Exhibit 10.10
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT ("First Amendment") is made and
entered into this 23 day of July 1997 by and between APA PROPERTIES NO. 6
L.P. ("Lessor"), having an address c/o its Agents, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of
Virginia, Inc., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Agent"), and
STMS, INC. ("Lessee").
WHEREAS, Lessor and Lessee have entered into a Lease Agreement dated
February 7, 1997 (the "Lease Agreement:") for nineteen thousand one hundred
ninety-five (19,195) square feet of space ("Demised Premises") in the
building located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Building"); and
WHEREAS, Lessor and Lessee have agreed to modify the Lease Agreement to
confirm the Lease Commencement Date and Lease Expiration Date for this Lease
Agreement;
NOW THEREFORE, Lessor and Lessee, intending legally to be bound, hereby
agree as follows:
1. Lease Commencement Date and Lease Expiration Date for the Demised
Premises:
Notwithstanding anything to the contrary in the Lease Agreement, the
terms of the Lease Agreement shall commence on July 31, 1997 (the "Lease
Commencement Date") and expire on July 31, 2003 (the "Lease Expiration
Date"). Accordingly, (a) the first lease year of the term shall commence
on July 21, 1997 and expire on July 31, 1998 (and each lease year
thereafter shall commence on August 1 of each subsequent calendar year)
and (b) base rent shall be payable under the Lease Agreement (in
accordance with section 3(a) of the Lease Agreement) on the first day of
the second lease year (August 1, 1998) and on the first day of each
lease year thereafter.
2. Ratification of Lease:
Except as expressly modified by this Amendment, all terms and conditions
of the Lease Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, Lessor has caused this Amendment to be executed by
its Agent, and Tenant has caused this Amendment to be executed by its fully
authorized officer as of the date first above written.
WITNESS: LANDLORD:
APA PROPERTIES NO. 6 L.P.
by its Agent,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Virginia, Inc.
--------------------------------- ---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Name:
----------------------------
WITNESS: TENANT:
STMS, INC.
-------------------------------- By:
-------------------------------
Name: Name:
--------------------------- -----------------------------
Title:
----------------------------
-1-
LEASE AGREEMENT
THIS LEASE AGREEMENT made and entered into this 7th day of February
1997, by and between APA PROPERTIES NO. 6, L.P., a Delaware limited
partnership, having an address c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Virginia, Inc., ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter referred
to as "Lessor", and STMS, Inc., a Virginia corporation having a pre-occupancy
address of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, and a
post-occupancy address of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
hereinafter referred to as "Lessee".
WITNESSETH:
1. PREMISES: Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, space on the First (1st) floor, known as Suite 100, as such
space is shown on Exhibit A, attached hereto and made a part hereof, in a
building (the "Building") having a mailing address of, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and which space contains an "agreed upon" Nineteen
Thousand, One Hundred Ninety-Five (19,195) square feet of gross rentable
space and is hereinafter referred to as the "demised premises". The Building
is located in an office park (the "Office Park") commonly known as ▇▇▇▇▇
▇▇▇▇▇▇ Square. Lessee's interest in this Lease is subject to all covenants
and restrictions of record and all applicable zoning, municipal, county,
state and federal laws, statutes, codes, ordinances, rules and regulations
affecting the Office Park. The term "Land", as used in this Lease, shall
mean the tax lot on which the Building is located and all appurtenances
thereto. Lessor further grants a Lessee the non-exclusive right, with the
other Building tenant(s), to use the volleyball court, basketball court, and
park areas adjacent to and behind the Building. At Lessee's own risk.
2. TERM: The lease term of six (6) years shall commence on the date
Lessor, tenders vacant possession of the demised premises to Lessee. Lessee
hereby agrees to accept delivery of the demised premises in their then "as is"
condition at such time as Lessor tenders the same to Lessee. If this Lease
commences on other than the first day of calendar month or expires on other
than the last day of calendar month, the installment of base rent for the
applicable month will be prorated and paid on a per diem basis based on the
actual number of days in the applicable calendar month. The lease term shall
expire on April 30, 2003 (4/30/03), the fifth (5th) anniversary of the lease
commencement date plus, if the commencement date is other than the first day
of a calendar month, the number of days between the commencement date and the
last day of the month in which the commencement date occurred. The lease term
shall commence upon the substantial completion of Lessor's Work (as that
term is defined below), but in no event earlier than May 1, 1997.
