DEED OF LEASE
This DEED OF LEASE AGREEMENT ("Lease") is made as of this 9/th/ day of
March, 2001 between SEMINOLE TRAIL PROPERTIES, LLC, 0000 Xxxx Xxxxx Xxxx
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000 ("Landlord") and COMDIAL REAL ESTATE CO., INC.,
0000 Xxxxxxxx Xxxxx Xxxxxxxxxxxxxxx, Xxxxxxxx 00000 ("Tenant").
W I T N E S S E T H:
1. Definitions. The following definitions shall apply to the indicated terms,
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whenever used in this Lease. Additional defined terms may be found in the body
of the Lease.
1.01 Building. The term "Building" shall mean that certain
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building located at 0000 Xxxxxxxx Xxxxx Xxxxxxxxxxxxxxx, Va., together with any
related land, improvements, parking facilities, common areas, driveways,
sidewalks and landscaping.
1.02 Leased Premises. The term "Leased Premises" shall mean those
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suites in the Building, as more particularly outlined on the drawing attached
hereto as Exhibit A and described on Schedule 1 attached hereto, both of which
are incorporated herein by reference.
1.03 Rentable Area of the Premises. The term "Rentable Area of the
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Premises" shall mean those square footages for each of the suites of the Leased
Premises noted on Schedule 1, which shall be finally determined by Landlord's
architect using BOMA standards.
1.04 Lease Term. The term "Lease Term" shall mean the period
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between the Commencement Date and the Expiration Date for each suite of the
Leased Premises as noted on Schedule 1, unless sooner terminated as otherwise
provided in this Lease.
1.05 Commencement Date. The "Commencement Date" shall mean the
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date of the closing of Landlord's purchase of the Building.
1.06 Expiration Date. "Expiration Date" shall mean those dates
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noted on Schedule 1 as the expiration dates for Tenant's lease of each suite of
the Leased Premises.
1.07 Minimum Rent. Minimum Rent shall mean the rents due as noted
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on Schedule 1.
1.08 Tenant's Permitted Use. The term "Tenant's Permitted Use"
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shall mean that use noted for each suite of the Leased Premises on Schedule 1
attached hereto and no other use.
1.09 Landlord's Address For Notices. The term "Landlord's Address
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for Notices" shall mean that address of Landlord noted above.
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1.10 Tenant's Address For Notices. The term "Tenant's Address for
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Notice" shall mean Comdial Business Communications Corporation, 0000 Xxxxxxxx
Xxxxx, Xxxxxxxxxxxxxxx, Xxxxxxxx 00000, Attn: Chief Financial Officer.
1.11 Guarantor. The term "Guarantor" shall mean Comdial
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Corporation.
1.12 Attachments:
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Exhibit A - Floor Plan of Leased Premises
Exhibit B - Rules and Regulations
Exhibit C - Guaranty
Exhibit D - Parking Spaces and Entrances
Exhibit E - Comdial/Technicolor Letter
Exhibit F - Letter of Credit
Schedule 1 - Lease Terms
2. Description of Premises. Landlord leases to Tenant, and Tenant
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leases from Landlord, the Leased Premises described in Section 1. The Leased
Premises are shown on a floor plan attached hereto and incorporated herein as
Exhibit "A." Exhibit "A" sets forth the general layout of the floor plan and
shall not be deemed a warranty on the part of Landlord that the floor is or will
be exactly as indicated on such diagram. Tenant's occupancy of the Leased
Premises shall include the use in common with others entitled thereto of all
currently existing parking areas, service roads, sidewalks, signs, equipment
facilities, service areas, hallways, doors, stairwells, and the like associated
with the Building (the "Common Areas") subject, however, to the terms and
conditions of this Lease.
3. Use of Leased Premises. The Leased Premises shall be used solely for
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the Permitted Use indicated in Section 1 and Schedule 1, and for no other
purpose.
4. Length and Commencement of Term. The term of this Lease shall commence
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on the Commencement Date, and continue for the Term indicated in Section 1
following the Commencement Date.
5. Rent. Tenant shall pay, as rent for the Leased Premises, the Minimum
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Rent indicated in Section 1 and on Schedule 1. The first two (2) month's rent
due hereunder shall be paid by Tenant to Landlord upon the Commencement Date. If
the Commencement Date is not the first day of the month, rent for that month
shall be prorated. If any rent or other sum due is not received by Landlord
within five (5) when due, Tenant shall pay a late charge of five percent (5%) of
the overdue amount. If any payment under this Lease is made by check and such
check is returned by the payor for any reason, Tenant shall pay a returned check
charge of One Hundred Dollars ($100.00). If such rate exceeds the maximum rate
permitted by law with respect to Tenant, Tenant shall pay interest at the
highest lawful rate applicable to Tenant. Without limiting the foregoing, Tenant
shall pay Landlord the first two month's Minimum Rent due hereunder at the time
of the execution of this Lease.
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6. Payments. All rental and other payments shall be made to Landlord at
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the address indicated in Section 1, until Landlord otherwise directs in writing.
All charges, fees, and other amounts due, other than Minimum Rent, shall be
deemed Additional Rent. Unless otherwise provided in this Lease or in writing,
all payments of Minimum Rent and Additional Rent shall be payable monthly in
advance on or before the first day of each month during the Term, without prior
demand and without offset, reduction, defense, or counterclaim. All payments
shall be made prior to the close of business (Eastern Standard Time) on the date
specified for such payment and in immediately available United States funds.
Minimum Rent and Additional Rent shall collectively be known herein as the
"Rent".
7. Letter of Credit. Tenant has deposited with Landlord, or will deposit
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simultaneously with this Lease, as security for the full performance of Tenant's
obligations under this Lease, a letter of credit (the "Letter of Credit") in the
amount of $538,197.00, which letter of credit: (i) shall be in form and
substance and from a commercial lender reasonably acceptable to Landlord, (ii)
shall be for a term ending upon Tenant's payment of its December 2001 Rent, so
long as it is not in default hereunder and (iii) shall be reduced by one-eighth
(1/8th) upon each monthly payment of Rent, so long as Tenant is not in default
hereunder. A copy of the Letter of Credit is attached hereto as Exhibit F. In
the event Tenant fails to pay Minimum Rent when due under this Lease, Landlord
may make a draw for the full amount of the Letter of Credit in accordance with
the terms of the Letter of Credit and shall apply the proceeds thereof to unpaid
Minimum Rent as it becomes due; provided, however, that except for the Minimum
Rent paid with such proceeds, Tenant shall remain liable for all of its other
obligations under this Lease.
