EXHIBIT 10.23
LEASE
THIS LEASE AGREEMENT, entered into this 29th day of September, 2002, by
and between XXXXX X. XXXXXX and XXXX X. XXXXXX, herein called "Landlord", and R.
E. XXXXXXXX INC. DBA/COLOSOLUTIONS, herein called "Tenant", and Waldvogel, Xxx
& Xxxxx Real Estate Group Inc., herein called "Leasing Agent".
W I T N E S S E T H:
That for and in consideration of the rents and covenants hereinafter set forth,
Landlord hereby agrees to Lease, and Tenant hereby rents from Landlord, the
following described premises together with all improvements thereon called the
"Leased Premises" to-wit: Xxx 0X Xxxxxxx 0, Xxxxx 16, Official Survey bearing
City of Roanoke Tax Identification Number 1012306 and more commonly know as 00
Xxxxxx Xxxxxx, XX, Xxxxxxx, XX 00000
TO HAVE AND TO HOLD said Leased Premises and the privileges and
appurtenances thereunto belonging unto the Tenant, its successors and assigns,
for the terms hereinafter provided, and upon the following terms and conditions,
to which the parties mutually covenant and agree:
(1) TERM:
(A) The term of this Lease shall commence on October 1, 2002 and end on
December 31, 2003.
(B) Provided Tenant has fulfilled its obligations under this Lease it
shall have the option to renew the lease for five (5) consecutive terms of one
(1) year each. Notice of Tenant's exercise of said option shall be given on or
before 90 days prior to the termination of the existing term.
(C) In the absence of Tenant's timely notice to extend the term of the
lease a provided for in 1(B) above, either party desiring to terminate this
Lease at the end of its term shall give the other party written notice of its
intention to terminate this Lease at least 90 days before the end of the
original or any renewal period of this Lease, provided that until terminated by
such notice this Lease shall renew itself from month to month, at the highest
rental rate and subject to all covenants, provisions and conditions herein
contained.
(D) Except where the context clearly requires otherwise, the word "term"
whenever used in this Lease with reference to the duration hereof, shall be
construed to include any renewal terms as well as the original term.
(2) BASE RENT:
(A) During the period October 1, 2002 through December 31, 2003, Tenant
covenants to pay a base annual rental to Landlord of Twenty Thousand Six Hundred
Twenty Three & 88/100 Dollars ($20,623.88), payable in monthly installments in
advance on the first day of each month in the amount of One Thousand Seven
Hundred Eighteen & 66/100 Dollars ($1,718.66). In the event rent payments are
late and any installment of the rent is not paid within ten (10) days after it
becomes due, a late fee of five (5%) percent of the monthly rent shall be
charged for each monthly installment not paid on time.
(B) The base annual rent shall increase 3% on the first day of January of
each lease year, including any option terms, commencing January 1, 2004.
(C) If the original term does not commence on the first day of the month,
Tenant shall pay for the period from the commencement date to the first day of
the following calendar month a sum equal to one-thirtieth (1/30) of the monthly
rental due hereunder for each day of such period. All rents thereafter shall be
payable when due to:
Waldvogel, Xxx & Xxxxx Real Estate Group, Inc.
Professional Arts Building
00 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
or such place as Landlord may designate in writing to Tenant.
(3) SECURITY DEPOSIT:
The Tenant has deposited with the Landlord $3,500.00 as security for
Tenant's full and faithful performance of all the terms of this Lease. Landlord
shall return such sum when this Lease expires if Tenant has fully and faithfully
carried out all of its terms. If there is a bona fide sale of the property
of which the Leased
Premises are a part, Landlord shall transfer to the purchaser the security to be
held under the terms of this lease, and the Landlord shall be released from
liability for the return of such security to the Tenant.
(4) ADDITIONAL RENT:
Additional rent (hereinafter referred to as "Additional Rent") is the
amount of any payment referred to as such in any Provision of this Lease or in
any Addendum hereto which accrues while this Lease is in effect.
(5) USE OF LEASED PREMISES:
Tenant shall use the Leased Premises for Tenant's telecommunications,
Internet collocation services business and in strict accordance with all
applicable laws and regulation of governmental authorities. Tenant shall use the
Leased Premises for no other purpose without the prior written consent of
Landlord. Tenant will not use or permit or suffer the use of the Leased Premises
for any unlawful or offensive business or purpose. Tenant will not, without
prior written consent of Landlord, use or permit the outside walls, fences or
roof of the Leased Premises to be used for advertising purposes.
(6) CONDITION OF LEASED PREMiSES
Tenant has examined and knows the present condition of the Leased
Premises and the equipment thereon, if any. No representation, either verbally
or written, has been made to Tenant, or Tenant's agents, by Landlord, or
Landlord's agents, concerning the condition of the Leased Premises and the
equipment thereto, if any, or that any particular use can be made thereof except
as specifically set forth in writing in this Lease or any Addendum thereto.