3. RENT:
a. As base for the demised premises, Lessee shall pay to Lessor Two
Hundred Fifty-Nine Thousand One Hundred Thirty-Two and 50/100
Dollars ($259,132.50) per annum for the first lease year, and on
the first day of each lease year subsequent to the expiration of
the first lease year throughout the term of this Lease, the base
rent shall, as of the first day of each such lease year, be
increased by the amount equal to the product obtained by
multiplying (i) the base rent payable for the preceding lease
year times (ii) three (3%) percent. The base rent schedule for
this Lease is attached hereto as Exhibit E. If the commencement
date occurs on a day other than the first day of the month, base
rent for the first month of the term shall be apportioned. The
first month's base rent shall, unless provided otherwise be abated.
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b. Base rent stipulated for each of the applicable lease years
shall be paid in equal one-twelfth (1/12th) installments in
advance on the first day of each calendar month for the
applicable lease year. Base rent and all other items of rent or
payments due Lessor under this Lease shall be paid to Lessor at
the address of Lessor set forth above or at such other address
and/or to such other party as Lessor may, from time to time,
designate by written notice to Lessee in the manner hereafter
set forth.
▇. ▇▇▇▇▇▇ hereby acknowledges receipt of Lessee's check, subject
to collection, in the amount of Twenty-One Thousand, Five
Hundred Ninety-Four and 38/100 Dollars ($21,594.38),
representing payment of the initial security deposit required
by paragraph 31 of this Lease.
d. Lessee shall, within fifteen (15) days of Lessee's execution of
this Lease, pay Lessor the amount of Twenty-One Thousand, Five
Hundred Ninety-Four and 38/100 ($21,594.38), representing
advance payment of one (1) month of base rent for the second
month of Lease.
e. Lessee covenants and agrees to pay all licenses, taxes, sales
taxes and assessments of every kind and character imposed by
any governmental body, on, against or in connection with the
operation of the business conducted on the demised premises, or
against Lessee's property in or on the demised premises or on
any installment of base rent or item of additional rent or
other charge payable by Lessee under this Lease.
4. REPAIR AND MAINTENANCE: Lessor shall (other than for any repairs or
replacements required as a result of the acts or omissions or negligence of
Lessee, its agents, officers and its and their employees or invitees)
maintain in good condition the roof and structural portions of the Building,
pipes, wires and other components of Lessor's equipment including
electricity, heat, light, and air conditioning equipment, windows and doors
that are within the demised premises or run through the demised premises, all
landscaping, curbing, sidewalks, roads, parking areas, driveways and all
interior and exterior common areas of the Building and systems used in common
by the tenants of the Building and generally keep the same clean. Lessee will
maintain in good order, condition and repair (including replacements) the
entire demised premises, including all doors and door frames, windows,
fixtures, machinery and equipment therein. Garbage and refuse shall be stored
at such locations and in such containers as shall be approved by Lessor, and
if required by Lessor or any municipal or governmental directive, Lessee
shall sort and separate its trash and refuse as it shall be directed by
Lessor or the applicable municipal or governmental authority, as the case may
be. Lessee agrees that extraordinary waste, such as crates, cartons, boxes,
etc. (the discarding of used furniture or equipment being deemed
extraordinary waste) shall be removed from the Building and disposed of by
Lessor, at Lessee's cost and expense, and that Lessee, upon Lessor's demand,
will promptly reimburse Lessor for such removal and disposal. Lessee shall be
responsible for repairs and restoration to the demised premises resulting
from, occasioned by, or arising from, any break-ins, burglaries or attempted
break-ins or burglaries in, on or to the demised premises.
