EXHIBIT 10.6.3
LANDLORD:
GLENN DALE BUSINESS CENTER, L.L.C.
TENANT:
ASSOCIATED PACKAGING ENTERPRISES, INC.
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LEASE
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Dated:
July 31, 1997
GLENN DALE BUSINESS CENTER
Trade Name: Associated Packaging Enterprises, Inc.
LEASE BY AND BETWEEN
GLENN DALE BUSINESS CENTER, L.L.C., LANDLORD,
and ASSOCIATED PACKAGING ENTERPRISES INC., TENANT
TABLE OF CONTENTS
1. Payment of Rental...................................... 2
2. Use.................................................... 2
3. Utilities.............................................. 2
4. Assignment and Subletting.............................. 3
5. Loading Capacity....................................... 3
6. Increase in Landlord's Insurance Rates................. 3
7. Insurance-Indemnification.............................. 3
8. Alterations............................................ 4
9. Ownership of Alterations............................... 4
10. Repairs and Maintenance................................ 5
11. Tax Escalation......................................... 6
12. Default................................................ 6
13. Total or Partial Destruction........................... 7
14. Possession............................................. 8
15. Exterior of Premises - Signs........................... 8
16. Relocation............................................. 8
17. For Rent/Sale Signs.................................... 8
18. Right of Entry......................................... 8
19. Termination of Term.................................... 8
20. Condemnation........................................... 9
21. Subordination/Estoppel/Non-Disturbance................. 9
22. Attornment............................................. 9
23. Parking and Common Area................................ 10
24. Compliance with Laws................................... 11
25. Notices................................................ 12
26. Non-Waiver............................................. 12
27. Successors and Assigns................................. 12
28. Security Deposit/Construction.......................... 12
29. Accord and Satisfaction................................ 13
30. Notices to Mortgagee................................... 13
31. Estoppel Certificate................................... 13
32. Mechanic's Liens....................................... 13
33. Waiver of Jury Trial and Right to Counterclaim......... 13
34. Brokerage.............................................. 14
35. Tenant Representative.................................. 14
36. No Offer............................................... 14
37. Tenant's Right to Audit................................ 14
38. Miscellaneous.......................................... 14
EXHIBITS
Exhibit A - Plat of Premises
Exhibit B - Construction Specifications
Exhibit C - Common Facilities
Guaranty Agreement
THIS LEASE, made this 31st day of July, 1997, by and between GLENN
DALE BUSINESS CENTER, L.L.C. by Continental Realty Corp., Agent, having an
address at 17 West Pennsylvania Avenue, Towson, Maryland 21204, (hereinafter
called "Landlord"), and ASSOCIATED PACKAGING ENTERPRISES, INC., a Maryland
corporation, having an address at 7100 Holiday Tyler Road, Glenn Dale
Business Center, Glen Dale, Maryland 20769, (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 crosshatched and outlined in red on
the Plat attached hereto as Exhibit A, which Premises shall be
deemed to contain approximately 18,000 square feet, said Premises
being located within a building known as Glenn Dale Business
Center, 7100 Holiday Tyler Road, Glen Dale, Maryland 20769, which
building contains approximately 310,000 square feet located on
approximately 32 acres.
for the term of ten (10) years, beginning on August 1, 1997 ("Commencement
Date"), and ending on the last day of July, 2007 at and for the annual rent
of Three Dollars and Seventy-Five Cents ($3.75) per square foot or Sixty
Seven Thousand Five Hundred Dollars ($67,500) per annum, payable in advance,
in equal monthly installments, as follows: Five Thousand Six Hundred Twenty
Five Dollars (5,625.00), on the first day of each and every month during the
term of this Lease, without setoff, recompense or deduction, for the first
year of the Lease; thereafter, effective each July 1 of the term, rent shall
increase per annum by three percent (3%) over the rent payable for the
preceding lease year. If the term of this Lease shall commence on a date
other than the first day of a month, the rental for the period from the date
of commencement of the term to the first day of the next full calendar month
of the term shall be prorated and shall be payable on the first day of the
term; if the term of this Lease shall end on a date other than the last day
of a month, the rent for the period from the first day of the last month of
the term to the date the term ends shall be prorated and shall be payable on
the first day of the last month of the term. See further Rider, Page 1(a).
Notwithstanding anything contained in this Lease to the contrary,
Tenants in consideration of the construction which it will be doing in its
Premises shall be given a rent abatement for the first five (5) months of the
term, from August 1, 1997, through December 31, 1997, of fifty percent (50%)
of the monthly minimum rental payable during each of those months; at the
beginning of the second year of the Lease term, after Landlord has assessed
the three percent (3%) increase over the prior year, Tenant will once again
be given a rental abatement from August 1, 1998, through December 31, 1998,
of fifty percent (50%) of the monthly minimum rent payable during those
months.
Landlord hereby grants Tenant the preceding abatement of half of the
minimum rent for the period from August 1, 1997 to December 31, 1997 and for
the period from August 1, 1998 through December 31, 1998, ("Rent Abatement"),
provided Tenant shall keep, perform and observe all the terms, covenants and
conditions of the Lease herein contained, and shall be free from any default
in the payment of rent and any additional rent, charges and amounts payable
hereunder, for the entire term of this Lease. Upon the occurrence of an event
of default in the payment of rent or any other amount payable under the
Lease, Landlord may rescind the Rent Abatement granted in this paragraph, and
promptly upon demand by Landlord Tenant shall pay as additional rent
hereunder, the full amount of the Rent Abatement.
At any time after the Commencement Date, Landlord may remeasure the
floor space in the Premises. If the floor space differs from the size stated
herein, the Landlord may send notice of the remeasurement to Tenant and the
rent and any additional charges or additional rental measured by the floor
space shall be adjusted either from the date of the notice or from the rent
commencement date, as Landlord shall elect or at such time Tenant shall
relinquish all but 18,000 square feet (or 25,000 square feet, as the case may
be). Tenant hereby represents and warrants to Landlord that Tenant has made
its own investigation and examination of all the relevant data relating to or
affecting the Premises and is relying solely on its own judgment in entering
into this Lease, specifically, and without limitation. Tenant represents and
warrants to Landlord that Tenant has had an opportunity to measure the actual
dimensions of the Premises and agrees to the square footage figures set forth
hereinabove for all purposes of this Lease (except in the event of a
condemnation or casualty that decrease the size of the Premises as more fully
provided elsewhere in this Lease).
1
RIDER
Tenant shall have the option to extend its Premises to 25,000 square
feet by adding an additional 7,000 square feet shown on Exhibit A "Expansion
Space," anytime before August 1, 1998, by providing Landlord with at least
two (2) months prior written notice of its intention to expand, upon receipt
of which notice. Landlord will then commence the Expansion Space Work as
detailed on Exhibit B of this Lease. Once Landlord completes its work and
delivers the Expansion Space to Tenant, then upon delivery, the Expansion
Space shall be deemed part of the Premises, and the annual rent payable
hereunder shall increase to Ninety Three Thousand Seven Hundred Fifty Dollars
($93,750) per annum, or Seven Thousand Eight Hundred Twelve Dollars and Fifty
Cents ($7,812.50) per month.
1a
If Tenant shall, during the whole of said term and any renewal or
extension thereof, well and faithfully keep and perform the terms, covenants
and conditions in this Lease contained on Tenant's part to be kept and
performed, Tenant shall have the option to renew the term of this Lease for
one (1) consecutive term of five (5) years following the expiration of the
original term. The renewal term shall be on the same terms, covenants and
conditions as the original term, including that the minimum rent shall be
adjusted annually as provided above (three percent (3%) per annum increase),
and except there shall be no further right of renewal after the renewal term
provided for herein.
Such right of renewal must be exercised by delivery to Landlord of an
unequivocal written notice of election to renew at least six (6) months prior
to the expiration of the original term, and upon the giving of such notice
and without any further instrument this Lease shall be deemed to be renewed,
subject to the conditions herein provided.
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, recoupment or deduction whatsoever.
2. USE. Tenant covenants to use the Premises for the purpose of
packaging manufacturing and the incidental office use related to its
operation as a packaging manufacturing, storage and distribution facility
(the "Permitted Use") and for no other purpose or purposes. Tenant shall
operate the Premises in the name of Associated Packaging Enterprises, Inc.,
as well as D.C. Ventures, Inc., Image Systems Packaging, Inc., and/or
Professional Packaging Solutions, Inc., and under no other name or trade
names unless approved in writing by Landlord.
Tenant agrees to comply with all applicable zoning and other laws,
regulations and requirements of governmental authorities and provide and
install at its own expense any additional equipment or alternations required
to comply with all such laws, regulations and requirements as may be
promulgated from time to time. In addition, if Tenant adds a new function to
its operations or changes the use set forth in this Paragraph 2, even if with
Landlord's consent, Tenant agrees further to comply with any and all
requirements of Landlord's insurance carrier(s) and applicable law(s).
3. UTILITIES.
(a) Water/Sewer. Tenant agrees to pay, as additional rent, its
proportionate share of the water and sewer charges billed to Landlord, which
"proportionate share" shall be determined as follows: Tenant's square
footage divided by the total square footage of the building actually leased
and occupied.