Neither Landlord nor Leasing Agent shall be under any duty to instruct Tenant or
others as to the use of any equipment on the Leased Premises.
(7) WRITTEN NOTICE AS TO DEFECTS:
Attached hereto as "Addendum A" is a written statement of all defects in
the property existing as of the commencement of the lease. Said Addendum shall
be signed by both parties. If no such signed Addendum exists, the parties
acknowledge that the property is accepted "as is" as of the commencement of the
lease and the parties agree that the property is accepted with no defects
existing as of the date of the commencement of the Lease.
(8) TENANT'S ACCEPTANCE OF PROPERTY
At the commencement of the term, the Tenant shall accept the building,
improvements, and any equipment on or in the leased premises, in their existing
condition. No representation, statement, or warranty, express or implied, has
been made by or on behalf of the Landlord as to such condition, or as to the use
that may be made of such property. In no event shall the Landlord be liable for
any defect in such property or for any limitation on its use.
(9) ASSIGNMENT, SUBLETTING AND MORTGAGING
Tenant shall not assign this Lease nor sublet the Leased Premises, in
whole or in part, without Landlord's prior written consent which shall not be
unreasonably withheld. If consent to sublease is obtained, no such sublease
shall in any way release or relieve Tenant from any of its covenants or
undertakings contained in this Lease, and in all cases under this paragraph,
Tenant shall remain liable on this Lease during the original and all renewal
terms. If consent to assign is obtained Tenant shall be released from all
liability under this Lease.
(10) UTILITIES
Tenant shall promptly pay all fuel, water, gas, electricity, sewage,
telephone and other utility bills, as the same become due, it being understood
and agreed that the Tenant shall promptly make all required deposits for meters
and utilities services. Changes for the foregoing shall commence on the date of
the commencement of the original term of this Lease. Landlord shall not be
liable for any interruption or failure in the supply of any utility to the
Leased Premises for any reason whatsoever.
(11) INSURANCE AND INDEMNIFICATION:
(11.1) INCREASE IN RISK. The Tenant
(A) shall not do or permit to be done any act or thing as a result of
which either (i) any policy of insurance of any kind covering any or all of the
Leased Premises or any liability of the Landlord in connection therewith may
become void or suspended, or (ii) the insurance risk under any such policy
would (in the opinion of the insurer thereunder) be made greater; and
(B) shall pay as Additional Rent the amount of any increase in any
premium for such insurance resulting from any breach of such covenant, or shall
pay Landlord for any loss sustained by Landlord as a result of any uninsured
loss caused by Tenant's breach of covenants.
(11.2) INSURANCE TO BE MAINTAINED BY TENANT
(A) The Tenant shall maintain at its expense, throughout the term, and
all extension thereof, insurance against loss on liability in connection with
bodily injury and destruction, property damage, personal injury and destruction,
occurring within the Leased Premises or arising out of the use thereof by the
Tenant or its agents, employees, officers or invitees, visitors or guest under
one or more policies of general public liability insurance having such limits as
are reasonably required by Landlord from time to time (but in any event of not
less than $1,000,000.00 general aggregate, $1,000,000.00 products-comp/ops
aggregate, $1,000,000.00 personal and advertising injury, $1,000,000.00 each
occurrence, $50,000.00 fire damage (any one fire) and $55,000.00 medical expense
(any one person)). Such policies shall name the Landlord, Leasing Agent and
Tenant (and at Landlord's request, any mortgagee) as insured parties, shall
provide that they shall not be cancelable without at least sixty (60) days prior
written notice to the Landlord and Landlord's Agent (and at the Landlord's
request any mortgagee) and shall be issued by a company with a rating of at
least class VIII and an excellent rating from A.M. Best Insurance Reporting.
(B) The Tenant shall maintain at Tenant's expense a plate glass insurance
policy, for coverage of all glass contained in the Leased Premises.
(C) If Tenant shall not comply with this covenant to maintain insurance
as provided herein, Landlord may, at its option, cause insurance as aforesaid to
be issued and in such event, Tenant shall pay when due the premiums for such
Insurance as Additional Rent hereunder.
(D) Tenant will pay all excess insurance premiums (i.e. premiums in
excess of the usual premiums for a nonhazardous risk) required to be paid by
Landlord on the Leased Premises by reason of Tenant's use or occupancy thereof.
(11.3) INSURANCE TO BE MAINTAINED BY LANDLORD
The Landlord shall maintain throughout the term of the Lease and
extensions thereof, replacement cost with the agreed amount endorsed (no
co-insurance) risk of direct physical loss coverage insurance with respect to
the Leased Premises.