5. COMPLIANCE WITH REQUIREMENTS OF LAW: Except as stated below, Lessee,
at its sole cost and expense, shall promptly comply with all laws, statutes,
ordinances, rules, orders, regulations and requirements of the Federal,
State, County and local government and of any and all their departments and
bureaus with jurisdiction over the demised premises, and with any directives
of any public officer or officers which shall impose any violation, order or
duty upon Lessor or Lessee with respect to the demised premises and/or relate
to the correction, prevention and/or
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abatement of nuisances or other grievances in, upon or connected with the
demised premises during the term hereof unless said nuisances or grievances
arise from the portion of the Building or Office park not within Lessee's
control, or arise from the acts or omissions of Lessor or third persons, in
which event Lessee shall not be responsible for correction, prevention, or
abatement of same. Lessee shall, at Lessee's own cost and expense, also
promptly comply with and obey all rules, orders and regulations of all
Lessor's insurance carriers and any fire underwriting or rating authority.
Any governmental or municipal permits, approvals or consents required in
order for Lessee to be able to use the demised premises for the purposes for
which Lessee intends, and is permitted hereunder, to use the demised
premises, if necessary, shall be obtained by Lessee, at Lessee's sole cost
and expense, and any failure of Lessee to obtain such permits, approvals or
consents shall not relieve Lessee of its obligations hereunder.
Lessor shall be responsible for any required alterations or
improvements to the Building or Common Areas to the extent required by the
County for the certificate of occupancy. Lessee shall be responsible for any
required alterations or improvements to the demised premises to the extent
required by any governmental body under American with Disabilities Act of
1990 ("ADA") arising after Lessee shall have taken possession of the demised
premises. Lessor shall be responsible for the correction, in any manner
deemed appropriate by Lessor, of any violations of any environmental laws,
ordinances and regulations as applicable to the Building and Common Areas,
provided that such responsible governmental body has given Lessor notice of
such violation and an opportunity to cure such violation in accordance with
the applicable environmental laws, ordinances and regulations therefor. A
phase I environmental report dated December 12, 1995, performed by SCS
Engineering is available for Lessee's review.
6. BUILDING SERVICES:
A. Provided Lessee is not in default under this Lease, Lessor shall
provide the following services:
a. Lessor shall, through the heating, ventilating and
air-conditioning systems of the Building, furnish to the
demised premises during the Regular Business Hours, as such
term is hereinafter defined, air-conditioning, ventilation and
heat as Lessor shall deem appropriate for the season (not to
exceed temperatures prescribed by any energy conservation or
similar regulations or orders of any governmental authority
having jurisdiction thereof).
▇. ▇▇▇▇▇▇ will, through the existing water pipes presently
serving the Building, supply the Building with an adequate
quantity of water for lavatory and drinking purposes.
▇. ▇▇▇▇▇▇ shall furnish Lessee with electricity for Lessee's
ordinary office lighting and office machinery purposes based
on Lessee's consumption of electricity on the basis of no more
than three (3) ▇▇▇▇▇ per square foot (connected load) for two
hundred fifteen (215) hours per month. Lessor shall at its
option, have the right, from time to time, to survey Lessee's
electric energy usage to determine whether Lessee's electric
usage exceeds the standards set forth in the preceding
sentence, and if Lessee's usage exceeds those standards, the
base rent shall be appropriately increased to reflect Lessee's
excess electrical usage. Such increase to be determined by a
reputable electrical surveyor selected by Lessor, which
increases shall be retroactive to the increase in Lessee's
electric use (as determined by the surveyor). The findings of
the surveyor shall be conclusive and binding
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upon Lessor and Lessee. Lessee shall not install or use
any machinery, equipment or lighting in the demised
premises that would require more than three (3) ▇▇▇▇▇ of
electricity per square foot (connected load) in the
aggregate or that would otherwise adversely affect the
Building's electrical or HVAC systems.
▇. ▇▇▇▇▇▇ will furnish the demised premises with the cleaning
services listed on Exhibit ▇. ▇▇▇▇▇▇ shall not be liable
to provide extra cleaning services occasioned by Lessee's
use of the demised premises outside of Regular Business
Hours nor shall Lessor be required to provide cleaning
services on weekends or legal holidays. Lessor shall be
responsible to replace light bulbs, as needed in the
demised premises.
