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EXHIBIT 10.36
ASSIGNMENT OF REAL ESTATE LEASE
This assignment of lease is made as of the 24th day of May, 1993, by and
between the grantor BETA Services, Inc., a Virginia corporation (the
"Assignor") and the grantee DBS ACQUISITION CORP., a Delaware corporation (the
"Assignee.")
RECITALS
The Assignor hereunder is the tenant under a lease (the "Lease") dated the
7th day of July, 1990 of certain real property and improvements located at 000
Xxxxxxxxx Xxxxxx in the City of Harrisonburg, Virginia from Xxxxxx Development,
Inc., a Virginia corporation (the "Landlord,") which lease is attached hereto
and incorporated herein by reference, marked "Exhibit A." The leased premises
is a portion of the property owned by the Landlord, a description of which is
attached hereto and incorporated herein by reference, marked "Exhibit B."
Educational Medical, Inc. (the "Guarantor") is a Delaware corporation which
holds all of the issued and outstanding capital stock of the Assignee. The
terms Assignor, Assignee, Lease, Landlord and Guarantor, have the defined
meaning in the following ASSIGNMENT, ACCEPTANCE OF ASSIGNMENT, GUARANTY, and
CONSENT TO ASSIGNMENT, which accompany this document and which are
incorporated herein.
ASSIGNMENT
This Assignment is made as of May 24, 1993. In consideration of Ten
Dollars ($10.00) cash in hand paid, and other good and valuable consideration,
the receipt and sufficiency of
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which is hereby acknowledged, the Assignor hereby assigns all of its
right, title and interest in the Lease to the Assignee.
ASSIGNOR
BETA Services, Inc.
Xxxxxxx X. Xxxxx, Xx. (Seal)
------------------------------
Xxxxxxx X. Xxxxx, Xx.
STATE OF ALABAMA )
) to-wit:
COUNTY OF JEFFERSON)
The foregoing instrument was acknowledged before me this 26th day of May,
1993, by Xxxxxxx X. Xxxxx, Xx., President of BETA Services, Inc., a Virginia
corporation, on behalf of the corporation.
Xxxxx Xxx Xxxxx
--------------------
Notary Public
My commission expires:
May 18, 1996
ACCEPTANCE OF ASSIGNMENT
This Acceptance of Assignment is made as of May 24, 1993. The Assignee,
having read the Lease, hereby consents to the foregoing Assignment, and does
hereby unconditionally and irrevocably assume all of the liabilities and
obligations of the Assignor under the Lease to the same extent as if the
Assignee were the original tenant under the Lease.
ASSIGNEE
DBS Acquisition Corp.
(Seal)
-------------------
Secretary
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STATE OF FLORIDA )
) to-wit:
COUNTY OF PALM BEACH)
The foregoing instrument was acknowledged before me this 28th day of May,
1993, by Xxxxxx X. Xxxxx, Secretary of DBS Acquisition Corp., a Delaware
corporation, on behalf of the corporation.
Xxxxxxxxx X. Xxxxx
------------------------------------
Notary Public
[NOTARY SEAL]
XXXXXXXXX X. XXXXX
MY COMMISSION # CC 220714
EXPIRES: AUGUST 9, 1996
BONDED THRU NOTARY PUBLIC UNDERWRITERS
My commission expires:
--------------------------
GUARANTY
This Guaranty is made as of May 24, 1993. In consideration of Ten Dollars
($10.00) cash in hand paid, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Guarantor hereby
absolutely and unconditionally guaranties to the Landlord and its successors
and assigns (i) the full payment of the fixed minimum rent and all additional
rent as provided for in the Lease, and (ii) the performance and observance of
all agreements and conditions to be performed or observed by the tenant under
the Lease, The Guarantor hereby agrees that it shall not be released from its
obligations under this Guaranty by any assignment of the Lease or any
subletting of the demised premises, or any waiver of default or any extension
of time or other favor or indulgence granted by the Landlord to the Assignee as
tenant under the Lease or by failure to receive notice of any of said actions.
The Guarantor hereby waives (i) presentment, demand for payment and notice of
non-payment or any other default in the performance or observance of any
agreement or condition to be performed or
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observed by the tenant under the Lease, and (ii) notice of acceptance of
this Guaranty. In the event that the Assignee as tenant under the Lease
defaults in the payment of any fixed minimum rent or additional rent or any
other sum payable by the Assignee as tenant under the Lease, or defaults in the
performance or observance of any of the other terms, covenants or conditions
contained in the Lease to be performed or observed by Assignee as tenant under
the Lease, Landlord may, after the expiration of any applicable cure period
provided for in the Lease, proceed directly against the Guarantor for the full
amount due under this Guaranty without being required first to institute suit
against the Assignee. The Guarantor agrees to pay to Landlord reasonable
attorneys' fees incurred by the Landlord in the event any action or suit is
brought for enforcement of the provisions of this Guaranty in which Landlord
prevails.
GUARANTOR:
Educational Medical, Inc.
(Seal)
-------------------------
Secretary
STATE OF FLORIDA )
)to-wit:
COUNTY OF PALM BEACH)
The foregoing instrument was acknowledged before me this 28th
day of May, 1993, by Xxxxxx X. Xxxxx, Secretary of Educational Medical,
Inc., a Delaware corporation, on behalf of the corporation.
Xxxxxxxxx X. Xxxxx
--------------------------------
Notary Public
[NOTARY SEAL]
XXXXXXXXX X. XXXXX
MY COMMISSION #CC 220714
EXPIRES: AUGUST 9, 1996
Bonded Thru Notary
Public Underwriters
My commission expires:
--------------------------
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CONSENT TO ASSIGNMENT
This Consent to Assignment is made as of May 24, 1993. In consideration
of and in reliance upon (i) the Guaranty by Guarantor, (ii) the continued
liability of Assignor, (iii) Assignee's assumption of the obligations and
liabilities of Tenant under the Lease and (iv) the continued liability of
Xxxxxxx X. Xxxxx, Xx. and Xxxxx X. Xxxxxx as individual guarantors of the
Lease, the Landlord does hereby consent to the above assignment from Assignor
to Assignee.
LANDLORD
Xxxxxx Development, Inc.
By: Xxx X. Xxxxxx
----------------------------
an authorized signatory
COMMONWEALTH OF VIRGINIA)
) to-wit:
CITY OF ROANOKE )
The foregoing instrument was acknowledged before me this 25th day of
May, 1993, by Xxx X. Xxxxxx, President of Xxxxxx Development, Inc., a Virginia
corporation, on behalf of the corporation.
--------------------------------------
Notary Public
My commission expires:
4-30-95
------------------------------
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EXHIBIT A
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") made and entered into as of this 7th day of
July, 1990, but effective September 1, 1990, by and between Xxxxxx Development,
Inc., a Virginia Corporation, with offices at 0000 Xxxxx Xxxx Xxxx X.X.,
Xxxxxxx, XX 00000 ("Landlord"), and Beta Services, Inc., a Virginia Corporation
with offices at Xxx Xxxxx xx Xxxxxxx Xxxxx, Xxxxxxx, XX 00000 ("Tenant"), in
consideration of the mutual promises and agreements herein contained, and other
good and valuable consideration, the receipt of which is hereby acknowledged.
ARTICLE I
Grant and Term
Section 1.1 Premises. Landlord does hereby lease to Tenant and Tenant does
hereby rent from Landlord, certain real property commonly known as 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX, a building comprising approximately 9408
square feet, more particularly described on Exhibit A attached hereto and
incorporated herein by referenced ("Leased Premises").
Section 1.2 Term. This Lease shall be for a term of ten (10) years beginning
September 1, 1990, and terminating August 30, 2001.
ARTICLE II
Rent and Reimbursement
Section 2.1 Rental Amount. The Tenant shall pay to the Landlord rent, in equal
monthly payments, on the first day of every month during the term hereof as
follows:
1. From September 1, 1990, to August 30, 1993, the sum of $75,000 rental
in equal monthly payments of $6250 each.
2. From September 1, 1993, to August 30, 2001, a sum equal to five percent
(5%) over the amount of any renegotiated mortgage payment for the balance of
the lease term. Landlord agrees to make every reasonable effort to renegotiate
the lowest possible mortgage rate. Landlord shall inform Tenant of any new
rental rate at least sixty (60) days prior to a change.
Section 2.2 Reimbursement of Taxes and Insurance. Tenant shall promptly
reimburse Landlord for all property taxes and assessments incurred by Landlord
by virtue of Landlord's ownership of the demised premises.
Tenant shall further promptly reimburse Landlord for all property and liability
insurance premiums incurred by Landlord by virtue of Landlord's ownership of
the demised premises.
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ARTICLE III
Use and Operation of Business by Tenant
Section 3.1 Use of Premises. Tenant shall use the leased premises solely for
the purpose of a business school and related activities.
Section 3.2 Tenant shall, except as otherwise provided herein, from and after
the commencement of the Term, (a) use the Leased Premises for the uses herein
specified and conduct Tenant's business therein in a reputable manner; (b) keep
and maintain the Leased Premises and Tenant's personal property; and signs
therein or thereon and the exterior and interior in a neat, clean, sanitary, and
safe condition; (c) comply with all ordinances, laws, and regulations of all
governmental authorities having jurisdiction and apply for, secure, maintain,
and comply with all licenses or permits which may be required for the conduct by
Tenant of the business herein permitted to be conducted in the Leased Premises
and to pay, if, as and when due all license and permit fees and charges of a
similar nature in connection therewith; (d) comply with and abide by all
protective covenants, restrictions, and other recorded documents pertaining to
the Leased Premises; and (e) not use or permit the Leased Premises to be used
for any disreputable or immoral purposes or in any way that will injure the
reputation of Landlord.
Section 3.3 Utilities. If necessary, Tenant, shall make application for and
arrange for the installation of all utility services (including meters and
connection fees) necessary for the use and occupancy of the Leased Premises and
Tenant shall be solely responsible for and promptly pay, as and when the same
become due and payable, all connection charges, deposits, all charges for gas,
water, sewer, electricity, telephone, and any other utility used or consumed in
the Leased Premises imposed by the utility company or authority providing same.
Landlord shall not be liable for damages or otherwise for any interruption in
the supply of any utility to the Leased Premises nor shall any such
interruption constitute any ground for an abatement of any rents reserved
hereunder unless such interruption results from the negligence of Landlord.
ARTICLE IV
Exterior Display, Solicitation, Advertising
Section 4. Signs and Exterior Fixtures.
(a) Tenant shall have the right to install an illuminated or nonilluminated
sign or signs on the exterior wall and/or grounds of the Leased Premises,
provided such sign does not violate any governmental law, ordinance, or
regulation. Landlord agrees to operate with Tenant to obtain any required
permits. Tenant shall at its own expense maintain and keep in good repair all
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signs, advertising, and display devices in or about the Leased Premises and
shall pay for all electric current required in connection with any such
advertising and display devices.
(b) Tenant shall not decorate, paint, or in any other manner alter, and shall
not install or affix any device, fixture, or attachments, including antennas,
satellite receivers, and cable television installations, upon or to, the
exterior of the Leased Premises, including the roof or canopy thereof, without
the prior written consent thereto of Landlord which approval shall not be
unreasonably withheld. If Tenant shall do any of the foregoing acts in
contravention of the provision, Landlord shall have the right to remove any
such decoration, paint, alteration, device, fixture, or attachment and restore
the Leased Premises to the condition thereof prior to such and the cost of such
removal and restoration shall be paid by Tenant as additional rent payable for
the month next following such removal and restoration.
ARTICLE V
Improvements, Fixtures, and Personal Property
Section 5.1 Tenant's Improvements. Tenant shall construct and install all
improvements necessary for Tenant's occupancy and use of the Leased Premises.
All such improvements shall be approved in writing by Landlord which approval
shall not be unreasonably withheld. Tenant at his expense shall immediately
repair any damage occasioned to the Leased Premises by reason of the
construction and installation of any improvements made by Tenant.
Section 5.2 Ownership and Right of Removal of Trade Fixtures. Any trade
fixtures and other personal property of Tenant shall remain the property of
Tenant and Landlord agrees that Tenant shall have the right, provided Tenant
not be in default under the terms of this Lease, at any time, and from time to
time, to remove any and all of its trade fixtures and other personal property
which is may have stored or installed in the Leased Premises. Tenant at its
expense shall immediately repair any damage occasioned to the Leased Premises
by reason of the removal of any such trade fixtures and other personal
property, and upon expiration Term, shall leave the Leased Premises in a neat
and clear condition, free of debris.
Section 5.3 Ownership and Removal Of Leasehold Improvements. All partitions
and ceiling, wall and floor coverings, and finished installed by Tenant in or
about the Leased Premises shall be deemed the property of Landlord upon
installation.
ARTICLE VI
Repairs and Maintenance
Section 6.1 Tenant's Obligation. Tenant agrees at all times and at its own cost
and expense, to repair and maintain in good condition (excepting normal wear
and tear) the interior of Leased
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Premises. Tenant shall keep and maintain in good and tenantable condition and
repair, the main water service line and main sanitary sewer line serving the
Leased Premises and the exterior and the roof, the structural parts of the
Leased Premises, including without limitation, the structural parts of the
floor, roof, external pipes, conduits, electrical, heating and air conditioning
systems and plumbing or installation of any internal sprinkler system (if such
system is required by law or regulation).
Section 6.2 Reserved.
Section 6.3 Landlord's Rights Upon Tenant's Refusal to Repair and/or Maintain.
If Tenant refuses or neglects to make repairs and/or maintain the Leased
Premises or any part thereof, in a manner reasonably satisfactory to Landlord,
Landlord shall have the right, upon giving Tenant reasonable written notice of
its election to do so, to make repairs or perform such maintenance on behalf of
and for the account of Tenant. In such event such work shall be paid for by
Tenant as additional rent promptly upon receipt of a xxxx therefor.
Section 6.4 "Repair and Maintain" Defined. "Repair and Maintain:, as used in
this Article VI, shall mean the performance and furnishing of all repairs,
replacements, and renewals to the Leased Premises and alterations, additions,
improvements, and betterments thereto.
ARTICLE VII
Alterations
Tenant may, at its own expense, from time to time during the Term, make
alterations, additions, changes, and improvements in and to the interior of the
Leased Premises but only with Landlord's prior written consent which consent
shall not be unreasonably withheld. All such work shall be done in a good and
workmanlike manner, in accordance with all applicable laws and regulations and
shall be diligently prosecuted to that the Leased Premises shall at all times
be a complete unit except during the period such alterations, additions,
changes, and improvements are made.
ARTICLE VIII
Mechanic's Liens
Tenant agrees that it will pay or cause to be paid all costs for work done by
it or caused to be done by it on the Leased Premises and Tenant agrees to and
shall indemnify and save Landlord free and harmless against liability, loss,
damage, costs, attorneys' fees, and all other expenses on account of claims of
lien of laborers or materialmen or others for work performed or materials or
supplies furnished for Tenant or persons claiming under it; provided, however,
that Tenant shall have the right, at its sole cost and expense, to contest any
mechanic's lien that might be filed on account of any such work.
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ARTICLE IX
Indemnity-Insurance-Waiver of Subrogation
Section 9.1 Tenant's Indemnity.
(a) Tenant hereby indemnifies and shall protect and hold Landlord harmless from
and against all liabilities, losses, claims, demands, costs, expenses, and
judgments of any nature arising, or alleged to arise, from or in connection
with (i) any injury to, or the death of, any person or loss or damage to
property on or about the Leased Premises or any adjoining property arising from
or connected with the use of the Leased Premises by Tenant during the term, or
(ii) performance of any labor or services or the furnishing of any materials or
other property in respect of the Leased Premises or any part thereof by or at
the request of Tenant. Tenant will resist and defend any action, suit, or
proceeding brought against Landlord by reason of any such occurrence by counsel
designated by Tenant.
(b) Tenant shall give notice to Landlord within twenty-four (24) hours in the
event of fire or other casualty or accidents in the Leased Premises or of any
defects therein or in any of its fixtures, machinery or equipment.
Section 9.2 Landlord's Indemnity. Landlord shall indemnify and save Tenant
harmless against and from any and all liabilities, obligations, damages,
penalties, claims, costs (including compliance and clean up costs), charges,
expenses and disbursements (including, without limitation, fees and expenses of
attorneys, expert witnesses, engineers and other consultants), which may be
imposed upon, incurred by or asserted against Tenant by reason of any
environmental contamination of the Leased Premises caused by Landlord, prior
owners, prior tenants, or any third parties other than Tenant.
Section 9.3 Waiver of Subrogation. Landlord and Tenant hereby waive any rights
each may have against the other on account of any loss or damage occasioned to
Landlord or Tenant, as the case may be, their respective property, the Leased
Premises, or its contents arising from any risk generally covered by fire and
extended coverage insurance, vandalism, malicious mischief and sprinkler
leakage; and the parties each, on behalf of their respective insurance
companies insuring the property of either Landlord or Tenant against any such
loss, waive any right of subrogation that it might have against Landlord or
Tenant, as the case may be, if such waiver of subrogation is available.
Section 9.4 Tenant's Insurance. Tenant further covenants and agrees that from
and after the execution of this Leased, Tenant will carry and maintain, at its
sole cost and expense, the following types of insurance, in the amounts
specified and in the form hereinafter provided for:
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(a) Public Liability and Property Damage. Bodily injury liability insurance
with a single limit of not less than $1,000,000 insuring against any and all
liability of the insured with respect to injury or damage to person and
property occurring on or about the use or occupancy thereof. All such liability
insurance shall specifically include, in addition to the above, contractual
liability insurance covering the insuring provisions of this Lease, the
performance by Tenant of the indemnity agreement as to liability for injury to
or death of persons and injury or damage to property in this Article contained.
This policy of insurance will cover Landlord as an additional insured for
liabilities incurred under this Lease. The policy shall provide that it may not
be cancelled except upon Ten (10) days prior written notice to Landlord.
Section 9.5 Tenant's Blanket Policies. Tenant's obligations to carry the
insurance provided for herein may be brought within the coverage of a so-called
blanket policy or policies of insurance carried and maintained by Tenant.
Tenant agrees to furnish Landlord for each renewed or new policy thereafter
during the Term, a copy of the policies of insurance covering the
above-described risks or to furnish a certificate of insurance if part of a
blanket policy.
ARTICLE X
Damage to Leased Premises
Section 10.1 Rights and Obligations of Landlord and Tenant. If the Leased
Premises shall be partially damaged or destroyed by fire, the elements,
unavoidable accident, or other casualty, Landlord shall, except as otherwise
provided herein, repair and restore the same (exclusive of Tenant's trade
fixtures, decorations, signs, and contents, all of which shall be repaired and
restored by Tenant) substantially to the condition thereof immediately prior to
such damage or destruction unless such damage or destruction be due to the
negligent act or omission of Tenant or Tenant's employees or agents and not be
covered by Landlord's fire and extended insurance policy. If by reason of such
occurrence: (a) the Leased Premises are rendered wholly untenantable, or (b)
the Leased Premises are damaged in whole or part during the last year of the
Term, Landlord may elect either to repair the damage as aforesaid, or to cancel
this Lease by written notice of cancellation give to Tenant within ninety (90)
days after the date of such occurrence, and thereupon this Lease shall cease
and terminate with the same force and effect as though the date set forth in
the Landlord's said notice were the date herein fixed for the expiration of the
Term and Tenant shall vacate and surrender the leased Premises to Landlord.