(11.4) WAIVER OF SUBROGATION
In the event of loss or other perils named in replacement cost with the
agreed amount endorsed (no co-insurance) risk of direct physical loss coverage
insurance, neither Landlord nor Tenant shall have or exercise any right
of subrogation against each other, either through themselves or through any
subrogation right under any policy of replacement cost coverage covering
material or consequential loss and each of the parties agrees to instruct their
insurance company to have their polices endorsed to waive the right
of subrogation by the insurance company against either of them.
(11.5) LIABILITY OF PARTIES
Except if any to the extent that such party is released from liability to
the other party hereto pursuant to the provisions of subsection 11.4;
(A) The Landlord shall be responsible for, and shall indemnify and hold
harmless the Tenant against and from any and all liability arising out of, any
injury or death of any person or damage to any property, occurring anywhere upon
the Leased Premises, if, and only if to the extent that such injury, death or
damage is proximately caused by gross negligence or intentionally tortious act
or omission of the Landlord. Landlord is not obligated to and specifically does
not indemnify and hold harmless the Tenant against or from any liability for
any such injury, death or damage occurring anywhere upon the Leased Premises, by
reason of the Tenant's occupancy or use of the Leased Premises because of fire,
windstorm, act of God or other cause unless proximately caused by such gross
negligence or intentionally tortious act or omission, as aforesaid.
(B) Subject to the operation and effect of the foregoing provisions of
this subsection, the Tenant shall be responsible for, and shall indemnify and
hold harmless the Landlord against and from, any and all liability arising out
of any injury to or death of any person or damage to the property, occurring
within the Leased Premises or as the result of Tenant's use and occupancy of the
Leased Premises.
(12) TAXES AND ASSESSMENTS
(A) Tenant agrees that as Additional Rent for the Leased Premises, it
will during each calendar year of all the original and all renewal terms,
reimburse Landlord for its pro rate share of all real estate taxes, charges and
assessments levied or assessed during the original and all renewal terms upon
and against the Leased Premises. If the original rent paid included the taxes,
Tenant shall only be responsible, as additional rent, for any increase in said
taxes which may occur after the base year of the Lease. The parties acknowledge
that the base year taxes (X) are (___) are not included in the first years
rental.
(B) Tenant shall promptly pay when due all taxes and assessments levied
by public authority on its trade fixtures, equipment and other property
of Tenant located on or about the Leased Premises and all other taxes occasioned
by its business or use of the Leased Premises.
(C) Taxes. Tenant shall pay, as additional rental under this Lease
Agreement, any state, county or municipal sales or use tax, or any other tax,
which may hereafter be assessed with respect to the rental use or operation
of the leased premises.
(13) PERSONAL PROPERTY
Tenant shall repair or reimburse Landlord for the cost of repairing any
damages to the Leased Premises resulting from the installation or removal
of Tenant's personal property and fixtures.
(14) REPAIRS AND ALTERATIONS
(14.1) Tenant shall keep and maintain the Leased Premises in good repair
and condition; keep in good running order the heating and air conditioning
systems, electric wiring, toilets, water pipes, water, gas and electric
fixtures; replace all locks and deliver keys to Landlord after replacement of
locks, trimmings, glass and plate glass broken during the tenancy, regardless of
the manner in which same may have been broken, unstop all water fixtures that
may become choked and repair all water pipes and plumbing that may burst. If any
elevators, escalators, lifts, machinery or appliances (herein called
"equipment") are situate on the Leased Premises, Tenant shall care for, maintain
and repair same, and shall indemnify and save harmless Landlord from any
liability or claims for damages or injuries to persons and property arising
therefrom. Tenant shall not make any alterations of, additions to or changes in
the Leased Premises or equipment without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, and all alterations, changes
and improvements, by whomsoever made, shall be the property of Landlord.
(14.2) Tenant agrees that all additions and improvements and attached
equipment and fixtures installed in or on the Leased Premises by the Tenant,
including but not being limited to, electric wiring, electric fixtures, show
window reflectors, screens, screen doors, awnings, awning frames, floor
coverings, landscaping, furnaces and air conditioning machinery and equipment,
shall immediately become the property of the Landlord and shall not be removed
by Tenant at the termination of this Lease, unless requested to do so by the
Landlord, in which event Tenant agrees to do so and to repair promptly any
damage caused by such removal. Excluded from this provision are any generators,
cabinets, racks, fire suppressions systems, access systems and air conditioning
systems and related equipment installed by Tenant. Such equipment shall remain
the property of Tenant and at Tenant's option shall be removed at the
termination of the Lease and if removed, Tenant shall restore the Leased
Premises to its condition prior to the installation of such equipment.
(14.3) Nothing contained in this Lease shall be construed as requiring
Landlord to make any repairs, except of a structural nature. Landlord shall
maintain and make all necessary structural repairs to the foundations, load
bearing walls and roof. This does not include the repairing of any glass or
moving parts such as passage and overhead doors.
