shall include without limitation parking areas, lighting fixtures,
access roads, retaining walls, landscaped areas, toilet facilities, common
hallways, mechanical equipment and pedestrian walkways as Landlord shall
designate. The fact that exclusive use
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of some portions of the common area has been given to a tenant does not operate
to remove such portions from the definition of "common areas and facilities.,
(c) Tenant further agrees to pay Tenant's
proportionate share (as hereinafter defined) of Landlord's costs of operating,
maintaining, and repairing the common areas and facilities, including, but not
limited to, elevators, stairwells, loading areas, parking areas, pavements and
walkways, and the cost of utilities for such common areas and facilities. Such
cost shall not include the cost of any capital improvements to the building as
determined under sound accounting principles or work which Landlord performs
specifically for or at the expense of any tenant of the building. As used
herein, Tenant's "proportionate share" shall mean the same proportion of such
costs and expenses heretofore described as the square foot area leased to Tenant
bears to the total leasable square foot area of the building or thirty-one and
seven tenths percent (31.7%). Tenant's pro rata share of common area costs shall
not in any event include: (a) any depreciation expense; (b) the cost of capital
improvements made to the building and/or the property; (c) the cost of
Landlord's federal, state or local income taxes; (d) the expense of principal
and interest payments made by Landlord pursuant to the provisions of any
mortgage or deed of trust covering any or all of the property and/or the
expenses of rental payments made by Landlord pursuant to any grant or lease
covering any or all of the property; (e) charges or fees for, or taxes on, the
furnishing of water, sewer service, gas, fuel, electricity or other utility
services to those portions of the building which are leased to tenants; (f) the
cost of providing janitorial or trash removal service to those portions of the
building which are leased to tenants; or (g) the cost of removing any Hazardous
Materials located in the building and/or the property and/or complying with all
Environmental Laws. Landlord warrants and represents that none of the expenses
included in determining Tenant's pro rata share of common area costs shall be
included in any other charge payable under this Lease. Tenant shall have the
right to audit Landlord's books and records from time to time, but not more
often than once per year, to verify the accuracy of the statements being
provided by Landlord with respect to common area costs; Tenant shall only be
permitted to audit for the prior year and if such a request is not made within
ninety (90) days after receipt of Landlord's billing, then Landlord's billing
for that year shall be deemed conclusive. Notwithstanding anything in this Lease
to the contrary, Tenant's pro rata share shall not exceed $.10 per square foot
for the first Lease year.
(d) Landlord shall notify Tenant from time to time
of the amount which Landlord reasonably estimates will be the amount payable by
Tenant in accordance with paragraph (c) above, and Tenant shall pay such amounts
to Landlord in equal monthly installments, in advance, on the first day of each
month, simultaneously with payments of the rent reserved pursuant to page 1
hereof. Within a reasonable period of time following the end of each annual
period of the term, Landlord shall submit to Tenant a statement showing the
actual amounts incurred by Landlord as set forth in paragraph (c), the amount
theretofore paid by Tenant, and the balance payable by, or overpayment owed to,
Tenant. Tenant shall pay said balance within thirty (30) days from the date of
such statement. In the event Tenant has made any overpayment, such overpayment
shall be credited by Landlord against the next installment or installments of
rent which are due and payable hereunder, or if the term of this Lease has
expired, such overpayment shall be refunded by Landlord to Tenant, without
interest, within ten (10) days after the date of such statement. Each such
statement submitted by Landlord shall be final and conclusive between the
parties hereto as to the matters therein set forth, if no objection is raised
with respect thereto within ninety (90) days after submission of each such
statement.
