COMMERCIAL LEASE
THIS AGREEMENT made and entered into this 13th day of
August, 1997, between Grove Corporate Plaza, Inc. (hereinafter referred to
as "Lessor"), and iVillage, Inc. (hereinafter referred to as "Lessee").
WITNESSETH:
WHEREAS, the Lessor is the owner of a certain commercial
office building (hereinafter sometimes referred to as the "Building")
located at 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Lessor is desirous of leasing office space in
the above described building (hereinafter sometimes referred to as the
"Demised Premises") to the Lessee upon the terms and conditions hereinafter
provided; and
WHEREAS, the Lessee is desirous of leasing the Demised
Premises from the Lessor upon the terms and conditions hereinafter
provisions.
NOW, THEREFORE, in consideration of the promises and the
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged
by the parties, it is agreed as follows:
1. Leased Premises
The Lessor hereby leases to the Lessee and the Lessee
accepts from the Lessor the Demised Premises, consisting of approximately
3,370 rentable square feet, located at 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx,
described as Exhibit A, attached hereto and made a part of this Lease.
2. Term
This lease shall continue in full force for a term of
three (3) years, commencing on or about September 15, 1997 and ending on
September 30, 2000, the last day of the month in which occupancy occurs.
3. Rent
a. The Lessee covenants to pay as initial rent for said
premises, Annual Rent as follows: (Base Annual Rent for Year One is
calculated at sixteen dollars ($16.00) per square foot.)
Minimum Rent Monthly Annually
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First Year $4,493.33 $53,920.00
Second Year 4,628.13 55,537.60
Third Year 4,766.98 57,203.73
The above rental payments are due on the first day of each and every
calendar month during the term of this lease without any set off on
deduction whatsoever and without any prior demand being made therefor.
Language intentionally deleted.
b. If the lease term begins on other than the first day of
a month, rent from such date until the first day of the next succeeding
month shall be prorated on the basis of the actual number of days in each
such month and shall be payable in advance.
c. All payments of rent shall be made in cash or by check
payable to Grove Corporation Plaza, Inc., at 000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 or to such other person or place as may be designated by
notice in writing from Lessor to Lessee from time to time, as and when
applicable.
d. No payment by Lessee or receipt by Lessor of a lesser
amount than the monthly installments of 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 payment as rent be deemed an accord and satisfaction. Lessor may
accept such check for payment without prejudice to Lessor's right to recover
the balance of such rent or pursue any other remedy provided in this Lease
or under the existing law.
e. Any monthly installment of the Annual Rent not paid
within ten (10) days of due date shall be subject to a late charge of ten
percent (10%) per month. All other rent and all other payments becoming due
hereunder (including additional rent) shall bear interest at the rate of
twenty percent (20%) per annum after the first calendar day following the
date when the same shall become due and payable.
4. Additional Rent
a. If Lessor shall incur any charge or expense on behalf
of Lessee under the terms of this Lease, such charge or expense shall be
considered additional rent hereunder, in addition to and not in limitation
of any other rights and remedies which Lessor may have in case of the
failure by Lessee to pay such sums when due, such nonpayment shall entitle
Lessor the remedies available to it hereunder for nonpayment of rent. All
such charges or expenses shall be paid to Lessor at its office at 000 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or such other place and to such other
person as Lessor may from time to time designate in writing.
b. At the end of each calendar year commencing after
January 1, 1998, if the total real estate taxes and operating expenses paid
by the Lessor with respect to this building exceed the actual amounts of
year 1997, then the Lessee shall pay to the Lessor within thirty (30) days
of invoice thereafter its proportionate share of the excess as additional
rent. The Lessee's proportionate share of increases is 8.83 percent of the
total.
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c. For purposes of this Paragraph 4, the term "real estate
taxes" shall mean all taxes, rates and assessments, general and special,
levied or imposed with respect to the building and land related thereto. If
the system of real estate taxation shall be altered or varied and any new
tax or levy shall be levied or imposed on the building and/or the land
and/or Lessor in addition to or in substitution for real estate taxes
presently levied or imposed on real estate in the County of Fairfax, and
including any taxes on rents, then any such new tax or levy shall be
included within the term "real estate taxes".
d. (i) For purposes of this Paragraph 5, the term
"operating expenses" shall mean any and all expenses incurred by Lessor in
connection with the servicing, operation, maintenance and repair of the
building and related interior and exterior appurtenances of the demised
premises and the cost of any services incurred in order to achieve a
reduction of or to minimize the increase in operating expenses, including
without limitation, capital expenditures for equipment or systems installed
to reduce or minimize increases in operating expenses and capital
expenditures required by any governmental ordinance, or depreciation or
amortization based on the useful life expectancy of such equipment or
systems or expenditures, and the cost of contesting the validity or amount
of real estate taxes.
(ii) Operating expenses shall not include capital
expenditures and depreciation of the building; interest and amortization of
mortgages, compensation paid to officers or executives of lessor; and
brokerage commissions.