Upon the termination of this lease, as aforesaid, Tenant's liability for the
rents reserved hereunder shall cease as of the date Tenant's vacation or
termination of this lease, subject, however, to the provisions for the prior
abatement of rent hereinafter set forth. Unless this Lease is terminated by
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Landlord, as aforesaid, this Lease shall remain in full force and effect and
Tenant shall repair, restore, or replace Tenant's trade fixtures, decorations,
signs, and contents in the Leased Premises in a manner and to at least a
condition equal to that existing prior to their damage or destruction. If by
reason of such fire or other casualty the Leased Premises are rendered wholly
untenantable the rent shall be fully abated, or if only partially damaged such
rent shall be abated proportionately as to that portion of the Leased Premises
rendered untenantable, in either event (unless Landlord shall elect to terminate
this Lease, as aforesaid) until fifteen (15) days after notice by Landlord to
Tenant that the Leased Premises have been substantially repaired and restored or
until Tenant's business operations are restored in the entire Leased Premises,
whichever shall occur sooner. Tenant shall continue the operation of Tenant's
business in the Leased Premises or any part thereof not so damaged during any
such period to the extent reasonably practicable from the standpoint of prudent
business management; and, except for such abatement of the fixed minimum rent as
herein set forth, nothing herein contained shall be construed to xxxxx Tenant's
obligations for the payment of the percentage rent or any other additional rents
and charges reserved hereunder. If such damage or other casualty shall be caused
by the negligence of Tenant or of Tenant's subtenants, concessionaires,
licensees, contractors or invitees or their respective agents or employees,
there shall be no abatement of rent and Tenant shall repair such damage or
destruction if it is not covered by Landlord's fire an extended coverage
insurance policy.
Section 10.2 Termination. Upon any termination of the Lease under any of the
provisions of this Article XI, the parties shall be released thereby without
further obligations to the other party coincident with the surrender of
possession of the Leased Premises to the Landlord, except for items which have
theretofore accrued and be then unpaid.
ARTICLE XI
Eminent Domain
Section 11.1 Termination of Lease. In the event any part of the Leased Premises
shall be appropriated or taken under the power of eminent domain by any public
or quasi-public authority, this Lease may be terminated as of the date of such
taking at the option of either Tenant or Landlord to be exercise in writing
within thirty (30) days following date of the event giving rise to such
option.
Section 11.2 Award. If this Lease is terminated as above provided, Tenant shall
be entitled to that portion of the net award specifically designated as payment
for Tenant's leasehold interest, trade fixtures, expenses, business
interruption, and loss of profits and the balance of the award shall be payable
to Landlord; but the rent and other charges for the last month of
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Tenant's occupancy shall be pro-rated and Landlord agrees to refund to Tenant
any rent or other charges paid in advance. If this Lease shall not terminate as
above provided, Landlord shall be entitled to the entire award or compensation
in such proceedings.
ARTICLE XII
Assigning, Mortgaging, Subletting, Change in Ownership
Section 12.1 Transfer by Tenant, Requirements. Tenant shall not transfer,
assign, sublet, or pledge this Lease or Tenant's interest in the entire Leased
Premises without the prior written consent of Landlord. The consent to such
transactions shall not be unreasonably withheld, provided that Tenant shall
remain liable during the Term of this lease and that no uncured defaults exist
at the time of the request and granting of such consent.
Tenant shall have the unrestricted right to sublet portions of the Leased
Premises with Landlord's written consent.
Section 12.2 Restrictions Concerning Consent to Transfer. Any consent by
Landlord to any assignment, subletting, license, or concession shall be upheld
to apply only to the specific transaction thereby authorized and shall not
constitute a waiver of the necessity for such consent to any subsequent
assignment, subletting, license, or concession.
ARTICLE XIII
Attornment, Subordination, Attorney-In-Fact
Section 13.1 Attornment. Tenant shall, in the event of a sale, transfer or
assignment of Landlord's interest in the Leased Premises or any part thereof or
in the event any proceedings are brought for the foreclosure or in the event of
exercise of the power of sale under any mortgage made by Landlord encumbering
the Leased Premises or any part thereof, attorn to and recognize such
transferee, purchaser, or mortgagee as Landlord under this Lease.
Section 13.2 Subordination.
(a) This Lease and the estate of Tenant hereunder shall be subject and
subordinate to any deed of trust or mortgage lien and any replacement, renewal,
or extension of any such deed of trust or mortgage lien, which at any time
hereafter may be placed upon the Leased Premises. Any such mortgage shall, for
the full amount of principal at any time advanced thereon or secured thereby,
with interest, be prior and paramount to this Lease and to the rights of Tenant
hereunder and all persons claiming through or under Tenant, or otherwise, in
the Leased Premises Tenant, on Tenant's behalf, and on behalf of all persons
claiming through and under Tenant, covenants and agrees that Tenant will, from
time to time at the request of Landlord,
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execute and deliver any necessary or proper instruments or certificates
acknowledging the priority of the lien or charge of such mortgage to this Lease
and to subordination of this lease thereto.
(b) Any mortgage herein referred to shall contain a provision that any
purchaser at a sale on foreclosure of said mortgage shall acquire and accept
the premises subject to this Lease, provided, however, that Tenant hereby
agrees to attorn to such purchaser upon foreclosure sale of said mortgage and
to recognize such purchaser as Landlord under this Lease; and provided,
further, that such purchaser upon foreclosure sale of said mortgage shall not
be obligated to accept this Lease or the leasehold estate created hereby in the
event that Tenant is in default in the performance of any of the terms and
provisions of Tenant's part to be kept and performed under this Lease.
Section 13.1 Estoppel Certificates. Tenant, upon request of any party in
interest, shall execute promptly such instruments or certificates to carry out
the intent of Sections 14.1 and 14.2 as reasonably requested by Landlord.
ARTICLE XIV
Default of the Tenant
Section 14.1 Right to Re-enter. In the event of any failure of Tenant to pay
any rental due hereunder within ten (10) days after the same shall be due, or
any failure to perform any other of the terms, conditions, or covenants of this
Lease to be observed or performed by Tenant for more than thirty (30) days
after written notice of such default shall have been given to Tenant, or if
Tenant shall be finally adjudicated a bankrupt and all appeal rights have been
extinguished, or if Tenant, in any court pursuant to any statute either of the
United States or of a State, shall file a petition in bankruptcy or insolvency,
or for reorganization or the appointment of a receiver or trustee of all or a
portion of Tenant's property, or shall make an assignment for the benefit of
creditors, or if Tenant shall abandon the Leased Premises and remove its
furnishings and equipment therefrom, or if Tenant shall abandon said premises
and also be in default under the Lease or suffer this Lease to be taken under
any writ of execution, then Landlord, besides other rights or remedies it may
have, shall have the immediate right of re-entry and may remove all persons and
property from the Leased Premises and such property may be removed and stored
in a public warehouse or elsewhere at the cost of, and for the account of
Tenant, all without service of notice or resort to legal process and without
being deemed guilty of trespass, or becoming liable for any loss or damage
which may be occasioned thereby.
Section 14.2 Right to Relet, Damages. Should Landlord elect to re-enter, as
herein provided, or should it take possession pursuant to legal proceedings or
pursuant to any notice provided for bylaw, it may either terminate this Lease
or it may from time
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to time without terminating this Lease, make such alterations and repairs as
may be necessary to relet the premises, and relet said premises or any part
thereof for such term or terms (which may be for a term extending beyond the
term of this Lease) and at such rental or rentals and upon such other terms and
conditions as Landlord in its sole discretion may deem advisable; upon each
such reletting all rentals received by the Landlord from such reletting shall
be applied, first, to the payment of any indebtedness other than rent due
hereunder from Tenant to Landlord; second, to the payment of any costs and
expenses of such reletting, including brokerage and attorney's fees and of
costs of alterations and repairs; third, to the payment of rent due and unpaid
hereunder, and the residue, if any, shall be held by the Landlord and applied
in payment of future rent as the same may become due and payable hereunder. If
such rentals received from such reletting during any month be less than that to
be paid during that month by Tenant hereunder, tenant shall pay any such
deficiency to Landlord. No such re-entry or taking possession of the Leased
Premises by Landlord shall be construed as an election on its part to terminate
this Lease unless a written notice of such intention be given to Tenant or
unless the termination thereof by decree by a court of competent jurisdiction.
Notwithstanding, any such reletting without termination, Landlord may at any
time thereafter elect to terminate this Lease for such previous breach. Should
Landlord at any time terminate this Lease for any breach, in addition to any
other remedies it may have, it may recover from Tenant all damages it may incur
by reason of such breach, including the present value at the time of such
termination of the excess, if any, of the amount of rent and charges equivalent
to rent reserved in this Lease for the remainder of the stated term over the
then reasonable rental value of the Leased Premises for the remainder of the
stated term, all of which amount shall be immediately due and payable from
Tenant to Landlord.
Section 14.3 Injunctive Relief. In the event of any breach or threatened breach
by Tenant or Landlord of any of the terms and provisions of this Lease, either
Tenant or Landlord shall have the right to injunctive relief as if no other
remedies were provided herein for such breach.
Section 14.4 Rights and Remedies Cumulative. The rights and remedies herein
reserved by or granted to Landlord or Tenant are distinct, separate and
cumulative, and the exercise of any one of them shall not be deemed to
preclude, waive, or prejudice Landlord's or Tenant's right to exercise any or
all others.
Section 14.5 "Re-entry" Not Restricted to Technical Legal Meaning. Wherever in
this Lease the Landlord has reserved or is granted the right to re-entry into
the Leased Premises the use of such word is not intended nor shall it be
construed, to be limited to its technical legal meaning.
16
ARTICLE XV
Access by Landlord
Section 15.1 Right of Entry. Landlord or Landlord's agents shall have
the right to enter the Leased Premises at all reasonable times during
Tenant's business hours upon reasonable notice to Tenant (except in
the case of an emergency in which event Landlord may enter at any
time without notice), to examine the same, and to show them to
prospective purchasers or tenants, and to make such repairs and
alterations to the Leased Premises, as Landlord may deem necessary,
and Landlord shall be allowed to take all material into and upon said
premises so long as such activity does not interrupt Tenant's
business that may be required therefor without the same constituting
an eviction of Tenant in whole or in part and the rent reserved shall
in no wise xxxxx while said repairs are being made so long as there
is no interruption of business of Tenant. During the sixty (60) days
prior to the expiration of the term of this Lease or any renewal
term, Landlord may exhibit the Leased Premises to prospective tenants
or purchasers during Tenant's business hours.
ARTICLE XVI
Surrender of Premises
Upon the expiration or sooner termination of the Term, Tenant shall quit and
surrender the Leased Premises, in good condition and repair, reasonable wear
and tear excepted, together with all keys and combination to locks, all
improvements, alterations, and additions, except personal property and other
trade fixtures, furnishings, and equipment that Tenant may remove pursuant to
the terms thereof, all of which shall thereupon become the property of Landlord
without any claim by Tenant therefore; but the surrender of such property to
Landlord shall not be deemed to be a payment of rent or in lieu of any rent
reserved hereunder; however, notwithstanding the generality of the foregoing
provisions, Landlord shall have the right to require Tenant, upon written
notice given at any time during the Term or within sixty (60) days thereafter,
to remove any improvements, alterations, or additions made by or on behalf of
Tenant and to repair any damage to the Leased Premises caused by such removal.
Before surrendering the Leased Premises, Tenant shall remove all of Tenant's
said personal property and unattached movable trade fixtures, furnishings, and
equipment and if Tenant fails to do so said property shall be deemed abandoned
and become the exclusive property of Landlord; but the retention or disposition
of such abandoned property by Landlord shall not act as release or satisfaction
of any damages sustained by Landlord on account of Tenant's failure to remove
the same as required by this section. If the leased Premises be not surrendered
as and when aforesaid, Tenant shall indemnify landlord against all loss and
liability resulting from the delay by Tenant in so surrendering the same,
including, without limitation, any claims made by any succeeding occupant
founded on such delay. Tenant's obligations under this
17
Article shall survive the expiration or sooner termination of the term of
this Lease.
ARTICLE XVII
Quiet Enjoyment
Upon payment of Tenant of the rents herein provided, and upon the observance
and performance of all the covenants, terms, and conditions on Tenant's part to
be observed and performed, Tenant shall peaceably and quietly hold and enjoy
the Leased Premises for the term hereby demised without hindrance or
interruption by Landlord or any other person or persons lawfully or equitably
claiming by, through or under the Landlord, subject, nevertheless, to the terms
and conditions of this Lease; to all easements and restrictions, if any, now of
record; to the rights of other tenants; and to all deeds of trust now or
hereafter of record subject, however, to the provisions of Article XVI.
ARTICLE XVIII
Successors
Section 18.1 Binding Effect of Lease. All rights and liabilities herein given
to, or imposed upon, the respective parties hereto shall extend to and bind the
several respective heirs, executors, administrators, successors, and assigns of
the said parties; and if there shall be more than one tenant, they shall all be
bound jointly and severally by the terms, covenants, and agreements herein.
ARTICLE XIX
Miscellaneous
Section 19.1 Controlling Law. The laws of the state of Virginia shall govern
the validity, performance, and enforcement of this Lease.
Section 19.2 Waiver. The waiver by Landlord of any breach of any term,
covenant, or condition herein contained shall not be deemed to be a waiver of
any subsequent breach of the same or any other term, covenant, or condition
herein contained. The subsequent acceptance of rent hereunder by Landlord shall
not be deemed to be a waiver of any preceding breach by Tenant of any term,
covenant, or condition of this Lease, other than the failure of Tenant to pay
the particular rental so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such rent. No covenant, term, or
condition of this Lease shall be deemed to have been waived by Landlord, unless
such waiver be in writing signed by Landlord.
Section 19.3 Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement on any check or any letter accompanying any
check or
18
payment as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease provided.
Section 19.4 Entire Agreement. This Lease and Exhibit A attached hereto set
forth all the covenants, promises, agreements, conditions, and understandings
between Landlord and Tenant concerning the Leased Premises and there are no
covenants, promises, agreements, conditions, or understandings, either oral or
written between them other than are herein set forth. No subsequent alteration,
amendment, change or addition to this lease shall be binding upon Landlord or
Tenant unless reduced to writing and signed by Landlord and Tenant.
Section 19.5 Holding Over. Any holding over after the expiration of the Term,
with the consent of the Landlord, shall be construed to be a tenancy from month
to month on the terms and conditions herein specified, so far as applicable.
Section 19.6 Force Majeure. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lock-outs, labor troubles, shortages of
materials or supplies, inability to procure materials, failure of power,
restrictive governmental laws or regulations, riots, insurrection, war, or
other reason of a like nature not the fault of the party delayed in performing
work or doing acts required under the terms of this lease, then performance of
such act shall be excused for the period of the delay and the period equivalent
to the period of such delay.
Section 19.7 Notices. Any notice, demand, request, or other instrument which
may be or is required to be given under this Lease shall be delivered in person
or sent by United States certified mail, postage prepaid, and shall be
addressed to (a) in the case of the Landlord to: 0000 Xxxxx Xxxx Xxxx X.X.,
Xxxxxxx, XX 00000 or such other address as Landlord shall designate by written
notice and (b) in the case of Tenant to: Xxx Xxxxx xx Xxxxxxx-Xxxxx, Xxxxxxx,
XX 00000, or at such other address that Tenant shall designate by written
notice.
Section 19.8 Captions and Section Numbers. The captions, section numbers, and
article numbers appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or
intent of such sections or articles nor in any way affect this Lease.
Section 19.9 Partial Invalidity. It is agreed that if any provision of this
Lease shall be determined to be void by any court of competent jurisdiction,
then such determination shall not affect any other provision of this Lease and
all such other provisions shall remain in full force and effect.
19
Section 19.10 Reserved.
Section 19.11 Recording. Tenant shall not record this Lease without the
written consent of Landlord, however, upon the request of either party hereto
the other party shall join in the execution of a memorandum or so-called
"short form" of this Lease for the purpose of recordation. Said memorandum or
short form of this Lease shall describe the parties, the Leased Premises, and
the Term of this lease and shall incorporate this Lease by reference.
Section 19.12 Corporate Tenant. The person(s) executing this Lease on behalf
of Tenant hereby covenant and warrant that Tenant is a duly qualified
corporation and is authorized to do business in the state of Virginia; and the
person(s) executing this Lease on behalf of Tenant is an officer or are
officers of such Tenant, and that as such are authorized to sign and execute
this Lease.
Section 19.13 Counterparts. This Lease may be executed in two (2) or more
counterparts each of which shall be deemed an original.
Section 19.14 Miscellaneous. This Lease has been negotiated by Landlord and
Tenant and this lease, together with all of the terms and provisions hereof
shall not be deemed to have been prepared solely by either Landlord or Tenant,
but by both equally.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
the day and year first above written.
Landlord: XXXXXX DEVELOPMENT, INC.
By: Xxx X. Xxxxxx
------------------------------
Xxx X. Xxxxxx, President
Tenant: BETA SERVICES, INC.
By: Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx, President
Individually as a personal guarantee of this lease:
Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
20
EXHIBIT B
All that certain lot or parcel of land containing 1,826 acres on the
western side of Xxxxxxxx Avenue in the City of Harrisonburg, Virginia, and
being shown and designated as Xxx 0, Xxxxxxx 0, Xxxxxx Subdivision on an Owner's
Consent & Division Plot dated March 16, 1990, by Xxxxxxx X. Mars, L.S., which
is recorded in the Clerk's Office of the Circuit Court of Rockingham County,
Virginia, in Deed Book 1018, at page 603.
This real estate is a portion of the property acquired by Xxxxxx
Development, Inc. from Preston Heights Corp. by a deed dated February 27, 1990
and recorded in the Clerk's Office in Deed Book 1002, at page 315.
[Clerk Stamp]
21
[ DIAGRAM OF LOT PLAN FOR ROANOKE-SALEM SHOPPING CENTER]
22
LANDLORD ESTOPPEL CERTIFICATE
The undersigned is the landlord under a lease (the "Lease") dated the 7th
day of July, 1990 of certain real property and improvements located at 000
Xxxxxxxxx Xxxxxx in the City of Harrisonburg, Virginia in which BETA Services,
Inc. is the tenant. The tenant desires to assign its interest in the Lease and
has requested the landlord to execute this certificate which it is willing to
do.
The undersigned landlord hereby certifies:
1. Rent payments under the Lease are current through May 31, 1993.
2. As of the date of this certificate the Lease is in good
standing and free from default by the tenant.
Dated: 5-25-93 Xxxxxx Development, Inc.
----------------
By: Xxx X. Xxxxxx
------------------------
Xxx X. Xxxxxx
23
May 28, 1993
Xx. Xxxx Xxxxxx, President
Educational Medical, Inc.
0000 Xxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Dear Xx. Xxxxxx:
This letter is to confirm that Landlord intends to enter into
a new lease with DBS acquisition corporation under the following terms:
l. From June 1, 1993 through December 31, 1993, the sum of $43,750 rental in 7
equal monthly payments of $6,250 each, payable in advance on the first day of
each month.
2. From January 1, 1994 through May 31, 1996, the sum of $159,500 rental in 29
equal monthly payments of $5,500 each, payable in advance on the first day of
each month.