8. INTENTIONALLY OMITTED
9. Control of Common Areas and Facilities by Landlord. The Common Areas
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shall at all times, subject to the rights of use by Tenant, be under the
exclusive control and management of Landlord, and Landlord shall have the right,
from time to time, to establish, modify, and enforce reasonable rules and
regulations with respect to the Common Areas. Without limiting the foregoing,
Landlord shall construct, maintain, and operate lighting facilities on all
Common Areas; police the same; and shall keep the Common Areas in good repair
and appearance.
10. Use of Parking Areas. Landlord agrees to permit Tenant to use the
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parking spaces and entrances set forth on Exhibit D. Except as provided in the
previous sentence, all automobile parking areas, driveways, entrances, and exits
and other facilities furnished by Landlord for use by Tenant, shall at all times
be subject to Landlord's exclusive control and management, and Landlord shall
have the right from time to time to establish, modify, and enforce reasonable
rules and regulations with respect to all such facilities and areas. Landlord
shall keep all these areas in good repair and appearance and shall remove snow
and ice from the walkways, parking areas and driveways.
11. Services. Tenant shall obtain and pay directly all costs of utilities
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for the Leased Premises. Tenant shall utilize its or its affiliates and/or
Parent's mechanical/electrical maintenance staff employed by such parties as of
the date hereof to separate the Building's utilities for the Leased Premises;
however, if costs of materials and contractors hired to perform the work the
aforesaid employees cannot perform exceed $25,000, Landlord shall pay the
reasonable excess costs of such utility separation. All such work shall require
the prior written consent of Landlord, which consent shall not be unreasonably
withheld. Landlord shall not be required to provide any utilities for the
Leased Premises. Tenant shall further provide all janitorial and waste disposal
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services to the Leased Premises. In the event Tenant's use of the water and
sewer services exceeds that of a normal office use, Tenant, at its expense,
shall have such services separately metered and pay for such service directly.
Otherwise, at Landlord's option, Tenant shall pay Landlord its prorata share of
such utility costs for the Leased Premises. Other tenants of the Property shall
have similar provisions regarding separate metering of water and sewer services.
12. Maintenance by Landlord. Subject to Section 13, Landlord shall make
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all repairs and replacements to the Building as may be necessary to keep the
Building in good condition and repair.
13. Maintenance by Tenant. Tenant shall, at its expense, make any and all
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repairs necessary to keep the interior of the Leased Premises in good condition
and repair, including without limitation, maintenance of the HVAC, plumbing and
electrical systems of the Leased Premises, unless such repairs are necessary due
to the negligence or willful act or omission of Landlord. Notwithstanding the
foregoing, Tenant shall not be required to make any single repair, the cost for
which exceeds $3,000. Further, Tenant shall make any and all repairs to the
Building as are caused by the negligence or willful act or omission of Tenant or
any of its agents, employees, contractors, licensees, or invitees. In addition
to the duties of Tenant pursuant to this Section 13, prior to May 1, 2001, and
at Tenant's expense, Tenant shall repair those HVAC systems of the Building as
directed by Landlord, up to a cost for materials not in excess of $20,000. All
labor for such repairs shall be provided by Tenant's and its affiliates' staff.
In the event such staff cannot repair the item in question, then, with the
consent of Landlord, Tenant may engage outside contractors to perform such
repairs. The cost for such outside contractors shall be deducted from the
aforesaid $20,000. Finally, Tenant shall periodically check and advise Landlord
on the condition of the sprinkler system and related 30,000 gallon tank and
pumps of the Building. Tenant shall have no responsibility to repair the
sprinkler system and related 30,000 gallon tank and pumps of the Building, the
center of three (3) chillers, three roof air handlers in the molding area of the
Building and all air compressors of the Building, other than for damage caused
by the negligence or willful act or omission of Tenant or any of its agents,
employees, contractors, licensees, or invitees.
14. Sundry Covenants of Tenant. Tenant shall: (a) comply with all
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federal, state, and municipal laws, ordinances, and regulations relating to the
Leased Premises and its Permitted Use, including, without limitation, all
environmental laws, rules and regulations (collectively the "Environmental
Laws") and (b) notify Landlord immediately upon receipt of all notices or other
communications by governmental authorities regarding possible or actual
noncompliance with laws, ordinances, or regulations, and (c) not use or permit
to be used the Leased Premises for any illegal or immoral purpose. The Leased
Premises shall not be used for the treatment, storage, use, or disposal of toxic
or hazardous wastes or substances, or any other substance, exposure to which is
prohibited, limited, or regulated by a governmental or quasi-governmental
authority or which, even if not so regulated, could or does pose a hazard to the
health and/or safety of the occupants of the Building or surrounding property.
Notwithstanding the foregoing, Tenant may continue its existing painting and
soldering operations in the Leased Premises, so long as such activities are
conducted at Tenant's sole risk and in accordance with all applicable law, rules
and regulations.
Tenant shall indemnify and hold Landlord harmless from and against any
expense or liability (including attorney's fees) arising under the Environmental
Laws resulting from Tenant's use of the Leased Premises or any acts and/or
omissions of Tenant, its agents, employees, invitees, subsidiaries, sublets,
parents, affiliates or independent contractors.
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15. Improvements. Tenant has examined and accepts the Leased Premises "as
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is". Tenant may not make any improvements or alterations to the Leased Premises
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Tenant acknowledges that Landlord may, at its option,
make improvements to the Leased Premises during the Term, including without
limitation, the installation of dropped ceilings, updating HVAC systems,
enhanced insulation and other capital improvements; however, Landlord shall
minimize disruptions to Tenant during such work and shall not materially
interfere with Tenant's operations.