(14.4) Tenant shall, on the last day of the original or renewal term, or
upon the sooner termination of this Lease, peaceably and quietly surrender the
Leased Premises and equipment to Landlord, broom-clean, including all
improvements, alterations, rebuildings, replacements, changes or additions
placed by Tenant thereon, in as good condition and repair as the same were in at
the commencement of the original term, normal wear and tear excepted; provided,
however, Tenant shall not be required to return the Leased Premises and
equipment in as good condition as aforesaid if the same are damaged or destroyed
by fire or otherwise, unless caused by Tenant's fault or negligence which is not
adequately covered by insurance.
(14.5) Tenant shall maintain a preventative maintenance contract on all
HVAC units contained in the Leased Premises. Contract is to be maintained with a
licensed and qualified HVAC Contractor. Maintenance on the HVAC is to be
performed on a minimum of four (4) times per year.
(14.6) Tenant shall keep the Leased Premises, including the storefront
thereof, in good repair, but Tenant shall not paint or change the decorative or
architectural treatment of the storefront, the interior or the exterior of the
Leased Premises without Landlord's written consent. Tenant shall promptly remove
upon order from the Landlord any decoration or architectural change which has
been applied to or installed upon the Leased Premises without Landlord's written
consent or take such other action with reference thereto as Landlord may direct.
(14.7) Tenant shall not place or permit to be placed or maintained any
sign, awning, advertising matter, decoration, lettering, or other item of any
kind on the interior or the exterior of the Leased Premises or on the glass of
any window or door of the Leased Premises without first obtaining Landlord's
written approval thereof. Tenant shall promptly remove upon receipt of any order
from Landlord, any sign, awning, advertising matter or other thing of any kind
which has been applied to or installed upon the interior or exterior of Leased
Premises without Landlord's written consent or take such other action with
reference thereto as Landlord may direct.
(15) DESTRUCTION OF LEASED PREMISES
(A) If the Leased Premises are damaged or destroyed by fire or other
casualty covered by insurance, then (1) if totally destroyed or so that the
Leased Premises are rendered unleaseable, this Lease shall terminate as of the
date of such destruction and Tenant shall be liable for the rent only to the
date of such destruction and awards for the Leased Premises shall belong to and
be payable to Landlord; or (2) if only partially destroyed and still leaseable,
Landlord shall, within a reasonable time, repair the Leased Premises with a
reasonable reduction in rent from the date of such partial destruction until
there be again premises substantially similar in value to Tenant as the Leased
Premises partially destroyed. Landlord's obligation to repair or restore the
Leased Premises are stated herein as conditioned upon (a) all insurance proceeds
and award for the Leased Premises being paid to Landlord, which are sufficient
to cover the cost of said repairs and restorations, and (b) there remaining at
least twenty four (24) months in the then existing term of this Lease. If
Landlord does not repair the Leased Premises because either conditions (a) or
(b) are not met, Landlord shall notify Tenant and this Lease shall terminate as
of the date of such partial destruction and Tenant shall be liable for rent only
to the date of such partial destruction.
(B) If the Leased Premises shall be damaged or destroyed by any hazard
not covered by insurance, Landlord shall have the option to cancel this Lease by
giving written notice of such cancellation to Tenant within thirty (30) days
after the happening of such damage or destruction, but if such option not be
exercised and if such damage is not the result of the act or omission of the
Tenant, Tenant's employee or agent or invitee, then Landlord at its own expense
shall proceed with due diligence to repair and restore the Leased Premises to
their condition as existed before such damage or destruction with rent being
reduced pro rata in proportion to the decrease in usefulness of the Leased
Premises during repairs and restoration. If such damage is the result of the act
or omission of the Tenant or Tenant's employee or agent or invites, then
Landlord at its option may repair or restore the Leased Premises, the cost of
which shall be paid for by Tenant in installments or in whole upon notice
thereof being given to Tenant by Landlord.
(C) Tenant shall give immediate written notice to Landlord or Leasing
Agent, of any damage or destruction of the Leased Premises whether it be total
or partial.
(16) INSPECTION BY LANDLORD
Tenant shall permit Landlord, its agents, or employees to inspect the
Leased Premises and all parts thereof during normal business hours and to
enforce and carry out any provision of this Lease and for the future purpose of
showing the Leased Premises to prospective tenants and purchasers and
representatives of lending institutions. During the last three (3) months of the
original term and all renewals or extensions thereof, Landlord shall have the
right to place "For Rent" and/or "For Sale" signs in conspicuous places on the
Leased Premises and to otherwise advertise the Leased Premises "For Rent" and/or
"For Sale", in addition to having the rights of entry and inspection set forth
herein. Tenant shall do no act or omission which interferes with Landlord's
rights to reentry and inspection.