3. From June 1, 1996 through May 31, 1998, if the first renewal option is
exercised by Tenant as provided above, the sum of $132,000 rental in 24 equal
monthly payments of $5,500 each, payable in advance on the first day of each
month.
4. From June 1, 1998 through May 31, 2000, if the second renewal option is
exercised by Tenant as provided above, a sum equal to five percent (5%) over
the amount of any renegotiated mortgage payment for the balance of the lease
term. Landlord agrees to make every reasonable effort to renegotiate the lowest
possible mortgage rate. Landlord shall inform Tenant of any new rental rate at
least sixty (60) days prior to a change. Said amount shall be paid in 24 equal
monthly payments made in advance on the first day of each month.
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Landlord
KCH:bjm
24
9
25
The XXXXXXXX FIRM PC
Corporate Legal Counsel
ASSIGNMENT OF REAL ESTATE LEASE
This assignment of lease is made as of the 7th day of May, 1993, by and
between the grantor BETA SERVICES, INC., a Virginia corporation (the
"Assignor") and the grantee DBS ACQUISITION CORP., a Delaware corporation (the
"Assignee.")
RECITALS
The Assignor hereunder is the tenant under a lease (the "Lease") dated the
5th day of September, 1989 of certain real property and improvements located at
0000-0 Xxxxxxx Xxxxxx in the City of Roanoke, Virginia from Roanoke-Salem Plaza
Limited Partnership, a Virginia limited partnership (the "Landlord,") which
lease is attached hereto and incorporated herein by reference, marked "Exhibit
A." The leased premises is a portion of the property owned by the Landlord, a
description of which is attached hereto and incorporated herein by reference,
marked "Exhibit B." Educational Medical, Inc. (the "Guarantor") is a Delaware
corporation which holds all of the issued and outstanding capital stock of the
Assignee. The terms Assignor, Assignee, Lease, Landlord and Guarantor, have
the defined meaning in the following ASSIGNMENT, ACCEPTANCE OF ASSIGNMENT,
GUARANTY, and CONSENT TO ASSIGNMENT, which accompany this document and which
are incorporated herein.
ASSIGNMENT
This Assignment is made as of May 7, 1993. In consideration of Ten Dollars
($10.00) cash in hand paid, and other good and valuable consideration, the
receipt and sufficiency of
26
The XXXXXXXX FIRM PC
Corporate Legal Counsel
which is hereby acknowledged, the Assignor hereby assigns all of its
right, title and interest in the Lease to the Assignee.
ASSIGNOR
BETA Services, Inc.
Xxxxxxx X. Xxxxx, Xx. (Seal)
----------------------------------
Xxxxxxx X. Xxxxx, Xx.
President
STATE OF ALABAMA)
) to-wit:
Jefferson County)
The foregoing instrument was acknowledged before me this ___ day of
May, 1993, by Xxxxxxx X. Xxxxx, Xx., President of BETA Services, Inc., a
Virginia corporation, on behalf of the corporation.
Xxxxxxxxx Xxxx
-------------------------------------
Notary Public
My commission expires:
MY COMMISSION EXPIRES MARCH 26, 1994
ACCEPTANCE OF ASSIGNMENT
This Acceptance of Assignment is made as of May 7, 1993. The Assignee,
having read the Lease, hereby consents to the foregoing Assignment, and does
hereby unconditionally and irrevocably assume all of the liabilities and
obligations of the Assignor under the Lease to the same extent as if the
Assignee were the original tenant under the Lease.
ASSIGNEE:
DBS Acquisition Corp.
Xxxxxx X. Xxxxx (Seal)
------------------------------
Secretary
2
27
[THE XXXXXXXX FIRM PC
CORPORATE LEGAL COUNSEL LOGO]
STATE OF FLORIDA )
) to-wit:
COUNTY OF PALM BEACH)
The foregoing instrument was acknowledged before me this 27th day of
May, 1993, by Xxxxxx X. Xxxxx, Secretary of DBS Acquisition Corp., a Delaware
corporation, on behalf of the corporation.
Xxxxxxxxx X. Xxxxx
-------------------------------
Notary Public
My commission expires:
[SEAL] XXXXXXXXX X. XXXXX
My Commission #cc 220714
EXPIRES: August 9, 1996
Bonded Thru Notary Public Underwriters
---------------------------
GUARANTY
This Guaranty is made as of May 7, 1993. In consideration of Ten Dollars
($10.00) cash in hand paid, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Guarantor hereby
absolutely and unconditionally guaranties to the Landlord and its successors
and assigns (i) the full payment of the fixed minimum rent and all additional
rent as provided for in the Lease, and (ii) the performance and observance of
all agreements and conditions to be performed or observed by the tenant under
The Guarantor hereby agrees that it shall not be released from its obligations
under this Guaranty by any assignment of the Lease or any subletting of the
demised premises, or any waiver of default or any extension of time or other
favor or indulgence granted by the Landlord to the Assignee as tenant under the
Lease or by failure to receive notice of any of said actions. The Guarantor
hereby waives (i) presentment, demand for payment and notice of non-payment or
any other default in the performance or observance of any agreement or
condition to be performed or
3
28
[THE XXXXXXXX FIRM PC
CORPORATE LEGAL COUNSEL LOGO]
observed by the tenant under the Lease, and (ii) notice of acceptance
of this Guaranty. In the event that the Assignee as tenant under the Lease
defaults in the payment of any fixed minimum rent or additional rent or any
other sum payable by the Assignee as tenant under the Lease, or defaults in the
performance or observance of any of the other terms, covenants or conditions
contained in the Lease to be performed or observed by Assignee as tenant under
the Lease, Landlord may, after the expiration of any applicable cure period
provided for in the Lease, proceed directly against the Guarantor for the full
amount due under this Guaranty without being required first to institute suit
against the Assignee. The Guarantor agrees to pay to Landlord reasonable
attorneys' fees incurred by the Landlord in the event any action or suit is
brought for enforcement of the provisions of this Guaranty in which Landlord
prevails.
GUARANTOR:
Educational Medical, Inc.
Xxxxxx X. Xxxxx (Seal)
------------------------
Secretary
STATE OF FLORIDA )
) to-wit:
COUNTY OF PALM BEACH)
The foregoing instrument was acknowledged before me this 27th day of
May, 1993, by Xxxxxx X. Xxxxx, Secretary of Educational Medical, Inc., a
Delaware corporation, on behalf of the corporation.
Xxxxxxxxx X. Xxxxx
------------------------------
Notary Public
My commission expires: [SEAL] XXXXXXXXX X. XXXXX
My Commission #cc 220714
EXPIRES: August 9, 1996
--------------------------- Bonded Thru Notary Public Underwriters
4
29
[THE XXXXXXXX FIRM PC
CORPORATE LEGAL COUNSEL LOGO]
CONSENT TO ASSIGNMENT
This Consent to Assignment is made as of May 7, 1993. In consideration of
and in reliance upon (i) the Guaranty by Guarantor, (ii) the continued
liability of Assignor, and (iii) Assignee's assumption of the obligations and
liabilities of Tenant under the Lease, the Landlord does hereby consent to the
above assignment from Assignor to Assignee.
LANDLORD
Roanoke-Salem Plaza Limited
Partnership
By: Circle Development
Corporation, its general partner
By: Xxxxx X. Xxxxx (Seal)
--------------------------
Xxxxx X. Xxxxx, Vice President
STATE OF VIRGINIA)
) to-wit:
______ OF _______)
The foregoing instrument was acknowledged before me this 11th day of
May, 1993, by Xxxxx X. Xxxxx, Vice President of Circle Development
Corporation, a Virginia corporation, general partner of Roanoke-Salem Plaza
Limited Partnership, a Virginia limited partnership, on behalf of Roanoke-Salem
Plaza Limited Partnership, a partnership.
Xxxxx X. X. Xxxxx
--------------------------------
Notary Public
My commission expires:
My Commission Expires May 31, 1994
5
30
EXHIBIT A
LEASE AGREEMENT
BETWEEN
ROANOKE-SALEM PLAZA LIMITED PARTNERSHIP, LANDLORD
AND
BETA SERVICES, INCORPORATED, TENANT
31
TABLE OF CONTENTS
ARTICLE PAGE
------- ----
1. Demised Premises and Term ................................. 1
2. Fixed Minimun Rent ........................................ 1
3. Percentage Rent ........................................... 2
4. Common Area Maintenance ................................... 2
5. Real Estate Taxes ......................................... 4
6. Security Deposit .......................................... 5
7. Possession ................................................ 6
8. Signs ..................................................... 6
9. Use of Demised Premises ................................... 7
10. Sales Reports and Audits for
Percentage Rental ....................................... 8
11. Maintenance and Repairs ................................... 10
12. Insurance; Indemnity ...................................... 12
13. Damage to Personal Property ............................... 14
14. Damage .................................................... 14
15. Condemnation .............................................. 15
16. Landlord's Inspection Rights .............................. 15
17. Landlord's Rights on Tenant's Default ..................... 16
18. Assignment and Subletting ................................. 18
19. Competitive Location ...................................... 19
20. Attorneys' Fees and Related Matters ....................... 20
21. Holding Over .............................................. 20
22. Promotion Fund ............................................ 20
23. Landlord's Title & Covenant of Quiet
Enjoyment ............................................... 21
24. Rental Agent; Brokers ..................................... 21
25. Subordination, Attornment & Non-Disturbance ............... 22
26. Transfer of Landlord's Interest ........................... 22
27. Changes Required by Lender ................................ 23
28. Status of Lease ........................................... 23
29. Mortgagee's Right to Cure Landlord's
Default ................................................. 24
30. Renovation ................................................ 24
31. Notice .................................................... 24
32. Relationship of Parties ................................... 24
33. Rules and Regulations ..................................... 25
34. Special Provisions Concerning Delivery
of Possession ........................................... 25
35. Miscellaneous ............................................. 25
36. Signature Page ............................................ 27
Guaranty Page ............................................. 28
Exhibits ............................................ 29-31
-i-
32
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 5TH day of SEPTEMBER, 1989, by and between
Roanoke-Salem Plaza Limited Partnership (hereinafter, "Landlord"), and BETA
SERVICES, INCORPORATED, 0000 XXXXXXX XXXXXX, XXXXXXXX #0X - 0XX XXXXX, XXXXXXX,
XXXXXXXX 00000 (hereinafter, "Tenant").
ARTICLE ONE: DEMISED PREMISES AND TERM
A. Demised Premises: For and in consideration of the rents and other sums
agreed herein to be paid by Tenant to Landlord, and in further consideration of
the covenants, agreements, conditions and terms on the part of Tenant and
Landlord to be performed, kept and fulfilled as herein set forth, Landlord does
hereby lease unto Tenant and Tenant does hereby lease and hire from Landlord, a
store unit consisting of approximately 12,000 square feet in the shopping
center commonly known as Roanoke-Salem Plaza Shopping Center (hereinafter, the
"Shopping Center") situated in the City of Roanoke, County of Roanoke, in the
Commonwealth of Virginia, as shown on the attached Exhibit "A" and more
particularly described as follows: XXXXXXXX # 0X - 0XX. XXXXX PARTITIONED AT
TENANTS EXPENSE. APPROXIMATELY 12,000 SQ. FT. (hereinafter, the "demised
premises").
B. Term: The term of this Lease shall commence upon the SUBSTANTIAL
COMPLETION OF LANDLORD WORK AS PER EXHIBIT D1 (hereinafter, the "lease
commencement date") and shall continue thereafter for EIGHTY-FOUR (84)
consecutive months, unless sooner terminated as hereinafter provided.
ARTICLE TWO: FIXED MINIMUM RENT
A. Fixed Minimum Rent: Tenant agrees to pay Landlord during the term of this
Lease, without previous demand therefor and without any setoffs or deductions
whatsoever, fixed minimum rent per annum, payable in equal monthly installments
in advance, on or before the first day of each calendar month throughout the
term of this Lease.
1-6 months - 0.00
7-18 months - $2,000.00
19-36 months - 4,000.00
37-48 months - 6,500.00
49-84 months - 7,500.00
D. Adjustments: If the lease commencement date or the date of termination of
the Lease occurs on other than the first or last day of a calendar month,
respectively, an appropriate adjustment (on a pro-rata, daily basis) shall be
made to the first and/or last monthly installment of fixed minimum rent and
additional rent payable hereunder.
E. First Month's Rent: An amount equal to one (1) full monthly installment of
TWO THOUSAND DOLLARS ($2,000.00) fixed minimum rent shall be paid at the time
of execution of this Lease, and shall be applied to the first installment of
fixed minimum rent due hereunder.
F. Landlord's Address: The fixed minimum rent, and all additional rent as
hereinafter provided, shall be payable to Landlord or order at 00000X
Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, or at such other place as may from time
to time be designated by Landlord in a written notice to Tenant.
G. Restrictive Endorsements Ineffective: No payment by Tenant or receipt by
Landlord of a lesser amount than the then-current installment of fixed minimum
rent and additional rent due hereunder shall be deemed to be other than on
account of the earliest fixed minimum rent or additional rent due hereunder,
nor shall any endorsement or statement on any check, nor any letter
accompanying any check or payment as rent, be deemed a settlement or an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right
-1-
8/87 ed.
33
to recover the balance of such fixed minimum rent or additional rent or
to pursue any other remedy in this Lease or by law provided. All fixed minimum
rent, and all additional rent payable hereunder, shall be payable without prior
demand therefor, and without any deduction or offset whatsoever.
ARTICLE FOUR: COMMON AREA MAINTENANCE
A. Agreement to Pay Common Area Maintenance: For each full or partial
calendar year during the term of this Lease, Tenant agrees to pay Landlord,
without previous demand therefor and without any setoffs or deductions
whatsoever, as additional rent, a sum equal to Tenant's proportionate share of
Landlord's "gross cost of operating and maintaining the common areas and
facilities of the Shopping Center" (hereinafter, the "common area maintenance,"
and defined below).
B. How Tenant's Share Determined: Tenant's share of common area maintenance
shall be determined for each calendar year by multiplying Landlord's gross cost
of common area maintenance for such calendar year by a fraction, the numerator
of which shall be the floor area of the demised premises as set forth in Article
one, and the denominator of which shall be 243,319 square feet, which is the
approximate net leasable floor area of the Shopping Center.
C. Terms of Payment: Tenant's share of common area maintenance for each
calendar year shall be payable, in advance, in monthly installments on or before
the first day of each month throughout the term of this Lease. The monthly
installment shall be ONE THOUSAND ONE HUNDRED Dollars ($1,100.00) through the
close of the first calendar year during the term of this Lease. After the end
of the first calendar year, and each calendar year thereafter during the term
of this Lease, Landlord shall furnish Tenant with a statement of the actual
amount of Tenant's share of common area maintenance for the preceding calendar
year. If the total amount paid by Tenant as its share of common area
maintenance for any calendar year was less than the actual amount due from
Tenant for such calendar year as shown on the statement, Tenant shall pay to
Landlord the difference within twenty (20) days after the furnishing of such
statement. If the total amount paid by Tenant as its share of common area
maintenance for any calendar year was more than the actual amount due from
Tenant for such calendar year as
-2-
8/87 ed.
34
D. Annual Adjustment: Commencing with the first day of January of the
first full calendar year after the lease commencement date during the term of
this Lease, and on the first day of January of each calendar year thereafter,
the amount of Tenant's monthly installment of common area maintenance shall be
adjusted to equal one-twelfth (1/12th) of Tenant's share of actual common area
maintenance for the immediately preceding calendar year. Appropriate
adjustments to the amounts payable under this Article shall be made, on a
daily, pro-rata basis, for partial calendar years which may occur at the
commencement and expiration of the term of this Lease.
E. Items Included: Landlord's "gross cost of operating and maintaining
the common areas and facilities of the Shopping Center" is hereby defined as
One Hundred Twenty Percent (120%) of the total cost and expense incurred by
Landlord in operating, maintaining and repairing (which terms include
replacements, additions and alterations) of common areas and roofs of the
Shopping Center, including, but not limited to: the costs of maintaining,
repairing and/or replacing all service pipes, electric, gas, and water lines
and sewer mains leading to and from the demised premises and/or other premises
in the Shopping Center; the costs of operating, maintaining and repairing all
heating, air-conditioning and ventilation equipment serving the common areas;
all utility charges incurred in operating the Shopping Center; all costs
incurred in painting, repaving, resurfacing, gardening, landscaping, and for
traffic control equipment; the cost of public liability insurance, property
damage insurance, and all other insurance coverage carried by Landlord for all
land and improvements comprising the Shopping Center; all costs for line
painting and striping, lighting, Christmas and/or other seasonal decorations,
sanitary and drainage control, public address system, cleaning, removal of
snow, trash and rubbish, and depreciation on machinery and equipment used in
such maintenance; and the cost of personnel to control traffic and direct
parking and to provide security for the common areas and facilities. "Common
areas and facilities" is defined as all of the Shopping Center improvements now
or hereafter existing, excepting that area which is presently leased to tenants
or leasable space, including, but not limited to, the parking areas provided
by Landlord in the Shopping Center, the mall area (if any), the public
conveniences of the Shopping Center, the delivery areas and service lanes, and
all other areas in the Shopping Center now or hereafter constructed and
intended to be used in common by, or for the benefit of, the tenants and/or
customers of the Shopping Center.
F. Items Excluded: Notwithstanding the foregoing, the "gross cost of
operating and maintaining the common areas and facilities of the Shopping
Center" shall not include the following: (i) any leasing or mortgage brokerage
commission or fee paid or payable by Landlord; (ii) mortgage interest; (iii)
real estate taxes, as defined in Article Five; (iv) franchise or income taxes
imposed on Landlord; (v) costs incurred in renovating or otherwise improving,
decorating, painting or redecorating space for tenants; (vi) ground rent
incurred pursuant to the ground lease, if any, in effect during the term of
this Lease; (vii) any operating expense of Landlord which is otherwise paid or
reimbursed in full by Tenant or any other tenant of the Shopping Center; (viii)
depreciation and amortization, except with respect to machinery and equipment
used in maintenance; (ix) any loss, claim, damage, award or other amount paid
or payable by Landlord (including all attorneys' fees, court costs, and other
costs incurred in connection therewith) as a result or arising out of (a) the
violation or breach by Landlord or any tenant of the Shopping Center of the
terms and conditions of any lease of space in the Shopping Center, or
(b) any act of negligence or willful misconduct by Landlord, or Landlord's
agents, contractors, employees and assigns; (x) repairs or other work
occasioned by fire or other casualty the costs of which are reimbursed to
Landlord by insurers or by governmental authorities in eminent domain; (xi)
legal expenses and other costs and expenses incurred in connection with (a)
leasing space in the Shopping Center or (b) negotiations or disputes with
present or prospective tenants of the Shopping Center; (xii) expenses of a
capital nature, including without limitation capital improvements, capital
repairs, capital equipment and capital tools, all as determined in accordance
with generally accepted accounting principles, consistently applied; (xiii)
Landlord's general overhead and general administrative expenses; (xiv)
advertising and promotional expenses including Landlord's portion of any
Promotion Fund hereunder; and (xv) any other
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expense which, under generally accepted accounting principles, consistently
applied, would not be rendered as a normal maintenance or operating expense.
In addition, the depreciation of any maintenance equipment used by Landlord and
the compensation of any personnel hired or contracted by Landlord to
maintain properties in addition to the Shopping Center shall be allocated
proportionately between each of such properties.