5. Security Deposit
Lessor herewith acknowledges receipt from Lessee of four
thousand four hundred ninety-three dollars and thirty-three cents
($4,493.33) as a security deposit, which sum shall be held by the Lessor as
a security without liability for interest, for the faithful performance of
all covenants, conditions, and agreements of this Lease to be performed by
Lessee. In addition, both parties agree as follows:
a. In the event of a default by the Lessee under this
Lease, the Lessor shall not be required to return any portion of said
security. In this event, the Lessor may either retain the same and apply it
toward the actual damages sustained by Lessor by reason of the Lessee's
default. However, under no circumstances shall the Lessor be deprived of any
other remedy at law or in equity or as agreed upon in this Lease. In the
event that the damages exceed the amount of the security deposit, the Lessor
or its agent shall have the right to proceed against the Lessee to recover
the excess amount.
b. In the event that there has been no default of any kind
or nature whatsoever by the Lessee, upon expiration of the full term of this
Lease, said security deposit shall be returned by the Lessor to the Lessee,
less any expense, loss or damage suffered by the Lessor as a result of any
act or commission on the part of the Lessee, his agents, employees, or
licensees. When the Lessee is entitled to the return of the security
deposit, the Lessor shall have thirty (30) days from the date of the
expiration of this Lease in which to refund the security deposit.
c. In the event of bankruptcy or other creditor-debtor
proceedings against the Lessee, the security deposit shall be deemed to be
applied first to the payment of rent and other charges due to the Lessor for
any period to the filing of such proceedings.
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6. Use of Premises
a. It is understood and agreed that the leased premises
shall be used and occupied by the Lessor for general office purposes and for
no other purpose and that Lessee shall comply with all applicable laws,
ordinances, government regulations and all protective covenants and
restrictions of record affecting such use.
b. Lessee shall not place a load upon the floor of the
demised premises exceeding the floor load per square foot which such floor
was designed to carry and which is allowed by law. Lessee shall not keep
within or about the demised premises any dangerous material. Lessee shall
indemnify and hold Lessor harmless against any and all damage, injury, or
claims by third parties, resulting from the moving of Lessee's equipment,
furnishings, and/or materials into or out of the demised premises or from
the storage or operation of the same.
7. Failure to Give Possession
If the Lessor shall be unable to give possession of the
leased premises by the date set forth in Paragraph 2 because the
construction of the leased premises or the building containing the leased
premises has not been sufficiently completed to make the premises ready for
occupancy, or for any other reason beyond the control of the Lessor, the
Lessor shall not be subject to any claims, damages, or liability for its
failure to give possession by that date, and the Lessee's obligation to pay
rent shall be suspended and abated until possession of the premises is
delivered. In the event of such delay, it is understood and agreed that the
commencement of the term of this Lease shall also be postponed until
delivery of possession and that the termination date of the term shall be
correspondingly extended.
8. Observance of Laws
The Lessee shall duly obey and comply with all
Declarations, By-Laws, covenants, conditions and restrictions, and rules,
copies of which have been provided to Lessee and Lessee acknowledges receipt
of same, and additionally all regulations, public laws, ordinances, rules,
or regulations relating to the use of the lease premises.
9. Improvements/Alterations
a. The Lessor shall pay for all standard
improvements/alterations agreed to in Exhibit A. The Lessee agrees not to
make any improvements/alterations in or additions to the leased premises
without first procuring the Lessor's approval. All alterations, additions,
and improvements, which may be made or installed by the Lessee upon the
leased premises, shall, (I) comply with local city/county regulations and
(ii) at the termination of the Lease, become the property of the Lessor and
shall remain upon and be surrendered with the leased premises as part
thereof, without disturbance at the expiration or termination of the term of
this Lease, all without compensation or credit to Lessee.
b. Lessee shall not install any equipment of any kind that
will require any alterations or additions to or the use of the water system,
heating system, plumbing system, air conditioning system, or the electrical
system without prior written consent of the Lessor. Lessor may correct or
remove them and Lessee shall be liable for any and all expenses incurred by
Lessor in the performance of this work.
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10. Repairs and Maintenance
a. Lessee shall, at its own cost and expense, keep the
premises in good order and condition. Lessee further agrees and covenants,
at its own cost, when attributable to tenant's negligence, to maintain the
premises, including but not limited to, plumbing, electrical and lighting
facilities and equipment, fixtures, walls, ceilings, windows, doors, and
plate glass. If Lessee fails to make such repairs or replacements promptly
after written demand, Lessor may, at its option, make such repairs or
replacements without incurring liability for any loss or damages that may
accrue to Lessee's property or business by reason thereof, and Lessee shall
repay the cost thereof to Lessor on demand as additional rent, with interest
at the rate of twenty percent (20%) per annum from the date of commencement
of said repairs.
Lessor shall keep the foundations, exterior walls and roof
in good repair, as well as the HVAC system, underground pipes and conduits
on the property, and the sprinkler system, and elevator system, except that
Lessor shall not be required to make any such repairs which become necessary
or desirable by reason of the negligence of Lessee, its agents, servants, or
employees and in all other respects, the leased premises shall at all times
be kept in good order, condition, and repair by Lessee. If the Lessee
refuses or neglects to repair promptly and adequately after written demand,
Lessor may make the repairs without liability to Lessee for any loss or
damage that may accrue to Lessee's stock or business by reason thereof, and
if Lessor makes such repairs, Lessee will pay to Lessor, on demand, as
additional rent, the cost thereof, with interest at the rate of twenty
percent (20%) per annum from the date of commencement of said repairs. The
Lessor reserves the right to promulgate reasonable rules and regulations
relating to the use of building area, including such limitations as may, in
the opinion of the Lessor, be necessary and desirable.
b. At the expiration or termination of the tenancy hereby
created, Lessee shall surrender the leased premises in good condition,
reasonable wear and tear excepted, and shall surrender all keys for the
leased premises to the Lessor at the place then fixed for the payment of
rent.