(e) Except as hereinafter specifically set forth,
Landlord shall at all times have the right and privilege of determining the
nature and extent to which such common facilities may be used, and of making
such changes, rearrangements, additions or reductions therein or thereto, which
in Landlord's opinion are deemed to be desirable and in the best interests of
all tenants of the building, or which are required as the result of any law or
regulation. Tenant agrees that Landlord may establish and from time to time
change, alter and enforce against Tenant such reasonable rules and regulations
as Landlord may deem necessary or advisable for the proper and efficient use,
operation and maintenance Of such common facilities. Landlord shall, at all
times, have sole and exclusive control, management and direction of such common
facilities, and may, at any time and from time to time, exclude and restrain any
person from use or occupancy thereof (for good cause, if the person to be
excluded or restrained is an employee, agent, officer, invites or contractor of
Tenant). It shall be the duty of Tenant to keep any such facilities which Tenant
is permitted to use free and clear of any obstructions created or permitted by
Tenant or resulting from Tenant's use. Tenant shall be fully liable for any
damage to any such facilities resulting from the negligence or misuse by Tenant,
its agents, employees, contractors or invitees. Except as otherwise specifically
set forth herein, Landlord may, at any time and from time to time, either
temporarily or permanently, close all or any portion of such common facilities
to make repairs or changes, and to do and perform such other acts as, in the
exercise of good business judgment, Landlord shall determine to be advisable
with a view to the improvement of the convenience and use thereof by tenants,
their employees, agents and invitees. Notwithstanding anything contained herein
to the contrary or Landlord's authority to promulgate new or modify existing
rules or regulations, (i) Tenant shall not be required to comply with any rule
or regulation which either increases Tenant's obligations or decreases Tenant's
rights hereunder; (ii) Landlord shall notify Tenant in writing of all rules and
regulations from time to time established and (iii) in the event of any conflict
between this Lease and any rule or regulation, this Lease shall control and
prevail. Notwithstanding anything to the contrary contained herein, Landlord
shall not alter the nature or utility of that portion of the common facilities
of which Tenant has been granted exclusive possession pursuant to Section 24(a);
(ii) reduce the number of, or
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relocate farther from the premises the parking spaces granted to Tenant pursuant
to Section 24(a); or (iii) alter or reduce in a manner not reasonably acceptable
to Tenant the exterior lighting of the building or parking lot.
25. Notices. Any notice required by this Lease shall be sent
by certified mail to Landlord at: 17 West Pennsylvania Avenue, Baltimore,
Maryland 21204, Attention: Lawrence Rief, with copy to Legal Department, P.O.
Box 10147, Baltimore, Maryland 21285. Any notice required by this Lease shall be
sent by certified mail to Tenant at: 500 Hanover Pike, Hampstead, Maryland
21074-2095, Attention: Mr. Timothy P. Finley with a copy to Tenant's General
Counsel at the same address (if no other address specified, such notices to
Tenant shall be addressed to the leased premises). Either party may, at any
time, or from time to time, designate in writing a substitute address for that
above set forth, and thereafter all notices to such party shall be sent by
certified mail to such substitute address.
26. Non-Waiver. It is understood and agreed that nothing
herein shall be construed to be a waiver of any of the terms, covenants or
conditions herein contained, unless the same shall be in writing, signed by the
party to be charged with such waiver and no waiver of the breach of any covenant
herein shall be construed as a waiver of such covenant or any subsequent breach
thereof. No mention in this Lease of any specific right or remedy shall preclude
Landlord or Tenant from exercising any other right or from having any other
remedy or from maintaining any action to which it may be otherwise entitled
either at law or in equity.
27. Successors and Assigns. Except as herein provided, this
Lease and the covenants and conditions herein contained shall inure to the
benefit of and be binding upon Tenant, its successors and assigns, and shall
inure to the benefit of Tenant and only such assignees of Tenant to whom an
assignment by Tenant has been consented to in writing by Landlord or to whom an
assignment is otherwise permitted hereunder.
In the event Landlord's interest under this Lease is
transferred or assigned and written notice thereof is given to Tenant, the
Landlord herein named (or any subsequent assignee or transferee of Landlord's
interest under this Lease who gives such notice to tenant) shall automatically
be relieved and released from and after the date of such transfer or conveyance
from all liability hereunder. Further, in the event of any sale or transfer of
the fee of any premises which includes the premises (other than a sale with the
leaseback to the grantor) or any assignment of any ground or underlying lease of
any premises which includes the premises, the grantor, transferror, or assignor,
as the case may be, shall be and hereby is entirely relieved and freed of all
obligations under this Lease from and after the date of such sale or transfer or
assignment. Further, the liability of Landlord, its successors and assigns,
under this Lease shall at all times be limited solely to Landlord's interest in
the building and property of which the premises is a part and the rents and
insurance therefrom. In the event the owner of Landlord's interest in this Lease
is at any time an individual, partnership, joint venture or unincorporated
association, Tenant agrees that such individual or members or partners of such
partnership, joint venture or unincorporated association shall not be personally
or individually liable or responsible for the performance of any of Landlord's
obligations hereunder.