G. Tenant's Right to Verify: Tenant shall have the right, within thirty
(30) days of receiving the year-end statement of actual common area maintenance
expenses, to request copies, certified by Landlord as true and complete, of such
books and records, including purchase orders, invoices, and payrolls, as may be
reasonably necessary to enable Tenant to verify the amount of any item of
common area maintenance of which Tenant is required to pay its share. If, upon
the basis of an examination by the accountant of Tenant, who shall be a
Certified Public Accountant, it shall be determined that the amount paid by
Tenant as its share of common area maintenance for any year was overstated,
Landlord shall promptly refund the amount overpaid by Tenant, plus interest at
the same rate Tenant is required to pay to Landlord under Article 20, Paragraph
B of this Lease. If, on the basis of such examination, it shall be determined
that Tenant's share was overstated by greater than five percent (5%), Landlord
shall also reimburse Tenant for the reasonable expenses incurred by Tenant in
making such examination.
ARTICLE FIVE: REAL ESTATE TAXES
A. Agreement to Pay Real Estate Taxes: Tenant agrees to pay Landlord
during the term of this Lease, without previous demand therefor and without any
setoffs or deductions whatsoever, as additional rent, a sum equal to Tenant's
proportionate share of all real estate taxes which may be levied or assessed by
lawful taxing authorities against the land, buildings and all improvements in
the Shopping Center.
B. Real Estate Taxes Defined: "Real estate taxes" shall be deemed to mean
all city, county, town and village taxes, special or general, ordinary or
extraordinary, assessments, water and sewer rents, charges for public utilities,
excises, levies, license and permit fees, and other governmental charges which
shall be imposed upon or become due and payable or become a lien upon the
premises or any part thereof, including the building and improvements which may
hereafter be placed or erected thereon, or on the sidewalks or streets in front
of the same by any Federal, state, municipal, or other governmental or public
authority under existing law or practice or under any future law or practice,
and costs and expenses incurred in contesting or negotiating an adjustment
thereof.
C. How Tenant's Share Determined: Tenant's proportionate share of real
estate taxes shall be determined for each calendar year by multiplying the real
estate taxes for such calendar year by the same fraction utilized in Article
Four for determining Tenant's proportionate share of common area maintenance
expenses. The real estate taxes for any calendar year shall mean all real
estate taxes actually paid or due to be paid during such calendar year, whether
or not such real estate taxes relate to such calendar year or to a fiscal year.
Tenant's liability for its share of any real estate taxes for the calendar
years in which this Lease commences and terminates shall be subject to a
pro-rata adjustment based on the number of days of said calendar year during
which the term of this Lease is in effect.
D. Terms of Payment: Tenant's proportionate share of real estate taxes
shall be payable in advance, in monthly installments, on or before the first day
of each calendar month during the term of this Lease, subject to adjustments as
hereinafter provided. The monthly installment shall be ONE HUNDRED THIRTY
DOLLARS ($130.00) through the close of the first calendar year during the term
of this Lease. The amount of the monthly installment shall be adjusted
(upwards or downwards) commencing January 1 of the first calendar year after
the lease commencement date, and on the first day of each calendar year
thereafter during the term of this Lease, on the basis of Landlord's reasonable
estimate of Tenant's proportionate share of the real estate taxes for the
then-forthcoming calendar year.
E. Adjustment: Subsequent to the end of each calendar year, Landlord
shall furnish Tenant with a statement of the actual amount of Tenant's
proportionate share of real estate taxes for such calendar year. If the total
amount paid by Tenant as its proportionate share of the real estate taxes for
such calendar year
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was less than the actual amount due from Tenant as shown on such statement,
Tenant shall pay to Landlord the difference within twenty (20) days after the
furnishing of such statement. If the total amount paid by Tenant as its
proportionate share of the real estate taxes for such calendar year was more
than the actual amount due from Tenant for such calendar year as shown on
the statement, Landlord shall pay to Tenant the difference within twenty (20)
days after the furnishing of such statement.
F. Refund: If the operation of any of the foregoing provisions results in
payment by Tenant of a share of real estate taxes for calendar years extending
beyond the term of this Lease, Landlord, within thirty (30) days following the
expiration of the term of this Lease, shall reimburse to Tenant any such
amount, less amounts, if any, then due Landlord from Tenant. Landlord's
and Tenant's obligations under this Article shall survive the expiration
of the term of this Lease.
G. Substantiation: A copy of a tax xxxx or assessment xxxx provided by
Landlord to Tenant shall at all times be sufficient evidence of the amount of
taxes and/or assessments assessed or levied against the Shopping Center.
H. Verification: Tenant shall have the right, within thirty (30) days of
receiving the statement referred to in Paragraph E above, to request copies,
certified by Landlord as true and complete, of such books and records as may be
reasonably necessary to enable Tenant to verify the amount of any item of "real
estate taxes" of which Tenant is required to pay its proportionate share.
Landlord shall keep such records for a period of not less than three (3) years
after the dates such taxes are actually paid. If, upon the basis of an
examination by the accountant of Tenant, who shall be a Certified Public
Accountant, it shall be determined that the amount paid by Tenant as its
proportionate share of such taxes for any year (or years, as the case may be)
was overstated, Landlord shall promptly refund the amount overpaid by
Tenant plus interest at the same rate Tenant is required to pay under Article
20, Paragraph B of this Lease, and, if on the basis of such examination it
shall be determined that Tenant's proportionate share was overstated by more
than five percent (5%), Landlord shall also reimburse Tenant for reasonable
expenses incurred by Tenant in making such examination.
I. Future Laws: In the event any present or future enactment of any state or
political subdivision thereof, or of any governmental authority having
jurisdiction thereover: (i) imposes a tax and/or assessment of any kind or
nature upon, against or with respect to the rents payable by tenants in the
Shopping Center to Landlord derived from the Shopping Center or with respect to
Landlord's (or Landlord's lessor's) ownership of the land and improvements
comprising the Shopping Center, either by way of substitution for all or any
part of the taxes and assessment levied or assessed against such land and such
improvements, or in addition thereto (but excluding any income tax imposed on
Landlord's gross or net income); and/or (ii) imposes a tax or surcharge of any
kind or nature, upon, against or with respect to the parking areas or the number
of parking spaces in the Shopping Center, such tax, assessment and/or surcharge
shall be deemed to constitute real estate taxes for all purposes of this Article
Five.
J. Taxes on Tenant's Interest: Tenant shall at all times be responsible for
and shall pay when due all municipal, county, state and Federal taxes assessed
against Tenant's leasehold interest in the demised premises or against any
personal property of any kind owned, installed or used by Tenant.
ARTICLE SIX: UTILITY DEPOSIT
Tenant has deposited with Landlord, the receipt of which, if by check subject to
collection, is hereby acknowledged, for Landlord's general account, the sum of
THREE THOUSAND AND 00/100 DOLLARS AS UTILITY DEPOSIT WHICH SHALL BE HELD BY
LANDLORD UNTIL TERMINATION OF SAID LEASE NO INTEREST PAID. In the event that
Tenant is in default hereunder, Landlord may use, apply or retain the whole (or
any portion of) the Security Deposit for the payment of (i) any fixed minimum
rent, additional rent or other sum of money which Tenant may not have
paid or which may become due after the occurrence of a default, (ii) any sum
expended by Landlord on Tenant's behalf in accordance with the provisions of
this Lease, or (iii) any sum which Landlord may expend or be required to expend
by reason of Tenant's default. Upon any such use, payment or application,
Tenant
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shall, upon five (5) days' written notice from Landlord, restore the Security
Deposit to the original sum set forth above. The use, application or retention
of the Security Deposit by Landlord shall not prevent Landlord from exercising
any other right or remedy provided in this Lease or at law and shall not operate
as a limitation on any recovery to which Landlord may otherwise be entitled. Not
later than thirty (30) days after the expiration or earlier termination of this
Lease, and provided Tenant is not in default, Landlord shall return the Security
Deposit to Tenant, without interest and less any sums used, applied or retained
as hereinabove set forth. In the event of a sale or transfer of Landlord's
interest in the Shopping Center or the demised premises, Landlord shall have
the right to transfer the Security Deposit to the purchaser or transferee. In
the event the Security Deposit is transferred, Tenant shall look solely to the
purchaser or transferee for the return of the Security Deposit and Landlord
shall thereupon be released from all liability to Tenant for the return of the
Security Deposit; provided, that the purchaser or transferee has affirmatively
assumed all of Landlord's obligations to Tenant in writing.
ARTICLE SEVEN: POSSESSION
Tenant agrees to take possession of the demised premises on the lease
commencement date. Tenant has examined the demised premises and all equipment
presently serving the demised premises prior to and as a condition precedent to
its execution of this Lease, and its taking possession thereof shall be
conclusive evidence of its receipt thereof in good order and repair. LANDLORD
WARRANTS THAT ALL PLUMBING AND HEATING AND ELECTRICAL SHALL BE IN GOOD WORKING
ORDER AT TIME OF POSSESSION BY TENANT. Exhibit D1- D2 Landlord work - tenants
work attached. Possession shall be sixty (60) days after building permit.
Landlord shall furnish the building permit in a timely fashion. Notwithstanding
the contrary, tenant shall take possession of demised premises when landlord has
substantially completed landlords work AND THIS SHALL BE THE LEASE COMMENCEMENT
DATE.
ARTICLE EIGHT: SIGNS
A. Sign on Vertical Sign Area of Canopy: Landlord has provided suitable
mounting structures and electric service to the vertical sign area of the
canopy above the tenant spaces in the Shopping Center, including the demised
premises. Tenant agrees to install an illuminated sign which meets LANDLORDS
PRIOR APPROVAL AND ATTACHED TO LEASE AS EXHIBIT A1 (hereinafter, the "Sign
Criteria") within the vertical sign area of the canopy directly above the
demised premises, at Tenant's sole cost and expense. Within fifteen (15) days
of the execution of this Lease, Tenant shall submit a drawing of a proposed
sign to Landlord for written approval, which shall not unreasonably be
withheld. Upon Landlord's approval of its drawing, Tenant shall employ a
qualified contractor to fabricate and install the sign in the sign area in
strict compliance with the approved drawing and the Sign Criteria, such work to
be completed in sixty (60) days. It shall be Tenant's responsibility to obtain
all necessary building permits and/or approvals for the installation of the
sign. SEE EXHIBIT A1.
B. Under-Canopy sign: Landlord has provided suitable mounting structures and
electric service beneath the canopy above the tenant spaces in the Shopping
Center, including the demised premises. Tenant agrees to install an illuminated
sign which meets the criteria set forth in Exhibit "B" attached to this Lease
(hereinafter, the "Sign Criteria") beneath the canopy directly above the
demised premises, at Tenant's sole cost and expense. Within fifteen (15) days
of the execution of this Lease, Tenant shall submit a drawing of a proposed
sign to Landlord for written approval, which shall not unreasonably be
withheld. Upon Landlord's approval of its drawing, Tenant shall employ a
qualified contractor to fabricate and install the sign beneath the canopy in
strict compliance with the approved drawing and the Sign Criteria, such work to
be completed in sixty (60) days. It shall be Tenant's responsibility to obtain
all necessary building permits and/or approvals for the installation of the
sign.
C. Restrictions: Other than as set forth above, Tenant shall place no signs,
awnings, curtains, shades or exterior lighting on any show window or any part
of the exterior of the demised premises, or in the interior of the demised
premises if visible from the exterior of the demised premises, without the prior
written consent of Landlord. Tenant shall not paint any brick work, cornice
work, mill work or metal work on the front of the demised premises without the
prior written consent
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of Landlord. For the purposes hereof, "signs" includes window or door
lettering, placards, and other items, whether located inside or outside the
demised premises, if visible from the exterior of the demised premises. In the
event Landlord chooses to upgrade, rehabilitate, remodel or renovate the facade
of the Shopping Center, or the portion thereof in which the demised premises
are located, at Landlord's cost and expense, Tenant agrees to cooperate in such
renovation by removing its existing signs and replacing them, upon thirty (30)
days' notice from Landlord, at Tenant's sole cost and expense, with signs on
the vertical sign area of the canopy and beneath the canopy in accordance with
any revised Sign Criteria established by Landlord. Tenant's signs shall in no
way diminish the rights or ability of other tenants in the Shopping Center to
maintain or erect signs identifying their businesses. Any permits which are
required shall be obtained and paid for by Tenant.
ARTICLE NINE: USE OF THE DEMISED PREMISES
A. Tenant's Use: Tenant covenants and agrees that during the term of this
Lease the demised premises will be used only for the purpose of: BUSINESS
RELATED SCHOOL OF BUSINESS ONLY AND COMPUTER PROGRAMS. Tenant specifically
covenants and agrees that the demised premises will not be used for any purpose
other than as stated herein.
B. Commencement of Business: Tenant agrees to open for business to customers
from the demised premises ON OR BEFORE NOVEMBER 1, 1989 OR SUBSTANTIAL
COMPLETION OF LANDLORD IMPROVEMENTS WHICHEVER OCCURS LAST. During the term of
this Lease, Tenant agrees to operate under the trade name of: "College and/or
Dominican Business,) and further agrees not to change the foregoing trade name
without first obtaining Landlord's written consent, which shall not unreasonably
be withheld.
C. Minimum Hours of Operation: Tenant agrees:
1. After having initially opened for business as required in Paragraph B
above, to thereafter open for business during the entire term
of this Lease on all days of the week, subject to local restrictions,
if any.
2. To open for business MON. - FRI. not later than 10:00 a.m., and to
remain open until at least 6:00 p.m., AND SAT. 9:00 am - 12 NOON.
3. To keep the store front of the demised premises and the exterior signs
adequately lighted until 9:00 p.m. every day throughout the
entire term of this Lease.
E. Prohibited Uses: Tenant agrees that it will not suffer or permit the
demised premises to be used for any unlawful or immoral purpose and that it will
not suffer or permit any article to be brought on or any act to be done on the
demised premises which shall render the demised premises, the Shopping Center
or any part thereof uninsurable. Tenant, in the conduct of its business, will
at its own expense obtain all occupancy permits for the demised premises and
will fully and completely comply with all applicable laws, ordinances, rules
and regulations of any and all governmental authorities having jurisdiction of
the Shopping Center or the demised premises (including, without limitation,
rules and regulations concerning cleanliness, health, safety, occupational,
environmental and use laws and regulations), now existing or hereafter adopted,
and the requirements of all insurance underwriters, mortgagees or lessors of
the Shopping Center. Tenant agrees that in no event shall it knowingly use the
demised premises for purposes which are prohibited by zoning or similar laws
and regulations or covenants, conditions or restrictions of record. Tenant
further agrees that Tenant will not permit the use or display of pinball, video
game or similar type game machines in the demised premises without the written
consent of Landlord, and will not sell or
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display drug paraphernalia or pornographic materials in the demised premises,
and will neither sell nor display any items which in Landlord's reasonable
judgment adversely affect the image of the Shopping Center. Landlord warrants
that to its knowledge, Tenant's contemplated use of the demised premises is not
in violation of any applicable zoning or similar laws, ordinances or
regulations, and that the current zoning classification is as shown on the site
plan of the project as approved by Roanoke County.
F. No reduction in Tenant's Business Activity: Tenant shall not diminish its
ability to transact its normal volume of business by any action including, but
not limited to, removing substantial amounts of inventory, reducing personnel,
or reducing the hours of operation. The foregoing covenant shall not be deemed
to restrict Tenant's exercise of its reasonable business judgment regarding
purchases or stocking of inventory, releasing and hiring of personnel, or
similar matters.
G. Parking:
1. Deliveries: Tenant agrees that all deliveries or shipments of any
kind to and from the demised premises, shall be made only by way of the rear of
the demised premises or at other locations which may be designated by Landlord,
and only at such times as may be designated for such purposes by Landlord.
Tenant agrees that if deliveries are undertaken or permitted by Tenant other
than as set forth in this Paragraph, Tenant will pay Twenty-Five Dollars
($25.00) for each such infraction, as and for liquidated damages.
2. Parking: Tenant agrees that Tenant and its employees shall park
their vehicles only in those portions of the parking areas, if any, as
may be designated for that purpose by Landlord. Such designated parking areas
may, at Landlord's discretion, be adjacent to the Shopping Center, at the
periphery of the parking lot, or anywhere in between. Tenant shall furnish
Landlord with the license numbers of all vehicles used by Tenant and its
employees within five (5) days after opening for business from the demised
premises, and Tenant shall thereafter notify Landlord of any changes in license
numbers and/or additions or deletions to its staff within five (5) days of such
events. Tenant agrees that if Tenant or its employees fail to park their
vehicles in designated parking areas, Landlord may charge Tenant, as and for
liquidated damages, Twenty-Five Dollars ($25.00) per day for each day or
partial day for each car parked in any areas other than those designated.
Tenant hereby authorizes Landlord to remove from the Shopping Center any of
Tenant's vehicles or vehicles belonging to Tenant's employees and/or to attach
violation stickers or notices to such vehicles, and Tenant hereby waives and
releases Landlord and agrees to hold Landlord harmless from any and all claims,
liabilities, costs and expenses which may result or arise therefrom. Tenant's
customers shall have the non-exclusive right to park in the Shopping Center
parking lot without any charge (either to Tenant or such customers).
3. Fire Lanes & Access: Tenant agrees, for itself and for its employees,
to comply with all access and fire lane restrictions which may be imposed upon
the parking areas by Landlord and/or by governmental authorities.
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F. Lease Year: As used in this Lease, the term "lease year" means that period
beginning on the lease commencement date and terminating on the last day of the
twelfth full calendar month thereafter (or the first twelve (12) full calendar
months of this Lease if this Lease commences on the first day of a month), and
each succeeding period of twelve (12) full calendar months, during the entire
lease term and any renewals or extensions thereof, provided, the last lease
year may consist of less than twelve (12) full calendar months and shall expire
on the expiration date of the term of this Lease.
ARTICLE ELEVEN: MAINTENANCE AND REPAIRS
A. Landlord Responsibility: Landlord will keep the roof and the exterior
walls of the demised premises (excluding the store front, interior
non-structural portions of the exterior walls, and any plate glass, windows,
window frames, doors and door frames) in proper repair, provided that in each
case Tenant shall have given Landlord prior written notice of the necessity of
such repair. Except for (i) damage caused by fire and casualty, (ii) damage
covered by Landlord's insurance, and (iii) damage or maintenance necessitated
by the negligence or willful misconduct of Landlord or Landlord's agents,
contractors, employees or assigns, Landlord shall not be responsible for
repairing any damage to, or performing any maintenance of, the demised
premises. Notwithstanding any other provision of this lease, in no event shall
Landlord be responsible for repairing any damage to, or performing any
maintenance of, the demised premises when any such damage and/or maintenance
is caused or necessitated by (i) any act or omission of Tenant or any of
Tenant's employees, agents, customers, invitees or licensees, (ii) the
functioning or malfunctioning of any fixtures, equipment or other item
installed in or placed in the demised premises by Tenant, or (iii) any use of
the demised premises not permitted under the terms of this Lease. Except for
defaults which cannot reasonably be cured within a five (5) day period, Tenant
may, but need not, perform any covenant to be performed by Landlord hereunder
if Landlord fails or neglects to do so within a reasonable time, not exceeding
five (5) days, after Tenant has given Landlord written notice specifying
Landlord's default and Tenant's intention of so doing, and Landlord shall pay
to Tenant the reasonable cost and expense thereof, upon five (5) days' demand
in writing. In the event Landlord fails or neglects to make such payment as
aforesaid (or any other payment due under this Lease from Landlord to Tenant),
Tenant shall be entitled to its costs of collection thereof, including
reasonable attorneys' fees incurred in any action to recover such sums in which
Tenant prevails. In the event Tenant employs any persons to perform any work as
a consequence of the foregoing, liability, if any, for the acts or omissions
of such person shall be borne by Tenant, irrespective of the fact that Tenant
may seek reimbursement for the costs of such work from Landlord.