11. Services Provided by Lessor
Except as otherwise provided herein, Lessor agrees, at its
cost, to furnish Lessee, during the term of the Lease:
a. Hot and cold water at those points of supply provided
for general use of other tenants in the building;
b. Central heat and air conditioning in season, at such
times as Lessor normally furnishes these services to other tenants in the
building, and at such temperatures and in such amounts as are considered by
Lessor to be standard. Building operation hours are from 7:00AM - 7:00PM
Monday through Friday, except legal holidays. The legal holidays are: New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day.
c. Janitorial and trash removal service;
d. Electric current;
e. Routine lighting service for all Common Areas and
special areas of the building in the manner and to the extent deemed by
Lessor to be standard.
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In the event Lessee requests use of heating or air
conditioning services beyond the normal building hours of operation, Lessee
will be charge for electric at the rate of thirty dollars ($30.00) per hour
for each hour or partial hour of overtime use.
Failure by Lessor to any extent to furnish these defined
services, or any cessation thereof, resulting from causes beyond the control
of Lessor, shall not render Lessor liable in any respect for damages to
either person or property, nor be construed as an eviction of Lessee, nor
entitle Lessee to an abatement of rent, nor relieve Lessee from fulfillment
of any covenant or agreement hereunder. Should any of the equipment of
machinery break down, or for any cause cease to function properly, Lessor
shall use reasonable diligence to repair the same promptly, but Lessee shall
have no claim for rebate of rent or damages on account of any interruptions
in service occasioned thereby or resulting therefrom.
Lessee agrees to pay for telephone service and all other
charges not specifically assumed herein by Lessor.
12. Lessor's Insurance
The Lessor agrees to maintain at its expense, such fire
and extended coverage insurance on the building and in such amounts as
Lessor shall deem appropriate. Lessee agrees not to do or permit anything to
be done, in or about the leased premises, that will in any way impair or
invalidate the obligation of any policy of insurance with respect to the
leased premises or the building in which the leased premises are situated.
Lessee agrees to pay, upon demand, as additional rent, any increase in
insurance premiums resulting from the business carried on in the leased
premises, even though Lessor has consented to same. If Lessee installs any
electrical equipment that overloads the electrical facilities, Lessee agrees
to, at its own expense, to make whatever changes are necessary to comply
with governmental authorities having jurisdiction. However, no such changes
shall be made by Lessee without Lessor's written approval.
13. Lessee's Insurance
a. Lessee agrees that it will indemnify and save Lessor
harmless from any and all liabilities, damages, causes of action, suits,
claims, judgments, costs and expenses of any kind (including reasonable
attorneys fees): (i) relating to or arising from or in connection with the
possession, use, occupation, management, repair, maintenance or control of
the demised premises, or any portion thereof; or (ii) resulting from any
default, violation or injury to person or property or loss of life sustained
in or about the demised premises; or (iii) arising from or in connection
with any act or omission of Lessee or Lessee's agents, employees or invitee.
To assure such indemnity, Lessee shall carry and keep in full force and
effect at all times during the term of this Lease for the protection of
Lessor and Lessee herein, public liability insurance with limits of at least
One Million Dollars ($1,000,000) for each accident and Five Hundred Thousand
Dollars ($500,000) for each separate injury, and property damage insurance
in the amount of Fifty Thousand Dollars ($50,000).
b. Said public liability and property damage insurance
policies and any other insurance policies carried by Lessee with respect to
the demised premises shall: (i) be issued in form acceptable to Lessor by
good and solvent insurance companies qualified to do business in the State
of Virginia and reasonably satisfactory to Lessor; (ii) be issued in the
names of Lessor, Lessee, and any other parties in interest from time to time
designated in writing by notice from Lessor to Lessee; (iii) be written as
primary policy coverage and not contributing with or in excess of any
coverage
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which Lessor may carry; and (iv) contain an express waiver of any right of
subrogation by the insurance company against Lessor, if same is available
from the insurance company. Neither the issuance of any insurance policy
required hereunder, nor the minimum limits specified herein with respect to
Lessee's insurance coverage, shall be deemed to limit or restrict in any way
Lessee's liability arising under or out of this Lease. On or before the rent
commencement date and before any such insurance policy shall expire, Lessee
shall deliver to Lessor certificates of insurance, or certified copies of,
or duplicate originals of each such public liability and property damage
policy or renewal thereof, as the case may be, together with evidence of
payment of all applicable premiums. Any insurance required to be carried
hereunder may be carried under a blanket policy covering the demised
premises and other locations of Lessee, and if Lessee includes the demised
premises in such blanket coverage, Lessee shall deliver to Lessor, as
aforesaid, a duplicate original or certified copy of such insurance policy
or a certificate evidencing such insurance. The public liability and
property damage insurance policies required to be carried hereunder by or on
behalf of Lessee shall provide that, unless Lessor shall first have been
given ten (10) days prior written notice thereof; (i) such insurance
policies shall not be canceled and shall continue in full force and effect;
(ii) the insurance carrier shall not, for any reason whatsoever, fail to
renew such insurance policies; and (iii) no material change may be made in
such insurance policies. In the event that Lessee shall fail promptly to
furnish any insurance coverage herein required to be procured by Lessee, or
shall fail to pay any premium under such policies when due, Lessor, upon
three (3) days written notice, at its sole option, shall have the right to
pay such delinquent premium on behalf of Lessee, or to obtain such required
policy and pay the premium therefor for a period not exceeding one (1) year
in each instance, and any premium so paid by Lessor shall be immediately
payable by Lessee to Lessor as additional rent hereunder with twenty percent
interest (20%) per annum thereon from the date of payment by Lessor.