16. Compliance with Americans with Disabilities Act of 1990. If the ADA
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requires that action be taken with respect to the Leased Premises (not including
the Common Areas for which Landlord is responsible for compliance), including
without limitation removing barriers and altering the Leased Premises in
accordance with the ADA Accessibility Guidelines, such action shall be taken by
Tenant. Tenant shall notify Landlord immediately upon receipt of an oral or
written complaint or notice by an employee, customer, client, invitee, licensee,
or governmental authority regarding the ADA.
17. Assignment and Subletting. Without Landlord's prior written consent,
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Tenant shall not (either voluntarily, involuntarily, or by operation of law)
assign, transfer, mortgage, pledge, hypothecate, or encumber this Lease or any
interest under this Lease; provided, however, that nothing contained herein
shall prohibit Tenant from subletting all or part of the Leased Premises to a
subsidiary of Tenant in its sole and absolute discretion or collaterally
assigning its rights under this Lease to one or more lenders. Landlord's
consent, when necessary, shall not be unreasonably withheld. If Landlord
consents to any such assignment, transfer, etc., Tenant shall pay an assignment
fee of $500.00 to reimburse Landlord for the time, effort, and expense incurred
in processing such assignment, transfer, etc. Regardless of any such consent,
no assignment, transfer or sublet shall release Tenant of its obligations or
alter the primary liability of Tenant to pay rent and perform all its other
obligations under this Lease. Landlord's consent to one assignment, transfer,
occupation, or use by any other person shall not be deemed a consent to any
subsequent assignment, transfer, occupation, or use by another person. The
transfer of fifty percent (50%) or more of Tenant's stock, if Tenant is a
corporation, or the transfer of fifty percent (50%) or more of a partnership
interest in Tenant, if Tenant is a partnership, shall constitute an assignment
under the terms of this Lease.
18. Condemnation. If the whole of the Leased Premises or 70% or more of
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the Leased Premises or a substantial portion of the Common Areas shall be taken
by power of eminent domain or condemned by any competent authority for any
public or quasi-public use or purpose, or if Landlord shall grant a deed or
other instrument in lieu of such taking by eminent domain or condemnation, this
Lease shall automatically terminate as of the date title is taken with rent
apportioned. Landlord shall be entitled to receive the entire award or payment
in connection therewith, provided however that Tenant is allocated its claim for
any moving and relocation expenses, which takes priority over all liens other
than a first deed of trust. All rent shall be apportioned as of the date of such
termination. If this Lease shall not be so terminated, the rent shall be
proportionately abated.
19. Damage by Fire or Other Casualty. If the Leased Premises shall be
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damaged by fire or other casualty during the term but are not thereby rendered
untenable in whole or part, Landlord shall promptly, at its expense, cause such
damage to be repaired, and rent shall not be abated. If the Leased Premises or
a substantial portion of the Building is damaged by fire or other casualty
during the Term, Landlord may, at its sole option, either (i) restore the Leased
Premises with reasonable dispatch to substantially the same condition they were
in prior to
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such damage, or (ii) terminate this Lease provided, however, if the Leased
Premises cannot be restored within thirty (30) days of the loss, Tenant may
terminate this Lease. If Landlord elects to restore the Leased Premises,
Landlord shall have no liability to restore any improvements as may have been
made to the Leased Premises, after the date of this Lease, nor to restore any of
Tenant's fixtures, decorations, equipment, furniture, or inventory. Landlord's
responsibility shall be to return the Leased Premises and Building to at least
such condition as existed at the commencement of this Lease. If the Leased
Premises are rendered untenable in whole or in part as a result of such damage
and this Lease is not terminated, the Minimum Rent and Additional Rent payable
shall be equitably and proportionately abated (according to loss of use) during
the period intervening between the date of such damage and the date the Leased
Premises are restored. If Landlord or Tenant elects to terminate this Lease, all
rent payable shall be abated as of the date of such damage and Tenant shall
remove all of its property from the Leased Premises within thirty (30) days of
termination, provided Tenant is not in default at the time.
20. Insurance.
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(a) Tenant shall, at all times during the Term and at its own
cost and expense, carry: (i) commercial general liability insurance on the
Leased Premises with limits of not less than $1,000,000 for injury or death to
one person, $3,000,000 for injury or death to more than one person; (ii) "all-
risk" casualty insurance, written at replacement cost value and with replacement
cost endorsement, covering all Tenant's personal property in the Leased Premises
(including, without limitation, inventory, trade fixtures, floor coverings,
furniture, and other property removable by Tenant under the provisions of this
Lease) and all leasehold improvements installed in the Leased Premises by or on
behalf of Tenant; and (iii) if and to the extent required by law, workmen's
compensation or similar insurance. The foregoing policies shall be primary
policies not contributing with and not in excess of coverage which Landlord may
carry.
(b) Landlord shall maintain for its own benefit, upon such
terms as Landlord deems appropriate, direct physical loss or damage insurance on
the Building, Common Areas and existing tenant improvements, and a combined
single limit bodily injury and property damage liability insurance policy.
(c) All such liability insurance policies shall name Landlord
as a named insured and shall be written by companies reasonably acceptable to
Landlord and in form acceptable to Landlord. Each such policy shall also contain
a provision prohibiting cancellation without thirty (30) days' prior written
notice to Landlord or its designee. Certificates of such insurance policies
shall be delivered to Landlord promptly after the issuance of the respective
policies, and annually thereafter. If Tenant fails to provide or maintain any
such insurance, Landlord may (but shall not be obligated to) do so and collect
the cost thereof as Additional Rent.
(d) Indemnification of Landlord. Tenant shall indemnify and
hold Landlord harmless from liability for damages to person or property
(including Tenant's employees, customers, and other invitees) in or upon the
Leased Premises. Landlord shall indemnify and hold Tenant harmless from
liability for damages to person or property in or upon the Common Areas and
portions of the building other than the Leased Premises, provided, however,
Tenant shall indemnify and hold Landlord harmless from liability for damages in
other parts of the Building if caused by Tenant's negligence, affirmative act,
or breach of its obligations under this Lease. All property kept, stored, or
maintained in the Premises shall be kept, stored, or maintained at Tenant's sole
risk, unless said property is damaged or lost due to the negligent or willful
act of Landlord or its employees.