28. Condition at End of Term/Security Deposit.
(a) Tenant agrees that at the expiration of this
Lease, or its earlier termination, there shall be no damage to the premises
demised hereunder, nor to Landlord's equipment as set forth in Section 34,
beyond ordinary wear and tear, and Tenant further agrees that the premises and
any equipment demised hereunder shall be left in a clean, operating condition
and in good order with all debris, rubbish and trash placed in proper
containers. Tenant shall return all keys to the premises to Landlord. Landlord
reserves the right to request that any alterations, improvements, additions made
by Tenant during the term shall be removed and the premises be restored to its
original condition. Notwithstanding anything in this Lease to the contrary,
however, Landlord agrees that with respect to the equipment set forth in Section
34, in the event Tenant replaces any such item, then Tenant shall not be
obligated to leave the replacement in place at the expiration of the term.
(b) Landlord reserves the right, pursuant to Section
29, that if the net worth of the Tenant at any time drops below Five Million
Dollars ($5,000,000.00), as evidenced by the annual audited financial statement
Tenant is required to supply to Landlord, then Landlord may demand a security
deposit from Tenant of Sixteen Thousand One Hundred Dollars ($16,100.00), which
sum represents a security deposit for the faithful performance of Tenant's
obligations under this Lease. Tenant will, upon such demand from Landlord, pay
said deposit to Landlord within ten (10) days.
Thereafter, Tenant agrees that Landlord shall
have the right, but not the obligation, to apply said security deposit or any
portion thereof to cure or remedy any default by Tenant hereunder, including
default in the payment of rent. Landlord may also, at the end of the term, apply
said deposit in accord with the Maryland Annotated Code provision relating to
security deposits. Said deposit, if not sooner applied, shall be returned to
Tenant, without interest, within thirty (30) days after vacating of the premises
by Tenant and termination of this Lease (or upon termination of the last renewal
term of this Lease if this Lease contains a renewal option and Tenant exercises
said option); provided (i) Tenant is not then in default under any of the
provisions of this Lease; (ii) there is no damage to the premises beyond
ordinary wear and tear and the premises and any equipment demised hereunder have
been left in a clean condition and in good order with all debris, rubbish and
trash placed in proper
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containers; (iii) all keys to the premises have been returned to the Landlord;
and (iv) Tenant's forwarding address has been left with Landlord.
Notwithstanding anything in this Lease to the contrary, however, Landlord
expressly reserves the right to apply all or any portion of the security deposit
against any unamortized portion of any commission paid to any real estate
brokers in conjunction with this Lease, in the event this Lease is terminated
prior to its scheduled expiration.
Tenant further agrees that Landlord shall be
entitled to commingle said security deposit with its own funds.
29. Notices to Mortgagee/Tenant Financial Statement. Tenant
agrees that a copy of any notice of default from Tenant to Landlord shall also
be sent to the holder of any mortgage or deed of trust on the premises, provided
Tenant has been given written notice of the fact that such mortgage or deed of
trust has been made; and Tenant shall allow said mortgagee or holder of the deed
of trust a reasonable time, not to exceed thirty (30) days from the receipt of
said notice, to cure, or cause to be cured, any such default. If such default
cannot reasonably be cured within the time specified herein, then such
additional time as may be necessary shall be allowed, provided the curing of
such default is commenced and diligently pursued (including, but not limited to,
commencement of foreclosure proceedings if necessary to effect such cure) in
which event this Lease shall not be terminated while such remedies are being
thus diligently pursued. Tenant (and the guarantor of this Lease, if this Lease
is guaranteed) shall at any time and from time to time (but not more than once
per year), within fifteen (15) days of written request by Landlord, deliver to
Landlord Tenant's most recently prepared annual audited financial statement.