B. Tenant Responsibilities:
1. Maintenance: Except for the repairs Landlord is obligated to make
pursuant to Paragraph A, above, Tenant shall, at its own cost and expense, make
all necessary repairs and perform all maintenance on, in and to the demised
premises that is necessary or appropriate to keep the demised premises in good
condition and repair and in a safe and tenantable condition. All such repairs,
and
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maintenance shall be accomplished in a good and workmanlike manner and in
compliance with all applicable requirements of law, and Tenant shall use
materials equal in quality and kind to the materials used by Landlord in the
original construction of the demised premises. Tenant's obligations shall
include, but are not limited to, the maintenance, repair and replacement of the
store front, Tenant's signs, all mechanical, plumbing, and electrical systems,
and all other fixtures, appliances and facilities furnished by Landlord or
installed by Tenant. Tenant not permit the accumulation of garbage, rubbish or
other waste in or around the demised premises. Landlord may, but need not,
perform any covenant to be performed by Tenant hereunder if Tenant fails or
neglects to do so within a reasonable time, not exceeding five (5) days, after
Landlord has given Tenant written notice specifying Tenant's default and
stating Landlord's intention of so doing, and Landlord may charge to Tenant the
reasonable cost and expense thereof, which cost and expense shall be treated as
additional rent, due and payable upon five (5) days' demand in writing.
Tenant agrees that the plumbing facilities shall not be used by Tenant,
Tenant's employees, agents, customers, invitees or licensees for any other
purpose than that for which they were intended, and no foreign substance of any
kind shall be thrown or deposited therein, and the expense of curing and
repairing any breakage, stoppage or damage resulting from a violation of this
provision shall be paid by Tenant, as additional rent, upon five (5) days'
demand by Landlord. In the event Landlord employs any persons to perform any
work as a consequence of the foregoing, liability, if any, for the acts of such
person shall be borne by Landlord, irrespective of the fact that Landlord may
seek reimbursement for the costs of such work from Tenant. Walk through to be
at completion of work with all utilities in good working order.
3. Condition of Interior: Tenant will keep the and interior of the
demised premises in a clean, orderly, and attractive condition at all times.
Tenant will not cut or drill into, or secure any fixture, apparatus or
equipment of any kind to any part of the demised premises, without obtaining
Landlord's prior written consent.
4. Plate Glass Replacement: Tenant shall, at its own cost and expense,
maintain and replace, as required, all glass, doors and windows, and all
portions thereof, in the demised premises.
5. Subsequent Alterations by Tenant: Prior to any work, installations or
alterations by Tenant in the demised premises, Tenant shall submit to Landlord
(i) an insurance certificate evidencing the insurance coverages which Tenant is
required to provide pursuant to this Lease, and (ii) plans and specifications
covering all work which Tenant proposes to perform in the demised premises
including, without limitation, the interior store layout, fixtures and decor.
Such plans and specifications shall be prepared in such detail as Landlord may
require and Tenant agrees not to commence work upon any of the aforesaid
Tenant's work until Landlord has approved such plans and specifications.
Landlord agrees to act with reasonable promptness with respect to approval of
such plans and specifications. Upon approval of said plans and specifications
by Landlord, Tenant shall make, at its own cost and expense, the approved
alterations or changes to the demised premises in a good and workmanlike manner
and in compliance with all applicable requirements of law, including any local
requirements with respect to approval of plans and building permits. All
alterations, once commenced, shall be diligently pursued to completion.
Notwithstanding anything to the contrary in the foregoing, Tenant shall have
no right to make any structural change, alteration or addition to the demised
premises.
6. Utility Charges: Tenant shall promptly pay all charges for utilities
furnished or rendered to the demised premises, including, but not limited to,
heat, water, gas, oil and electricity. In no event shall Landlord be liable in
damages or otherwise for any interruption or failure in the supply of any
utilities to the demised premises, or for damages resulting from the bursting
of pipes or conduits. Notwithstanding the foregoing, in the event there is a
failure or interruption in the furnishing of utilities to Tenant which
continues uninterrupted for a period of THIRTY (30) days, and the same
materially interferes with Tenant's use and occupancy of the demised premises
during such period, Tenant shall have the right to terminate this Lease by
notice in writing delivered to the Landlord prior to the resumption of such
utilities; provided, that there shall be no such right of termination if the
failure or interruption in the furnishing of utilities arises out of or relates
to the negligence or wrongful act of Tenant or Tenant's employees, agents and
contractors, or the failure of Tenant to pay utilities bills when due.
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TENANT SHALL HAVE THE RIGHT TO CURE ANY DEFAULT BY LANDLORD ON PAYMENT OF
UTILITY BILLS BY PAYING SAID BILLS TO PREVENT DISCONTINUING SERVICE AND
DEDUCTING SAID PAYMENT FROM ANY RENT DUE LANDLORD BY TENANT.
6B. Utility Payments By Tenant To Landlord: Tenant to pay 100% of
any and all utility bills until first floor is fully occupied. Upon occupancy
of any parts of the first floor and the remainder of the second floor not
occupied by said tenant then any and all utilities shall be prorated on a sq.
ft. basis. Prorating shall be based on the pro-rata share of the (sq. ft. of
said tenant) against the 37,000 sq. ft. total gross leaseable area of building
#1. The invoice submitted by the utility company6 for said service will have
been already paid by the landlord. Tenant will pay to the landlord the
requested xxxx within 5 business days of receipt of said xxxx. LANDLORD SHALL
NOT FURNISH ANY OTHER HVAC TO THE REMAINDER OF THE DEMISED PREMISES UNTIL SUCH
TIME LANDLORD LEASES ANY PORTION OF REMAINING SECOND FLOOR OR FIRST FLOOR.
7. Condition of Premises at Expiration or Termination: At the
expiration or earlier termination of this Lease, Tenant will quit and
surrender the demised premises in as good condition and repair as when this
Lease was entered into, reasonable use and wear thereof, and alterations,
installations or improvements permitted pursuant to Paragraph 5, above,
excepted. All alterations, installations or improvements (including, in all
events, all heating, ventilating and air-conditioning equipment and systems) on
or in said demised premises at the expiration or earlier termination of this
Lease, except furniture or trade fixtures installed at the expense of Tenant,
shall be and become a part of the demised premises and shall remain upon and be
surrendered with the demised premises. Notwithstanding the foregoing, if
Landlord shall have notified Tenant to do so no later than thirty (30) days
following the expiration date or earlier termination of this Lease, Tenant
shall restore the premises to the condition they were in upon the lease
commencement date, or prior to Tenant's alterations, installations and
improvements, and remove said furniture and trade fixtures. Should Tenant fail
to cause such restoration or remove said items, Landlord shall have such
restoration performed at Tenant's expense, and any un-removed items shall be
considered as abandoned and become the property of Landlord, or Landlord may
have them removed and disposed of at Tenant's expense. All damage done in the
course of removing any property as aforesaid shall be repaired at Tenant's
expense. The provisions of this Paragraph shall survive the expiration of the
term of this Lease.
8. Liens: Tenant will not permit or suffer any lien to attach to
the demised premises, or to the Shopping Center, or to the interest of Landlord
or Landlord's lessor therein, and nothing contained in this Lease shall be
deemed to constitute or imply any agreement by Landlord to subject its interest
or estate (or Landlord's lessor's interest or estate) to any lien. Tenant
covenants and agrees to save and hold harmless Landlord from and against any
such lien or claim of lien. In the event that any lien is filed against the
demised premises or the Shopping Center, or the interest of Landlord or
Landlord's lessor therein as a result of utilities furnished to the demised
premises, or of maintenance, additions, alterations, repairs, installations or
improvements made or claimed to have been made by Tenant or anyone holding any
part of the demised premises through or under Tenant, or any other work, act or
failure to act of any of the foregoing, Tenant shall fully pay or discharge the
same within ten (10) days from the filing thereof. If Tenant fails to discharge
by payment, bond (with surety satisfactory to Landlord) or court order, any
such lien, Landlord, at its option, in addition to all other rights or remedies
provided in this Lease, may bond said lien or claim (or pay off said lien or
claim if it cannot with reasonable effort be bonded), without inquiring into
the validity thereof, for the account of Tenant, and all expenses incurred by
Landlord in so discharging said lien shall be paid by Tenant to Landlord as
additional rent on five (5) days' demand.
ARTICLE TWELVE: INSURANCE; INDEMNITY
A. Insurance Coverages to be Obtained by Tenant: At all times during the
term hereof, Tenant shall obtain and shall keep in force, at its sole expense,
with companies acceptable to Landlord, policies of insurance which name
Landlord (and, upon notice from Landlord, its agents, mortgagees and lessors)
as an additional insured, as follows:
1. Fire Insurance: Fire and extended coverage, vandalism,
malicious mischief insurance and extended coverage insurance in an amount at
least equal to the full replacement costs of Tenant's betterments,
improvements, fixtures and contents in or to the demised premises, and with a
deductible not exceeding One Thousand Dollars ($1,000.00).
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8/87 ed.
43
2. Public Liability Insurance: Public liability and property damage
insurance under which the insurer agrees to indemnify and hold Landlord, and
those in privity of estate with Landlord, harmless from and against all cost,
expense and/or liability arising out of or based upon any and all claims,
accidents, injuries and damages in the broadest form of such coverage from time
to time available in the jurisdiction in which the demised premises are
located. The minimum limits of liability of such insurance shall be One Million
Dollars ($1,000,000.00) for bodily injury (or death) to any one person, Two
Million Dollars ($2,000,000.00) for bodily injury (or death) to more than one
person, and Two Hundred Thousand Dollars ($200,000.00) with respect to damage
to property. On or after the third anniversary of the lease commencement date,
the minimum limits of liability specified herein may be increased, upon thirty
(30) days' prior written notice by Landlord to Tenant, to amounts then
customarily required by Landlord in new leases covering premises similar to the
demised premises; provided, Landlord shall not increase the minimum limits of
liability more often than once every four (4) years thereafter. TENANT MAY AT
IT'S OPTION CARRY MINIMUM INSURANCE LIMITS, BUT PROVIDE ABOVE COVERAGE UNDER A
TWO (2) MILLION DOLLAR UMBRELLA POLICY.
B. Tenant-Caused Increase in Insurance Costs: Tenant agrees that it will not
keep, use, sell or offer for sale in or upon the demised premises any articles
which may be prohibited by the standard form of fire and extended coverage
insurance policy. Tenant agrees to pay, on ten (10) days' written demand, and as
additional rent, any increase in premiums for fire and extended coverage,
boiler, rent loss, and liability and property damage insurance with all its
endorsements that may be charged during the term of this Lease on the amount of
such insurance which may be carried by Landlord on the demised premises, the
Shopping Center, or any part thereof resulting from the type of merchandise sold
by Tenant or the activities carried on by Tenant in or at the demised premises,
whether or not Landlord has consented to the same. In determining whether
increased premiums are the result of Tenant's use of the demised premises, a
schedule, issued by the organization making the insurance rate on the demised
premises, showing the various components of such rate, shall be conclusive
evidence of the several items and charges which make up the insurance
rate on the demised premises and the Shopping Center.
C. Evidence of Coverage: Tenant will furnish to Landlord, no later than the
lease commencement date (and thereafter, no later than thirty (30) days prior
to the expiration of any policy), copies of policies or certificates of
insurance evidencing the coverages required by this Lease and such evidence of
payment of the premiums therefor as Landlord may request. In the event Tenant
fails to furnish Landlord with such evidence of coverage and payment of
premiums, such failure shall be considered a default under this Lease, and, in
addition to the other remedies Landlord may have for Tenant's default, Landlord
shall have the right, but not the obligation, to procure, on behalf of Tenant,
insurance coverage for any such matter, and Landlord's cost therefor shall be
deemed additional rent, payable by Tenant on five (5) days' demand by Landlord.
All policies required hereunder shall contain an endorsement providing that
the insurer will not cancel or materially change the coverage of said policy or
policies or change the parties named as insureds without first giving thirty
(30) days' prior written notice thereof to Landlord.
D. Indemnification: To the fullest extent this agreement may be effective
according to law, Tenant covenants and agrees that it will protect and save and
keep Landlord forever harmless and indemnified against and from any penalty or
damage or charges imposed for any violation of any law or ordinance, whether
occasioned by the neglect of Tenant or those holding under Tenant, and that
Tenant will at all times protect, indemnify and save and keep harmless Landlord
against and from all claims, loss, cost, damage or expense arising out of or
from any act, omission or negligence of Tenant, or Tenant's contractors,
licensees, agents, servants, employees or invitees, or arising from any
accident or other occurrence on or about the demised premises causing injury to
any person or property whomsoever or whatsoever, and will protect, indemnify,
save and keep harmless Landlord against and from any and all claims and against
and from any and all loss, cost, damage or expense arising out of any failure
of Tenant in any respect to comply with and perform all the requirements and
provisions of this Lease. Tenant agrees that the foregoing agreement to
indemnify and hold Landlord harmless shall extend to reasonable attorneys' fees
incurred by Landlord in the defense of any claim (whether or not such claim is
reasonable) through counsel selected by Landlord. Notwithstanding any provision
of this Lease to the contrary,
-13-
8/87 ed.
44
and to the fullest extent allowable by applicable law, Landlord agrees to
indemnify and hold harmless Tenant from and against any and all claims, loss,
cost, damage or expense (including court costs and attorneys' fees) arising out
of, caused by or relating to any act, omission, negligence or willful
misconduct of Landlord, and Landlord's contractors, licensees, agents,
servants or employees. The foregoing indemnification shall extend to
reasonable attorneys' fees incurred by Tenant in the defense of any claim
(whether or not such claim is reasonable) through counsel selected by Tenant.
No provision of this Lease shall be construed to release Landlord from
liability for the negligence or willful misconduct of Landlord and Landlord's
agents, employees, contractors and assigns.
E. Limited Waiver of Subrogation: Notwithstanding any provision of this Lease
to the contrary, Landlord and Tenant waive all rights to recover against each
other or against the officers, directors, shareholders, partners, joint
venturers, employees, agents, guarantors, customers, invitees or business
visitors of each other for any loss or damage arising from any cause, to the
extent such loss or damage is covered by any insurance required to be carried
by each of them pursuant to this Lease or any other insurance actually carried
by each of them. Landlord and Tenant will cause their respective insurers to
issue appropriate waiver of subrogation rights endorsements to all policies of
insurance carried in connection with the Shopping Center and demised premises
or the contents of either of them.
ARTICLE THIRTEEN: DAMAGE TO PERSONAL PROPERTY
All personal property, fixtures, goods, wares and merchandise in the demised
premises shall be and remain at Tenant's sole risk and Landlord shall not be
liable for any damage thereto, or loss thereof, arising from any acts of
negligence of any other tenants or persons, nor from the bursting, overflowing
or leaking of the roof or downspouts, or of water, sewer or steam pipes, or
from heating or plumbing fixtures, or from electric wires or fixtures, or from
any other cause whatsoever including snow, wind or ice.
ARTICLE FOURTEEN: DAMAGE
Landlord will maintain standard fire and extended coverage insurance on the
Shopping Center. If the demised premises shall be damaged by fire or other
casualty of the kind insured against under the policies of fire insurance and
extended coverage obtained by Landlord, but are not thereby rendered
untenantable in whole or in part, Landlord shall promptly, at its own expense,
cause such damage to be repaired, and the fixed minimum rent and all additional
rent shall not be abated or reduced. If by reason of such occurrence, the
demised premises shall be rendered untenantable only in part, Landlord shall
promptly, at its own expense, cause the damage to be repaired, and the fixed
minimum rent only shall be reduced during the period of such untenantability
proportionately, based on the ratio of the number of square feet of floor area
of the demised premises rendered untenantable to the total number of square
feet of floor area of the demised premises; in such case, there shall be no
reduction in the additional rent due under Article Three or otherwise under
this Lease. If the demised premises shall be rendered wholly untenantable by
reason of such occurrence, Landlord shall promptly, at its own expense, cause
such damage to be repaired and the fixed minimum rent shall be abated during
the period of such untenantability, however, in such case, there shall be no
reduction in the additional rent due under Article Three or otherwise under
this Lease. Notwithstanding anything to the contrary in the foregoing, if the
demised premises shall be destroyed or damaged to the extent of fifty percent
(50%) or more of their replacement value above foundation walls or rendered
wholly untenantable after the beginning of the last three (3) years of the then
current term of this Lease (or twenty-five percent (25%) during the last two
(2) years of the then current term of this Lease), or fifteen percent (15%)
during the last year of the then current term of this Lease), or, if at any
time forty percent (40%) or more of the buildings and improvements comprising
the Shopping Center shall be damaged or destroyed or rendered substantially
untenantable by any such casualty, Landlord may terminate this Lease by notice
to Tenant, said notice to be given within sixty (60) days of the event giving
rise to such damage or destruction. Any such termination as aforesaid shall not
affect any rights theretofore accrued to Landlord because of prior defaults of
Tenant. During the course of repairing the demised premises or the Shopping
Center after any such
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45
damage, Landlord shall be entitled to use the common areas for storage of
materials and staging, and may temporarily deny pedestrian or vehicular access
as Landlord deems necessary. The time required by Landlord to repair any said
damage as aforesaid shall be extended by such time as is reasonably required by
Landlord to settle any insurance claim arising out of the damage to the demised
premises or the Shopping Center. Landlord's obligation to repair any such
damage shall in any event be limited to the proceeds actually received by
Landlord from insurance coverage, and shall be limited to the basic building,
store front (other than Tenant decoration or modification thereof), and
interior structural work existing as of the lease commencement date, and in no
event shall include repair of any alterations, improvements or betterments made
by Tenant in or about the demised premises; provided that in the event Landlord
(i) fails to restore the demised premises and Shopping Center to their
pre-existing condition, or (ii) fails to substantially complete such
restoration within NINETY (90) days after such casualty, then in any of such
events, Tenant may, at its option, terminate this Lease upon thirty (30) days
written notice and suffer no further liability hereunder. Unless Tenant so
terminates, Tenant, after the occurrence of any such fire or other casualty
shall, at its own cost and expense, promptly repair and restore the portion of
the demised premises Landlord is not obligated to restore, as well as Tenant's
fixtures, equipment and appurtenances.