(17) EMINENT DOMAIN
(17.1) EMINENT DOMAIN
(A) If any or all of the Leased Premises are taken by the exercise of any
power of eminent domain or are conveyed to or at the direction of any
governmental entity under a threat of any such taking (each of which is
hereinafter referred to as a "Condemnation"), the Landlord shall be entitled to
collect from the condemning authority thereunder the entire amount of any award
made in any such proceeding or as consideration for such Deed, without deduction
therefrom for any leasehold or other estate held by the Tenant by virtue of this
Lease.
(B) The Tenant hereby (i) assigns to the Landlord all of the Tenant's
right, title and interest, if any, in and to any such award, (ii) waives any
right which it may otherwise have in connection with such Condemnation, against
the Landlord or such condemning authority, to any payment for (a) the value of
the then unexpired portion of the term, (b) leasehold damages, and (c) any
damage to or diminution of the value of the Tenant's leasehold interest
hereunder or any portion of the Premises not covered by such Condemnation; and
(iii) agrees to execute any and all further documents which may be required in
order to facilitate the Landlord's collection of any and all such awards.
(C) Subject to the operation and effect of the foregoing provisions of
this section, the Tenant may seek, in a separate proceeding, a separate award on
account of any damages of costs incurred by the Tenant as a result of such
Condemnation, so long as such separate award in no way diminishes any award or
payment which the Landlord would otherwise receive as a result of such
Condemnation.
(17.2) EFFECT OF CONDEMNATION
(A) If (i) all of the Leased Premises are covered by a Condemnation, or
(ii) if any part of the Leased Premises is covered by a Condemnation and the
remainder thereof is insufficient for the reasonable operation therein of the
Tenant's business, or (iii) any of the Leased Premises is covered by a
Condemnation and, in the Landlord's reasonable opinion, it would be impractical
to restore the remainder thereof, then, in any such event, the Lease shall
terminate on the date upon which possession of so much of the Leased Premises as
is covered by such Condemnation is taken by the condemning authority thereunder,
and all rent (including, by way of example rather then of limitation, any
Additional Rent payable pursuant to any Addendum regarding Additional Rent),
taxes, and other charges payable hereunder shall be prorated and paid to such
date.
(B) If there is a Condemnation and the Term does not terminate pursuant
to the foregoing provisions of this subsection, the operation and effect of this
Lease shall be unaffected by such Condemnation, except that the Base Rent and
the Additional Rent shall be reduced in proportion to the square footage of
floor area, if any, of the Leased Premises covered by such Condemnation.
(173) If there is Condemnation, the Landlord shall have no liability to
the Tenant on account of any (i) interruption of the Tenant's business upon the
Leased Premises, (ii) diminution in the Tenant's ability to use the Leased
Premises, or (iii) other injury or damage sustained by the Tenant as a result
of such Condemnation.
(17.4) Except for any separate proceeding brought by the Tenant under the
provisions of paragraph 17.1(C), the Landlord shall be entitled to conduct any
such Condemnation proceeding and any settlement thereof free of interference
from the Tenant, and the Tenant hereby waives any might it might otherwise have
to participate therein.
(18) DEFAULTS BY THE TENANT
(18.1) DEFINITION. As used in the provisions of this Lease, each of the
following events shall constitute, and is hereunder referred to as, an "Event of
Default":
(A) If the Tenant (i) fails to pay the Rent or any other sum which the
Tenant is obligated to pay by any provision of this Lease, when and as it is due
and payable hereunder and without demand therefor, or (ii) in any respect
violates any of the terms, conditions or covenants set forth in the provisions
of this Lease; or
(B) If the Tenant (i) applies for or consents to the appointment of a
Receiver, Trustee or Liquidator of the Tenant or of all or a substantial part of
its assets, (ii) files a voluntary petition in bankruptcy or admits in writing
its inability to pay its debts as they come due, (iii) makes an assignment for
the benefit of its creditors, (iv) files a petition or an answer seeking a
reorganization or an arrangement with creditors, or seeks to take advantage of
any insolvency law, (v) performs any other act of bankruptcy, reorganization or
insolvency proceeding; or
(C) If (i) an order, judgment or decree is entered by any court of
competent jurisdiction adjudicating the Tenant a bankrupt or an insolvent,
approving a petition seeking such a reorganization, or appointing a Receiver,
Trustee or Liquidator of the Tenant or of all or a substantial part of its
assets, or (ii) there otherwise commences with respect to the Tenant or any of
its assets any proceeding under any bankruptcy, reorganization, arrangement,
insolvency, readjustment, receivership or similar law, and if such order,
judgment, decree or proceeding continues in effect for more than sixty (60)
consecutive days after the expiration of any stay thereof; or
(D) If the Tenant vacates the Leased Premises or Tenant advertises in any
manner that would indicate or lead the public to believe that Tenant was going
out of business or intending to vacate Leased Premises.