(b) Gas and Electricity. Landlord anticipates that it will, within
one (1) year of the commencement of this Lease, meter or sub-meter Tenant's
gas and electric so that Tenant will pay based on sub-meter readings to
Landlord or, based on meter readings directly to the utility company. Until
Landlord separately meters the gas and electric service in the building so
that each tenant has its own meter or sub-meter to measure its gas and
electrical usage, Tenant agrees to pay as additional rent its fair share of
the gas and electricity charges billed to the total building which "fair
share" shall be determined by Landlord at its reasonable discretion. When
Tenant's gas and electrical service is separately metered or sub-metered,
Tenant agrees to pay as additional rent all gas and electrical service
charges for the Premises based on its meter or sub-meter readings, directly to
the utility company in the event of a separate meter being provided, or to
the Landlord within fifteen (15) days after Landlord bills the Tenant in the
event of a sub-meter.
(c) Miscellaneous. In addition to the preceding, Tenant shall pay
all costs of telephone and any other utilities used and consumed on the
Premises, or by the Tenant for Tenant's operations, together with all taxes,
levies or other charges on such utilities, either directly to the utility
supplying said services or to the Landlord, if the Landlord supplies said
services to Tenant.
Wherever Landlord is required to bill Tenant for any utilities charges,
Tenant agrees that it shall pay Landlord within fifteen (15) days of its
receipt of Landlord's billing, and said charges shall be deemed to be
additional rent due.
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Landlord shall have the right at anytime and from time to time during
the Lease term to either contract for service from a different company or
companies providing electric service or gas service or other utilities or to
continue to contract for service from the service provider currently
providing service (variously, "Utility Service Provider"). In conjunction
therewith, Tenant shall cooperate with Landlord and Utility Service Provider
at all times and, as reasonably necessary, shall allow Landlord and/or
Utility Service Provider reasonable access to the building's electric lines,
feeders, risers, wiring, plumbing lines and any other machinery or equipment
located within the Premises. Landlord shall in no way be liable or
responsible for any loss, damage, or expense Tenant may incur or sustain by
reason of any change, failure, interference, disruption or defect in the
supply or character of the electric energy or the gas service or other
utility service furnished to the Premises or if the quantity or character of
the electric energy or gas service or other utility service supplied by
Utility Service Provider is no longer available or suitable for Tenant's
requirements, and no such change, failure, defect, unavailability, or
unsuitability shall constitute no actual or constructive eviction, in whole
or in part, or entitle Tenant so any abatement or diminution of rent, or
relieve Tenant from any of its obligation under the Lease.
4. ASSIGNMENT AND SUBLETTING.
(a) Tenant covenants and agrees not to assign this Lease, in whole
or in part, nor sublet the Premises, or any part or portion thereof, nor
grant any license or concession for all or any part thereof, without the
prior written consent of the Landlord in each instance first had and
obtained, which consent shall not be unreasonably withheld. If such
assignment or subletting is permitted, Tenant shall not be relieved from any
liability whatsoever under this Lease. In the event that the amount of the
rent or other consideration to be paid to the Tenant by any assignee or
sublessor 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
net of Tenant's initial cost of subletting 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 or to
sublease all or any substantial portion of the Premises, Landlord shall have
the right and option to terminate this Lease, which right of option shall be
exercisable by written notice from Landlord to Tenant within thirty (30) days
from the date Tenant gives Landlord written notice of its desire to assign or
sublease.
5. LOADING CAPACITY. Tenant covenants and agrees that it shall not
load the Premises beyond its present carrying or loading capacity.
6. INCREASE IN LANDLORD'S INSURANCE RATES. Tenant will not do, or
suffer to be done, anything in or about the Premises, or keep or suffer to be
kept, anything in or about the Premises which will circumvent 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 actions and make any installations or alterations
as may be necessary to obtain the greatest possible reduction in the
insurance rates for the Premises and the building in which the Premises are
located, caused by the occupancy of Tenant, the nature of the business
carried on by Tenant in the Premises, or otherwise resulting from any act of
Tenant, its agents, servants, employees or customers.
7. INSURANCE INDEMNIFICATION.
(a) Tenant shall maintain the following insurance: (i)
comprehensive general public liability insurance in respect of the Premises
and the conduct and operation of Tenant's business thereto, with Landlord as
an additional named insured and at Landlord's written request with the lessor
of any ground or underlying lease of all or any part of the Premises as
additional named insured, with limits of not less than $1,000,000 for bodily
injury or death to any one person, $3,000,000 for bodily injury or death to
any number of persons in any one occurrence and $1,000,000 for property
damage, including water damage and sprinkler leakage and liability, (if
sprinklered); (ii) steam boiler, air conditioning, and machinery insurance,
if applicable, protecting Landlord and Tenant, with limits of not less than
$500,000, but only if there is a boiler or pressure object or either similar
equipment in the Tenant's Premises; (iii) fire
3
insurance with extended coverage and broad form all-risk endorsements
covering all of Tenant's stock and trade, fixtures, furniture, furnishings,
floor coverings, equipment, signs, and all other property belonging to Tenant
or entrusted to Tenant or demised hereby, including installations and
improvements of Tenant made in, on or about the Premises in any amounts
required by any lender, but not less than the full insurable replacement
value of the property covered and not less than the amount sufficient to
avoid the effect of the co-insurance provisions of the applicable policy or
policies; (iv) business interruption insurance in an amount sufficient to
meet any co-insurance requirements, but in no event less than the equivalent
of twelve (12) months' rent (unless Landlord provides rental insurance and
bills Tenant for it pursuant to Tenant's obligations to pay increases in
Landlord's costs of insuring the building, as set forth in Paragraph 23(c)).
Tenant shall deliver to Landlord such fully paid for policies or certificates
of insurance at least ten (10) days before the Commencement Date of this
Lease. Tenant shall procure and pay for renewal of such insurance from time
to time before the expiration thereof, and Tenant shall deliver to Landlord
and any additional named insured(s) such renewal policy at least thirty (30)
days before the expiration of any existing policy. If Tenant fails to comply
with any portion of this provision, Landlord may, but shall not be obligated
to, obtain insurance for Tenant and keep same in effect and Tenant shall pay
Landlord all costs incurred, upon demand, plus 15% for
overhead/administrative expenses. Landlord shall not be liable for any
damage or loss arising from the bursting, overflowing, or leaking of the roof
or of water, sprinkler, sewer, or steam pipes, or for malfunctioning heating,
air conditioning or plumbing fixtures or from electric wire or fixtures or
arising from any other cause whatsoever, unless caused by Landlord's
negligent or willful misconduct.
(b) Tenant shall and does hereby indemnify and save harmless
Landlord, its successors or assigns, from all claims and demands of every
kind, that may be brought against it, them or any of them for or on account
of any damage, loss or injury to persons or property in or about the Premises
or the building and appurtenances in which the Premises are situated, arising
from or out of Tenant's use or occupancy thereof or occasioned wholly or in
part by any act or omission of Tenant, its agents, servants, contractors,
employees or invitees, and from any and all costs and expenses, counsel fees,
and other charges which may be imposed upon Landlord, its successors or
assigns, or which it or they may be obligated to incur in consequence
thereof. All personal property and fixtures in the Premises shall remain at
Tenant's sole risk. Tenant shall insure such property and fixtures against
loss or damage by fire and casualties ordinarily included in the extended
coverage endorsement in use in Maryland in an amount equal to 100% of the
replacement value thereof.
(c) Landlord may, in its reasonable business judgment, maintain
insurance on the property including but not limited to equipment and systems
in or pertaining to the building or property and including but not limited to
public liability insurance, property damage insurance, automobile insurance,
sign insurance, fire and extended coverage insurance, rent insurance, boiler
liability and casualty insurance, flood and earthquake insurance, and plate
glass insurance. For any insurance maintained by Landlord with respect to
the property and/or its equipment, Tenant agrees to pay as additional rent
Tenant's proportionate share of any increases in said premiums for any
insurance carried on the property or any portion thereof, in excess of the
insurance premiums paid for the base year October 1, 1997, through September
30, 1998. If this Lease shall be in effect for less than a full insurance
year, Tenant shall pay its proportionate share of the increase in the
insurance premium based upon the number of months that this Lease is in
effect. For purposes of calculating Tenant's "proportionate share", the
increase in the insurance premium bill will be multiplied by a fraction, the
numerator of which shall be the Floor Space of the Tenant's Premises, and the
denominator of which shall be the leasable Floor Space of the building. All
computations shall be made in accordance with generally accepted accounting
principles and the "Floor Space" referred to herein will be based upon the
Floor Space occupied or ready for occupancy (whether or not leased) on the
first day of each month during the period in question. The Floor Space of
the building at the time of the Lease execution is 310,000 square feet. Any
payment due hereunder shall be deemed to be additional rental pursuant to
this Lease and shall be paid within ten (10) days of Landlord's billing.
8. ALTERATIONS. Tenant shall not make any structural or non-structural
alterations to the Premises, or any part thereof, without prior written
consent of Landlord in each instance first had and obtained. If Tenant shall
desire to make such alterations, plans for the same shall first be submitted
to and approved by Landlord, and all work and installation shall be performed
by Tenant at its own expense in accordance with approved plans. Tenant
agrees that all such work shall be done in a good and workmanlike manner,
that the structural integrity of the building shall not be impaired, and that
no liens shall attach to the Premises by reason thereof. Tenant agrees to
obtain, at Tenant's expense, all permits required for such alterations.