ARTICLE FIFTEEN: CONDEMNATION
In the event that any portion of the demised premises shall be taken or
condemned for public use, Landlord shall, to the extent of the condemnation
award available to Landlord, rebuild and restore the remaining portion thereof
so as to make an architecturally complete unit, and the fixed minimum rent
shall be reduced in the proportion which the actual floor area of the demised
premises taken bears to the entire floor area of the demised premises, but
there shall be no abatement or reduction in additional rent due under this
Lease. However, in the event that twenty-five percent (25%) or more of the
total floor area of the demised premises shall be so taken, either Tenant or
Landlord may cancel and terminate this Lease by serving upon the other party a
written notice of its intention so to do within thirty (30) days after the
condemnation judgment shall be entered, in which event Landlord shall not be
required to restore or rebuild the demised premises. Moreover, in the event
twenty-five percent (25%) or more of the floor area of the Shopping Center
shall be so taken, Landlord shall have the right to cancel and terminate this
Lease by serving upon Tenant a written notice of its intention to do so within
thirty (30) days after the condemnation judgment shall be entered. It is
agreed, however, that if a portion of the demised premises or the Shopping
Center is taken and the Lease is not canceled or terminated by either party
hereto as permitted above, then the demised premises shall be restored as
aforesaid. Tenant shall have no right or claim for any portion of Landlord's
condemnation award, and shall have no right or claim based on the condemnation
of the demised premises or the improvements thereto or of Tenant's leasehold
interest therein. Landlord's obligation to restore the demised premises shall
be limited, in any event, to the basic building, store front (other than Tenant
decoration or modification thereof), and interior structural work existing as
of the lease commencement date, and in no event shall include restoration of
any alterations, additions or betterments made by Tenant in or about the
demised premises. Notwithstanding the foregoing, Tenant shall have the right to
make a claim for a separate award for: Tenant's loss of business; injury to or
taking of Tenant's improvements; removal or taking of Tenant's trade fixtures,
equipment and furnishings; or as a result of any modification, alteration or
repair reasonably required by Tenant to place the remaining part of the demised
premises in suitable condition for continued occupancy.
ARTICLE SIXTEEN: LANDLORD'S INSPECTION RIGHTS
Landlord shall have the right at all reasonable times to enter upon the demised
premises for the purpose of inspecting same, making necessary or emergency
repairs, or showing same to potential purchasers or mortgagees.
Landlord shall have the further right during the last six (6) months of the
lease term to bring prospective tenants into the demised premises for the
purpose of showing same and during such period, Landlord may display "For Rent"
signs in the windows of the demised premises. Landlord shall have the further
right to enter upon the demised premises, and to an easement upon the demised
premises, for the purposes of installing, maintaining and repairing pipes or
other utility or similar service to
8/87 ed.
-15-
46
or for other premises located in the Shopping Center, provided the same does
not unreasonably disturb or limit the rights of Tenant to the use and enjoyment
of the demised premises.
ARTICLE SEVENTEEN: LANDLORD'S RIGHTS ON TENANT'S DEFAULT
A. Default and Remedies: In the event that: (1) Tenant shall fail to pay any
installment of fixed minimum rent, additional rent, or any other charge
provided in this Lease, or any portion thereof, when due and payable, and the
same shall remain unpaid for a period of ten (10) days thereafter; or
(2) Tenant shall be in default under any other provisions of this Lease and so
remain for a period of thirty (30) days after Landlord, by written notice, has
informed Tenant of such default (in the case of a default which cannot with due
diligence be cured within a period of thirty (30) days, Tenant shall have such
additional time to cure same as may reasonably be necessary, provided Tenant
proceeds promptly and with due diligence to cure such default after receipt of
said notice); or (3) (a) Tenant, or Guarantor if any, shall file in any court a
petition in bankruptcy or insolvency or for reorganization or arrangement under
the applicable Federal or State bankruptcy laws, or for the appointment of a
receiver or trustee of all or a portion of Tenant's or Guarantor's property; or
(b) an involuntary petition of the kind referred to in (3) (a) of this
Paragraph A shall be filed against Tenant, or Guarantor if any, and such
petition shall not be vacated or withdrawn within sixty (60) days after the
date of filing thereof; or (c) Tenant, or Guarantor if any, shall make an
assignment for the benefit of creditors other than in the ordinary course of
business; or (d) Tenant, or Guarantor if any, shall be adjudicated a bankrupt;
or (4) Tenant shall vacate or abandon the demised premises and leave same
vacated or abandoned for a period of fourteen (14) days; or (5) Tenant shall
assign or sublet the demised premises in violation of Article Eighteen of this
Lease, then Landlord may elect by written notice to Tenant to terminate
Tenant's right to possession only, without terminating this Lease, and Landlord
may, at Landlord's option, enter into the demised premises and take and hold
possession thereof, without terminating the Lease or releasing Tenant, or
Guarantor if any, in whole or in part, from Tenant's obligation to pay rent
hereunder for the full stated term at the time and in the manner provided in
this Lease.
B. Additional Remedies: Upon and after entering into possession without
terminating the Lease pursuant to the foregoing Paragraph A, Landlord may, but
need not, relet the premises or any part thereof for the account of Tenant to
any person, firm or corporation, other than Tenant, for such rent, for such
time and upon such terms as Landlord, in Landlord's sole discretion, shall
determine, and Landlord shall not be required to accept any tenant offered by
Tenant, or to observe any instruction given by Tenant about such reletting.
Landlord agrees, however, to use such efforts as may be deemed reasonable by
Landlord to mitigate its damages in the event of Tenant's default hereunder. In
any such case, Landlord may alter the demised premises and make repairs,
redecorations and remodellings to the extent deemed by Landlord necessary or
desirable, and Tenant shall, upon demand, pay the costs thereof, together with
Landlord's expense of obtaining possession of the demised premises and the
expense of reletting (including brokerage fees or commissions and reasonable
attorneys' fees). If the consideration collected by Landlord upon such
reletting for Tenant's account, if any, is not sufficient to pay the monthly
installment of fixed minimum rent and any additional rent required under this
Lease (including, without limitation, additional rent required under Articles
Three, Four and Five of this Lease), Tenant shall pay to Landlord the amount of
each monthly deficiency immediately upon demand. TENANT MUST RETURN BUILDING TO
ORIGINAL CONDITION LESS NORMAL WEAR AND TEAR.
C. Default; Landlord's Right to Cure at Tenant's Expense: Except for defaults
which cannot reasonably be cured within a five (5) day period, and
notwithstanding anything herein contained to the contrary, if Tenant shall be in
default in the performance of any of the terms or provisions of this Lease and
if Landlord shall give to Tenant notice in writing of such default, specifying
the nature thereof, and if Tenant shall fail to cure such default within five
(5) days after the date of such notice, or immediately if such default requires
emergency action, Landlord may, in addition to its other legal and equitable
remedies, cure such default for the account of and at the cost and expense of
Tenant and the sums so expended by Landlord shall be deemed to be additional
rent, and shall be paid by Tenant to Landlord on five (5) days' written demand
by Landlord.
8/87 ed.
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47
D. Landlord's Lien: Tenant hereby grants to Landlord a lien and security
interest (hereinafter, collectively the "lien") as security for payment of
fixed minimum rent, additional rent or any other charges payable by Tenant
hereunder, upon all property, equipment, fixtures and inventory (and the
proceeds thereof) at any time placed on or in the demised premises, including
all improvements, fixtures, merchandise and other personal property, to the
full extent of Tenant's and/or any assignee's or subtenant's interest therein.
Such lien shall include the right to prevent removal of said property from the
demised premises and may be enforced, upon non-payment of rent or other charges
as aforesaid, by the re-entry, taking and sale of such property. Sale shall be
either public or private after at least ten (10) days' written notice to Tenant
at his last known address, and Landlord shall have the right and privilege to
be a purchaser at any such sale. The duty to notify Tenant's creditors in the
event of such sale shall rest solely with Tenant after notice as aforesaid,
except as otherwise required by law. The duty to notify all other interested
parties shall rest with Landlord. Tenant shall and hereby agrees to provide,
upon request, a complete and accurate list of creditors and indebtedness, and
otherwise to do whatever may be necessary or appropriate, to pass good and
legal title under such sale. Any and all proceeds obtained at such sale shall be
applied first to the cost of such sale, including reasonable attorneys' fees
and costs, and then to any interest or late charges accrued and payable under
the terms of this Lease for non-payment of rent and/or any other charges, and
any balance to the reduction of any principal sum due hereunder for rent and/or
other charges. Sale or retention under this lien shall not be deemed to waive,
alter, limit or affect in any manner whatsoever, but shall be in addition to,
any other remedies available to Landlord upon non-payment of rent or other
charges under this Lease or otherwise. Tenant shall execute any financing
statement or other documents requested by Landlord in order to evidence or
perfect the foregoing lien. Upon the written request of Tenant, Landlord agrees
to subordinate the foregoing lien(s) with respect to such items as may be
specifically identified as subject to an acquisition lien (for purposes of this
Lease, defined as any lien upon an item, granted by Tenant for the purpose of
financing the acquisition of such item), and upon evidence of the demand of
Tenant's lender to subordinate Landlord's lien to such acquisition lien.
E. Landlord's Right to Terminate: In addition to the right of Landlord to
terminate Tenant's right to possession only, Landlord shall also have the
right, at any time after default, to cancel and terminate this Lease, by
serving written notice to such effect on Tenant, and to pursue any remedy at
law or in equity that may be available to Landlord. Should Landlord at any time
terminate this Lease for any breach, in addition to any other remedies it may
have, it may recover from Tenant all damages it may incur by reason of such
breach, including (i) the cost of recovering the demised premises, (ii)
reasonable attorneys' fees incidental thereto, and (iii) the worth at the time
of such termination of the excess, if any, of the amount of fixed minimum rent,
additional rent and charges equivalent to rent due under this Lease for the
remainder of the stated term over the then TENANT OBLIGATION rental value of
the demised premises for the remainder of the stated term, all of which amounts
shall be immediately due and payable by Tenant; however, there shall be
credited against the amount described in clause (iii) any amounts paid to
Landlord pursuant to Paragraph B, above, which relate to the period after such
termination. For the purposes of this Paragraph E, in computing the amount of
the additional rent under Article Three payable by Tenant, there shall be
included the average additional rent payable under Article Three by Tenant
during the period from the lease commencement date to the time of default, or,
if shorter, during the thirty-six (36) month period immediately preceding the
default.
F. No Waiver: No waiver by Landlord of a breach of any covenant, agreement,
obligation or condition of this Lease shall be construed to be a waiver of any
future breach of the same or any other covenant, agreement, obligation or
condition hereof. No receipt of money by Landlord from Tenant after notice of
default, or after the termination of this Lease, or after the commencement of
any suit or after final judgment of possession of the demised premises, shall
reinstate, continue or extend the term of this Lease or affect any notice,
demand or suit. The rights and remedies hereby granted are cumulative and the
use of one remedy shall not exclude or waive Landlord's right to use another.
In the event Landlord commences any proceedings for non-payment of fixed
minimum rent or additional rent, Tenant shall not interpose any counterclaim of
whatever nature or description in such proceedings; this shall not, however, be
construed as a waiver of Tenant's right to assert such claims in any separate
action brought by Tenant. 8/87 ed.
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48
ARTICLE EIGHTEEN: ASSIGNMENT AND SUBLETTING
A. Material Inducement: Tenant acknowledges that in entering into this Lease,
Landlord has relied, in material part, upon Landlord's understanding of the
reputation, business expertise, line of operation and financial net worth of
Tenant, the contribution which Tenant would make to the tenant mix of the
Shopping Center, and upon the continuing interest which Tenant will have in the
Lease and in the enterprise to be operated in the demised premises. Tenant
further acknowledges that its operations in the leased premises will have a
material impact on the value of the Shopping Center, Landlord's investment
therein, and the business and investment of other tenants of the Shopping
Center.
B. No Assignment or Sub-Lease Without Landlord's Consent: Neither Tenant, nor
any of its permitted successors or assigns, shall transfer, assign, mortgage,
encumber, or, by operation of law or otherwise, pledge, hypothecate, or assign
all or any part of its interest in the Lease, or sublet or permit the demised
premises, or any part thereof, to be used by others, including, but not by way
of limitation, concessionaires or licensees of Tenant, without the prior
written consent of Landlord in each instance, which consent Landlord shall not
unreasonably withhold or delay. Any such subletting or assignment shall be
referred to as a "transfer," and the person to whom Tenant's interest is
transferred shall be referred to as a "transferee." The foregoing prohibition
against transfer without the prior written consent of Landlord shall apply,
without limitation, to the following circumstances, each of which shall be
deemed a transfer: (i) if Tenant or any Guarantor of this Lease is a
corporation (other than a corporation, the outstanding voting stock of which is
listed on a "National Securities Exchange," as defined in the Securities Act of
1934), and if shares of such corporation are transferred by sale, assignment,
bequest, inheritance, operation of law or otherwise (including, without
limitation, a transfer to or by a receiver or trustee in Federal or State
bankruptcy, insolvency or other proceeding), so as to result in or make
possible a change in the present control of such corporation; (ii) if Tenant or
any Guarantor of this Lease is a partnership, a change in control or ownership
of such partnership; (iii) any transfer by sale, assignment, bequest,
inheritance, operation of law or other disposition of all or substantially all
of the assets of Tenant or any Guarantor which results in or makes possible a
change in the present control of the business of Tenant or any such Guarantor;
(iv) any other change in the ownership of Tenant, or of any Guarantor of this
Lease, or the business operated by Tenant; or (v) any subletting or assignment
which occurs by operation of law, merger, consolidation, or reorganization or
any change of Tenant's corporate or proprietary structure.
C. Notice to Landlord to Intent to Transfer: In the event Tenant desires to
effect a transfer hereunder, Tenant shall give Landlord written notice
(hereinafter, the "assignment notice") thereof. The assignment notice shall
specify the proposed transferee, and the proposed terms of the transfer, and
contain such information about the proposed transferee, its experience, its
financial situation, its methods of operation, its contribution to the tenant
mix of the Shopping Center, and its impact on the Shopping Center, as a prudent
businessman would require in making the transfer decision. Tenant specifically
agrees to apprise Landlord of any adverse or negative information in its
possession concerning the proposed transfer and the proposed transferee. Within
thirty (30) days of the receipt of the assignment notice Landlord shall, by
written notice to Tenant, elect: (i) to permit the proposed transfer; (ii) to
terminate the Lease (but not in the case of a "Sale of the Business," as
defined in Paragraph F below, and only in cases where Tenant seeks to assign or
sell its entire interest in the demised premises); or (iii) to deny consent to
the proposed transfer, in which event Tenant shall continue to occupy the
leased premises and comply with all of the terms and conditions hereof. In the
event Landlord fails to give Tenant written notice of its election hereunder
within the specified thirty (30) day period, Landlord shall be deemed to have
denied its consent to the proposed transfer.
D. Conditions on Consent to Transfer: It is specifically understood that any
transfer by Tenant consented to by Landlord in accordance with this Article
Eighteen shall be only for the permitted use and for no other purpose. If
Landlord consents to a transfer, the permitted transferee shall assume by
written instrument all of Tenant's obligations under the Lease and such
transferee, at least thirty (30) days prior to the effective date of the
permitted transfer, shall deliver to Landlord the proposed sublease, assignment
and assumption agreement, or other instrument evidencing the transfer and the
transferee's undertaking of Tenant's obligations under the Lease, which
instrument shall require Landlord's acceptance in order to
8/87 ed.
-18-
49
be effective. In the event of a permitted transfer, Tenant shall continue to be
liable under this Lease, and shall not be released from performance hereunder,
unless affirmatively so released in writing by Landlord. Following a permitted
transfer of this Lease pursuant to which Tenant is affirmatively released by
Landlord from its obligations hereunder, Landlord shall not be required to send
the named Tenant any notice to the approved assignee.
E. Void Transfers: Any transfer without Landlord's consent, whether as a
result of any act or omission of Tenant, or by operation of law or otherwise,
shall not be binding upon Landlord, and shall confer no rights upon any third
person. Any such unpermitted transfer shall, without notice or grace period of
any kind, constitute a default by Tenant under this Lease. The acceptance by
Landlord of the payment of rent following any transfer prohibited by this
Article Eighteen shall not be deemed to be a consent by Landlord to any such
transfer, an acceptance of the transferee as Tenant, a release of Tenant from
the performance of any covenants herein contained, or a waiver by Landlord of
any of its remedies under this Lease or at law, although amounts actually
received shall be credited by Landlord against Tenant's rent obligations.
Consent by Landlord to any one transfer shall not constitute a waiver of the
requirement for consent to any other transfer. No reference in this Lease to
assignees, concessionaires, subtenants or licensees shall be deemed to be a
consent by Landlord to the occupancy of the demised premises by any such
assignee, concessionaire, subtenant or licensee.
F. Division of Profits: In the event of any subletting of the demised premises
or any part thereof, the profits resulting therefrom (as defined below) shall
be apportioned Fifty percent (50%) to Landlord and Fifty percent (50%) to
Tenant. As used herein, the term "profits" with respect to any sublease of the
demised premises shall mean the excess, if any, of any and all sums actually
collected by Tenant under or in connection with such sublease, over (i) the
total sums Tenant is obligated to pay to Landlord under this Lease (prorated to
reflect the obligations applicable to that portion of the demised premises
subject to such sublease), (ii) rental or other payments received that are
attributable to the amortization over the term of the sublease of the cost of
leasehold improvements made to the sublet portion of the demised premises by or
for Tenant and at Tenant's expense, and (iii) Tenant's reasonable costs in
subleasing the space (including reasonable commissions and reasonable legal
fees and expenses) or in enforcing the terms of the sublease or pursuing any
remedies against the subtenant, including reasonable legal fees and expenses.
It is expressly understood and agreed that the term "profit" shall not include
all or any part of the consideration received by Tenant in connection with the
sale of its business (either by asset sale, stock sale, merger, or otherwise,
herein, a "Sale of Business") to a purchaser which operates the same type of
business thereafter in the demised premises, whether or not Tenant and such
purchaser allocate part of the purchase price paid in such Sale of Business to
the purchaser's acquisition or assignment of Tenant's rights under this Lease.
The preceding sentence shall not relieve Tenant of its obligation to obtain
Landlord's reasonable consent to any assignment, sublease or other transfer
entered into as part of a Sale of Business, provided Landlord shall not have
the right to terminate this Lease in lieu of granting or denying such consent.
8/87 ed.
-19-
50
ARTICLE TWENTY: ATTORNEYS' FEES AND RELATED MATTERS
A. Attorneys' Fees and Court Costs: In the event it becomes necessary for
Landlord to obtain the services of an attorney in connection with any default
hereunder or a breach of any covenant, agreement or condition herein set forth
on the part of Tenant, Tenant covenants and agrees that such attorneys' fees,
if reasonable, shall be payable as additional rent upon ten (10) days' demand
by Landlord, and that in any event any court shall have the power, in any
action in which Landlord prevails, and in addition to all other relief allowed
by this Lease or by law, to require Tenant to pay reasonable attorneys' fees as
set by such court (based on statements supplied by such attorney), plus the
clerk's fee, the marshal's fee and any and all other additional costs that may
be incurred.
B. Interest and Late Fee: Tenant agrees that to the fullest extent allowed by
law, all fixed minimum rent, all additional rent payable hereunder, and all
other sums or charges payable by Tenant either which are not paid when due,
shall bear and accrue interest at the lower of the highest rate allowed by law,
or two percent (2%) over the annual prime rate charged from time to time by
Chase Manhattan Bank, N.A. (adjusted daily) from the date when such payment is
due until the date paid. Moreover, in the event Tenant's payment of any monthly
installment of fixed minimum rent and/or additional rent is received
post-marked after the TENTH day of the month, Tenant shall include therewith,
as additional rent, a service charge of THREE percent (3%) of the amount of the
past-due installment.