(18.2) NOTICE TO TENANT: GRACE PERIOD
Anything contained in the provisions of this section to the contrary
notwithstanding, upon the occurrence of an Event of Default the Landlord shall
not exercise any right or remedy which it holds under any provision of this
Lease or under applicable law unless and until:
(A) The Landlord has given written notice thereof to the Tenant and
(B) If such Event of Default consists of failure to pay money, the
Landlord has given ten (10) days written notice thereof to the Tenant and the
Tenant has failed to make such payment in said ten (10) day period of time or,
if such Event of Default consists of something other then failure to pay money,
the Landlord has given thirty (30) days notice of the default and the Tenant has
failed to proceed to diligently and in good faith to cure such Event of Default.
(C) No such notice shall be required, and the Tenant shall be entitled to
no such grace period, (i) if the Event of Default has occurred more than twice
during any twelve (12) month period, or (ii) if the Tenant has substantially
terminate or is in the process of substantially terminating its occupancy and
use of the Leased Premises for the purpose set forth in the provisions
of Paragraph 5, or (iii) if any Event of Default enumerated in the provisions of
Paragraphs 18.1 (B) or 18.1 (C) has occurred or (iv) if the Event of Default
constitutes an eminent danger to the destruction or diminution of value of the
Landlord's property, real or personal, or to that of any other Tenant or
adjoining property owner.
(18.3) LANDLORD'S RIGHTS UPON EVENT OF DEFAULT
Upon the occurrence of any Event of Default, the Landlord may:
(A) Re-enter and repossess the Leased Premises and any and all
improvements thereon and additions thereto without necessity of judicial
proceedings:
(B) Declare the entire balance of the Rent and Additional Rent, if any,
for the remainder of the Term to be due and payable, and collect such balance in
any manner not inconsistent with applicable law;
(C) Relet any or all of the Leased Premises for the Tenant's account for
any or all of the remainder of the Term as hereinabove defined, or for a period
exceeding such remainder, in which event the Tenant shall pay to the Landlord
any deficiency in the Base Rent and Additional Rent resulting, with respect to
such remainder, from such releting, as well as the cost to the Landlord of any
attorney's fees which fees the Tenant is hereby deemed to agree are reasonable
or of any repairs or other action (including those taken in exercising the
Landlord's rights under any provisions of this Lease) taken by the Landlord on
account of such Event of Default. The parties agree that the sum of 33-1/3% of
the unpaid rental shall be deemed to be reasonable attorney's fees pursuant to
the provisions of this Lease;
(D) Pursue any combination of such remedies and/or any other remedy
available to the Landlord on account of such Event of Default under applicable
law.
(18.4) LANDLORD'S RIGHT TO CURE
Upon the occurrence of an Event of Default, the Landlord shall be
entitled (but shall not be obligated), in addition to any other rights which it
may have hereunder or under applicable law as a result thereof, and after giving
the Tenant written notice of the Landlord's intention to do so except in the
case of emergency, to cure such Event of Default, and the Tenant shall reimburse
the Landlord for all expenses incurred by the Landlord in doing so, plus
interest thereon at the highest rate then permitted on account thereof by
applicable law, which expenses and interest shall be Additional Rent and shall
be payable by the Tenant immediately upon demand therefore by the Landlord.
(19) SEVERABILITY:
If any provision of this Lease or any application thereof shall be
invalid or unenforceable, the remainder of this Lease and any other application
of such provision shall not be affected thereby.
(20) RELATIONSHIP OF PARTIES:
Landlord and Tenant shall not be considered or deemed to be joint
venturers or partners and neither shall have the power to bind or obligate the
other except as set forth herein.
(21) RULES AND REGULATIONS
The Landlord hereby reserves the right to prescribe, at its sole
discretion, reasonable rules and regulations (hereinafter referred to as the
"Rules and Regulations"), having uniform applicability to all tenants of 00
Xxxxxx Xxxxxx, Xxxxxxx, XX and governing the use and enjoyment of the Leased
Premises and the remainder of the Property; provided, that the Rules and
Regulations shall not materially interfere with the Tenant's use and enjoyment
of the Leased Premises, in accordance with the provisions of this Lease. The
Tenant shall adhere to the Rules and Regulations and shall cause its agents,
employees, invitees, visitors and guests to do so.
(22) NO REPRESENTATIONS BY LANDLORD:
Neither Landlord nor its agents have made any representations or promises
with respect to the Building, the Land, or the Leased Premises except as
expressly set forth herein. No rights, easements, or licenses are acquired by
Tenant by implication or otherwise except as expressly set forth in the
provisions of this Lease. The taking possession of the Leased Premises by Tenant
shall be conclusive evidence as against it, that Tenant accepts the premises and
the Building and that they were in good and satisfactory condition when
possession was so taken.