B. The performance by Lessor of its obligations under this paragraph
6 is subject to Lessee's compliance with the conditions of
occupancy including, without limitation, number of people and
arrangement of partitions and interior walls, and connected
electrical load established by Lessor. Lessor reserves the
right to stop services to the demised premises when necessary,
in the judgment of Lessor, for reasons of accident or emergency
or for repairs, alterations or improvements.
▇. ▇▇▇▇▇▇ will not be responsible for the failure of the heating,
ventilating and air-conditioning systems to meet the
requirements hereinbefore specified, if such failure results
from the occupancy of the demised premises by more than an
average of one person for each one hundred fifty (150) square
feet of space, or if Lessee installs and operates machines and
appliances the total connected electrical load of which
exceeds three (3) ▇▇▇▇▇ per square foot of space, or if Lessee
arranges or rearranges partitioning so as to interfere with
the normal operation of the heating, ventilating and
air-conditioning systems; it being understood and agreed that
any changes required to rectify the situation, if the
situation is rectifiable, shall be done by Lessor, at Lessee's
cost and expense, and all increases in costs necessary to
operate said systems, if any, occasioned by, or resulting
from, Lessee's acts or omissions shall be chargeable to, and
paid by, Lessee. Lessee agrees to keep, and cause to be kept
closed, all the windows and the doors (except when ingress or
egress is required) into the demised premises at all times,
and Lessee agrees to cooperate fully with Lessor, and to abide
by all the regulations and requirements which Lessor may
reasonably prescribe for the proper functioning and protection
of said heating, ventilating and air-conditioning systems.
D. For the purposes of this Lease, the term (i) "Regular Business
Hours" shall mean the hours between 8:00 A.M. and 6:00 P.M. on
business days and (ii) "business days" shall exclude Saturdays,
Sundays and all days observed by the State or Federal
Government as holidays and such other days designated as legal
holidays by the applicable building service union employees'
service contract and/or by the applicable operating engineers'
contract. However, "Regular Business Hours" include ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ Day, Columbus Day, Presidents' Day and Veteran's
Day.
E. In the event any one of the heat, ventilation, air conditioning
or electricity service are interrupted, Landlord will make
every effort to restore failing equipment as soon as possible,
subject to force majeure.
7. ALTERATIONS: Lessee shall make no additions, installations,
alterations or changes in or to the demised premises without obtaining the
prior written, permission of Lessor. In any event, all installations,
alterations or work done by Lessee shall at all times comply with:
a. Laws, rules, orders and regulations of all governmental or
municipal bodies, authorities, departments or agencies
having
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jurisdiction thereof and such rules and regulations as Lessor
shall promulgate.
b. Plans and specifications prepared by and at the expense of
Lessee theretofore submitted to Lessor for its prior written
approval; no installations, alterations or any other work shall
be undertaken, started or begun by Lessee, its agents, servants
or employees, until Lessor has approved such plans and
specifications; and no amendments or additions to such plans
and specifications shall be made without the prior written
consent of Lessor not to be unreasonably delayed or withheld.
c. Lessee agrees to pay Lessor's costs and expenses of reviewing
any plans and specifications submitted for Lessor's review plus
an inspection fee of One Hundred and no/100 ($100.00) Dollars
per inspection.