ARTICLE TWENTY-ONE: HOLDING OVER
In the event that Tenant shall hold over after the expiration of this Lease,
the tenancy created by such holding over shall be month-to-month, but in all
other respects shall be governed by the terms of this Lease; provided, however,
if such holding over is without the express prior written consent and approval
of Landlord, the fixed minimum rent shall be two times (2x) the fixed minimum
rent during the last full twelve (12) month period of this Lease; and provided,
further, in all cases, thirty (30) days' notice shall be required to terminate
the tenancy created by such holding over. Nothing in this Article Twenty-Two
shall be deemed, interpreted or construed as Landlord's consent to any such
holding over after the expiration of the term of this Lease, unless Landlord
has given its prior written consent and approval to such holding over.
ARTICLE TWENTY-TWO: PROMOTION FUND
A. Promotion Fund: Landlord will maintain a bank account, separate from all
of its other bank accounts, into which Landlord shall deposit contributions
paid by Tenant pursuant to Paragraph B below, together with such contributions
paid by other tenants of the Shopping Center (the aggregate of such funds on
hand from time to time being referred to herein as the "Promotion Fund"). The
Promotion Fund shall be used by Landlord to pay all costs and expenses
associated with the formulation and carrying out of an ongoing program for the
promotion of the Shopping Center, which program may include, without
limitation, special events, shows, displays, signs, marquees, decor, seasonal
events, institutional advertising for the Shopping Center, promotional
literature to be distributed within the Shopping Center area and other
activities within the Shopping Center designed to attract customers. In
addition, Landlord may use the Promotion Fund to defray the reasonable costs of
administration of the Promotion Fund, including, without limitation, the salary
of a promotion and advertising director and related administrative personnel,
rent and insurance. Upon reasonable notice, Landlord shall make available for
Tenant's inspection, during normal business hours at the office of the
Promotion Fund, Landlord's records relating to the contributions to and
disbursements from the Promotion Fund. In no event shall Landlord use all or
any part of the Promotion Fund specifically to promote the leasing of space in
the Shopping Center or the sale of any ownership interest in the Shopping
Center.
-20-
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51
B. Tenant's Contributions to Promotion Fund: During each calendar year during
the term of this Lease, Tenant shall pay to Landlord Fifty Cents (50 cents) per
square foot of Tenant's floor area (hereinafter, Tenant's "Annual Promotion
Fund Contribution"). Tenant shall pay its Annual Promotion Fund Contribution in
monthly installments in such amounts as are designated and billed by Landlord,
each installment being due on the first day of each month. The Annual Promotion
Fund Contribution shall be adjusted annually, as of the first day of each
calendar year during the term of this Lease, in the same proportion as the
Consumer Price Index, as hereinbefore defined, most recently reported as of
such adjustment date bears to the Consumer Price Index reported as of one year
earlier. If, during the term of this Lease, the Consumer Price Index is changed
or discontinued, Tenant and Landlord shall agree upon a comparable index,
formula or other means of measurement of the relative purchasing power of the
dollar and such substitute index, formula or other means shall be utilized in
place of the Consumer Price Index as if it had been originally designated in
this Lease. Amounts due under this Paragraph shall be adjusted proportionately
for partial calendar years which fall within the term of this Lease.
C. Landlord's Contributions to Promotion Fund: During each calendar year,
Landlord shall contribute to the Promotion Fund an amount equal to one-fourth
(1/4) of the aggregate contributions made by the other contributors to the
Promotion Fund during such year.
D. Promotion of Shopping Center: Tenant agrees to use the name and logo of
Roanoke-Salem Plaza Shopping Center prominently as part of its address in all
its advertising and promotional literature, and further agrees that the name
will not be used at any location other than the demised premises. THE LOGO WILL
BE USED IN ADVERTISING MATERIAL WHEN APPROPRIATE BUT TENANT RESERVES THE RIGHT
TO NOT USE THE LOGO WHEN INAPPROPRIATE EXCEPT FOR THIRTY ($30,000) THOUSAND IN
ADVERTISING.
ARTICLE TWENTY-THREE: LANDLORD'S TITLE & COVENANT OF QUIET ENJOYMENT
A. Landlord's Warranty: Landlord covenants that it has full right and power
to execute this Lease. Subject to the provisions of Article Twenty-Five,
Landlord further covenants that it has the full right and power to perform this
Lease, and that Tenant, provided it is not in default hereunder, shall
peaceably and quietly have, hold and enjoy the demised premises and all rights,
easements, appurtenances and privileges thereunto belonging or in any way
appertaining, during the full term of this Lease, and any extension or
renewals hereof.
B. Termination of Landlord's Warranty: Anything herein to the contrary
notwithstanding, and so long as any transferee of Landlord's interest in the
demised premises assumes Landlord's obligations hereunder, Landlord shall not
be liable for any breach of the covenant of quiet enjoyment occurring after
Landlord shall have transferred ownership of Landlord's interest in the demised
premises. It is expressly understood and agreed that despite such assignment,
Landlord shall, subject to the provisions of this Lease, remain liable for any
breach of the covenant of quiet enjoyment occurring before Landlord shall have
transferred ownership of the demised premises. TRANSFERS SHALL ASSUME
RESPONSIBILITY FOR QUIET ENJOYMENT.
C. Limitation: Tenant agrees that Landlord shall not be personally liable
under this Lease, but that Tenant shall look solely to Landlord's interest in
the Shopping Center, including Landlord's interest in any leases and rents, and
in any insurance proceeds, for any recovery of a money judgment from Landlord
in any action or claim arising from or related to this Lease.
ARTICLE TWENTY-FOUR: RENTAL AGENT; BROKERS
-21-
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52
B. Tenant's Agent: Landlord and Tenant acknowledge and agree that XXXXXX
ASSOCIATES is acting as sole agent for Tenant in this transaction. Landlord
agrees to pay said agent a commission.
C. No Other Agents: Except for the agents whose names, if any, are set
forth in Paragraphs A and B, above, Landlord and Tenant warrant and represent
to each other that no other broker, finder or agent has acted for or on their
behalf in connection with the negotiation, execution or procurement of this
Lease, and that no commissions or fees are payable to any other broker, finder
or agent.
ARTICLE TWENTY-FIVE: SUBORDINATION, ATTORNMENT & NON-DISTURBANCE
1. Subordination: Tenant agrees that this Lease is and shall be subject
and subordinate to all ground or underlying leases and to all mortgages and/or
deeds of trust which may now or hereafter affect such Lease or the real
property of which the demised premises form a part, and to all renewals,
modifications, consolidations, replacements and extensions thereof. This clause
shall be self-operative and no further instrument of subordination shall be
required by any mortgagee, trustee or Landlord. In confirmation of such
subordination, Tenant shall execute within ten (10) days' receipt of same, any
certificate or instrument to such effect that Landlord may request.
2. Attornment: Tenant agrees that in the event of a sale, transfer or
assignment of Landlord's interest in the Shopping Center ( or the real estate
of which the Shopping Center is a part), or any part thereof, including the
demised premises, or in the event any proceedings are brought for foreclosure
or to exercise the power of sale under any deed of trust made by Landlord
covering the Shopping Center (or the real estate of which the Shopping Center
is a part), or any part thereof, including the demised premises, to attorn to
and to recognize such transferee, purchaser or mortgagor as Landlord under this
Lease.
3. Non-Disturbance: Notwithstanding the foregoing, Tenant's agreement
to subordinate, to attorn to any holder of the reversionary interest in the
real estate of which the demised premises forms a part or to any successor to
Landlord's interest of such real estate, its waiver of rights, and its
obligation to execute an attornment certificate, to the extent contemplated by
this Lease, shall not take effect unless and until Tenant receives the holder's
or successor's (as the case may be) agreement in writing that so long as Tenant
is not in default hereunder: (i) Tenant shall not be named or joined as a party
defendant in any action or proceeding which may be instituted or taken by the
holder of such reversionary interest or Landlord's successor in interest, as the
case may be; and (ii) Tenant shall not be evicted from the demised premises,
nor shall Tenant's leasehold estate or possession under this Lease be
terminated or disturbed, nor shall any of Tenant's rights under this Lease be
affected in any way, by reason of any default under any mortgage or ground
lease with respect to the Shopping Center (or the real estate of which the
Shopping Center is a part), that until such time as a subsequent holder of a
reversionary interest in the real estate aforementioned (or Landlord's
successor in interest) shall become the actual owner or holder of the Shopping
Center and land, neither such holder or successor in interest shall have any
obligation for the performance of any obligations of Landlord under this Lease.
In any case, such Landlord or successor under such ground or underlying lease
shall not be bound by any prepayment on the part of Tenant of any rent for more
than one (1) month in advance, so that rent shall be payable under this Lease
in accordance with its terms, from the date of the termination of the ground or
underlying lease, as if such prepayment had not been made.
ARTICLE TWENTY-SIX: TRANSFER OF LANDLORD'S INTEREST
A. Fee Interest; Release from Obligations: So long as Landlord's interest
in the demised premises is a fee interest, the term "Landlord," as used in this
Lease, is defined as the then-current owner or mortgagee in possession of the
demised premises. In the event of any sale or sales by the then-current
Landlord hereunder of the demised premises, or in the event said demised
premises are leased by the then-current Landlord hereunder to any party
(subject to this Lease), and provided the transferee of, assignee of, or lessee
of, Landlord's interest assumes all of Landlord's obligations under this Lease
then, from and after the closing of such sale or lease transaction, Landlord
whose interest is thus sold
-22-
53
or leased shall be and hereby is completely released and forever discharged
from and of all covenants, obligations and liabilities of Landlord hereunder.
B. Leasehold Interest; Release from Obligations: So long as Landlord's
interest in the demised premises is a leasehold interest, the term "Landlord"
as used in this Lease is defined as the current owner for the time being of the
leasehold estate demised by the lessor under the Lease. In the event of any
transfer or assignment by then the current Landlord hereunder of Landlord's
interest under said Lease, and provided the transferee of, assignee of, or
lessee of, Landlord's interest assumes all of Landlord's obligations under this
Lease then, from and after the closing of such transfer or assignment
transaction, Landlord whose interest is thus assigned or transferred shall be
and hereby is completely released and forever discharged from and of all
covenants, obligations and liabilities of Landlord hereunder.
ARTICLE TWENTY-SEVEN: CHANGES REQUIRED BY LENDER
In the event that any lender providing either the renovation financing or the
permanent financing for the Shopping Center requires, as a condition of such
financing, that modifications to this Lease be obtained, and provided that such
modifications: (i) are reasonable, (ii) do not adversely affect Tenant's use of
the demised premises as herein permitted, (iii) do not materially alter the
mutually approved working plans and specifications, if any, and (iv) do not
increase the rents and other sums required to be paid by Tenant hereunder; then
and in such event, Landlord may submit to Tenant a written amendment to this
Lease incorporating such required changes, and Tenant hereby covenants and
agrees to execute, acknowledge (if necessary), and return such amendment to
Landlord within ten (10) days of Tenant's receipt thereof from Landlord.
ARTICLE TWENTY-EIGHT: STATUS OF LEASE
A. Generally: Recognizing that both parties may find it necessary
to establish to third parties, such as accountants, banks, mortgagees or the
like, the then-current status of performance hereunder, either party, on the
written request of the other made from time to time, will furnish a written
statement on the status of any matter pertaining to this Lease within ten (10)
days' receipt of such request.
B. Estoppel Letters: Without limiting the generality of the foregoing,
each party specifically agrees, at the other's request, promptly upon the
commencement of the term hereof, to notify the other in writing of the date of
the commencement of the term and to acknowledge satisfaction of the
requirements with respect to construction and other matters, save and except
for such matters as such party may wish to set forth specifically in said
statement. Moreover, at any time within ten (10) days after request is made,
either party shall execute, acknowledge and deliver to the other, or the
other's designee, a certificate evidencing whether or not:
(1) This Lease is in full force and effect;
(2) This Lease has been amended in any way;
(3) There are any existing defaults by Landlord and Tenant
hereunder and specifying the nature of such defaults, if any;
(4) The other party has performed all improvements or other work,
if any, required under this Lease;
(5) The date to which rent, including additional rent, has been
paid;
(6) There is any security deposit held by Landlord; and
(7) The address to which notices are to be given.
Landlord and Tenant agree that this Lease shall not be recorded but that, upon
request by Landlord, a short form lease of even date herewith, shall be
executed and recorded in accordance with the laws of the Commonwealth of
Virginia.
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54
ARTICLE TWENTY-NINE: MORTGAGEE'S RIGHT TO CURE LANDLORD'S DEFAULT
Tenant agrees that in the event Landlord is in default under this Lease, any
mortgagee of Landlord's interest in the demised premises, and the lessor under
any ground or underlying lease which includes the demised premises, shall be
permitted (but not required) to enter the demised premises during normal
business hours for the purpose of correcting or remedying such default, and
Tenant agrees to accept performance by such mortgagee or ground or underlying
lessor in lieu of performance by Landlord. Tenant further agrees that, from
and after specific written request by Landlord to do so (which request sets
forth the name and address of any mortgagee or ground or underlying lessor),
Tenant will, simultaneously with the giving any notice to Landlord as required
or permitted hereunder, give a copy of such notice to such mortgagee or ground
or underlying lessor and that any such notice to Landlord shall not be
effective unless Tenant has simultaneously given such notice to such mortgagee
or ground or underlying lessor.
ARTICLE THIRTY: RENOVATION
In the event Landlord chooses to upgrade, rehabilitate, remodel or
renovate the Shopping Center at Landlord's sole cost and expense and without
any capital expenditure on the part of Tenant, Tenant agrees to pay Landlord,
commencing upon the first day of the first full calendar month after the date
of notice from Landlord to Tenant that said improvement program has been
substantially completed, and for the duration of the term of this Lease, an
annual sum equal to One Dollar ($1.00) per square foot of the floor area of the
demised premises. Said sum shall be deemed additional rent and shall be due
and payable in twelve (12) equal consecutive monthly installments, payable on
the first day of each calendar month commencing with the next calendar month.
Landlord agrees that Tenant shall not be responsible for its share of any
renovation assessment for a period of EIGHT (8) years after the lease
commencement date, nor shall Tenant be assessed with respect to any renovation
unless the total cost of such renovation exceeds Five Hundred Thousand Dollars
($500,000).
ARTICLE THIRTY-ONE: NOTICE
All notices given or required to be given hereunder must be by registered or
certified mail, return receipt requested, postage prepaid (or, in the event of
postal strike or interruption, by personal delivery), to the respective
addresses hereinafter set forth.
TO LANDLORD AT:
Roanoke-Salem Plaza Limited Partnership
00000X Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
TO TENANT AT:
Beta Services, Incorporated
Xxxx X. Xxxxx Xx., President
0000 Xxxxxxx Xxx.
Xxxxxxx, XX 00000
OR: The Demised Premises
Such addresses may be changed from time to time by serving notice as above
provided. Any such notice shall be deemed given, if mailed as aforesaid, upon
the date of deposit in the United States mail, or, if given by personal
delivery, upon receipt.
ARTICLE THIRTY-TWO: RELATIONSHIP OF PARTIES
Anything in this Lease to the contrary notwithstanding, it is agreed that
Landlord shall in no event be deemed to be a partner of, or engaged in a joint
venture with,
-24-
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55
or be an associate of Tenant for any purpose whatsoever; nor shall Landlord be
liable for any debts incurred by Tenant in the conduct of its business or
otherwise. Nothing contained in this Lease shall be deemed or construed to
confer upon Landlord any interest in the business of Tenant. The relationship
of the parties during the term of this Lease shall at all times be only that of
Landlord and Tenant.
ARTICLE THIRTY-THREE: RULES AND REGULATIONS
Tenant agrees to comply with and observe the rules and regulations attached to
this Lease as Exhibit C and all reasonable amendments or supplements thereto
which Landlord may adopt. Tenant's failure to keep and observe said rules and
regulations shall constitute a breach of the terms of this Lease in the same
manner as if they were contained herein as covenants. Landlord shall use
reasonable efforts to ensure that other Tenants in the Shopping Center will
not, by virtue of violating the rules and regulations, or breaching the terms
of their leases with Landlord, materially interfere with Tenant's use and
occupancy of the demised premises.
ARTICLE THIRTY-FOUR: SPECIAL PROVISIONS CONCERNING DELIVERY OF POSSESSION
If Landlord shall be unable to deliver possession of the demised premises
(including delivery on the lease commencement date), by reasons of holding over
or retention of possession of any occupant, or for any reason, Landlord shall
not be subject to any liability for failure to deliver possession; under such
circumstances, the fixed minimum rent and all other rent reserved and
covenanted to be paid herein shall be abated until possession of the demised
premises is delivered by Landlord to Tenant, and no such failure to deliver
possession shall in any other manner affect the validity of this Lease or the
obligations of Tenant hereunder. Notwithstanding anything to the contrary in
this Lease, if the term of this Lease shall not have commenced within twelve
(12) months of the date hereof for reasons reasonably beyond the control of
Landlord, then this Lease shall, at the option of Landlord, become void and
both parties hereto shall be relieved of all obligations; moreover, if the term
of this Lease shall not have commenced within three (3) years of the date
hereof for any reason, then this Lease shall automatically become void and both
parties hereto shall be relieved of all obligations.
LANDLORD SHALL USE ITS BEST EFFORTS TO DELIVER IN SUBSTANTIALLY COMPLETED AS
PER EXHIBIT D1 DEMISED PREMISES WITHIN SIXTY (60) DAYS FROM THE DATE LANDLORD
RECEIVES BUILDING PERMIT.
ARTICLE THIRTY-FIVE: MISCELLANEOUS
A. Complete Agreement: It is understood and agreed that this Lease Agreement
and the exhibits, addenda and riders, if any, attached hereto, contain the
entire agreement between the parties, which shall not be modified in any manner
except by an instrument in writing executed by the parties hereto.
B. Successors and Assigns: The conditions and agreements contained herein are
binding on, and may be legally enforced by the parties hereto, their heirs,
executors, administrators, successors and assigns, subject to the provisions
hereof regarding assignment and subletting of this Lease or the demised
premises by Tenant.
C. Meaning of Certain Terms; Gender: Feminine, neuter and masculine pronouns,
the plural and the singular, and the words "lease" and "agreement" shall be
construed to be and shall be interchangeable in any place or places herein
in which the context may require such interchange. The headings, titles and
captions contained herein are for convenience and reference only, and shall not
be deemed to explain, modify, amplify, expand, limit or define the terms and
provisions of this Lease. The words "term of this lease" or "lease term," or
words of like impart, shall refer to the original term of this Lease set forth
in Article One, and validly exercised extensions, if any, under the provisions
of this Lease. The word "including" shall be deemed to mean "including but not
limited to."
D. Joint and Several Obligation: If Tenant consists of two or more
individuals or entities, said individuals or entities shall be jointly and
severally liable for the performance of all obligations, covenants and
agreements of Tenant in this Lease.