(23) LEASING AGENT
(A) In consideration of the Leasing Agent's services in procuring this
Lease, Landlord covenants with and for the benefit of the Leasing Agent as
follows: The Leasing Agent is to receive a commission of ten percent (10%) of
the Rent during the original term and all renewals, extensions or expansions
thereof or any new Lease of the Leased Premises between any person and "Tenant,
its successors or assigns" (such phrase used herein to include such entity in
which Tenant, its successors or assigns may have an interest as a stockholder,
partner, lender of money or otherwise); and no sale, transfer, assignment,
cancellation or release, including a sale or conveyance to Tenant, its
successors or assigns, shall affect the Leasing Agent's right to such commission
which is hereby made a lien on the Leased Premises and all Landlord equipment
thereon, if any. The Leasing Agent shall have the right to collect all rents due
hereunder so that its commission may be paid in installments as the rent is
received, and retained by the Leasing Agent before remitting the rent (less
commissions) to Landlord, but if any act be done to deprive the Leasing Agent of
its right to collect the rent, then the whole amount of its commission then
unpaid shall, at the Leasing Agent's option, immediately become due and payable.
(B) Landlord further covenants with and for the benefit of the Leasing
Agent that if Tenant, its successors or assigns shall at any time during the
original term and all renewals or extensions thereof (or during any new Lease of
the Leased Premises between any person and Tenant, its successors or assigns),
purchase the Leased Premises, the Leasing Agent shall receive on the date of the
Leased Premises are transferred a commission of ten percent (10%) of the gross
amount of the purchase price.
(C) Such a sales commission shall be in addition to the rental
commissions provided for in the immediately preceding paragraph up to the
transfer of said property and is hereby made a lien on the Leased Premises.
(D) In connection with all acts done or suffered by the Leasing Agent for
Landlord concerning the Leased Premises, Landlord further agrees to indemnify
and save the Leasing Agent harmless from all fines, judgments, suits, claims,
demands and actions of any KIND (including any costs and attorney's fees), and
from liability suffered by an employee or contractor (not in the permanent
employ of the Leasing Agent) engaged by the Leasing Agent for the benefit of
Landlord.
(24) SUBORDINATION
Tenant accepts this Lease subject and subordinate to the present state of
the Leased Premises and to any recorded mortgage, deed of trust or any other
lien presently existing upon the Leased Premises and to any renewal, extension
or modification thereof. Tenant agrees upon demand to execute such instruments
subordinating this Lease to any future mortgage, deed of trust or other security
instruments as Landlord may request, provided such further subordination shall
be upon the express condition that this Lease shall be recognized by the
mortgagee and that the rights of Tenant shall remain in full force and effect
during the term of this Lease, so long as Tenant shall continue to perform all
of the covenants hereof.
(25) SUCCESSORS AND ASS1GNS
All parties to this Lease agree that all of the provisions hereof shall
bind and inure to the benefit of the parties hereto, their heirs, legal
representatives, successors and assigns.
(26) TENANT'S OBLIGATION TO COMPLY WITH APPLICABLE LAWS - TENANT TO OBTAIN
NECESSARY LICENSE
Tenant, at its expense, shall promptly comply with all federal, state,
and municipal laws, orders, and regulations, and with all lawful directives of
public officers, which impose any duty upon it or Landlord with respect to the
leased property. The Tenant, at its expense, shall obtain all required licenses
or permits for the conduct of its business within the terms of this Lease, or
for the making of repairs, alterations, improvements, or additions, and the
Landlord, when necessary, will join with the Tenant in applying for all such
permits or licenses.
(27) APPLICABLE LAW, CONSTRUCTION
(A) This Lease shall be construed in accordance with the laws of the
Commonwealth of Virginia.
(B) Whenever used the singular number shall include the plural, the
singular, and the use of any gender shall include all other genders.
(28) ENVIRONMENTAL REQUIREMENTS
Tenant shall not cause, commit or allow to exist or to continue any
violation of any environmental requirement imposed by any local, federal or
state agency with respect to the Leased Premises or any use or activity on the
Leased Premises. Tenant will not place, install, dispose of or release or
cause, permit or allow to be placed, installed, disposed of or released any
Hazardous Material on the leased premises. If any Hazardous Material is
discovered on the Leased Premises at any time, which Hazardous Material has been
placed thereon by Tenant, its employees or agents, Tenant shall promptly, at
Tenant's sole risk and expense, remove, treat and dispose of the Hazardous
Material in compliance with all applicable environmental regulations and laws.