9. OWNERSHIP OF ALTERATIONS. Unless Landlord shall elect that all or
part of any alteration made by Tenant to the Premises (including any
alteration consented to by Landlord pursuant to Paragraph 8 hereof) shall
remain on the Premises after the termination of this Lease, the Premises
shall be restored to their original condition by Tenant before the expiration
of this Lease at Tenant's sole expense.
4
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 Premise any property for Tenant's use,
or by the installation or removal of such property, regardless of fault or by
whom such damage shall be caused.
10. REPAIRS AND MAINTENANCE.
(a) The Premises hereby leased, are leased to Tenant "As Is,"
except as specifically provided in Exhibit B. Further, except as herein
expressly provided, Landlord shall be under no liability, nor have any
obligation to do any work or make any repairs in or to the Premises, and any
work which may be necessary to outfit the Premises for Tenant's occupancy or
for the operation of Tenant's business therein is the sole responsibility of
Tenant and shall be performed by Tenant at its own cost and expense. Tenant
acknowledges that it has fully inspected the Premises prior to the execution
of this Lease, and Tenant further acknowledges hat Landlord has made no
warranties or representations with respect to the condition or state of
repairs of the Premises, except as specifically set forth in Exhibit B.
(b) Tenant will, during the term of this Lease, keep the Premises
and appurtenances (including windows, doors, plumbing, heating and electrical
facilities and installations), in good order and repair and will make all
necessary repairs thereof at its own expense, except that Landlord will make
all necessary repairs (except painting) to the exterior walls and roof of the
building, after being notified in writing by Tenant of the need for such
repairs, and shall have a reasonable time in which to complete such repairs.
After Landlord's warranty (Exhibit B) expires, Tenant agrees to carry a
maintenance and/or service agreement or policy on the HV/AC system in the
Premises. Tenant shall provide Landlord with a copy of such policy or
certificate evidencing such coverage. In the event that the repairs required
to be made by Landlord are necessitated as a result of negligence or misuse
by Tenant, its agents, servants, employees, licensees or guests, or by any
contractor engaged by or on behalf of Tenant, such repairs shall be made by
and be paid for by Tenant.
Tenant will, at the expiration of the term or at the sooner
termination, deliver up the Premises in the same good order and condition as
they were at the beginning of the tenancy, reasonable wear and tear and
damage by casualty excepted, (where Lease is terminated due to the casualty
provision of this Lease). In addition, Tenant must remove all of its trade
fixtures and equipment and must fill any and all holes in the floor after
removing said trade fixtures and equipment, topping the filled holes with a
six inch concrete cap, reinforced with a reinforced steel rebar. Moreover,
the Premises must be broom swept and clean and any office area cleaned and
straightened out.
Tenant further agrees that it will maintain the Premises at its own
expense in a clean, orderly and sanitary condition, free of insects, rodents,
vermin and other pests; and that it will not permit undue accumulation of
garbage, trash, rubbish or other refuse, but will remove the same at its own
expense and will keep such refuse in proper containers inside the Premises
until removed. At any time after the commencement of this Lease, Landlord
may designate areas outside the Premises for storage of Tenant
refuse/garbage. In the event of any Tenant default pursuant to this
obligation, Tenant specifically agrees that Landlord can have Tenant's
garbage, trash, rubbish or other refuse removed and Tenant will be required
to pay, as additional rental, any costs which Landlord incurs in said removal
plus fifteen percent (15%) Landlord administrative/overhead expenses. Tenant
further agrees that it will not install any additional electrical wiring or
plumbing unless it has first obtained Landlord's written consent thereto, and,
if such consent is given, Tenant will install the same at its own cost and
expense, and Tenant shall obtain, at Tenant's expense, all permits required
for such installation.
(c) In the event Tenant shall not proceed promptly and diligently
to make any repairs or perform any obligation imposed upon it by
subparagraphs (a) and (b) hereof within forty-eight (48) hours, after
receiving written notice from Landlord to make such repairs or perform such
obligation, then and in such event, Landlord may, at its option, enter the
Premises and do and perform the things specified in said notice, without
liability on the part of Landlord for any loss or damage resulting from any
such action by Landlord, and Tenant agrees to pay promptly upon demand any
cost or expense incurred by Landlord in taking such action.
(d) Tenant shall keep all of its Premises sufficiently heated
during freezing weather in order to keep any water pipes in the Premises or
serving the Premises from freezing.
5
(e) If governmental regulations require recycling of any or all of
the trash generated in the Premises, Tenant hereby agrees to participate in
any recycling program and to assume any obligation for recycling which may be
imposed upon Landlord as the property owner, with respect to the refuse,
garbage and trash generated by the Premises' operation.
11. TAX ESCALATION. As of the Commencement Date of this Lease, the
Premises hereby leased comprise approximately five and eight tenths percent
(5.8%) of the total land and/or buildings within which the Premises are
located. Tenant agrees to pay as additional rent, within thirty (30) days of
Landlord billing, Tenant's proportionate share of any increases in real
estate taxes assessed against the land and/or building, as improved, in
excess of the taxes for the 1997/1998 tax year, 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. Increases in real
estate taxes shall be deemed to include any increases assessed against the
land and/or buildings generally, and not resulting from improvements placed
therein by Tenant. In the event of any increases in real estate taxes
resulting from improvements, alterations or additions made by Tenant, Tenant
shall pay one hundred percent (100%) of the amount of said increase. If this
Lease shall be in effect for less than a full fiscal year, Tenant shall pay
its proportionate share of the increase in taxes, based upon the number of
months that this Lease is in effect. For purposes of calculating Tenant's
"proportionate share", the increase in the real estate tax bill will be
multiplied by a fraction, the numerator of which shall be the Floor Space of
the Tenant's Premises, and the denominator of which shall be the leasable
Floor Space of the building. All computations shall be made in accordance
with generally accepted accounting principles and the "Floor Space" referred
to herein will be based upon the Floor Space occupied or ready for occupancy
(whether or not leased) on the first day of each month during the period in
question. The Floor Space of the building at the time of the Lease execution
is 310,000 square feet. Any payment due hereunder shall be deemed to be
additional rental pursuant to this Lease and shall be paid within ten (10)
days of Landlord's billing. "Taxes" or "real estate taxes" as used herein
shall include, but not by way of limitation, all paving taxes, special paving
taxes, Metropolitan District Charges, and any and all other benefits or
assessments which may be levied on the Premises or the land and/or
building(s) in which the same are situated, as well as any and all costs or
fees incurred by Landlord in contesting any real estate tax assessment, but
shall not include any income tax on the income or rent payable hereunder.
12. DEFAULT.
(a) Any of the following events shall constitute a default by
Tenant:
(i) If the rent (basic or additional) shall be in arrears, in
whole or in part; or
(ii) If Tenant shall have failed to perform any other term,
condition or covenant of this Lease on its part to be performed for a period
of ten (10) days after notice of such failure by Landlord; or
(iii) If the Premises are vacant, unoccupied or deserted for
a period of fifteen (15) days or more at any time during the term; or
(iv) If Tenant is adjudicated a bankrupt or insolvent by any
court of competent jurisdiction, or if any such court enters any order,
judgment or decree finally approving any petition against Tenant seeking
reorganization, liquidation, dissolution or similar relief or if a receiver,
trustee, liquidator or conservator is appointed for all or substantially all
of Tenant's assets and such appointment is not vacated within ten (10) days
after the appointment, or if Tenant seeks or consents to any of the relief
hereinabove enumerated in this subparagraph (iv) or files a voluntary
petition in bankruptcy or insolvency or makes an assignment of all or
substantially all of its assets for the benefit of creditors or admits in
writing of its inability to pay its debts generally as they 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's leasehold interest under this Lease is sold
under execution, attachment or decree of court to satisfy any debt of Tenant,
or if any lien (including a mechanic's lien) is filed against Tenant's
leasehold interest and is not discharged within ten (10) days thereafter.
(b) In the event of default as defined in paragraph (a) hereof,
Landlord, in addition to any and all legal and equitable remedies it may
have, shall have the following remedies:
(i) To distrain for any rent or additional rent in default;
and
(ii) At any time after default, without notice, to declare
this Lease terminated and enter the Premises with or without legal process,
and in such event Landlord shall have the benefit of all provisions
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of law now or hereafter in force respecting the speedy recovery of possession
from Tenant's holding over or proceedings in forcible entry and detainer, and
Tenant waives any and all provisions for notice under such laws.
Notwithstanding any such reentry and/or termination, Tenant shall
immediately be liable to Landlord for the sum of the following: (a) all rent
and additional rent then in arrears, without apportionment to the termination
date, including but not limited to Tenant's contribution to taxes and
utilities under Paragraphs 3 and 11 and Tenant's contribution to common area
costs under Paragraph 23 for the year of termination; (b) all other
liabilities of Tenant and damages sustained by Landlord as a result of
Tenant's default, including, but not limited to, the reasonable costs of
reletting the Premises and any broker's commissions payable as a result
thereof; (c) all of Landlord's costs and expenses (including reasonable
counsel fees) in connection with such default and recovery of possession; (d)
the rent and additional rent reserved under this Lease at the times herein
stipulated for payment of rent and additional rent for the balance of the
term, less any amount received by Landlord during such period from others to
whom the Premises may be rented on such terms and conditions and at such
rentals as Landlord, in its sole discretion, shall deem proper; and (e) any
other damages recoverable by law, in the event Landlord brings any action
against Tenant to so force compliance by Tenant with any covenant or
condition of this Lease, because of Tenant's default in performing any such
covenant or condition. Tenant shall pay to Landlord all costs and expenses
incurred by Landlord in bringing and prosecuting such action against Tenant,
including reasonable attorneys' fees.