Tenant represents to Landlord that as of the date of execution of this Lease,
Tenant has a net worth of at lease Five Million Dollars ($5,000,000.00). If at
any time Tenant's net worth drops below Five Million Dollars ($5,000,000.00) as
set forth in said annual statement, Landlord reserves the right to request the
security deposit. Landlord agrees to hold all Tenant supplied statements
strictly confidential. Such statements, and the information shown therein, may
be disclosed by Landlord to current or prospective lenders or purchasers of the
property but may not be disclosed to any other parties, including, but not
limited to, current or prospective tenants of the property. At the time of any
request hereunder by Landlord, Landlord shall inform Tenant of the identity of
any third party to which Landlord proposes to disclose Tenant's (or such
guarantor's) financial statement or the information shown therein and Tenant
shall be under no obligation to supply such statement for disclosure to any
entity in the retail clothing or clothing manufacturing business or any entity
controlling or controlled by any entity in the retail clothing or clothing
manufacturing business.
30. Estoppel Certificate. Tenant shall, at any time and from
time to time during the term of this Lease or any renewal thereof, upon request
of Landlord, execute, acknowledge, and deliver to Landlord or its designee, a
statement in writing, certifying that this Lease is unmodified and in full force
and effect if such is the fact (or if there have been any modifications thereof,
that the same is in full force as modified and stating the modifications) and
the dates to which the rents and other charges have been paid in advance, if
any. Any such statement delivered pursuant to this paragraph may be relied upon
by any prospective purchaser of the estate of Landlord or by the mortgagee or
any assignee of any mortgagee or the trustee or beneficiary of any deed of trust
constituting a lien on the premises or upon property in which the premises are
situate.
31. Tenant Representative. Name, address and telephone
number of Tenant representative to be contacted in the event of emergency: Mr.
Ed Jecelin, 305 Deep Dale Drive, Timonium, Maryland 21093.
32. No Offer. The submission of this Lease does not
constitute a binding or irrevocable option or offer by Landlord to lease the
premises to Tenant on the terms herein set forth, or on any other terms. Neither
Landlord nor Tenant shall be bound or legally obligated in any way until such
time as this Lease is fully executed by both parties hereto, and executed
counterparts thereof are delivered to each of the parties.
33. Construction.
(a) At or prior to the commencement date, Landlord
shall deliver the premises to the Tenant with the following Landlord Work
completed:
(i) Landlord will have entire premises
cleaned, including roof-joists and bathrooms, will also install a
separate meter or submeter for any utilities servicing the premises and
not separately metered as of the date hereof; will construct the new
demising wall (taped, spackled and ready for painting); will construct
(taped, spackled and ready for painting) approximately fifty-four (54)
feet of additional, interior partition wall as follows: (A) one wall
running north/south on column H, between columns 13 and 14; and (B) one
wall (with access opening as designated by Tenant) running east/west on
column 14 between columns G & H; Landlord will remove approximately
eighty-one (81) feet of existing, interior partition wall as follows:
(A) one wall running east/west on column 13, between columns G and H;
and (B) one wall running north/south on column G 1/2, between columns
13 and 15.
(ii) Landlord will paint bathrooms and
replace damaged sinks and for the
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existing handicapped bathroom, will make any changes necessary in order
for such bathroom to fully comply with all ADA requirements.
(iii) Landlord will perform such repairs to
the roof of the premises as may be necessary to prevent roof leaks.
(iv) Landlord will install new exterior
lighting to enhance outside light levels, to meet Tenant's work
schedule requirements, and will complete maintenance and repair
recommendations as set forth in the Hartford Refrigeration Co., Inc.
letter, dated April 29, 1994, attached hereto as Exhibit D.
With respect to (iv), Landlord can complete said work
on or before June 15, 1994, but will be able to deliver possession of the
premises earlier to Tenant provided (i), (ii) and (iii) above have been
completed by Landlord.
All work to be done by Landlord shall be completed
in a good and workmanlike manner in compliance with all federal, state and local
laws.