Except, Tenant shall be allowed to store diesel fuel within the fuel tank of any
generator placed on or in the Leased Premises by Tenant.
(29) NOTICES
(A) Whenever in this Lease it shall be required or permitted that notice
or demand be given or served by either party to this Lease to or on the other,
such notices or demand shall be given or served and shall not be deemed to have
been given or served unless in writing and forwarded by registered or certified
mail addressed as follows:
(B) TO LANDLORD:
c/o Leasing Agent
(C) TO LEASING AGENT:
Waldvogel, Xxx & Xxxxx
Real Estate Group, Inc.
000 Xxxxxxxxxxxx Xxxx Building
00 Xxxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
(D) TO TENANT:
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
(30) FINAL UNDERSTANDING
(A) This Lease represents the final understanding between Landlord,
Tenant and Leasing Agent, and the obligations of each party hereunder cannot be
changed or modified unless by written Addendum signed by the parties whose
obligations are to be modified and endorsed hereon or attached hereto,
(31) AGENCY DISCLOSURE
(A) Unless otherwise disclosed in writing, all parties acknowledge that
WALDVOGEL, XXX & XXXXX REAL ESTATE GROUP, INC. is the Agent of the LANDLORD not
the TENANT. Waldvogel, Xxx & Xxxxx Real Estate Group, Inc.'s fiduciary duties of
loyalty and faithfulness are owed to the LANDLORD who is their principal. All
commissions will be paid by the LANDLORD and not the TENANT.
(32) SPECIAL PROVISIONS
(A) Special provisions of this Lease are attached hereto as part hereof
as Addendum to pages numbered 0 through 0.
WITNESS the following signatures and seals:
---------------------------------- (SEAL) --------------------------
XXXXX X. XXXXXX Tax Identification Number
---------------------------------- (SEAL) --------------------------
XXXX X. XXXXXX Tax Identification Number
R.E. XXXXXXXX, INC.
By: /s/ R.E. Xxxxxxxx 00-0000000
------------------------------- --------------------------
Tax Identification Number
Its: CEO
------------------------------
WALDVOGEL, XXX & XXXXX REAL ESTATE GROUP, INC.
By: (SEAL) 00-0000000
------------------------------- --------------------------
THE LEASING AGENT
(32) SPECIAL PROVISIONS
(A) Special provisions of this Lease are attached hereto as part hereof
as Addendum to pages numbered 0 through 0.
WITNESS the following signatures and seals:
/s/ Xxxxx X. Xxxxxx 410 821 484
---------------------------------- (SEAL) --------------------------
XXXXX X. XXXXXX Tax Identification Number
/s/ Xxxx X. Xxxxxx 414 845 570
---------------------------------- (SEAL) --------------------------
XXXX X. XXXXXX Tax Identification Number
R.E. XXXXXXXX, INC.
By: /s/ R.E. Xxxxxxxx 00-0000000
------------------------------- --------------------------
Tax Identification Number
Its: CEO
------------------------------
WALDVOGEL, XXX & XXXXX REAL ESTATE GROUP, INC.
By: /s/ Waldvogel (SEAL) 00-0000000
------------------------------- --------------------------
THE LEASING AGENT
STATE OF VIRGINIA
CITY OF ROANOKE, TO-WIT: (LANDLORD)
I, the undersigned, a Notary Public in and for the City of Roanoke,
aforesaid, in the State of Virginia, do hereby certify that Xxxxx Xxxxxx and
Xxxx Xxxxxx, whose name is signed to the foregoing Lease bearing date of
4th day of October, 2002, have acknowledged the same before me. Given under my
hand this 4th day of October, 2002.
My commission expires: September 30, 2006
/s/ Xxxxxxx Sawder
-------------------------------
Notary Public
STATE OF FLORIDA
CITY OF BREVARD, TO-WIT: (TENANT)
I, the undersigned, a Notary Public in and for the County of Brevard,
aforesaid, in the State of Florida, do hereby certify that Xxxxxx Xxxxxxxx,
whose name is signed to the foregoing Lease bearing date of 29th day of
September, 2002, have acknowledged the same before me. Given under my
hand this 29th day of September, 2002.
My commission expires: August 23, 2006
/s/ Xxxxx X. Xxxxxx
[SEAL] -------------------------------
Notary Public
STATE OF FLORIDA
CITY OF ROANOKE, TO-WIT: (LEASING AGENT)
I, the undersigned, a Notary Public in and for the City of Roanoke,
aforesaid, in the State of Virginia, do hereby certify that Xxxxxxx
Xxxxxxxxx, whose name is signed to the foregoing Lease bearing date of 4th day
of October, 2002, have acknowledged the same before me. Given under my hand this
4th day of October, 2002.
My commission expires: September 23, 2006
/s/ Xxxxxxx Sawder
[SEAL] -------------------------------
Notary Public