(c) In the event Tenant fails to pay Landlord any rental payment or
other charge due hereunder within ten (10) days from the date on which such
payment was due, Landlord may, 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 be collectible as additional rent and shall be
payable by Tenant to Landlord after written notice from Landlord to Tenant
assessing the same. In addition, Tenant shall be liable for an
administrative charge of Twenty-five Dollars ($25.00) for each check or draft
which is not honored by the drawee for any reason.
13. TOTAL OR PARTIAL DESTRUCTION.
(a) Tenant shall give prompt notice to Landlord in case of any
fire or other damage to the Premises. If (i) the Premises shall be damaged
by fire or other occurrence to the extent of more than seventy-five percent
(75%) of the cost of replacement thereof, or (ii) if the entire building
shall be damaged by fire or other occurrence to the extent of more than
seventy-five percent (75%) of the aggregate cost of replacement of the entire
building, or (iii) the building shall be damaged by fire or other occurrence
and the loss shall not be covered by Landlord's insurance or the net
insurance proceeds (after deducting all expenses in connection with obtaining
same) shall, by reasonable anticipation, be insufficient to pay for the
repair or restoration work to be done by Landlord, or (iv) the Premises shall
be damaged by fire or other occurrence to the extent of more than fifty
percent (50%) of the cost of replacement thereof during the last two (2)
years of the term, then in any such event Landlord may terminate this Lease
by notice given within ninety (90) days after such event and upon the date
specified in such notice, which shall not be less than thirty (30) days nor
more than sixty (60) days after the giving of said notice, this Lease shall
terminate. If the Premises shall be damaged by fire or other casualty to the
extent of more than fifty (50%) percent of the cost of replacement thereof
during the last two years of the term, Tenant may terminate this Lease by
notice given before Landlord commences any repair or restoration work and in
any event within thirty (30) days after such damage, and this Lease shall
terminate upon the giving of such notice.
(b) If this Lease shall not be terminated after damage by fire or
other casualty pursuant to the preceding sub-paragraph, Landlord and Tenant
shall, promptly after receipt of insurance proceeds for such damage and to
the extent that insurance proceeds are available, proceed with the
restoration of the Premises and the building to substantially the condition
in which the same existed prior to the damage with such changes or additions
as Landlord may desire to make. In no event, however, shall Tenant's
stock-in-trade, trade fixtures, furniture, furnishings, removable floor
coverings, equipment, signs and other property be Landlord's responsibility
and Tenant shall promptly proceed with restoration or replacement of same
together with any alterations or improvements it has made to its Premises and
Tenant's liability for said restoration or replacement shall not be limited
to its insurance proceeds.
(c) If this Lease shall not be terminated by fire or other
casualty, Landlord's and Tenant's restoration shall be completed as promptly
as reasonably possible, and, to the extent that the Premises is unusable (on
a per square foot basis), rent (but not additional rental such as utilities,
taxes or common area charges) reserved hereunder shall abate in proportion to
the area of the Premises damaged until Landlord's work is completed.
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(d) Despite anything contained to the contrary in this Paragraph,
and without limiting Landlord's rights or remedies hereunder, rental shall
not be abated under this provision if in Landlord's opinion, any damage or
destruction is caused by any fault, neglect, default, negligent act or
negligent omission of Tenant or those for whom Tenant is in law responsible
or by any other person entering upon the Premises under express or implied
invitation of Tenant.
14. POSSESSION. In case possession of the Premises, in whole or in
part, cannot be given to Tenant on or before the commencement date of the
term of this Lease, Landlord agrees to abate the rent and additional rent
proportionately until 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.
15. 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. Tenant shall not
display any "going out of business" sign without prior written consent of
Landlord. If Landlord shall install a roadside sign, then Landlord shall
permit Tenant to install signs showing names of its various entities at its
sole expense, which signage shall be subject to Landlord's prior written
approval.
(b) Tenant further covenants and agrees not to pile or place
anything on the sidewalk, parking lot or other exterior portion of the
Premises or building in the front, rear, or sides of the building, nor block
the side walk, 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 of 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. Landlord will at all
times control all outside areas of the property and exterior portions of the
Premises and building including sidewalks and parking lots.
16. RELOCATION. Landlord reserves the right all times to require that
Tenant relocate the Premises hereby leased, at Tenant's expense, to another
location in the building comparable to that leased hereunder, provided
Landlord gives Tenant at least thirty (30) days prior written notice of such
relocation, and provided Landlord gives Tenant a one (1) month's rent
abatement in consideration of Tenant's moving expenses. Moreover, if Tenant
is relocated during the first year of the Lease term, Landlord will provide
up to 1,000 square feet of office and a storefront entrance with windows in
Tenant's new location at Landlord's sole cost and expense, and will give
Tenant access to a loading dock with at least three (3) dock-level doors plus
a drive-in door in its new location.
17. FOR RENT/SALE SIGNS. Landlord shall have the right to place a "For
Rent" sign on any portion of said Premises for six (6) months prior to
termination of this Lease and to place a "For Sale" sign thereon at any time.
During such six-month period, Landlord may show the Premises and all parts
thereof to prospective tenants/purchasers between the hours of 9:00 a.m. and
5:00 p.m. on any day except Sunday or any legal holiday on which Tenant shall
not be open for business.
18. RIGHT OF ENTRY. Landlord and its agents, servants, employees,
including any builder or contractor employed by Landlord, shall have the
absolute and unconditional 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 as Landlord may deem necessary or proper and/or to enforce and
carry out any provision of this Lease.
19. 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,
at an amount equal to double the highest monthly rental installment reserved
in this Lease.
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20. CONDEMNATION
(a) If, during the term of this Lease, all or twenty-five (25%) or more
of the Premises shall be taken by any public or quasi-public authority under
power of condemnation, eminent domain, or expropriation, or in the event of
conveyance of twenty-five percent (25%) or more of the Premises in lieu
thereof, this Lease shall terminate as of the day possession shall be taken by
such authority, and the rent (including additional rent) shall be apportioned
to and above 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 twenty-five percent (25%) of
the Premises is taken, 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 to excess of the award
received by Landlord for such taking.
(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 stature or ordinance toward Tenant's damages for Tenant's loss of
business, removal and relocation expenses.
21. SUBORDINATION/NON-DISTURBANCE. Landlord shall have the right to
place a mortgage or mortgages on the Premises and the property of whcih the
Premises is a part, and this Lease shall be subordinate to any such mortgage
or mortgages or superior thereto, as the mortgagee(s) may elect from time to
time. Notice of such election shall be given to Tenant in connection with
any mortgage foreclosure.
Within ten (10) days after a written request from time to time made by
Landlord, Tenant shall deliver to Landlord a signed and acknowledged
statement in writing setting forth: (i) that this Lease is unmodified, in
full force and effect, free of existing defaults of Landlord and free of
defenses against enforceability (or if there have been modifications or
defaults, or if Tenant claims defenses against the enforceability hereof,
then stating the modifications, defaults and/or defenses), (ii) the dates to
which Rent and Additional Charges have been paid, and the amount of any
advance rentals paid, (iii) the commencement and expiration dates of the
Term, (iv) whether Tenant has given written notice exercising its rights, if
any, to renew this Lease, and if so, the renewal term so opted, and (v) that
Tenant has no outstanding claims against Landlord (or if there are any
claims, then stating the nature and amount of such claims); it being intended
that any such statement may be relied upon by any purchaser or mortgagee of
Landlord's interest in the Premises, or any prospective purchaser or
mortgagee.
Anything in the foregoing sections notwithstanding, this Lease is
expressly contingent upon Landlord obtaining from Tenant a Subordination,
Non-Disturbance and Allotment Agreement from Landlord's mortgagee, upon
satisfaction of the following conditions: submission of Tenant's financial
statement in such form and for such periods as Landlord's mortgagee may
reasonably require; completion and execution by Tenant of a Tenant Estoppel
Certificate; payment by Tenant of mortgagee's fee, if any, for the issuance
of such Agreement.
22. 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, pay all sums thereafter becoming due
Landlord hereunder both to Landlord and such assignee. 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.
(b) In the event the Premises are sold at any foreclosure sale or
sales, 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. It is understood that such purchaser or purchasers
may, at its or their option, terminate this Lease immediately upon giving
written notice thereof to Tenant.
9
23. PARKING AND COMMON FACILITIES.
(a) Landlord hereby further demises and leases to Tenant the right to
use thirty (30) parking spaces within the parking lot adjacent to the
building (which parking spaces are outlined in red and crosshatched on
Exhibit A-I) for the use solely of Tenant's employees, agents, officers and
invitees. 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. 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 other than those
designated for Tenant's use, 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 any of Tenant's parking
spaces by reassigning to Tenant other parking spaces within the property
shown on Exhibit A, or on parking lots which Landlord provides on properties
adjacent to the bulding for the 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.