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21. Waiver of Subrogation. Tenant waives all claims against Landlord and
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Landlord waives all claims against Tenant for any damage or loss either may
suffer which is covered by an insurance policy carried by either or required to
carry under this Lease; [and such insurance carried by either covering the
Leased Premises, its contents, or any part thereof, and the Building shall
contain an express waiver of any right of subrogation against the other party to
this Lease.
22. Default.
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(a) Events of Default. If Tenant fails to pay any item of rent
when due, whether Minimum Rent, Additional Rent, or any other sum payable within
five (5) days after notice from Landlord, or if Tenant fails to perform any of
its non-monetary obligations contained in this Lease within five (5) days after
written notice from Landlord, or if Tenant does any act specifically prohibited
from doing by this Lease and does not cease such act within five (5) days after
notice from Landlord, then subject to the cure provisions set forth below,
Tenant shall be in default.
(b) Remedies. If Tenant is in default, Landlord, at its option,
may (i) terminate this Lease and re-enter the Leased Premises or any part
thereof, repossess the same and expel Tenant and those claiming through Tenant,
and remove Tenants or their personal property without being deemed guilty of any
manner of trespass; (ii) terminate Tenant's right of possession without
terminating this Lease and continue to collect the rent and all other sums
payable as they become due, and shall re-lease the Leased Premises on Tenant's
behalf, crediting Tenant with any income received as a result of the re-leasing
after deducting all Landlord's reasonable expenses and costs relating thereto;
(iii) seek any other remedy provided by law or elsewhere in this Lease; and/or
(iv) resort to any combination of the remedies set forth in this Lease.
(c) Costs Incurred by Landlord. Tenant shall pay to Landlord
upon demand all reasonable expenses, including the fees and disbursements of
attorneys, accountants, architects, agents, and others, incurred by Landlord as
a result of Tenant's failure to perform one or more of its obligations under
this Lease or as a result of an action or proceeding brought against Landlord by
Tenant in which Landlord prevails. In determining attorney's fees the parties
deem the following to be reasonable: $1,500 in fees if the matter is actually
litigated in General District Court, or $5,000 in fees if the matter is actually
litigated in Circuit Court, plus all reasonable costs and disbursements.
(d) Tenant's Right to Cure. If the nature of a non-monetary
default is such that it cannot be performed or discontinued by Tenant within
five (5) days after the occurrence of such default, Landlord shall not exercise
any remedy permitted under this Section if Tenant commences the performance or
discontinuance within such five (5) day period and diligently pursues the same
to completion not to exceed sixty (60) days. This right to cure period may be
reduced by Landlord in its notice to a shorter period required by a governmental
notice of violation, or by code, law, rule, regulation, or existing emergency.
(e) Landlord's Right to Perform Tenant's Obligations. If Tenant
fails to perform any of its obligations under this Lease, Landlord, after five
(5) days' notice to Tenant, may (but shall not be obligated to) perform such
obligation(s) for the account of and at the expense of Tenant; provided that no
notice need be given in an emergency.
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(f) Counterclaims and Offsets. Tenant waives its right to plead
any counterclaim or offset in any action or proceeding brought by Landlord
against Tenant with respect to nonpayment of Rent or an event of default. Such
waiver shall not be construed as a waiver of Tenant's right to assert any claim
in a separate action brought by Tenant.
(g) Bankruptcy or Insolvency. If at any time after the date of
this Lease
(i) a proceeding in bankruptcy, insolvency, or
reorganization is instituted against Tenant or a guarantor of this Lease
pursuant to any federal or state law now or hereafter enacted; or
(ii) a receiver or trustee of all or any portion of
the business or property of Tenant or a guarantor of this Lease is appointed; or
(iii) an execution or attachment is issued against
Tenant or a guarantor of this Lease or any of their respective businesses or
property or against the Leasehold estate created by this Lease, and such
proceeding, process, or appointment is not discharged and dismissed within
thirty (30) days after the date of such institution, appointment, or issuance;
or if
(iv) Tenant or a guarantor of this Lease is adjudged
a bankrupt or insolvent; or
(v) Tenant or a guarantor of this Lease makes an
assignment for the benefit of creditors; or
(vi) Tenant or a guarantor of this Lease files a
voluntary petition in bankruptcy or petitions for (or enters into an arrangement
for) reorganization, composition, or any other arrangement with its or their
creditors under any federal or state law now or hereafter enacted; or
(vii) this lease or the estate of Tenant herein passes
or devolves upon, by operation of law or otherwise, anyone other than Tenant,
then Landlord shall have the right to treat such occurrence as an event of
default; Landlord, however, shall not be required to give Tenant notice of such
event of default before pursuing any remedy provided for in this Lease or by
applicable law.
23. Trial by Jury. Landlord and Tenant each waives any right to trial by
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jury of any issue(s) in a summary proceeding or any other suit, action,
proceeding or counterclaim at any time brought or instituted by or against the
other with respect to or involving the Leased Premises or any matter arising
under or connected with this Lease and the relationship of Landlord and Tenant
created by this Lease.
24. Waiver by Landlord. Landlord's failure to insist upon strict
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performance by Tenant of any obligation under this Lease, irrespective of the
length of time for which such failure continues, shall not be construed as a
waiver or relinquishment of Landlord's right to demand strict compliance in the
future. The receipt and acceptance by Landlord of rent with knowledge of the
breach of any obligation hereof shall not be deemed a waiver of such breach, and
no waiver by Landlord of any provision of this Lease shall be deemed to have
been agreed upon unless expressed in a writing signed by the parties.
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25. Liens. Tenant shall pay all sums of money due for labor, services,
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materials, supplies, and equipment furnished at Tenant's request with respect to
the Leased Premises or any other part of the Building. If a mechanic's,
materialman's, or other lien (or notice of intent to file such a lien) is filed
or recorded against the Leased Premises, the Building, or Landlord's interest in
either, based upon labor, services, materials, supplies, equipment, or the like
ordered by Tenant, Tenant shall cause such lien to be discharged of record
within thirty (30) days after Tenant first has knowledge of such lien. If such
lien is not discharged within the thirty (30) day period, Landlord may (but
shall not be obligated to) cause such discharge by (i) payment to the lienor,
(ii) deposit of substitute security with a court having jurisdiction, (iii)
bonding, or (iv) such other means chosen by Landlord; and the entire cost of the
discharge shall be paid to Landlord by Tenant upon demand. Tenant shall, upon
request, furnish Landlord with contractors' affidavits, full and final waivers
of right to lien, and receipted bills covering all labor and materials expended
and used in or about the Leased Premises by or at the request of Tenant.