-25-
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56
GUARANTY:
IN CONSIDERATION of Ten Dollars ($10.00) and other valuable consideration paid,
the receipt whereof is hereby acknowledged, the Undersigned (if two or more
persons, jointly and severally), hereby absolutely and unconditionally
guarantee to Landlord and its successors and assigns, (i) the full payment of
the fixed minimum rent and all additional rent as provided for in the foregoing
and annexed Lease Agreement, and (ii) the performance and observance of all
agreements and conditions contained in said Lease on the part of Tenant to be
performed or observed. The Undersigned hereby agrees that he shall in no way
be released from his obligations under this Guaranty by any assignment of the
Lease or any subletting of the demised premises, or any waiver of default or
any extension of time or other favor or indulgence granted by Landlord to
Tenant or by failure to receive notice of any of said actions. The Undersigned
hereby waives presentment, demand for payment and notice of non-payment or any
other default in the performance or observance of any agreement or condition
contained in the foregoing Lease on the part of Tenant to be performed or
observed, and notice of acceptance of this Guaranty. In the event Tenant
defaults in the payment of any fixed minimum rent or additional rent or any
other sum payable by Tenant under the Lease, or defaults in the performance or
observance of any of the other terms, covenants or conditions contained in the
Lease on Tenant's part to be performed or observed, Landlord may, after the
expiration of any applicable cure period provided for the Lease, proceed
directly against the Undersigned for the full amount due under this Guaranty
without being required first to institute suit against Tenant. The Undersigned
agrees to pay to Landlord reasonable attorneys' fees incurred by Landlord in
the event any action or suit is brought under this Guaranty for enforcement of
the provisions thereof, in which Landlord prevails. This guaranty only shall
become null and void at the last day of the 36th month of said lease.
IN WITNESS WHEREOF the Undersigned has executed this Guaranty under seal this
19th day of September, 1989.
GUARANTOR:
/s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------
Signature
Xxxxxxx X. Xxxxx, Xx.
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxx. 00000
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EXHIBIT A
[ROANOKE-SALEM PLAZA FLOORPLAN]
ROANOKE, VIRGINIA
Store #1
Second Floor 12,000 s.f.
58
EXHIBIT A-1
12,000 sq. ft. Leased
(Leased Floor Plan 2nd. Floor only)
59
EXHIBIT B1
[ROANOKE-SALEM PLAZA FLOORPLAN]
ROANOKE, VIRGINIA
1. All signs must meet city code and have both Landlords approval and all city
permits.
2. All signs to be furnished and installed by Tenant at Tenants expense
including electrical wiring and electricity.
3. Must be rope bound canvas sign for ninety (90) day period only.
Place sign in existing hang down under canopy can at front door of building
60
EXHIBIT "C"
-----------
RULES AND REGULATIONS
---------------------
1. LOADING
All loading and unloading of goods, merchandise, supplies and fixtures
shall be done only at such times, in the areas, and through the
entrances, designated for such purposes by Landlord.
2. TRASH
All garbage and refuse shall be kept in the kind of container specified
by Landlord, and shall be placed outside of the premises prepared for
collection in the manner and at the times and places specified by
Landlord. If Landlord shall provide or designate a service for picking
up refuse and garbage, Tenant shall use same at Tenant's cost. Tenant
shall pay the cost of removal of any of Tenant's refuse or rubbish.
Tenant shall not burn any trash or garbage of any kind in or about the
demised premises, or the Shopping Center.
3. ANTENNAS
No radio or television antenna or other similar device shall be
installed without first obtaining in each instance Landlord's consent
in writing. No aerial shall be erected on the roof or exterior walls
of the demised premises, or on the grounds, without obtaining, in each
instance, the prior written consent of Landlord. Any aerial so
installed without such written consent shall be subject to removal
without notice at any time.
4. NOISE
No loudspeakers, televisions, phonographs, radios or other devices
shall be used in a manner so as to be heard outside of the demised
premises.
5. ADJACENT AREAS
The outside areas immediately adjoining the demised premises shall be
kept clean and free from snow, ice, dirt and rubbish by Tenant to the
satisfaction of Landlord, and Tenant shall not place or permit any
obstruction or merchandise in such areas.
6. PARKING
Tenant and Tenant's employees shall park their cars only in those
portions of the parking area designated for that purpose by the
Landlord.
7. PLUMBING
The plumbing facilities shall not be used for any other purpose than
that for which they are constructed, and no foreign substance of any
kind shall be thrown therein, and the expense of any breakage,
stoppage, or damage resulting from a violation of this provision shall
be borne by Tenant.
8. EXTERMINATION
Tenant shall use at Tenant's cost such pest extermination contractor
as Landlord may direct and at such intervals as Landlord may require.
9. SALES
No auction, going out of business or bankruptcy sales shall be
conducted on the demised premises.
10. SALES AREAS
The lobbies, vestibule, sidewalks and driveways contiguous to the
demised premises shall not be used for outdoor displays or sales areas.
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8/87 ed.
61
11. STORAGE
The demised premises shall not be used as storage or warehouse space
for any other store owned or operated by Tenant.
12. ADDITIONAL RULES
Landlord reserves the right to make such reasonable amendments
or additions to these Rules and Regulations as is deemed necessary to
the proper administration and care of the Shopping Center.
13. CONFLICT
In the event of conflict between these Rules and Regulations
and the terms and provisions of the Lease, the terms and provisions of
the Lease shall control; and, in the event the Lease provides for more
stringent provisions or restrictions regarding any subject matter
described in these Rules and Regulations, the provisions or
restrictions set forth in the Lease shall control.
-2-
62
EXHIBIT D1
Tenant accepts building as-is condition except for items specifically outlined
in Landlord improvements EXCEPT FOR MECHANICAL SYSTEMS SHALL BE IN GOOD WORKING
ORDER AT LEASE COMMENCEMENT DATE.
Landlord agrees to do the following:
1. To add two additional restrooms on second level to meet all codes.
2. To furnish and install 2x4 suspended ceilings in the 12,000 sq. ft. area
occupied by the said Tenant.
3. To supply 2x4 lay-in lighting with tubes in the 12,000 sq. ft. area leased
by the Tenant, with lighting to be 75 footcandles 36 inches from the floor.
4. Shall bring sprinkler system up to code with heads covering the 12,000 sq.
ft. leased area.
5. Furnish any additional exits from second floor required by State, Local, or
Federal laws.
6. Heating and air conditioning maintenance and repair shall be at Landlord
expense including rooftop units.
7. Plans and specifications for front entrance on ground level to esculators
are all to be prepared for Landlords approval by Tenant at Tenant's expense.
Construction of said work to be done by Landlord at Landlord expense.
See Exhibit D2-A
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63
EXHIBIT D2
TENANT WORK
1. Shall design and build (finished on both sides) the demising wall
separating Tenant's 12,000 sq. ft. from remainder of second floor of
building #1.
2. All other improvements within the 12,000 sq. ft. space shall be DONE BY
TENANT at Tenant's expense with Landlord's prior approval EXCEPT AS NOTED ON
EXHIBIT D1.
3. Tenant is to furnish and pay for all signs with Landlord's prior approval.
4. Plans and specifications to be prepared by Tenant at Tenant's expense for
Landlords approval as shown on Exhibit D2-A. Note: One (1) store front with
aluminum mullions and clear glass to meet Boca code (Kawneer or equivalent
manufacturer).
5. Tenant shall be responsible for all service and maintenance and repairs AND
REPLACEMENT of the esculator during the full term of this lease and
maintain in FULL force a liability insurance policy to hold Landlord
harmless of any claims due to accidents or injury to any person, using
esculator, elevator, or stairs. BOTH ESCULATOR AND ELEVATOR ARE TO BE
TURNED OVER TO TNEANT IN WORKING CONDITION AT THE POSSESSION OF SAID
PREMISES BY TENANT.
7. Tenant must supply service area access to portion of 2nd floor not leased
by said Tenant, from the esculator and the stairwell at all times.
5A- If after dilegent effort on the part of both landlord and tenant to find
necessary repair parts has failed, tenant may do as outlined in items
#5 (above) or if it is economically unfesiable to continue maintenance and
repair of said escalator tenant at its option may remove the existing
escalator including all equipment therewith attached and replace same with
a standard stair tread containing all the requirements of a standard public
stairwell required by state code. Tenant must furnish a drawing of said
stairwell for landlord prior approval, landlord cannot unreasonably
withhold prior approval. The above work in items 5A shall be done at the
tenants expense.
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64
EXHIBIT D3
Tenant shall have the right of first refusal to lease the remaining square
footage on the second floor only of said building number one (1), at the same
terms and conditions existing (except) rental schedule shall be as follows.
If deal is made in the first twenty-four (24) months of existing lease term:
$4.00 sq. ft. if leased in the first 24 months of the original lease.
$5.00 sq. ft. if leased in the 25th through the 36th month of original lease.
$6.50 sq. ft. if leased in the 37th through the 48th month of original lease.
$7.50 sq. ft. if leased in the 49th throught the 84th month of original lease.
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8/87 ed.
65
Exhibit E
Construction Payment Agreement
This Agreement, entered into this 18th day of September, 1989, by and between
Roanoke Salem Plaza Limited Partnership, hereinafter referred to as Landlord,
and Beta Services, Incorporated, hereinafter referred to as Tenant, is agreed
to the following payment schedule and schedule for releasing of contracts for
construction.
1. Plans included as Exhibit A-1 are approved as of the signing of the
Lease. Any additions or deletions must have Landlord's prior approval.
2. Landlord will review any contracts submitted to the Tenant for said
construction.
3. Tenant will enter into any and all contracts as sole agent to the
contractor for the complete construction and finish of both Landlord's
and Tenant's work to the demised premises.
4. All invoices will be billed to the Tenant from the contractors. Tenant
will submit Tenant's invoices to the Landlord, with proof of
contractor's invoicing of Tenant, on the following basis:
a. First invoice upon completion of thirty (30) days into
construction
b. Second invoice upon completion of sixty (60) days into
construction
c. Final invoice upon completion of job, not to exceed 120 days
5. Landlord agrees to pay Tenant in full within ten (10) days of receipt
of Tenant's invoice by Landlord.
6. All work to be done by a Virginia licensed and bonded General
Contractor, except for carpet, decorating and furniture.
7. Furnish and install duct work per quote of $8,800.00 from Xxxxxxx
Xxxxx. Will be paid on same conditions as set forth above in item #4;
not to exceed $8,800,00.
When work is completed and invoiced, then Beta Services will pay said
invoice and re-xxxx as follows:
Roanoke Salem Limited Partnership: Not To Exceed $4,800.00
Beta Services, Incorporated: Not To Exceed $2,500.00
Xxxxxx Associates: Not To Exceed $1,500.00
---------
$8,800.00
Accepted by:
Landlord_______________________ Tenant___________________________
Xxxxxx Associates___________________________________
ROANOKE SALEM LIMITED PARTNERSHIP
XXXX XXXXXXX, INCORPORATED: GENERAL PARTNER
_______________________________________________
Tenant
BETA SERVICES, INCORPORATED
_______________________________________________
66
[DIAGRAM]
67
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MOVE OUT/MOVE IN
TO: Xxx XxXxxxxx, Xxx Xxxxxxx, Xxxx Xxxxxxx
FROM: Xxxxxx Xxxxxxxxxx
DATE: February 7, 1990
SUBJECT: Tenant Name- Beta Services Inc.
Shopping Center Address 00000 Xxxxxxx Xxx., Xx Xxxxxxx, XX 00000
Other Data:
Lease Commencement- September 5, 1989
Lease Termination- September 4, 1996 (84 months)
MOVE IN
-------
The above referenced tenant moved into the premises on ________________.
Notes: The following utility accounts have been transferred to the
tenant's account and should no longer be paid by Roanoke-Salem
Plaza Limited Partnership.
A/C # Meter # Reading
Electricity 4719
Gas 00665
75412
Water 7571000
OTHER COMMENTS
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Page 1 of 2 ADDENDUM NUMBER 1
The foregoing attached Lease Agreement (the "Lease") dated September 5,
1989, by and between Roanoke-Salem Plaza Limited Partnership, ("Landlord"), and
Beta Services, Incorporated ("Tenant"), is modified, amended, and/or
supplemented as hereinafter set forth, and any language of, or provision in,
said Lease which is inconsistent or in conflict with the following, shall be
deemed appropriately, amended or modified.
1. Article One Paragraph "A" shall be amended to reflect a store size of
12,500 square feet.
2. Article Two Fixed Minimum Rent: The amount of fixed minimum rent shall
be amended as follows to reflect the increase in square footage.
Month Monthly Payment
----- ---------------
01-06 0
07-18 $2,083.33
19-36 $4,166.67
37-48 $6,770.83
49-84 $7,812.50
3. Article Four: Common Area Maintenance: Paragraph "C" shall be amended
to specify an initial monthly installment of $1,145.83.
4. Article Five: Real Estate Taxes: Paragraph "D" shall be amended to
specify an initial monthly installment of $135.42.
5. Exhibit D1: Section shall be amended as follows: Tenant shall pay the
various vendors, contractors, subcontractors and laborers on behalf of Landlord
to complete obligations under Landlord improvements on page 29. Landlord
agrees to apply Tenants monthly rental obligations towards the amount paid on
behalf of Tenant, until such time that these amounts are exhausted. The amount
paid on behalf of Landlord is agreed to be $42,035. The attached Exhibit D1A
shows the application of rental payments towards this balance. Tenant shall
make first payment to Landlord on February 1, 1991 in the amount of $2,187.50.
6. Exhibit D3: Language shall be amended to the following: Lessee shall
have the right on or before December 15, 1990 to exercise an option to lease
the adjoining approximately 4,000 square feet of space for one year at a base
rental of $4.00 per square foot. This option is good on an annual basis not to
exceed the term of the base lease, i.e., February 7, 1990 to February 6, 1997.
The base rental for each successive year shall be 103% of the prior year as
furthermore defined in the payment schedule below:
Term Fixed Minimum Rent
---- ------------------
2/7/91 - 2/6/92 $4.00 per sq. ft.
2/7/92 - 2/6/93 $4.12 per sq. ft.
2/7/93 - 2/6/94 $4.24 per sq. ft.
2/7/94 - 2/6/95 $4.37 per sq. ft.
2/7/95 - 2/6/96 $4.50 per sq. ft.
2/7/96 - 2/6/97 $4.64 per sq. ft.
Tenant must notify Landlord at least one hundred twenty (120) days prior to the
expiration of each year of its intent to extend the lease for an additional
year. The additional space shall be subject to the same terms and conditions
as the base Lease except that Tenant shall receive as an inducement free rent
for the first two months of each year. All other terms and conditions shall be
the same as in the Lease Agreement dated Sept 5, 1989 except as noted above.
69
Page 2 of 2
Except as herein amended, all terms and conditions of the Lease dated September
5, 1989 shall remain in full force and effect.
In WITNESS WHEREOF, Landlord and Tenant have caused these presents to be signed
and sealed, on the day and date set forth above.
Accepted and Agreed:
Date: 12-13-90 LANDLORD:
ROANOKE SALEM LIMITED
PARTNERSHIP
BY: XXXX XXXXXXX,
INCORPORATED
General Partner
BY:
Its: Ex. Vice President
Date: 12-4-90 TENANT:
BETA SERVICES, INCORPORATED
BY: Xxxxxxx X. Home
Its: President
70
EXHIBIT B
Description of Roanoke-Salem Plaza Shopping Center, Roanoke, Virginia
BEGINNING at a point on the present southerly line of Melrose Avenue, NW,
on the west corporate limit line of the City of Roanoke and being opposite
the center of a concrete bridge over Xxxxxx Creek, said beginning point
bears S 14 degrees 47' W, 12.00 feet from the beginning point of the
original description, designated Corner No. 1; thence along the present
southerly line of Melrose Avenue, as previously widened 12 feet, S 75
degrees 04' E, 727.47 feet to an iron stake; thence N 14 degrees 56' E,
12.00 feet to an iron stake on the original southerly line of Melrose
Avenue (100 feet wide); thence with the same S 75 degrees 04' E, 326.86
feet to an iron stake at point of curve, being original Corner No. 2;
thence with a line curving to the right whose radius is 3769.83 feet and
whose chord bearing and distance is S 73 degrees 41' E, 182.38 feet, an arc
distance of 182.40 feet to an iron stake; thence leaving Melrose Avenue and
with the westerly boundary line of Washington Heights subdivision S 6
degrees 02' W, 422.80 feet to an iron stake; thence with the westerly lines
of the property conveyed to J. R. and X. X. Xxxxxxxx by Giant Food
Properties, Incorporated, S 22 degrees 00' W, 88.01 feet to an iron stake;
thence with a line curving to the right whose radius is 75.00 feet and
whose chord bearing and distance is S 38 degrees 30' 05" W, 42.61 feet an
arc distance of 43.20 feet to an iron stake; thence S 20 degrees 09' E,
5.00 feet to an iron stake; thence with the boundary line of said Xxxxxxxx
property, S 69 degrees 51' W, 65.72 feet to an iron stake; thence S 54
degrees 19' 40" W, 110.73 feet to an iron stake; thence S 11 degrees 10' E,
9.01 feet to an iron stake, being the northeasterly corner of Xxx 0, Xxxxx
0, Xxxxxxx 0 xx xxx Xxxxx Xxxxxxxxxx Heights Map; thence with the northerly
line of lots 3 and 2, S 70 degrees 14' W, 100.45 feet to an iron stake;
thence with the dividing line between Lots 1 and 2, S 11 degrees 10' E,
162.20 feet to an iron stake on the northerly side of Michigan Avenue, NW;
thence with the same, S 78 degrees 50' W, 60.49 feet to and iron stake;
thence with the westerly side of Polk Street, N.W., S 9 degrees 25' E,
432.00 feet to an iron stake; thence S 18 degrees 55' E, 56.02 feet to an
iron stake; thence S 23 degrees 12' E, 11.0 feet to an iron stake in
concrete; thence leaving Polk Street and with the northerly line of the
property of X. X. Xxxxxxx & Son, Inc., S 80 degrees 43' W, passing an iron
stake on line at 173.40 feet in all a total distance of 524.00 feet to a
corner in the center of Xxxxxx Creek; thence up the center of said creek N
6 degrees 50' W, 72.00 feet, N 6 degrees 00' E, 110.00 feet; thence leaving
the original location of said creek and up the center of the new location
of same, and with new boundary lines as established in those said
conveyances between Giant Food Properties, Incorporated and X. X. Xxxxxx,
et als and X. X. Xxxxxxx, N 0 degrees 37' 20" E, 126.00 feet, N 17 degrees
10' W, 103.00 feet, N 28 degrees 05' W, 93.56 feet, N 52 degrees 01' W,
68.90 feet, N 49 degrees 10' W, 41.5 feet, N 72 degrees 15' W, 6.00 feet, N
77 degrees 16' W, 80.55 feet, N 64 degrees 00' W, 65.0 feet to corner in
the original centerline location of Xxxxxx Creek; thence up the center of
said creek as originally located N 40 degrees 08' W, 45.15 feet, N 24
degrees 14' W, 100.00 feet, N 8 degrees 49' W, 126.00 feet, N 53 degrees
24' W, 48.00 feet, N 22 degrees 04' W, 83.00 feet, N 6 degrees 34' W,
122.00 feet, N 4 degrees 20' E, 73.00 feet, N 13 degrees 59' E, 130.65
feet, N 4 degrees 41' E, 100.00 feet, N 1 degrees 19' W, 65.0 feet, N 4
degrees 04' W, 100.00 feet, N 5 degrees 12' E, 62.5 feet, N 14 degrees 47'
E, 121.49 feet to the place of BEGINNING and containing a net area of
31.632 acres as more particularly shown on plat prepared by Xxxxxx X.
Xxxxxxx & Associates, P. C., Engineers-Surveyors, Roanoke, Virginia, dated
18 June, 1964, and updated 25 November, 1985 and 20 March, 1986.