(b) As of the Commencement Date of this Lease, the Premises hereby
leased comprise approximately five and eight tenths percent (5.8%) of the
total land and/or buildings within which the Premises are located. Tenant
agrees to pay as additional rent, within thirty (30) days of Landlord's
billing, Tenant's proportionate share of any increases in Landlord's costs of
operating, maintaining, repairing, replacing and insuring the common
facilities (as hereinafter defined), including, but not limited to, loading
areas, parking areas, pavements and walkways, and the cost of utilities for
such common facilities as well as any costs incurred by Landlord in
maintaining the leased facilities (as hereinafter defined) but shall not
include the cost of any work which Landlord performs specifically for the
exclusive use of any tenant of the bulding, nor any capital improvements
which Landlord performs, in excess of such Landlord's costs for calendar year
1997. For purposes of calculating Tenant's "proportionate share", the
increase in Landlord's Common Facilities costs and expenses described on
Exhibit C will be multiplied by a fraction, the numerator of which shall be
the floor space of the Tenant's Premises, and the denominator of which shall
be the leasable floor space of the building. All computations shall be made
in accordance with generally accepted accounting principles and the "Floor
Space" referred to herein will be based upon the Floor Space occupied or
ready for occupancy (whether or not leased) on the first day of each month
during the period in question. The Floor Space of the building at the time
of the Lease execution is 310,000 square feet. Any payment due hereunder
shall be deemed to be additional rental pursuant to this Lease and shall be
paid within thirty (30) days of Landlord's billing. In the event Tenant
expands, Tenant's proportionate share shall increase in conjunction with such
expansion.
(c) Tenant shall have the right to the exclusive use of any entrances,
exits, storage areas, and loading docks within the leased Premises or
exclusively serving the leased Premises ("Leased Facilities"), subject to
the condition that Landlord shall at all times have the right and privilege of
determining the nature and extent to which such leased facilities may be used.
In addition, Tenant shall have the right to the non-exclusive use of any
walkways, entrances, exits, parking areas, outside storage areas or trash
areas, if any, outside the leased Premises, serving the building in common
with other tenants, ("Common Facilities") subject to the condition that
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's non-exclusive right to use the common
facilities is a license and not an easement. Tenant's non-exclusive license
to use the common facilities shall be a license to access over and through
the common facilities but not to store anything on the common facilities or
to erect any structures, permanent or temporary, or to make any other use of
the common facilities except as specifically permitted by Landlord. Where
Landlord has designated a portion of the common facilities for any individual
tenant's exclusive use, such as assigning parking spaces in a parking area to
an individual tenant or creating a storage or trash disposal area to be used
by an individual tenant, that individual tenant shall be deemed to have no
further rights with respect to other parking areas and/or other trash removal
areas or storage areas, but such individual tenants shall be limited to the
specified areas provided by Landlord and such areas shall still be deemed to
be part of the common facilities, although only made available by Landlord to
designated tenants.
10
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. It shall be the duty of
Tenant to keep all such facilities 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 of such facilities resulting from the negligence
or misuse by Tenant, its agents, employees, contractors or invitees.
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.
24. COMPLIANCE WITH LAWS.
(a) Tenant covenants and agrees that it will, at its own expense,
observe, comply with and exercise all laws, orders, rules, requirements and
regulations of all govermental 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 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 there.
(b) The preceding shall include, but not be limited to, the following
which Tenant shall not cause or permit to occur: (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, 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" (as defined herein) on, under or
about the Premises, or the transportation to or from the Premises of any
Hazardous Substance.
(c) Tenant shall, at Tenant's own expense, comply with all laws
regulating the use, generation, storage, transportation, or disposal of
Hazardous Substances and 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 pursuant to said laws. Should
any authority or any third party demand that a clean-up plan be prepared and
that a clean-up be undertaken because of any deposit, spill, discharge or
other release of Hazardous Substances that occurs as a result of 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 clean-up plans.
Tenant shall promptly provide all information regarding the use, generation,
storage, transportation or disposal of Hazardous Substances that is requested
by Landlord. If Tenant fails to fulfill any duty imposed under this
Paragraph 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 there with,
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
shall constitute a waiver of any of Tenant's obligations under this Paragraph
and Tenant's obligations and liabilities hereunder shall survive the
expiration of this Lease.
(d) The term "Hazardous Substances" as used in this Lease shall
include, without limitation, flammables, explosives, radioactive materials,
asbestos, polychlorinated biphenyls (PCBs), chemicals known to cause cancer
or reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic
substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any law or regulation now
or hereafter enacted or promulgated by any governmental authority including
without limitation "oil, petroleum products and their by-products" as defined
by Maryland Natural Resources Code Ann. Section 8-1411-(a)(3) as amended from
time to time, any "Hazardous Waste" as defined by the Resource Conservation
and Recovery Act of 1976, as amended from time to time, and regulations
promulgated thereunder, any "Hazardous Substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended from time to time, and any "Hazardous Substances" as defined by
Maryland Health Environmental Code Ann., Title 7, Subtitle 2, as amended from
time to time, and regulations promulgated thereunder).
(e) Tenant shall indemnify, defend, and hold harmless the Landlord, the
manager of the property and their respective officers, directors,
beneficiaries, share-holders, partners, agents and employees from all fines,
suits, procedures, claims and actions of every kind, and all costs associated
therewith (including reasonable attorneys' and consultants' fees) arising out
of, or in any way connected
11
with any deposit, spill, discharge or other release of Hazardous Substances
that occurs as a result of Tenants use or occupancy of the Premises, or from
Tenant's failure to provide all information, make all submissions, and take
all steps required by all governmental authorities under the laws. Tenant's
obligations and liabilities under this sub-paragraph shall survive the
expiration of this Lease.
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: ASSOCIATED PACKAGING
ENTERPRISES, INC., having an address at 7100 Holiday Tyler Road, Glenn Dale
Business Center, Glen Dale, Maryland 20769 (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 therefore 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 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 otherwise specifically
provided, this Lease and the covenants and conditions herein contained shall
extend to, bind and inure to the benefit of the parties hereto and their
respective personal representatives, heirs, successors and permitted assigns.
In the event of any sale or transfer of the fee of any Premises which
includes the Premium devised hereunder, (other than a sale with a leaseback
to the Grantor) or any assignment of any ground or underlying lease of any
Premises which includes the Premium demised hereunder, the Grantor,
transferor, or assignee, as the case may be, shall be and hereby is entirely
relieved and freed of all obligations under this Lease.
Further, notwithstanding any provision herein to the contrary, Tenant
shall look solely to the estate and property of Landlord in and to the
property (or the proceeds received by Landlord on the sale of such estate and
property, but not the proceeds of any financing or refinancing thereof) in
the event of any claim against the Landlord arising out of or in connection
with this Lease, the relationship of Landlord and Tenant for Tenant's use of
the Premises, and such claim shall be limited to such estate and property of
Landlord (or sale proceeds). No other properties or assets of Landlord shall
be subject to levy, execution or other enforcement procedures for the
satisfactin of any judgment, (or other judicial process) or for the
satisfaction of any other remedy of Tenant arising out of or in connection
with this Lease, the relationship of Landlord and Tenant, and Tenant's use of
the Premises, and if Tenant shall acquire a lien on or interest in any other
properties or assets by judgment or otherwise, Tenant shall promptly release
such lien or interest in such other properties and assets by executing,
acknowledging and delivering to Landlord an instrument to that effect
prepared by Landlord's attorneys.
28. SECURITY DEPOSIT/CONSTRUCTION.
(a) Landlord hereby acknowledges receipt from Tenant of Five Thousand
Six Hundred Twenty Five Dollars ($5,625.00) to be held by Landlord as
security for the faithful performance by Tenant of all of the terms,
covenants and conditions of this Lease. The security deposit shall not
accrue interest. If Tenant expands pursuant to the right of expansion set
forth on page 1(a), then Tenant shall increase the security deposit within
fifteen (15) days of expansion to equal one month's rent as of date of
expansion. Landlord may, in Landlord's sole discretion, invest the deposit in
interest bearing securities or accounts, and interest earned thereon, if any,
shall belong to Landlord. Tenant further agrees that Landlord shall be
entitled to co-mingle said security deposit and interest, if any, with its
own funds. If, during the term of this Lease, or any renewal or extention
thereof, any amount due from Tenant to Landlord as rental or otherwise, shall
become past due, Landlord shall have the right, in its sole discretion, to
apply the said security deposit, or any portion thereof, to satisfy such
obligation and Tenant shall thereafter immediately replenish the security
deposit to the sum specified above in this Section with the next payment of
rental due hereunder. Further, in the event Tenant fails to comply with any
of the terms or conditions contained in this lease, Landlord shall have the
right to apply the security deposit against any brokerage fee paid by
Landlord to secure equity and to repay Landlord for any money it expended in
preparing the Premises for Tenant's occupancy; Tenant shall thereafter
immediately replenish the security deposit to the sum specified above in this
Section. With a reasonable time after
12
the termination date of this Lease, the security deposit shall be returned to
Tenant, less all costs incurred by Landlord in correcting or satisfying any
default under this Lease and all costs incurred by Landlord in returning the
Premises to the same condition as it was when delivered to Tenant, excluding
reasonable wear and tear. No right or remedy available to Landlord as
provided in this Section shall preclude or extinguish any other right or
remedy to which Landlord may be entitled under this Lease or at law or in
equity. If for any reason, Tenant has not deposited a security deposit with
the Landlord contemporaneously with the signing of this Lease, Tenant agrees
that it will do so within ten (10) days after written demand therefore by
Landlord. In addition, this Lease is further secured by a Guaranty Agreement
attached hereto and incorporated herein.