14. Lessee's Waiver of Claims
Lessee covenants that no claim shall be made against
Lessor by Lessee or any agent or servant of Lessee or by others claiming the
right to be in the premises or in said building through or under Lessee, for
any injury, loss or damage to person or property occurring upon the premises
from any cause other than the gross negligence of Lessor, and Lessee shall
hold Lessor harmless therefrom.
15. Occupancy Standards
Lessee agrees to comply with and to require its agents,
employees, invitee, and visitors to comply with all occupancy standards of
the building and the Rules and Regulations set forth in Exhibit B and made a
part of this lease. The Lessor shall have the right from time to time to
change, amend, or add to such occupancy standards in any reasonable manner
deemed advisable by the Lessor for the mutual safety and convenience of all
occupants and the cleanliness of the premises and preservation of good order
therein. Notice of all such changes and amendments will be sent by Lessor to
Lessee in writing, and Lessee further agrees thereafter to comply therewith.
16. Access to Premises
a. The Lessor reserves for itself and its representatives
the right to enter upon the leased premises at all reasonable hours for the
purpose of inspecting the same, making repairs, additions, alterations to
the building and exhibiting the leased premises to prospective tenants,
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purchasers, or others. The exercise by Lessor of any of its rights under
this Paragraph shall not be deemed an eviction or disturbance of Lessee's
use and possession of the leased premises.
x. Xxxxxx may within ninety (90) days next preceding the
expiration of the term, enter the premises, to place and maintain notices
for letting, free from hindrance or control of Lessee, and to show the
premises to prospective tenants thereof at times which will not unreasonably
interfere with Lessee's business. If Lessee shall vacate the premises during
the last month of the term of this lease, Lessor shall have the unrestricted
right to enter the same after Lessee's moving to commence preparations for
the succeeding tenant or for any other purpose whatever, without affecting
Lessee's obligation to pay rent for the full term.
17. Mechanic's Liens
Lessee agrees not to permit any mechanic's, materialmen's,
or other liens to be fixed or placed against the leased premises and agrees
to immediately discharge (either by payment or by filing of the necessary
bond, or otherwise) any mechanic's, materialmen's, or other lien which is
fixed or placed against the building arising from any obligation allegedly
owed by Lessee. In the event Lessee does not discharge such lien or liens
within ten (10) days after Lessee is requested to do in writing by Lessor
then Lessor may discharge such lien or liens. Any such sums of money paid by
Lessor and expenses, including reasonable attorneys fees, incurred by
Lessor, together with interest thereon at the rate of twenty percent (20%)
per annum from the date of any such payment, shall be deemed to be
additional rent hereunder and shall be due from Lessee to Lessor on the
first day of the month following the payment of such respective sums and
expenses.
18. Eminent Domain
In the event the leased premises are wholly or partially
taken by any governmental, quasi-governmental authority or any other person
possessing the power of eminent domain pursuant to such power of eminent
domain, this Lease shall terminate when title to the leased premises is
taken by the condemning authority. Lessee shall have no claim or rights to
any portion of the amount that may be awarded as damages or paid as a result
of any such condemnation. Upon termination of the Lease because of any such
condemnation, Lessee shall have no claim against Lessor for the value of any
unexpired term of this Lease.
19. Damages by Fire or Casualty
This Lease is made on condition that, if the premises or
any part thereof, or the elevators, hallways, stairways, or other approaches
thereto, be damaged or destroyed by fire or other casualty from any cause,
so as to render said premises and/or approaches unfit for use and to the
nature and extent of the injury to said premises and approaches have been
put in as good condition for use and occupancy as at the time immediately
prior to such damage or destruction, Lessor will proceed at its expense and,
as expeditiously as may be practicable, to repair the damage, unless,
because of the substantial extent of the damage or destruction, Lessor
should decide not to repair or restore the building, in which event, and at
Lessor's sole option, Lessor may terminate this Lease forthwith, by giving
Lessee a written notice of its intention to terminate within ninety (90)
days after the date of the causality without incurring any liability of
damages for loss of business to the Lessee. Notwithstanding the foregoing,
any such fire or causality caused by Lessee's negligence shall be Lessee's
responsibility.
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20. Subordination
Lessee hereby covenants and agrees to subject and
subordinate this Lease, upon request of Lessor, to any paramount lease, deed
of trust or other financing method that may now or hereafter affect the
leased premises, and to all renewals, modifications, consolidations,
replacements, and extensions thereof. Lessor shall, however, use its best
efforts to have included in any paramount lease, deed of trust or other
financing arrangements to which this Lease is subordinated, a provision that
such subordination shall not adversely affect Lessee's right of use and
occupancy hereunder so long as Lessee is not in default under any of the
provisions hereof. To effect this subordination and in connection with such
financing, Lessee agrees to execute promptly any certificate, assignment of
rents or other document that Lessor may request and hereby appoints Lessor
its attorney-in-fact to do such things and execute such documents on behalf
of Lessee upon Lessee's failure to act promptly when so requested by the
Lessor.