26. Signs, Awnings, and Canopies. Except for existing signage, Tenant
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shall not place or display (or cause to be placed or displayed) on any exterior
door, wall, or window of the Leased Premises any sign, awning, canopy,
advertising matter, or other thing of any kind, and shall not place or display
any decoration, lettering, or advertising matter on the glass of any window or
door of the Leased Premises, without Landlord's prior written approval, which
approval shall not be unreasonably withheld. Tenant shall maintain such sign,
awning, canopy, decoration, lettering, advertising matter, or other thing, as
may be approved by Landlord, in good condition and repair at all times.
27. Exhibits, Addenda, Rules, and Regulations. All Exhibits, Addenda and
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Rules and Regulations appended to this Lease are hereby incorporated into this
Lease, and Tenant shall comply with and observe the same. Tenant's failure to
comply with and observe the same shall constitute a breach of this Lease.
Landlord reserves the right to amend, supplement, or add to the Rules and
Regulations from time to time.
28. Surrender of Premises. On expiration or sooner termination of the
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Term, Tenant shall surrender to Landlord the Leased Premises and all Tenant's
improvements and alterations, broom clean, in good order, condition, and repair,
except for ordinary wear and tear or condemnation or destruction of the Leased
Premises, and except for trade fixtures that Tenant has removed. Tenant shall
also deliver to Landlord all keys to the Leased Premises and the combination to
any safe, remove all its personal property, and make all repairs and
reimbursements required pursuant to this Lease; provided, however, Tenant may
not remove its personal property from the Leased Premises without Landlord's
prior written consent, if Tenant is in breach or default hereunder, but upon
direction of Landlord, Tenant shall immediately remove such property in
accordance with the terms hereof.
Landlord may elect to retain or dispose of in any manner any alterations or
Tenant's personal property that Tenant does not remove from the premises on
expiration or termination of the Term. Title to any such alterations or
Tenant's personal property that Landlord elects to retain or dispose of after
expiration of the Term shall vest in Landlord. Tenant waives all claims against
Landlord for any damage to Tenant resulting from Landlord's retention or
disposition of any such alterations or personal property. Tenant shall be
liable to Landlord for Landlord's costs of storing, removing, and disposing of
any alterations or Tenant's personal property which Landlord does not elect to
acquire. Tenant shall be responsible for the cost of repairing any damage to
the Premises in consequence of the removal of Tenant's trade fixtures.
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29. Holdover. The parties recognize and agree that the damage to Landlord
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resulting from any failure by Tenant to timely surrender possession of the
Leased Premises will be extremely substantial, will exceed the amount of the
Minimum Rent payable under this Lease, and will be impossible to measure
accurately. Landlord and Tenant therefore agree that if possession of the Leased
Premises is not surrendered to Landlord within twenty-four (24) hours after the
date of the expiration or termination of the Term for any portion of the Leased
Premises, then Tenant shall pay as damages, without limitation as to Landlord's
rights and remedies to reclaim possession of the Leased Premises or for its
costs and expenses arising out of such a breach, whether at law or in equity,
for each month and for each portion of any month during which Tenant holds over
in the Leased Premises after the expiration or termination of the Term, two
times the aggregate of that portion of the Rent which was payable under this
Lease during the last month of the Term; provided, however, the twenty-four (24)
hour deadline set forth above shall be extended to nine (9) business days for
any Lease Term that will expire on April 30, 2001, as provided in Schedule 1.
Notwithstanding anything to the contrary contained in this Lease, in the event
Tenant fails to vacate any portion of the Leased Premises in accordance with or
otherwise fails to comply with the terms of the letter between Tenant and Nimbus
CD International, Inc. ("Nimbus") dated March 1, 2001 attached as Exhibit E, and
if Nimbus terminates its lease with Landlord pursuant to its right to terminate
for such failure, then, in addition to the foregoing: (i) the amount of the note
between Landlord and Comdial Business Communications Corporation of even date
herewith (the "Note") shall be reduced by Five Hundred Thousand and 00/100
Dollars ($500,000), (ii) the term of the Note shall be extended by one (1) year
and as otherwise provided in the Note. Nothing contained in this Lease shall be
deemed to permit Tenant to retain possession of the Leased Premises after the
expiration of the Term. The provisions of this Section shall survive the
expiration or termination of the Term. With regard to Tenant's obligations noted
in this Paragraph 29, Time is of the essence.
30. Subordination and Attornment. This Lease is and shall be subject and
----------------------------
subordinate to any mortgage, deed of trust, underlying leasehold estate, or
other arrangement or right to possession that may now or hereafter be placed
upon or affect the Leased Premises or the Land of which the Leased Premises is a
part, or against any building hereafter placed upon the land of which the Leased
Premises is a part, to all advances to be made thereunder, to the interest and
principal payable thereon, and to all renewals, replacements, modifications,
consolidations, and extensions thereof. Upon Landlord's request Tenant shall
execute and deliver such documents, in such terms as Landlord reasonably
requests, to evidence the same. Upon request of any such mortgagee, Tenant
shall attorn to and acknowledge the foreclosure purchaser or purchasers as
Landlord hereunder.
31. Estoppel Certificates. Upon Landlord's notice and request, Tenant
---------------------
shall execute, acknowledge, and deliver to Landlord a written statement,
addressed to such person as Landlord may request, (a) certifying that this Lease
is in full force and effect and unmodified (or if modified, specifying the
modifications), and that Landlord is not in default under this Lease (or if a
default is alleged, specifying the default), (b) stating the date to which rent
and any other charges have been paid by Tenant and the address to which notices
to Tenant should be sent, and (c) certifying or stating such other reasonable
matters as may be required by Landlord. If Landlord has not received a response
within 10 days of any such notice, such certificate shall be deemed acceptable
to Tenant, whereupon Landlord shall be appointed as Tenant's attorney-in-fact to
execute and deliver such certificate.