(b) For a description of Landlord's Work and Tenant's Work, see further
Exhibit B -- Construction Specifications.
29. ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of any lease amount than the amount stipulated to be paid hereunder
shall be deemed other than on account of the earlier stipulated rent or
additional charges; nor shall any endorsement or statement on any check or
letter by deemed an accord and satisfaction, and Landlord may accept any
check or payment without prejudice to Landlord's right to recover the
balance due or to pursue any other remedy available to Landlord.
30. NOTICES TO MORTGAGES. 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 ninety (90) 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.
31. 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, then 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 beneficiacy of any deed of trust constituting a lien on the Premises or
upon property in which the Premises are situated.
32. MECHANIC'S LIENS. Nothing contained in this Lease shall be deemed,
construed or interpreted to imply any consent or agreement on the part of
Landlord to subject Landlord's interest or estate to any liability under any
mechanic's or other lien law. If Landlord receives any notice to file a
mechanic's or other lien against the building, or any part thereof, or the
Premises, or any part thereof, for any work, labor, services or materials
claimed to have been performed or furnished for or on behalf of Tenant or
anyone holding any part of the Premises through or under Tenant, then Tenant
shall act promptly to have such notice withdrawn and to settle any dispute
that is the subject of such notice. If any petition to establish a
mechanic's or other lien is filed, or if any mechanic's or other lien is
actually established against the building, or any part thereof, or the
Premises, or any part thereof, or if any mechanic's or other lien is actually
established, for any work, labor, services or materials claimed to have been
performed or furnished for or on behalf of Tenant or anyone holding any part
of the Premises through or under Tenant, then Tenant shall cause the same to
be canceled and discharged of record by payment, bond or order of court
within 20 days after notice by Landlord to Tenant. Tenant shall, at
Landlord's request, give written notice to all of Tenant's laborers and
materialmen that Landlord shall not be responsible for labor on the Premises
not at the time of said notice performed, or for materials which have been
furnished. Tenant shall be responsible for paying as additional rent, any
attorneys fees that Landlord actually incurs as a result of Landlord
receiving any notice of intent to file a mechanic's, or other, lien
described herein; as a result of any such petition to file a mechanic's, or
other, lien; or as a result of any such mechanic's, or other, lien being
established against the building or any part thereof, or against the
Premises, or any part thereof.
33. 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 thereto against
the other on any matters arising out of or in any way connected with this
Lease, the
13
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 counterclaim(s) in a summary proceeding or in
any action based on holdover or non-payment of rent and/or additional charges.
34. BROKERAGE. Tenant and Landlord each covenants and agrees that it has
had no dealings with any broker or agent in connection with this Lease,
except for Bright Realty Advisors and W.F. Chester Real Estate, Inc., and
each covenants to pay, hold harmless and indemnify the other from and against
any and all costs, expenses and liability 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.
35. TENANT REPRESENTATIVE. Name and telephone number of Tenant
representative to be contacted in the event of emergency: Jack Booz
(301) 262-5164.
36. 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. This Lease may be
executed in any number of counterparts, each of which shall be an original,
but all of which shall together constitute but one Lease.
37. TENANT'S RIGHT TO AUDIT.
(1) Audit Threshold. In the event Tenant's proportionate share of
Common Facilities Costs increases by more than twenty percent (20%) in any
Lease Year, Tenant may audit Landlord's common area operating costs in order
to verify the accuracy of Common Facilities Costs charges provided that:
(a) Tenant specifically designates the fiscal year(s) that Tenant
intends to audit, which shall be a year within three (3) years of the
date of the audit but must be within the Term of this Lease; and
(b) Such audit will be conducted only during regular business
hours at the office where Landlord maintains CAM expense records and
only after Tenant gives Landlord fourteen (14) days notice.
(2) Copy of Audit. Tenant shall deliver to Landlord a copy of the
result of such audit within fifteen (15) days of its receipt by Tenant. No
such audit shall be conducted if any other tenant has conducted an audit for
the time period Tenant intends to audit and Landlord furnishes to Tenant a
copy of the results of such audit.
(3) Tenant Not in Default. No audit shall be conducted any time that
Tenant is in default of any of the terms of the Lease.
(4) Limits for Subtenants and Assignees. No subtenant shall have any
right to conduct an audit and no assignee shall conduct an audit for any
period during which such assignee was not in possession of the Premises.
38. MISCELLANEOUS.
(a) Except for Tenant's obligation to pay rent and additional rental,
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 delivering the Premises to Tenant for causes
beyond the control of Landlord, then the commencement and expiration of the
Term shall be extended accordingly.
(b) In the event that Tenant shall seek the approval by or consent of
Landlord and Landlord shall fail or refuse to give such consent or approval
in respect of any matter where Landlord is required either by this Lease or
by law, not to unreasonably withhold its consent or approval, Tenant shall
not be entitled to any damages for any withholding or delay of such approval
or consent of Landlord, but only shall be entitled to bring an action for
injunction or specific performance.
14
(c) 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 Premises and supersede and revoke
any previous negotiation, arrangements, letters of interest, offers to lease,
lease proposals, and information conveyed.
(d) Irrespective of the place of execution or performance, this Lease
shall be governed by and construed in accordance with the laws of the State
of Maryland. If any provision of this Lease or the application thereof to any
person or circumstances shall, for any reason or to any extent, be invalid or
unenforceable, the remainder of this Lease and the application of that
provision to other persons or circumstances shall not be affected but rather
shall be enforced to the extent permitted by law. The table of contents,
captions, headings and title in this Lease are solely for convenience of
reference and shall not affect its interpretation. This Lease shall be
construed without regard to any presumption or other rule requiring
construction against the party causing this Lease to be drafted. If any words
or phrases in this Lease have been stricken out or added, this Lease shall be
construed as if the words or phrases so stricken out or otherwise eliminated
were never included in this Lease and no implication or inference shall be
drawn from the fact that said words or phrases were so stricken out or
otherwise eliminated. Each covenant, agreement, obligation or other provision
of this Lease shall be deemed and construed as a separate and independent
covenant of the party bound by, undertaking or making same, not dependent on
any other provision of this Lease unless otherwise expressly provided. All
terms and words used in this Lease, regardless of the number or gender in
which they are used, shall be deemed to include any other number and any
other gender as the context may require.
(e) In the event Tenant defaults under any of the terms of this Lease,
Tenant shall pay all costs, expenses and reasonable attorney's fees that may
be incurred or paid by Landlord as a result thereof. Tenant shall be liable
for such attorney fees whether or not Landlord institutes legal proceedings.
However, where legal proceedings are instituted by Landlord against Tenant,
and said proceedings result in a monetary judgment in favor of Landlord,
those responsible attorneys fees for which Tenant shall be liable to Landlord
shall not be less than 15% of said judgment.
(f) Any and all sums of money required to be paid by Tenant under this
Lease, whether or not designated as "additional rent" shall nevertheless be
deemed as "additional rent" and shall be collectible as rent.
(g) This written agreement constitutes the entire agreement and
understanding of the parties, and there are no other, prior or contemporaneous,
written or oral agreements, undertakings, promises, warranties or covenants
not contained herein. This Lease cannot be modified or amended except in a
writing signed by both parties.
AS WITNESS the hands and seals of the parties hereto the day and
year first above written.
WITNESS: LANDLORD:
GLENN DALE BUSINESS CENTER, L.L.C.
??????????????? By: /s/ Lawrence G. Rief (Seal)
- -------------------------- ----------------------------------
Lawrence G. Rief
WITNESS: TENANT:
ASSOCIATED PACKAGING ENTERPRISES, INC.
??????????????? By: /s/ Edward J. Cooksey (Seal)
- -------------------------- ----------------------------------
Edward J. Cooksey, President
15
STATE OF MARYLAND, CITY/COUNTY OF CARROLL MARYLAND, to wit:
On this 31st day of July, 1997, before me, the subscriber, a Notary
Public of the State of Maryland, personally appeared LAWRENCE G. RIEF, MEMBER
of the above named 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.
Carol M. Baker Carol M. Baker
--------------- NOTARY
Notary Public SEAL
My Commission Expires: 11/6/00 Carroll County, MD
STATE OF MARYLAND, CITY/COUNTY OF ANNE ARUNDEL, to wit:
On this 24th day of July, 1997, before me, the subscriber, a Notary
Public of the state aforesaid, personally appeared EDWARD J. COOKSEY,
PRESIDENT of the above named Tenant, and he acknowledged the above Lease to
be the act of the said Tenant.
IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal.