21. Assignment of Lease
Lessee will not assign, transfer, mortgage or otherwise
encumber this Lease or sublet or rent (or permit occupancy or use of) the
premises, or any part thereof, without obtaining the prior written consent
of Lessor which shall not be unreasonably withheld, nor shall any assignment
or transfer of this Lease or the right of occupancy hereunder be effectuated
by operation of law or otherwise without the prior written consent of
Lessor. The consent by Lessor to any assignment or subletting shall not be
construed as a waiver or release of Lessee from the terms of any covenant or
obligation under this Lease, nor shall the collection or acceptance of rent
from any such assignee, subtenant or occupant constitute a waiver or release
of Lessee of any covenant or obligation contained in this Lease, nor shall
any such assignment or subletting be construed to relieve Lessee from
obtaining the consent in writing of Lessor to any further assignment or
subletting. In the event that Lessee defaults hereunder, Lessee hereby
assigns to Lessor the rent due from any subtenants, assignee or any other
occupant holding the premises or any portion thereof under the Lessee, and
hereby authorizes each such subtenant to pay said rent directly to Lessor.
In the event that Lessee desires to sublet all or a portion of the demised
premises, Lessee shall give to Lessor thirty (30) days written notice of
Lessee's intention so to do. Within thirty (30) days after receipt of said
notice, Lessor shall have the right to sublet that portion of the demised
premises from the Lessee at the same rent stipulated herein. If Lessee
desires to sublet all of the demised premises, Lessor shall also have the
right to terminate this Lease on a date to be agreed upon by Lessor and
Lessee. In the event Lessor has not exercised its right to sublet the
demised premises or terminate this Lease as heretofore provided, Lessee may
sublet the demised premises after first obtaining the written consent of the
Lessor. For purposes of this Paragraph, if Lessee is a partnership or
corporation, any change in the ownership thereof that exceeds, during the
term of this Lease, forty (40%) shall be deemed an assignment of this Lease.
22. Signs
The Lessee agrees not to install, place or cause to be
placed any exterior advertising signs or awnings upon the premises, not to
place advertising signs or posters on the interior of any windows. All
signs, if any, agreed to by the Lessor shall also conform to all applicable
codes and regulations.
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23. Rental Commissions
The Lessor recognizes Xxxxxx Xxxxxxx of NOVA Commercial
Realty, Inc. as the agent representing iVillage, Inc. and Xxxxx Xxxxx of
NOVA Commercial Realty, Inc. as the agent representing Grove Corporate
Plaza, Inc. and agrees to pay a commission as stipulated under a separate
agreement.
24. Events of Default and Remedies
a. Lessor may terminate this Lease upon ten (10) days
written notice to Lessee upon the happening of any one or more of the
following events: (i) the institution in a court of competent jurisdiction
of proceedings for the reorganization, liquidation or involuntary
dissolution of Lessee or any guarantor, or for its adjudication as a
bankrupt or insolvent or for the appointment of a receiver of the property
of Lessee or any guarantor, and if said proceedings are not then dismissed,
and any receiver, trustee or liquidator appointed therein discharged, thirty
(30) days after the institution of said proceedings; (ii) the insolvency of
the Lessee or any guarantor or the making by Lessee or any guarantor of an
assignment or disposition for the benefit of creditors; (iii) the levying of
a writ of execution or attachment on or against the property of Lessee or
any guarantor; (iv) the taking of any action for the voluntary dissolution
of Lessee or any guarantor or its consolidation with or merger into another
corporation; (v) the failure of Lessee or any guarantor to pay an
installment of rent or any other payment, or charge herein provided for when
due; and (vi) the violation by Lessee of or its failure to perform or threat
to break any covenant or agreement herein contained, if such continues after
ten (10) days written notice from Lessor, or, if it cannot be cured within
such ten (10) days, if the lessee does not within such period commence to
cure such violation, failure or threat and thereafter diligently complete
the same.
b. Upon such termination of this Lease, Lessor may
re-enter the leased premises with or without process of law, using such
force as may be necessary, and remove all persons and chattels therefrom and
Lessor shall not be liable for damage or otherwise by reason of re-entry or
termination of this Lease nor shall such re-entry or termination waive, bar
or any way prejudice any other remedies available to Lessor. Notwithstanding
such termination, the liability of Lessee for the rent provided for herein
shall not be extinguished for the balance of the term remaining after said
termination, and Lessor shall be entitled to recover immediately as
liquidated damages an amount equal to the rent for the said balance of the
term, less the fair rental value of the leased premises for the said balance
of the term, as determined by rental of, or responsible offers to rent the
leased premises.
c. In the event of any breach hereunder by Lessee, Lessor
may immediately or at any time thereafter, without notice, cure such breach
for the account and at the expense of Lessee. If Lessor at any time, by
reason of such breach, is compelled to pay or elects to pay any sum of
money, or is compelled to incur any expense, including reasonable attorney's
fees, in instituting or prosecuting any action or proceeding to enforce
Lessor's rights hereunder, the sum or sums paid by Lessor, with interest
thereon at the rate of twenty percent (20%) per annum from the date of
payment thereof, shall be deemed to be additional rent hereunder and shall
be due from Lessee to Lessor on the first day of the month following the
payment of such respective sums or expenses.
d. When this Lease is terminated in accordance with this
Paragraph, Lessee will yield up possession to Lessor on the date of
termination, and failing so to do, will pay as liquidated
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damages for each day possession is withheld, an amount equal to double the
amount of the daily base rent, computed on a thirty (30) day month basis.