(b) Within the first six (6) months of occupancy,
Tenant will do the following Tenant Work to the premises at Tenant's sole cost
and expense:
(i) Tenant will design and build a 4,000
square foot office to be serviced by a separate HVAC system,
which Tenant will install and maintain at its sole cost and
expense.
(ii) Tenant will rehab existing office area
(2,700 square feet) per Tenant's specifications.
(iii) Tenant will add additional 400 amp
electrical service and one (1) distribution panel (1,200 amp
total).
(iv) Tenant will paint the new demising
wall.
In addition, Tenant may do a complete interior
lighting retrofit (T-8 and ballast). All work to be done by Tenant
shall be completed in a good and workmanlike manner in compliance
with all federal, state and local laws. Tenant shall have the right
to use and occupy the premises and common facilities prior to the
commencement date of the term provided that neither Tenant, its
agents, employees nor contractors shall interfere with the completion
of Landlord Work.
34. Existing Equipment. Landlord hereby agrees to demise to
Tenant pursuant to this Lease the following existing equipment:
Cutting tables - approximately 1,150 linear feet; feed rail;
cutting floor lights; 25 h.p. compressor (Kaiser); 10 h.p. compressor (Joy); one
(1) air dryer, bailer, alarm system, telephone system and intercom, time clocks
and fire extinguishers, all of which equipment is currently installed in the
premises and is being demised to Tenant "as is" with no express or implied
warranties and no representation as to fitness or condition.
35. Waiver of Jury Trial and Right to Counterclaim. This
Lease shall be construed in accordance with the laws of the state of Maryland.
Landlord and Tenant shall and they hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the premises,
and any emergency or other statutory remedy. Tenant further agrees that it shall
not interpose any non-mandatory counterclaims) in a summary proceeding or in any
action based on holdover or non-payment of rent and/or additional charges.
36. Brokerage. The parties hereto recognize Manekin
Corporation as the broker bringing about this transaction, and Landlord shall be
responsible for such broker's commission. Tenant and Landlord each covenants and
agrees that it has had no other dealings with any broker or agent in connection
with this Lease and covenants to pay, hold harmless and indemnify the other from
and against any and all costs, expenses and liabilities for any compensation,
commissions and charges claimed by any broker or agent in respect of this Lease
or the negotiation thereof with whom Tenant or Landlord, as the case may be, is
claimed to have had dealings.
37. Landlord's Default.
(a) Landlord shall be deemed in default upon the
occurrence of any one or more of the following circumstances:
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(i) If Landlord shall fail to pay any sum
due Tenant hereunder within ten (10) days after notice that the same has become
due; or
(ii) If Landlord shall fail to commence
performance of any non-monetary term, condition or covenant of this Lease
applicable to Landlord within twenty (20) days after written notice of such
failure from Tenant or shall fail to thereafter or diligently prosecute
completion thereof.
(b) Upon any Landlord default, Tenant shall have
the right to pursue any or all of the following remedies:
(i) The right to maintain any and all
actions at law or suits in equity or other proper proceedings (including the
right to injunctive relief) to enforce the curing or remedying of such default
or for damages resulting from such default; and
(ii) in the event of a final judgment in
Tenant's favor against Landlord, to collect said judgment by deducting from any
one or more succeeding payments of rent due hereunder the amount of such final
judgment, excluding any court costs, attorneys fees, or other disbursements.
38. Renewal Option. Deleted.
39. Hazardous Substances.
(a) The term "Hazardous Substances" as used in this
Lease is defined to mean any substance defined as a "hazardous substance" or
'hazardous material" under the Comprehensive Environmental Response,
Compensation and Liability Act of 1989, as amended (42 USC 9601, et seq.), or
substances declared to be hazardous or toxic under any other federal, state of
municipal law or regulation now or hereafter enacted or promulgated by any
governmental authority having jurisdiction.
(b) Landlord shall indemnify, defend and hold
harmless Tenant, its permitted successors and assigns, and their respective
officers, directors, beneficiaries, shareholders, partners, agents and employees
from all fines, suits, procedures, claims and actions of every kind and all
costs associated therewith (including attorneys' and consultants' fees) arising
out of or in any way connected with any deposit, spill, discharge or other
release of Hazardous Substances that occurs prior to the date hereof or that
occurs after the date hereof but not caused by Tenant, its agents, contractors
or employees. Landlord's obligation and liabilities under this Section shall
survive the expiration of the Lease.