Diane F. Maher
-----------------------
Notary Public
My Commission expires: 10/1/97
--------------
16
EXHIBIT A
(Main Level and Lower Level Plan)
EXHIBIT A-1
(Map of Location)
GLENN DALE BUSINESS CENTER, L.L.C.
EXHIBIT B
CONSTRUCTION SPECIFICATIONS
A. Landlord will, at its cost and expense, do the following with
respect to the Premises described hereunder. Paint and clean the
existing 500 square foot office. All existing building systems
operational as of the date of delivery to Premises to Tenant by
Landlord. For first year of Lease only, Landlord will pay for all
major replacements of heating equipment in excess of $1,000, if
such replacements are not covered by existing warranty and existing
warranty (to be assigned to Tenant as of the Commencement Date of
the Lease,) and which are not caused by Tenant's negligence or
intentional misconduct. If Tenant properly exercises its option to
expand, then upon receipt of Tenant's expansion notice, Landlord
will re-tile existing office floor, install two (2) dedicated one
(1) 110 volt outlet in office area for copy and fax. Install
temporary air conditioning for office area. Install warehouse gas
heating units. Tenant shall have use of a single office in the
office pod of the building which will have temporary air
conditioning. Install protection around electrical boxes in
warehouse area. Within the first year of the Lease, Landlord will
also separately meter or sub-meter Tenant's gas and electric. In
the event Tenant is not relocated, then the following work shall be
done by Landlord on or before August 1, 1998:
Raise overhead door height (of one door) at interior loading dock
to ten (10) feet or higher;
Re-tile existing office floor;
Exterior glass entrance door with a sidelight window on either side
of entrance door so that there will be two (2) windowed offices;
1,000 square feet of office space in addition to existing warehouse
office to be divided as follows (subject to revision prior to
approval of construction drawings: reception area, conference
room, 3 office);
Create three (3) restrooms: one (1) warehouse, one (1) office
ladies, one (1) office mens;
Install any walls necessary to divide the Premises from the balance
of the space (cinder block with sheetrock with protection);
Existing center HVAC ductwork to be removed;
Rear offices in warehouse area to be demolished;
B. The following shall be incorporated in the construction of the
Premises by the party indicated, but all labor, material and equipment
therefor shall be at Tenant's sole cost and expense. All other items
necessary in order to constitute the Premises as a fully tenantable unit.
C. Except as otherwise indicated, Tenant accepts the Premises in "As
is" condition as of the date of the execution of this Lease.
All work included in or in addition to the foregoing shall be subject to
Landlord's approval as to design, materials and details.
D. Provisions governing work performed by Tenant.
1. All work performed by Tenant shall be performed in a first class
and workmanlike manner and with new materials.
2. Tenant shall be responsible for obtaining all permits required
in connection with the performance of its work.
3. Before Tenant or its contractors commence any work, they shall
arrange with Landlord for allocation of space for storage of equipment
and materials and for access to the site of the work. Storage of all
materials and equipment shall be confined to the areas from time to time
B - 1
designated by Landlord, and access to the site of the work by Tenant's
contractors, and their employees and suppliers shall be confined to the
routes from time to time designated by Landlord.
4. Connections for utility service for Tenant and its contractors during
the construction period shall not be made without prior notice to Landlord
and without making arrangements satisfactory to Landlord for payment by
Tenant for such connections and service.
5. Tenant shall not engage any contractor for work respecting the
Premises without Landlord's prior written approval of such contractor.
6. Tenant shall require its contractors to comply with all requirements
of Landlord regarding coordination of work in the property.
7. Tenant shall cause its contractors to remove and dispose of debris,
rubbish, surplus materials and temporary structures resulting from Tenant's
work in the Premises, as may be necessary to avoid interference with
construction or when directed by Landlord.
8. Tenant shall cause its contractors to take all reasonable
precautions to protect other work on the property from any damage owing to
work performed by Tenant's contractors; and Tenant shall indemnify Landlord
for any damage to any such other work caused by Tenant's contractors.
9. If required by Landlord, Tenant shall cause its contractors to
furnish performance and labor and material payment bonds from a reputable
surety company and which shall include Tenant, Landlord, and other designees
of Landlord as obligees, without cost to Landlord or its designees.
10. If, in the opinion of Landlord's insurer, builder's risk insurance
is required to be carried on the improvements made by Tenant, in order to
prevent Landlord or its contractors from being deemed co-insurers under the
builder's risk insurance carried on the improvements constructed by Landlord,
Tenant shall carry builder's risk insurance on the work performed by Tenant
in such form and amounts as may be required by Landlord's insurer.
11. All work performed by Tenant shall be performed in compliance with
applicable requirements.
12. Tenant shall cause its contractors to furnish the customary one year
warranty against defects in workmanship and materials and in the event the
Term does not commence or is terminated prior to the expiration of the
warranty period, Landlord shall be entitled to the benefit of such
warranties, which are hereby assigned to Landlord.
13. If any labor dispute is caused by or related to any of Tenant's
contractors, subcontractors, or suppliers, Tenant shall, upon Landlord's
demand, cause the contractor, subcontractor or supplier causing, involved in
or related to such labor dispute to immediately cease work and deliveries in
the Center until further notice from Landlord.
14. If Tenant shall perform any work or make any improvements to the
Premises not conforming to the plans and specifications approved by Landlord,
then Tenant's shall upon request by Landlord promptly make any changes needed
to bring such work or improvements into conformity with the approved plans
and specs. If Tenant fails to make such requested changes promptly upon
request by Landlord, then Landlord may cause such changes to be made at
Tenant's expense; and Tenant shall pay the costs of such work as if such work
were assigned to be done by the Landlord under Section B of this Exhibit B.
15. Landlord shall have no responsibility or liability whatever for any
materials or equipment stored by Tenant or its contractors either in the
Premises or elsewhere in the property pursuant to paragraph 3 above. If
Tenant desires insurance protection for such materials and equipment, it
shall arrange for coverage at its expense.
B - 2
GLENN DALE BUSINESS CENTER, LLC
EXHIBIT C
COMMON FACILITIES COSTS
Operating costs for the common facilities shall mean, for the purpose of
Paragraph 23 of the Lease, the total expenses incurred in operating and
maintaining the common facilities and any appurtenances thereto and
facilities thereof (or in or on unpaved outdoor areas of the property or
adjacent public streets or rights of way) or operating and maintaining leased
facilities not for the exclusive use of any warrant of the building,
including but not limited to the following:
1. Gardening, landscaping and maintenance of grass, trees, and
shrubbery;
2. All premiums for all insurance carried by the Landlord on the
property, and on any equipment and systems in or pertaining to the building or
property, including but not limited to public liability insurance, property,
damage insurance, automobile insurance, sign insurance, fire and extended
coverage insurance, boiler liability and casualty insurance, and plate glass
insurance (may be billed separately if fiscal year end and insurance year
differ);
3. Watchman service and other security service(s) and security
equipment for the building (but not for individual leased Premises);
4. Water and sewer charges for the property;
5. Any costs, charges, and expenses incurred by Landlord in connection
with any change of any company providing any utility service to the Premises,
including, without limitation, maintenance, repair, installation, and service
costs associated therewith;
6. Building, repairs, replacements and maintenance which is the
responsibility of the Landlord and all other repairs, replacements and
maintenance in and to the property, including but not limited to: paving,
plate glass, sprinkler system (if applicable), restroom facilities (if any)
(and utility conduits and plumbing fixtures pertaining thereto) vehicle area
lighting facilities, energy saving installations of any nature, drainage
facilities and other utility conduits and facilities in the vehicle areas, and
in unpaved areas of the property or adjacent public streets, pumping stations
and force mains (on and/or off site) utilized for sanitary, sewer and water
service in the property, signs and wiring, retaining walls, curbs, gutters,
fences, sidewalks, steps, escalators, elevators and ramps (if any) in the
property or other outdoor areas or public streets; exclusive of casualty loss
replacements covered by insurance, and exclusive of capital improvements;
7. Cleaning;
8. Utility charges (if any) for lighting the vehicle areas, signs, and
operating pumping stations, force mains and other like facilities;
9. Vehicle area line painting and removal of snow and ice;
10. Collection and removal of trash from the common facilities and
outdoor areas, (if undertaken by Landlord);
11. Power and fuel for operating equipment and systems and for operating
vehicles and equipment used for cleaning, maintenance and snow removal;
12. Salaries of personnel directly engaged in operating, cleaning and
maintaining the property (including security personnel and parking
attendants), and all related payroll charges and taxes.
C - 1
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT is given this 31st day of July, 1997 by JEROME
MURPHY, Jointly and Severally, having an address at __________________________
____________________________________; EDWARD COOKSEY, Jointly and Severally,
having an address at ________________________________________________________;
and JACK BOOZ, Jointly and Severally, having an address at ___________________
___________________________________________ (collectively, the "Guarantor")
jointly and severally, to GLENN DALE BUSINESS CENTER L.L.C. (the "Landlord"),
with respect to a Lease (the "Lease") dated of even date herewith between
Landlord and ASSOCIATED PACKAGING ENTERPRISES, INC. ("Tenant"), for premises
in the Glenn Dale Business Center.