e. In order to secure the performance of Lessee's
obligation under this Lease, Lessee hereby grants to Lessor, in addition to
any statutory lien available to Lessor, a lien on all furniture,
furnishings, equipment, fixtures, merchandise and other personal property
placed on the leased premises by Lessee. Lessee hereby specifically waives
any and all exemptions allowed by law; and such lien may be enforced on the
nonpayment of any installment of rent by the taking and selling of such
property, in the same manner as in the case of chattel mortgages on default
thereunder; said sale to be made upon ten (10) days notice served upon the
Lessee by posting upon the premises or by leaving same at the place of
residence of Lessee's principal(s); or such lien may be enforced in any
other lawful manner at the option of the Lessor.
f. All rights and remedies of Lessor herein enumerated
shall be cumulative and none shall exclude any other right or remedy allowed
by law and said rights and remedies may be exercised and enforced
concurrently and whenever and as often as occasion therefor arises. Any Base
Rent, additional rent or other payment or charge herein provided for may be
recovered by the Lessor from the Lessee by distress action or by any legal
process as may at the time be in operation and force in like cases relating
to proceedings between landlords and tenants.
25. Storage of Lessee's Property
If on termination of this Lease, by expiration or
otherwise, or on abandonment of the leased premises, Lessee shall fail to
remove any of Lessee's property from the leased premises, Lessee hereby
authorizes Lessor, at Lessor's option, to cause such property to be removed
and placed in storage or on such termination, to sell such property at
public or private sale, within ten (10) days notice, and to apply the
proceeds thereof, after payment of all expenses of removal, storage or sale,
to the indebtedness, if any, of the Lessee to Lessor, the surplus, if any,
to be paid to Lessee upon demand. Lessor shall in no event be responsible
for the value, accounting, preservation or safekeeping of such property.
Lessor's inventory of abandoned or stored property shall be final and
incontestable. Lessee shall pay to the Lessor upon demand, any and all
expenses incurred in such removal and all storage charges against such
property so long as the same shall be in the Lessor's possession or under
the Lessor's control.
26. Lessee Holding Over
If Lessee shall not immediately surrender the demised
premises on the day after the end of the term hereby created, the Lessee
shall, by virtue of this Agreement, become a Lessee by the month at twice
the rental agreed by said Lessee to be paid as aforesaid, commencing said
monthly tenancy with the first day next after the end of the term above
demised; and said Lessee as a monthly tenant, shall be subject to all of the
conditions and covenants of this Lease as though the same had originally
been a monthly tenancy. Each party hereto shall give to the other at least
thirty (30) days written notice to quit the demised premises, except in the
event of non-payment of rent in advance or of the other additional rents
provided in which event Lessee shall not be entitled to any notice to quit,
the usual thirty (30) days notice to quit being expressly waived, provided,
however, that in the event that Lessee shall hold over after the expiration
of the term aforesaid, then at any time prior to the acceptance of the rent
by Lessor from Lessee, as monthly Lessee hereunder, Lessor, at its election
or option, may re-enter and take possession of the demised premises
forthwith, without process, or by any legal action or process in force in
the State of Virginia.
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27. Rights Reserved by Lessor
Lessor shall have the following rights, exercisable
without notice and without liability to Lessee for damage or injury to
property, person or business and without effecting in eviction, constructive
or actual, or disturbance of Lessee's use or possession or giving rise to
any claim for set-off or abatement of rent:
a. To change the building's name and address;
b. To install, affix and maintain any and all signs on the
exterior of the building;
c. To designate and/or approve, disapprove, prior to
installation, all types of window shades, blinds, drapes, awnings, window
ventilators and other similar equipment, and control the design and location
of all internal lighting that may be visible from the exterior of the
building;
d. To retain at all times, and to use in appropriate
instances, keys to all doors within and into the leased premises; and
e. To make repairs, alterations, additions or
improvements, whether structural or otherwise, in and about the building, or
any part thereof, for the Lessee, if need be, and for such purposes to enter
upon the leased premises, and, during the continuance of any of said work,
to temporarily close doors, entry-ways, public space and corridors in the
building and to interrupt or temporarily suspend building services and
facilities, all without abatement of rent or affecting any of Lessee's
obligations hereunder, so long as the leased premises are reasonably
accessible.
Lessor, at Lessor's expense, has the right to relocate
Lessee to equal or greater space in the building.
28. Notice and Demands
Any notice or demand required or permitted under this
Lease, shall be in writing and shall be sent by registered or certified mail
to Lessee at the address of the leased premises and to Lessor at the address
then fixed for the payment of rent, and either party may, by like notice at
any time and from time to time, designate a different address to which
notice shall be sent. Notice given in accordance with these provisions shall
be deemed given when mailed.
29. General
a. Nothing contained in this lease shall be deemed or
construed by the parties hereto or any third party to create the
relationship of principal and agent or of partnership or of joint venture or
of any association between Lessor and Lessee other than the relationship of
landlord and tenant. The invalidity or unenforceability of any provision
hereof shall not affect or impair any other provisions. The necessary
grammatical changes required to make the provisions of this Lease apply in
the plural sense where there is more than one tenant and to either
corporations, associations, partnerships or individuals, males or females,
shall in all instances be assumed as though in each case fully expressed.
The laws of the State of Virginia shall govern the validity, performance and
enforcement of this Lease.