(c) Tenant shall not cause or permit to occur by
its agents, contractors or employees:
(i) Any violation of any federal, state or
local law, ordinance or regulation now or hereafter enacted, related to
environmental conditions on, under or about the Premises and arising from
Tenant's use or occupancy of the Premises, including, but not limited to soil
and ground water conditions; or
(ii) The use, generation, release,
manufacture, refining, production, processing, storage or disposal of any
Hazardous Substance on, under or about the Premises or the transportation to or
from the Premises of any Hazardous Substance.
Further, it is agreed that:
(iii) Tenant shall, at Tenant's own
expense, comply with all laws regulating the use, generation, storage,
transportation or disposal of Hazardous Substances by Tenant ("Laws").
(iv) Tenant shall, at Tenant's own expense,
make all submissions to, provide all information required by, and comply with
all requirements of all governmental authorities (the "Authorities") under the
Laws in connection with the use, generation, storage, transportation or disposal
of Hazardous Substances by Tenant.
(v) Should any Authority or any third party
demand that a cleanup plan be prepared and that a clean-up be undertaken because
of any deposit, spill, discharge or other release by Tenant or its agents,
contractors, employees, of Hazardous Substances that occurs during the term of
this Lease, at or from the Premises, or which arises at any time from Tenant's
use or occupancy of the Premises, then Tenant shall, at Tenant's own expense,
prepare and submit the required plans and all related bonds and other financial
assurances; and Tenant shall carry out all such cleanup plans. Landlord shall be
so obligated with regard to any deposit, spill, discharge or other release of
Hazardous Substances in the premises occurring prior to the date hereof or
occurring after the date hereof but not caused by Tenant, its agents,
contractors or employees.
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(vi) Tenant shall promptly provide all
information regarding the use, generation, storage, transportation or disposal
of Hazardous Substances by Tenant or its agents, contractors, employees that is
requested by Landlord. If Tenant fails to fulfill any duty imposed under this
section within a reasonable time, Landlord may do so; and in such case, Tenant
shall cooperate with Landlord in order to prepare all documents Landlord deems
necessary or appropriate to determine the applicability of the Laws to the
Premises and Tenant's Use thereof, and for compliance therewith, and Tenant
shall execute all documents promptly upon Landlord's request. No such action by
Landlord and no attempt made by Landlord to mitigate damages under any Law shall
constitute a waiver of any of Tenant's obligations under this Section.
(vii) All obligations and liabilities under
this Section shall survive the expiration of this Lease.
(d) Tenant shall indemnify, defend and hold
harmless Landlord, the manager of Landlord's buildings and their respective
officers, directors, beneficiaries, shareholders, partners, agents and employees
from all fines, suits, procedures, claims and actions of every kind, and all
costs associated therewith (including attorneys' and consultants' fees) arising
out of or in any way connected with any deposit, spill, discharge or other
release of Hazardous Substances that occurs after the date hereof and is caused
by Tenant, its agents, contractors or employees. Tenant's obligations and
liabilities under this Section shall survive the expiration of the Lease.
40. Miscellaneous.
(a) Binding Effect. The terms, conditions and
agreements herein contained shall be kept and performed by the respective
parties hereto and will be binding upon them and each of their successors, heirs
and assigns.
(b) Partial Invalidity. The invalidity of any
particular clause, phrase, section of part of this Lease by order of court or
decision of any judicial authority having jurisdiction over the same shall not
be construed to void or invalidate the Lease in its entirety and the remaining
parts shall continue in full force and effect.
(c) Captions. All captions used in this Lease are
for reference purposes only. The captions do not limit and should not be used to
interpret or construe any of the provisions which follow the captions.
(d) Attorney's Fees. Deleted.
(e) Landlord shall have the right at any time to
change the name or the current address of the warehouse or both, in Landlord's
sole discretion. Landlord shall incur no liability as to Tenant as the result of
such change; furthermore, such change shall not entail a decrease in rental
value, constitute an eviction or diminution of services, or excuse Tenant from
the full performance of all its Lease obligations. Tenant agrees not to refer to
the warehouse by any name or address other than that designated by Landlord.