32. Right of Entry. During Tenant's regular business hours, Tenant shall
--------------
allow Landlord and its representatives full and unfettered access to the Leased
Premises at all times, to inspect the same, to make any
-10-
repairs or renovations deemed necessary or desirable, to show the Leased
Premises to prospective tenants, purchasers, or lenders or to use the office
designated as Landlord's office on Exhibit A. If requested by Tenant, Landlord
agrees that such access shall include an escort by a representative of Tenant,
which Tenant covenants to make available to Landlord during regular business
hours. Landlord shall have access to the Leased Premises at times other than
Tenant's regular business hours with prior notice to Tenant and with its
consent, which it shall not be unreasonably withheld. Three (3) months before
the termination of the Lease, Landlord may place "For Rent" or similar signs in
and about the Leased Premises. Without affecting the restrictions on Landlord's
access to the Leased Premises as noted in this Section, Tenant acknowledges that
Landlord is in the process of performing certain improvements to the Leased
Premises, and Tenant agrees that it shall reasonably accommodate Landlord in
such efforts.
33. Force Majeure. Whenever Tenant or Landlord is required by the terms
-------------
of this Lease or by law to perform any contract, act, work, labor or services,
or to discharge any lien against the Leased Premises, or to perform and comply
with any laws, rules, orders, ordinances, or regulations, but is unable to
perform such act(s), then Tenant or Landlord, as appropriate, shall not be
deemed to be in default and the other party shall not enforce or exercise any of
its rights under this Lease, if and so long as nonperformance or default is
directly caused by strikes, non-availability of materials, war or national
defense preemptions, governmental restrictions, acts of God, acts of the other
party, or other similar causes beyond the reasonable control of the non-
performing party. Tenant and Landlord shall in any event pay any sum of money
required to discharge any lien incurred by them if at any time the Leased
Premises, or any part thereof, is in danger of being foreclosed, forfeited, or
lost by reason of such lien.
34. Notices. Any notice, demand, consent, request, or other communication
-------
required or permitted under this Lease shall be in writing and shall be given by
hand delivery or sent by nationally recognized overnight carrier. Notice shall
be deemed given when hand delivered or the day after deposited with such
overnight carrier. The parties may change their respective addresses by written
notice to all other parties.
35. Quiet Enjoyment. Landlord covenants that Tenant, on paying all rents
---------------
and performing all the obligations set forth in this Lease, shall have and enjoy
quiet and peaceable possession of the Leased Premises during the Term.
36. Entire Agreement. This Lease contains the entire agreement between
----------------
the parties with respect to the leasing of the Leased Premises and supersedes,
merges and replaces all prior written or oral agreements, negotiations, offers,
representations, and warranties with respect to the leasing of the Leased
Premises. This agreement cannot be altered, waived, or modified in any way,
including the provisions of this Section, except in a writing signed by the
parties. No course of dealing between the parties, no usage of trade, and no
parol or outside evidence of any nature shall be used to modify, interpret, or
supplement any provision of this Lease.
37. Survival. The representations, warranties, and agreements of the
--------
parties contained in this Lease and in all other documents delivered in
connection with this Lease shall survive the expiration or sooner termination of
this Lease.
38. Severability. If any provision of this Lease is unenforceable, the
------------
remainder of this Lease shall continue in effect and be construed as if the
unenforceable provision had not been contained in this Lease. Each provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law.
-11-
39. Successors and Assigns. This Lease shall be binding upon and inure to
----------------------
the benefit of the parties and their respective heirs, personal representatives,
successors, and assigns; provided, however, that this Section shall not be
construed to permit the assignment of this Lease except as expressly provided.
40. Third Party Beneficiaries. The provisions of this Lease are intended
-------------------------
to benefit only the parties to this Lease. No person not a party to this Lease
shall be deemed a third party beneficiary of this Lease, nor shall any such
person be authorized or empowered to enforce the provisions of this Lease,
except to the extent such a person becomes a permitted assignee of one of the
parties.
41. Venue. Regardless of what venue would otherwise be permissive or
-----
required, the parties stipulate that all actions arising under or affecting this
Lease shall be brought in the Circuit or General District Courts of the City of
Charlottesville, Virginia, the parties agreeing that such forum is mutually
convenient and bears a reasonable relationship to this Lease.
42. Consent to Jurisdiction and Service of Process. The parties
----------------------------------------------
irrevocably submit to the jurisdiction of the state courts of the Commonwealth
of Virginia and to the jurisdiction of the United States District Court for the
Western District of Virginia, for the purpose of any suit, action, or other
proceeding arising under or affecting this Lease.
43. Counting Days. In computing the number of days for purposes of this
-------------
Lease, all days shall be counted including weekends and holidays; provided,
however, that if the last day for taking any action under this Lease (other than
Tenant's obligation to vacate the Leased Premises) shall fall on a Saturday,
Sunday, or banking holiday, the time for taking such action shall be extended to
the next regular business day.
44. Number and Gender. When used in this Lease, the singular includes the
-----------------
plural, the plural includes the singular, and the use of any gender includes any
other gender, as circumstances may require. The term "person" includes both
natural persons and entities.
45. Headings. The headings contained in this Lease are for the
--------
convenience of the parties only, and are not a part of the substantive agreement
of the parties nor shall they affect the meaning or interpretation of any
provision of this Lease in any way.
46. Counterparts. This Lease may be executed in multiple counterparts.
------------
When at least one copy of this Lease has been executed by each party to this
Lease, this Lease shall be in full force and effect, and all of such
counterparts shall be read together as a single agreement.
47. Recording. This Lease may not be recorded by either party without the
---------
prior written consent of the other party.
48. Commission. Tenant warrants to Landlord that no agent, broker or
----------
finder called the Leased Premises to Tenant's attention. Tenant shall indemnify,
defend and hold Landlord harmless from and against any and all costs and
expenses, including without limitation attorneys' fees arising out of a breach
of the foregoing warranty.
49. Landlord Office. The space designated on Exhibit A shall be provided
---------------
to Landlord for its office use on a full service basis and at no cost. Such
space shall be provided to Landlord until such time as it notifies
-12-
Tenant of its completion of Landlord's improvements to the Building. During
Landlord's use, the square footage of such space shall be multiplied times the
p.s.f. Minimum Rent Tenant pays for similar space, and such sum shall be
deducted form Tenant's Rent due hereunder. Landlord may retain its scan card to
the Leased Premises to obtain access to its office so long as it maintains such
office in the Leased Premises.