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b. This Lease contains the entire agreement between the
parties with respect to the subject matter hereof and each party
acknowledges that it did not, in entering into this Lease, rely upon any
representation or promises made by or on behalf of the other except as
expressly set forth herein.
c. In the event that the Lessee is a corporation or a
partnership, or any other business association aside from an individual, the
Lessor may, at its option, require that the principals of the said
corporation, partnership or business association, and their spouses,
personally guarantee the performance of the said corporation, partnership or
other business association under this Lease Agreement. In the event that the
Lessor exercised its option under this Paragraph, the principals of the
corporation, partnership or other business association shall within five (5)
days cause their signatures and the signatures of their spouses to be
affixed to an appropriate guarantee agreement, and said agreement shall be
delivered within five (5) days to the lessor at the address as designated by
Lessor.
30. Successors and Assigns
The terms, covenants and conditions hereof shall be
binding upon and inure to the successors in interest and assigns of the
parties hereto.
31. No Option
The submission of this Lease for examination does not
constitute a reservation of or option for the demised premises except as
expressly set forth herein, and this Lease becomes effective only upon
execution and delivery thereof by Lessor.
32. Quiet Enjoyment
Lessor covenants and agrees with Lessee that upon Lessee
paying the rent and additional rent and observing and performing all the
terms, covenants and conditions, Lessee may peaceably and quietly enjoy the
premises hereby demised, subject, nevertheless, to the terms and conditions
of this Lease, and to the mortgages and deeds of trust hereinbefore
mentioned.
33. Waiver of Trial by Jury
Lessor and Lessee each agree to and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of
the parties hereto against the other on any matters whatsoever arising out
of or in any way connected with this Lease, the relationship of Lessor and
Lessee, Lessee's use or occupancy of said premises and/or any claim of
injury or damage, and any statutory remedy.
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34. Governing Law
This Lease shall be construed and governed by the laws of
the State of Virginia. Should any provision of this Lease and/or its
conditions be illegal or not enforceable under the laws of the said state,
such provisions shall be considered severable, and the remaining portion of
this Lease and its conditions shall remain in full force and effect and be
binding upon the parties as though such provisions had never been included.
WITNESS / ATTEST: Lessor
/s/ Xxxx Xxxxxxxx 9/5/97
------------------------------------- ------------------------------------
Signature Date Xxxx X. Xxxxxxxx Date
Grove Corporate Plaza, Inc.
Xxxx X. Xxxxxxxx
------------------------------------- ------------------------------------
Please Print Name Print Name Here
WITNESS / ATTEST: Lessee
/s/ Xxxxxx Xxxxx 10/28/97
------------------------------------- ------------------------------------
Signature Date Signature Date
Xxxxxx Xxxxx
------------------------------------- ------------------------------------
Please Print Name Please Print Name
V.P. Finance
------------------------------------
Title
14
Preliminary Exhibit A
[Floor Plan]
EXHIBIT B
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or other parts of the Building not occupied by
Lessee shall not be obstructed or encumbered by any Lessee or used
for any purpose other than ingress and egress to and from the
demised premises. Lessor shall have the right to control and
operate the public portions of the Building, and the facilities
furnished for the common use of the Lessees, in such manner as
Lessor deems best for the benefit of the demised premises of
persons in such numbers or under such conditions as to not
interfere with the use and enjoyment by other Lessees of the
entrances, corridors, elevators and other public parts or
facilities of the Building.
2. No awnings or other projections shall be attached to the outside
walls of the Buildings without the prior written consent of the
Lessor. No drapes, blinds, shades or screens shall be attached to
or hung in, or used in connection with any window or door of the
demised premises, without the prior written consent of the Lessor.
Such awnings, projections, curtains, blinds, shades, screens or
other fixtures must be of a quality type, design and color, and
attached in a manner approved by the Lessor.
3. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any Lessee on any part
of the outside or inside of the demised premises or building
without the prior written consent of the Lessor. In the event of
the violation of the foregoing by any tenant, Lessor may remove
same without any liability and may charge the expense incurred by
such removal to the tenant or tenants violating this rule. Interior
signs on doors and directly tablet shall be inscribed, painted or
affixed for each tenant by the Lessor at the expense of such
Lessee, and shall be of a size, color and style acceptable to the
Lessor.
4. No show cases or other articles shall be out in front of or affixed
to any part of the exterior of the building, nor placed in the
halls, corridors, or vestibules without the prior written consent
of the Lessor.
5. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were
constructed; and no sweepings, rubbish, rages or other substances
shall be thrown therein. All damages resulting from any misuses of
the fixtures shall be borne by Lessee who, or whose servants,
employees, agents, visitors or licensees, shall have caused the
same.
6. There shall be no marking, painting, drilling into or in any way
defacing any part of the demised premises or the Building. No
boring, cutting or stringing of wires shall be permitted. Lessee
shall not construct, maintain, use or operate within the demised
premises or elsewhere within or on the outside of the building, any
electrical device, wiring or apparatus in connection with a loud
speaker or other sound system.
7. No bicycles, vehicles or animals, birds or pets of any kind shall
be brought into or kept in or about the premises, and no cooking
shall be done or permitted by any tenant on said premises. No
tenant shall cause or permit any unusual or objectionable odors to
be produced upon or permeate from the demised premises.
8. Space in the building shall not be used for manufacturing, for the
storage of merchandise, or for the sale of merchandise, goods or
property of any kind at auction, except for minor assembly, repair
and selling activities.
Exhibit B
1 of 3
9. No tenant shall make, or permit to be made, any unseemingly or
disturbing noises or disturb or interfere with occupants of this or
neighboring buildings or premises of those having business with
them by the use of any musical instrument, radio, talking machine,
unmusical noise, whistling, or in any other way. No tenant shall
throw anything out of the doors or windows or down the corridors or
stairs.