(f) Joint and Several Liability. If this Lease is
executed by two or more individuals, as Tenant, the liability for all
obligations on Tenant's part to be performed hereunder, specifically including
but not limited to the obligation to pay all rent and additional rent provided
for herein, shall be deemed to be joint and several.
(g) Any monies owed to Landlord by Tenant pursuant
to this Lease shall be deemed rent in the event such monies are left unpaid
beyond the time set forth hereunder.
(h) Applicable Laws. The parties agree that this
Agreement shall be construed only in accordance with the laws of the State of
Maryland.
(i) Except for Tenant's obligation to pay rent, the
time of Landlord or Tenant, as the case of may be, to perform any of its
respective obligations hereunder shall be extended if and to the extent that the
performance thereof shall be prevented due to any strike, lockouts, civil
commotions, war-like operations, invasions, rebellions, hostilities, military or
usurped power, governmental regulations or controls, acts of God, or other
causes beyond the control of the party whose performance is required. If
Landlord shall be prevented from delivery the premises to Tenant for causes
beyond the control of Landlord, then the commencement and expiration of the Term
shall be extended accordingly.
(j) This Lease and the Riders and Exhibits attached
hereto, if any, set forth all the covenants, promises, assurances, agreements,
and understandings between Landlord and Tenant concerning the
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premises and supersede and revoke any previous negotiations, arrangements,
letters of intent, offers to lease, lease proposals, and information conveyed.
41. Early Termination Right. Landlord and Tenant agree that
Tenant shall have the one time only right to terminate this Lease prior to its
scheduled expiration, provided this Lease is in full force and effect, then free
of defaults by Tenant, under the following terms and conditions:
(a) Tenant shall send written notice to Landlord,
certified mail, return receipt requested, notifying Landlord of its intention to
exercise its right of early termination, which notice Must be received by
Landlord on or before February 1, 1999;
(b) Provided Tenant has vacated the premises and
left the premises and Landlord equipment (whatever has not been replaced by
Tenant in the interim) in the condition required hereunder pursuant to Section
28, at the time of the expiration of the term, this Lease shall be deemed
terminated effective July 31, 1999, and neither party shall have any further
liability to the other, except Tenant shall remain liable to Landlord for any
obligations or liabilities that have accrued up to and including July 31, 1999,
which liability shall survive the termination of this Lease.
WITNESS the hands and seals of the parties hereto the day
and year first above written.
WITNESS: LANDLORD:
CONTINENTAL STEWART WAREHOUSE
LIMITED PARTNERSHIP
By: Continental Realty Corporation, Agent
/s/ Mary P. Baxter By: /s/: John A. Luetkemeyer, Jr. (Seal)
____________________ _____________________________________
John A. Luetkemeyer, Jr., President
WITNESS: TENANT:
JOS. A. BANK CLOTHIERS, INC.
/s/: Deborah S. Timm By: /s/: Timothy F. Finley (SEAL)
____________________ _____________________________________
Timothy F. Finley, Chairman and Chief
Executive Officer
STATE OF MARYLAND, COUNTY OF BALTIMORE, to wit:
On this 11th day of May, 1994, before me, the subscriber a
Notary Public of the State of Maryland, personally appeared
JOHN A. LUETKEMEYER, JR.
President of the above named agent for Landlord, and he acknowledged the above
Lease to be the act of the said Landlord.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal.
/s/: Delores F. Schafer
________________________________________
Notary Public
My Commission Expires: July 22, 1995
___________________
STATE OF MARYLAND, COUNTY OF BALTIMORE, TO WIT:
On this 10th day of May, 1994, before me, the subscriber a Notary
Public of the State of Maryland, personally appeared
TIMOTHY F. FINLEY
Chairman and Chief Executive Officer of the above named Tenant, and he
acknowledged the above Lease to be the act of the said Tenant.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal.
/s/: Karen M. Mays
_________________________________________
Notary Public
My Commission Expires: 10/29/96
______________
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