WITNESSETH: As an inducement to Landlord to execute the Lease, and in
consideration thereof, Guarantor agrees with Landlord as follows:
1. Guarantor represents that it owns all of the issued and outstanding
capital stock of Tenant, that Tenant is a duly organized corporation, and
that all corporate action requisite for Tenant's execution of the Lease has
been duly taken.
2. Guarantor unconditionally guarantees to Landlord the full and prompt
payment of all rent and additional rent required to be paid by Tenant under
the Lease, the full and prompt performance and observance of all obligations
required to be performed and observed by Tenant under the Lease, and the
prompt payment of all other obligations and damages for which Tenant may be
legally liable to Landlord. Guarantor's liability hereunder shall not exceed
the amount equal to all rent and additional rent due under the Lease for the
twelve months immediately following a default which causes Guarantor's
liability hereunder.
3. Guarantor's liability hereunder shall be primary and not secondary,
and shall be joint and several with that of Tenant. Landlord may proceed
against Guarantor under this Guaranty Agreement without initiating or
exhausting its remedy or remedies against Tenant, and may proceed against
Tenant and/or Guarantor separately or concurrently. If Landlord releases any
rights it may have against any party primarily or secondarily liable on the
Lease, such release shall not affect Guarantor's liability under this
Guaranty.
4. In any action brought by Landlord under Paragraph 2 of this
Guaranty, Guarantor shall not interpose or be entitled to the benefit of any
defenses that are not or would not be available to Tenant if the same action
were brought by Landlord against Tenant, including, but not limited to,
defenses based upon modifications of the Lease, upon extensions, indulgences,
or forebearances granted to Tenant, upon delay by Landlord in enforcing
Tenant's obligations under the Lease, or upon failure of Landlord to notify
Guarantor of any Lease modifications or any extensions, indulgences, or
forebearances granted to Tenant; and Guarantor expressly waives all defenses
negated by this Paragraph 4.
5. Any notices given to Tenant under or with respect to the Lease shall
be conclusively deemed to have been simultaneously given to Guarantor.
6. Guarantor's liability under this Guaranty Agreement shall not in any
way be affected by any assignment of the Lease or a subletting of the
premises demised under the Lease.
7. No discharge, modification, impairment or limitation of the
obligations of Tenant to its creditors generally, or to Landlord under the
Lease, under any law relating to bankruptcy, insolvency, arrangements with
creditors or corporate reorganizations, shall in any way affect or discharge
Guarantor's obligations hereunder, and, to that end, Guarantor specifically
waives any right of indemnification that it may have against Tenant. If any
trustee, receiver or conservator of Tenant appointed under any Federal or
State law relating to bankruptcy, insolvency, arrangements with creditors or
corporate reorganization, rejects the Lease pursuant to any right to do so
under any such law, Guarantor's obligations hereunder shall not thereby be
affected but shall remain in full force and effect the same as if Lease had
not been rejected but continued in force.
8. If Landlord files any action against Guarantor to collect rent or
additional rent payable under the Lease or any other sum for which Tenant is
legally liable to Landlord, and a judgment is rendered for Landlord with
respect thereto, then Guarantor shall pay all reasonable counsel fees
incurred by Landlord in such action.
G-1
9. Within ten (10) days after Landlord's written request to Guarantor,
Guarantor shall execute and deliver to Landlord a statement in writing
setting forth any amendments to this Guaranty and stating whether or not this
Guaranty is in full force and effect and setting forth what reasons or
defenses, if any, support any claim that this Guaranty is not in full force
and effect. Guarantor acknowledges that such statement may be required in
order for Landlord to consummate a sale or mortgage loan, and that a
purchaser or mortgagee will be entitled to rely on such statement.
10. Guarantor consents to suit in the State and Federal Courts of the
State of Maryland on or with respect to this Guaranty Agreement. Guarantor
waives any objection to the venue of any action filed by Landlord against
Guarantor in any State or Federal court of Maryland and waives any claim of
forum non conveniens or for transfer of any such action to any other court.
Guarantor hereby irrevocably appoints The Corporation Trust Company and its
successors as process agent to receive service of process for Guarantor in
any action brought on or with respect to this Guaranty in the State or
Federal Courts of the State of Maryland. If the said Corporation Trust
Company shall cease to perform such functions for foreign corporations, then
Landlord may appoint a bonded company performing such functions as process
agent. Guarantor authorizes Landlord, as Guarantor's attorney-in-fact, to
deliver a copy or photocopy of this Guaranty Agreement to the process agent
at any time (including delivery made simultaneously with service of process)
to evidence such appointment of such process agent and Guarantor shall
promptly reimburse Landlord for any fees and other expenses required to be
paid to said process agent in connection with its acceptance of such
appointment.
In lieu of services upon the said process agent, service of process may
be made upon Guarantor in any action or with respect to this Guaranty by
mailing such process to Guarantor by U.S. Certified Mail, Return Receipt
Requested, or U.S. Registered Mail, at the address to which notices may
be sent to Guarantor under this Guaranty Agreement.
Nothing herein shall be deemed to preclude Landlord from obtaining
service of process upon Guarantor in any other manner permitted by the laws
of the State of Maryland and the Rules of the Court of Appeals of Maryland.
11. IN THE EVENT THAT ANY SUM DUE HEREUNDER IS NOT PAID WITHIN FIFTEEN
(15) DAYS OF THE DATE WHEN DUE, THE GUARANTORS AUTHORIZE THE CLERK OR ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR THEM AND ENTER JUDGMENT BY
CONFESSION FOR THE PRINCIPAL BALANCE THEN OUTSTANDING UNDER THIS GUARANTY
AGREEMENT, TOGETHER WITH INTEREST, COURT COSTS AND AN ATTORNEY'S FEE EQUAL TO
15% OF THE SUMS ORIGINALLY GUARANTEED HEREUNDER.
12. Guarantor acknowledges that this Guaranty Agreement has been
delivered in the State of Maryland concurrently with delivery of the Lease
and shall be governed by the laws of the State of Maryland.
13. Any action, proceeding or counterclaim brought by Landlord or
Guarantor against the other with respect to any matter arising out of or in
any way connected with the Lease or this Guaranty shall be tried by the court
alone, sitting without a jury.
14. If this Guaranty is executed by more than one party, the term
"Guarantor" shall be deemed to apply to such parties jointly and severally.
The use of the neuter gender herein shall be deemed to mean the correct gender
applicable to the Guarantor, and the use of the singular shall include the
plural as the context may require.
15. Guarantor shall, upon request of Landlord, promptly join in the
execution of all stipulations and agreements referred to in the Lease.
16. Any notice which Landlord may elect to send to Guarantor shall be
binding upon the Guarantor if mailed to it at the addresses set forth in the
first paragraph of this Guaranty or to the Guarantor's last address known to
Landlord, by U.S. Certified Mail, Return Receipt Requested, or U.S.
Registered Mail.
17. Guarantor waives acceptance of this Guaranty.
18. The Guaranty Agreement shall be binding upon the successors of
Guarantor and the term "Guarantor", as used herein, includes such successors.
This Guaranty Agreement shall inure to the benefit of Landlord's successors
and assigns, and the term "Landlord", as used herein, includes such
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successors and assigns. The term "Tenant", as used herein, includes the
permitted successors and assigns of Tenant.
IN WITNESS WHEREOF, this Guaranty under seal has been duly signed and
sealed by the Guarantor, as of the day and year first above written.
WITNESS: GUARANTOR:
[Name Illegible] /s/ Jerome Murphy (SEAL)
- --------------------------- ------------------------------
Jerome Murphy
Social Security No: ###-##-####
WITNESS: GUARANTOR:
[Name Illegible] /s/ Edward Cooksey (SEAL)
- --------------------------- ------------------------------
Edward Cooksey
Social Security No: ###-##-####
WITNESS: GUARANTOR:
[Name Illegible] /s/ Jack Booz (SEAL)
- --------------------------- ------------------------------
Jack Booz
Social Security No: ###-##-####
STATE OF MARYLAND, CITY/COUNTY OF ANNE ARUNDEL, to wit:
I HEREBY CERTIFY, that on this 24th day of July, 1997, before me, a
Notary Public of the State aforesaid, personally appeared JEROME MURPHY
who acknowledged that he executed the foregoing instrument for the purposes
herein contained.
WITNESS, my hand and Notarial Seal.
/s/ Diane F. Maher
------------------------------
Notary Public
My Commission Expires: 10-1-97
STATE OF MARYLAND, CITY/COUNTY OF ANNE ARUNDEL, to wit:
I HEREBY CERTIFY, that on this 24th day of July, 1997, before me, a
Notary Public of the State aforesaid, personally appeared EDWARD COOKSEY
who acknowledged that he executed the foregoing instrument for the purposes
herein contained.
WITNESS, my hand and Notarial Seal.
/s/ Diane F. Maher
------------------------------
Notary Public
My Commission Expires: 10-1-97
STATE OF MARYLAND, CITY/COUNTY OF ANNE ARUNDEL, to wit:
I HEREBY CERTIFY, that on this 24th day of July, 1997, before me, a
Notary Public of the State aforesaid, personally appeared JACK BOOZ
who acknowledged that he executed the foregoing instrument for the purposes
herein contained.
WITNESS, my hand and Notarial Seal.
/s/ Diane F. Maher
------------------------------
Notary Public
My Commission Expires: 10-1-97
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