REST OF PAGE LEFT INTENTIONALLY BLANK
-13-
IN WITNESS WHEREOF each corporate party hereto has caused this Lease to be
executed in its name and behalf by its duly authorized officer or agent.
LANDLORD:
SEMINOLE TRAIL PROPERTIES, LLC
By: ____________________________________
Title: __________________________________
Date: __________________________________
TENANT:
COMDIAL REAL ESTATE CO., INC.
By: ____________________________________
Title: __________________________________
Date: __________________________________
-14-
EXHIBIT A
---------
FLOOR PLAN
A-1
EXHIBIT B
---------
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS. The sidewalks, entrances, passages, courts,
--------------------------
corridors, and other public parts of the Building shall not be obstructed
or encumbered by Tenant or used by Tenant for any purpose other than
ingress and egress.
2. SIGNS. At the conclusion of the Lease all of Tenant's signage shall be
-----
removed by Tenant and all damage caused by such removal shall be repaired
by Tenant; provided, however, Tenant shall not be required to remove the
brickwork for the sign on the eastern side of the Building facing Route 29
South.
3. LOCKS, KEYS. Tenant shall, on the termination of Tenant's tenancy,
-----------
deliver to Landlord all keys to any space within the Building, either
furnished to or otherwise procured by Tenant, and in the event of the loss
of any keys furnished Tenant by Landlord shall pay Landlord the cost
thereof. Tenant shall provide Landlord access to the Leased Premises at all
times. If requested by Tenant, Landlord agrees that such access shall
include an escort by a representative of Tenant, which Tenant covenants to
make available to Landlord at all times.
4. ALCOHOL. Alcoholic beverages shall not be permitted in the Building at any
-------
time without the prior written consent of Landlord, which may be withheld
in its discretion.
5. PROHIBITED ACTIVITIES ON LEASED PREMISES. Tenant shall not, without the
----------------------------------------
prior written approval of Landlord, (i) conduct, or permit any other person
to conduct, any auction upon the Leased Premises, (ii) permit the Leased
Premises to be used for gambling or any other illegal activity, or (vii)
permit any noxious or offensive odors to be produced upon the Leased
Premises. Canvassing, soliciting and peddling into the Building are
prohibited, and Tenant shall cooperate to prevent the same.
6. PLUMBING, ELECTRIC AND TELEPHONE WORK. Plumbing facilities shall not be
-------------------------------------
used for any purpose other than those for which they were constructed; and
no sweepings, rubbish, ashes, newspaper or other substances of any kind
shall be thrown into them. Waste and excessive or unusual usage of
electricity or water is prohibited.
B-1
EXHIBIT C
---------
GUARANTY
THIS GUARANTY ("Guaranty") is made this _____ day of March, 2001, by and
between COMDIAL CORPORATION (individually "Guarantor" and collectively
"Guarantors") and SEMINOLE TRAIL PROPERTIES, LLC ("Landlord"), with respect to
certain present and future obligations of COMDIAL REAL ESTATE CO., INC.
("Tenant").
W I T N E S S E T H:
WHEREAS, Tenant wishes to enter into a Deed of Lease of even date herewith
(the "Lease") between Tenant and Landlord (all obligations of Tenant under the
Lease, whether now existing or hereafter incurred, whether direct, indirect,
contingent or fixed, whether incurred as primary obligor, co-maker, endorser, or
guarantor, whether otherwise guaranteed or secured, and whether an open account,
evidenced by a written instrument or otherwise, are collectively referred to as
the "Obligations"); and
WHEREAS, Landlord has required additional assurances of Tenant's
performance of the Obligations as a condition of entering into the Lease.
NOW, THEREFORE, in consideration of good and valuable consideration and in
order to induce Landlord to enter into the Lease, the parties agree as follows:
1. Guaranty. The Guarantor guarantees to Landlord the prompt performance
when due of the Obligations, including without limitation payment of all sums
due under the Lease, plus any interest, penalties, and collection fees thereon.
The Guarantor agrees upon receipt of notice from the Landlord to make such
payments to Landlord and perform any non-monetary Obligations, if there is any
default in the payment or the performance of the Obligations.
2. Nature of Guaranty. This is a continuing, unconditional Guaranty and
the liability of the Guarantor to Landlord is not limited to a proportionate
part of the total liability of the Tenant to Landlord. This is a guaranty of
payment and not of collection, and the Guarantor waives any right to require
that any action be brought against the Tenant or to require that Landlord
proceed against any security, or any other person, and agrees that Landlord
assumes no responsibility for the validity or enforceability of any security for
the Obligations.
3. Subrogation. As a material inducement for Landlord to accept this
Guaranty and enter into the Lease, the Guarantor represents and warrants that it
has no right of indemnification from or against Tenant, any such right being
waived. In lieu of any other remedy the Guarantor may have against Tenant, the
Guarantor shall be subrogated to the rights of Landlord against Tenant; provided
that the Guarantors shall not be subrogated to, and may not enforce on the part
or behalf of the Guarantor, any right of action which Landlord may have against
the Tenant until the Obligations shall have been paid in full.
4. Conditions Precedent. The Guarantor represents and warrants that its
liability under this Guaranty is not contingent or conditional upon any other
person signing this Guaranty or the obtaining or perfecting of any security for
the Obligations, or any other condition precedent or subsequent.
5. Changes Affecting the Obligations. Landlord may, from time to time,
either before or after any default by the Tenant, with or without further notice
to the Guarantor, renew or extend the time of payment of the Obligations, and
grant and allow such indulgences, modifications, or compromises in connection
therewith as it deems advisable or expedient, and may change, renew, extend,
surrender, impair, or compromise, in whole or in part, any security at any time
held by or available to Landlord for the Obligations or for any obligation of
any other person secondarily or otherwise liable on the Obligations,
intentionally or unintentionally, or may waive, release, extend, or modify the
rights of the Guarantor, without impairing the enforceability of this Guaranty.
The discharge in bankruptcy of the Tenant shall not affect the liability of the
Guarantor.