10. No inflammable, combustible or explosive fluid, chemical or
substance shall be brought into or kept upon the demised premises.
11. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by any tenant nor shall any changes be made
in existing locks or the mechanism thereof. The doors leading to
the corridors or main halls shall be kept closed during business
hours except as they may be used for ingress or egress. Each tenant
shall, upon the termination of his tenancy, restore to Lessor all
keys of building, stores, offices, storage, and toilet rooms either
furnished to, or otherwise procured by, such tenant, and in the
event of the loss of any keys so furnished, such tenant shall pay
to the Lessor the cost thereof.
12. All removals or the carrying in or out of any safes, freight,
furniture or bulky mater of any description must take place during
the hours which the Lessor or its Agent may determine from time to
time. The Lessor reserves the right to inspect all freight to be
brought into the building and to exclude from the building all
freight which violates any of these Rules and Regulations or the
lease of which these Rules and Regulations are a part.
13. Any person employed by any tenant to do janitor work within the
demised premises must obtain Lessor's consent and such person
shall, while in the Building and outside of said demised premises,
comply with all instructions issued by the Lessor or the Lessor's
Building Manager. No tenant shall engage or pay any employees on
the demised premises, except those actually working for such tenant
on said premises.
14. INTENTIONALLY DELETED
15. Lessor shall have the right to prohibit any advertising by any
tenant which, in Lessor's opinion, tends to impair the reputation
of the building or its desirability as a building for offices, and
upon written notice from Lessor, tenant shall refrain from or
discontinue such advertising.
16. The Lessor reserves the right to exclude from the building at all
times any person who is not known or does not properly identify
himself to the Building Management or security personnel. Each
tenant shall be responsible for all persons for whom he authorizes
entry into or exit our of the building, and shall be liable to the
Lessor for all acts of such person.
17. The premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
18. Each tenant, before closing and leaving the demised premises at any
time, shall see that all windows are closed and all lights turned
off.
19. The requirements of tenants will be attended to only upon
application to the Lessor's Building Manager. Employees shall not
perform any work or do anything outside of the regular duties,
unless under special instruction from the Lessor's building
Manager.
20. Canvassing, soliciting and peddling in the building are prohibited
and each tenant shall cooperate to prevent the same.
21. No water cooler, plumbing or electrical fixtures shall be installed by
the Lessee.
Exhibit B
2 of 3
22. There shall not be used in any space, or in the public halls, of
the Building, either by any Lessee or by jobbers or others, in the
delivery or receipt of merchandise, any hand trucks, except those
equipped with rubber tires and side guards.
23. Mats, trash, or other objects shall not be placed in the public
corridors.
24. The Lessor does not maintain or clean suite finishes which are
non-standard: such as kitchens, bathrooms, wallpaper, special
lights, etc. However, should the need for repairs arise, the Lessor
will arrange for the work to be done at the Lessee's expense.
25. Drapes installed by the Lessee for their use which are visible from
the exterior of the building must be approved by Lessor in writing
and be cleaned by the Lessee.
26. The Lessor will furnish and install light bulbs for the building
standard florescent or incandescent fixtures only; for special
fixtures the Lessee will stock his own bulbs, which will be
installed by the Lessor when so required by the Lessee.
27. Violation of these rules and regulations, or any amendments
thereto, shall be sufficient cause for termination of this Lease at
the option of the Lessor.
28. The Lessor may, upon request by any tenant waive the compliance of
such tenant of any of the foregoing rules and regulations, provided
that (i) no waiver shall be effective unless signed by Lessor or
Lessor's authorized agent, (ii) any such waiver shall not relieve
such tenant from the obligation to comply with such rule or
regulation in the future unless expressly consented to by Lessor,
and (iii) no waiver granted to any tenant shall relieve any other
tenant from the obligation of complying with the foregoing rules
and regulations unless such other Lessee has received a similar
waiver in writing from Lessor.
Exhibit B
3 of 3
ADDENDUM
1. In the event the suite is ready for occupancy but installation of
the plumbing and kitchenette is not completed, Lessee may occupy
the space while the installation and appropriate code inspection(s)
are completed. Such completing shall take place within thirty (30)
days of occupancy. Lessor will not be liable in any way should a
timely completion not be met which was caused by forces or events
beyond the control of the Lessor.
2. Improvements: Attached is Preliminary Exhibit A, subject to
finalization by Lessor's architect.
(1) Kitchenette to have a sink with counter top with
overhead and baseboard cabinets. Each cabinet will
have two (2) doors.
(2) Lessor will provide additional outlets to compensate
for those removed during space demolition.
(3) Lessor will paint and carpet in Lessee's choice of
color, using building standard grade.
(4) Lessor shall repair the broken tile located in the
entrance into the suite.
3. Entry Cards: Lessor will provide fifteen (15) building entry cards to
Lessee upon occupancy.
4. Option to Renew: Lessee shall have a one three (3) year option to
renew its lease with a one hundred twenty (120) day written notice
to the Lessor before lease expiration. The rate shall be at then
market lease rates.
5. Parking: Lessee and Lessee's employees shall park in the spaces
behind or to the sides of the building, but not in front of the
building in the visitor's parking spaces.
6. Signage: Lessor shall provide Lessee with suite and directory signage.
Exhibit B
1 of 3