6. Costs of Collection. The Guarantor shall, upon demand, pay all
reasonable costs and expenses incurred by Landlord in connection with the
enforcement or collection of the Obligations or the enforcement of this
Guaranty, including reasonable attorneys' fees and disbursements.
7. Reinstatement of Guaranty. Even if the Obligations may have been paid
in full and this Guaranty may have been returned to the Guarantor, this Guaranty
shall continue in full force and effect with respect to any amounts that
Landlord may ever be required to repay under any bankruptcy or insolvency laws.
8. Waivers of Homestead, Notice. The Guarantor hereby waives the benefit
of any homestead exemption and notice of acceptance of and demand for payment as
to this Guaranty and also waives notice of any default in the Obligations or of
action taken in connection therewith.
9. Delays, Waivers by Landlord. No delay on the part of Landlord in
exercising any rights hereunder or under the Lease or any failure to exercise
the same shall operate as a waiver of such rights; no notice to or demand on the
Guarantor shall be deemed to be a waiver of the obligations of the Guarantor or
of the right of Landlord to take further action without notice or demand as
provided herein.
10. Modification, Waiver of this Guaranty. No modification or waiver of
the provisions of this Guaranty, including the provisions of this paragraph, be
effective unless in writing and signed by Landlord; nor shall any waiver be
applicable except in the specific instance for which it is given.
11. Sources of Information. The Guarantor warrants that it has adequate
means to obtain from the Tenant, now and on a continuing basis, all necessary
and desirable information concerning the status of the Obligations and the
financial condition of the Tenant, and it is not relying on the Landlord to
provide such information, either now or in the future.
12. Financial Information. (Intentionally omitted.)
13. Modifications to Lease. Landlord may make such modifications and
additions to the Lease and the Obligations as Landlord may deem advisable,
including without limitation, extending the term of the Lease, increasing or
decreasing payments under the Lease, or allowing Tenant to assign or delegate
its duties under the Lease, and the same shall not release the Guarantor or in
any way limit the liability of the Guarantor, this Guaranty expressly extending
to such modifications and extensions.
14. Notices. Any notice, demand, consent, request, or other communication
required or permitted under this Lease shall be in writing and shall be given by
hand delivery or sent by nationally recognized overnight carrier. Notice shall
be deemed given when hand delivered or the day after deposited with such
overnight carrier. The parties may change their respective addresses by written
notice to all other parties.
If to Landlord: SEMINOLE TRAIL PROPERTIES, LLC,
0000 Xxxx Xxxxx Xxxx
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000
ATTN: Xxxxxxx X. Xxxxxx
With a copy to: Xxxxxxxxxxx Black LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
ATTN: Price X. Xxxxxxx, Esq.
If to Guarantor: COMDIAL CORPORATION.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxxxx, Xx. 00000
ATTN: Chief Financial Officer
If to Tenant: COMDIAL REAL ESTATE CO., INC.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxxxx, Xx. 00000
Attn: Chief Financial Officer
With a copy to: McGuireWoods LLP
000 Xxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxxxxxxx, Xx. 22902
ATTN: Xxxx X. Xxxxxxx, Esq.
15. Entire Agreement. This Guaranty constitutes the entire agreement
----------------
between the parties with respect to the subject matter of this Guaranty and
supersedes and merges all prior negotiations, offers, representations,
warranties, and agreements with respect to the subject matter of this Guaranty.
No course of prior dealing between the parties, no usage of trade, and no parol,
extrinsic, or other outside evidence of any nature shall be used to supplement,
interpret, or modify any of the terms of this Guaranty.
16. Severability. If any provision of this Guaranty is unenforceable, the
------------
remainder of this Guaranty shall continue in effect and be construed as if the
unenforceable provision had not been contained in this Guaranty. Each provision
of this Guaranty shall be valid and enforceable to the fullest extent permitted
by law.
17. Successors and Assigns. This Guaranty shall be binding upon and
----------------------
inure to the benefit of the parties and their respective heirs, personal
representatives, successors, and assigns.
18. Venue. Regardless of what venue would otherwise be permissive or
-----
required, the parties stipulate that all actions arising under or affecting this
Guaranty shall be brought in the Circuit or General District Courts of the City
of Charlottesville, Virginia, the parties agreeing that such forum is mutually
convenient and bears a reasonable relationship to this Guaranty.
19. Consent to Jurisdiction and Service of Process. The parties
----------------------------------------------
irrevocably submit to the jurisdiction of the state courts of the Commonwealth
of Virginia and to the jurisdiction of the United States District Court for the
Western District of Virginia, for the purpose of any suit, action, or other
proceeding arising under or affecting this Guaranty.
20. Number and Gender. When used in this Guaranty, the singular includes
-----------------
the plural, the plural includes the singular, and the use of any gender includes
any other gender, as circumstances may require. The term "person" includes both
natural persons and entities.
21. Headings. The headings contained in this Guaranty are for the
--------
convenience of the parties only, and are not a part of the substantive agreement
of the parties nor shall they affect the meaning or interpretation of any
provision of this Guaranty in any way.
22. Counterparts. This Guaranty may be executed in multiple counterparts.
------------
When at least one copy of this Guaranty has been executed by each party to this
Guaranty, this Guaranty shall be in full force and effect, and all of such
counterparts shall be read together as a single agreement.
23. Advice From Independent Counsel. The parties understand that this
-------------------------------
is a legally binding contract that may affect their rights. Each party
represents that it has entered into this Guaranty freely and voluntarily and
without coercion of any kind whatsoever, and has had the opportunity to consult
with independent counsel.
24. GOVERNING LAW. ALL MATTERS REGARDING THE FORMATION, INTERPRETATION,
-------------
AND ENFORCEMENT OF THIS GUARANTY SHALL BE GOVERNED BY VIRGINIA LAW, EXCLUDING
ITS LAWS RELATING TO CHOICE OF LAW.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the day
and year first above written:
CORPORATE GUARANTOR:
COMDIAL CORPORATION
By: _____________________________________
Title:____________________________________
EXHIBIT D
---------
PARKING SPACES AND ENTRANCES
To be agreed upon by Landlord and Tenant.
D-1
EXHIBIT E
---------
COMDIAL/TECHNICOLOR LETTER
D-1
SCHEDULE 1
----------
LEASED PREMISES: USES/RENT/TERM
D-1