8. ACCESS: Lessee shall permit Lessor and others authorized by Lessor
to enter upon the demised premises at all reasonable times with reasonable
notice (except in the event of emergencies) to examine the condition thereof
and conditions of Lessee's occupancy, to make such repairs, additions or
alterations therein as Lessor may deem necessary, for such other purposes as
may be related to Lessor's ownership or to exhibit the same to prospective
tenants, purchasers and/or mortgagees. Lessee shall permit Lessor to erect,
use and maintain unexposed pipes, wires, ducts and conduits in and through
the demised premises. Lessor or Lessor's agents shall have the right to enter
the demised premises to facilitate the making of repairs and improvements to
other portions of the Building, including other tenant's space, and to make
such repairs or alterations as Lessor deems desirable for the proper
operation of the Building. Lessor shall have the right to enter the demised
premises at any time, to examine them, or when necessary for the protection
of the demised premises and/or the Building. In connection, with the
foregoing, Lessor shall be allowed to take all materials into and upon the
demised premises that may be required for such repairs, improvements or
alterations, without the same constituting an eviction of Lessee in whole or
in part, and without any abatement or diminution of the Basic Rent or
additional rent. In making of such repairs or alterations, Lessor, to the
extent practicable and consistent with efficiency and economy, will exercise
reasonable diligence so as to minimize the disturbance of or interference
with the business of Lessee. Nothing herein contained however, shall be
deemed or construed to impose on Lessor any obligation responsibility or
liability whatsoever for the care, supervision or repair of the Building or
any part thereof, other than as herein provided. Lessor shall also have the
right, at any time, without the same constituting an actual or constructive
eviction, and without incurring any liability to Lessee therefor, to change
the arrangement and/or location of entrances or passageways, doors and
doorways and corridors, elevators, stairs, toilets or other public parts of
the Building, provided Lessor, at its expense, shall make such alterations,
additions or changes which may be required to adapt the demised premises to
such new conditions.
9. SIGNAGE: Lessee may not erect any sign in or on any portion of the
demised premises visible form any point outside of the interior of the
demised premises or the Building without Lessor's prior written approval,
which will not be unreasonably withheld, or delayed. Lessee, at Lessee's
expense, will be permitted to install a sign in the front of the Building
during the lease term, which sign shall include Lessee's corporate logo, with
said sign conforming to zoning and community association requirements
including any required permits and approvals from any applicable governing
authorities.
10. USE: Lessee shall use the demised premises solely for general office
use purposes including computer sales and service in connection with the
operation of its business and for no other use or purpose. Lessee shall not
use, or permit the use of, the
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demised premises contrary to any applicable statute, ordinance, law, rule or
regulation or in violation of the certificate of occupancy.
11. LIABILITY: Lessee shall save and hold Lessor harmless from all
liabilities, charges, expenses (including counsel fees) and costs on account
of all claims for damages and otherwise and/or suits for or by reason of any
injury or injuries to any person or property of any kind whatsoever, whether
the person or property of Lessee, its agents or employees or third persons,
from any cause or causes whatsoever while on or upon or in proximity to said
premises or due to any breach of a covenant herein by Lessee or to Lessee's
use and occupancy of the demised premises. Lessor shall not in any manner be
liable to Lessee for damages, losses or any other claim resulting from
Lessor's delay or failure in delivery of the demised premises. Lessor shall
indemnify, defend, protect, and hold Lessee harmless from and against any and
all damage, claim, liability, cost or expense (including without limitation,
reasonable attorneys' fees) of every kind and nature arising from any injury
or damage to any person, property or business incurred by or claimed against
Lessee arising directly from (i) Lessor's or its agents' ownership,
management or control of the Building (excluding the demised premises) or the
Common Area, (ii) Lessor's breach of any provision of this Lease, or (iii)
any negligence or willful misconduct of Lessor or its agents.
12. SURRENDER AND TERMINATION: All fixtures, equipment, improvements
and appurtenances attached to or built into the demised premises prior to or
during the term, whether by Lessor, at its expense or at the expense of
Lessee, or by Lessee, shall be and remain part of the demised premises and
shall not be removed by Lessee at the end of the term, unless Lessor, at
least fifteen (15) days prior to the expiration of the term, notifies Lessee
to remove the same. All of Lessee's removable trade fixtures and removable
business equipment may be removed by Lessee upon condition that such removal
does not materially damage the Building and that the cost of repairing any
damage to the demised premises or the Building arising from such removal
shall be paid by Lessee. Any property of Lessee or of any subtenant or
occupant that Lessee has the right to remove or may hereunder be required to
remove which shall remain in the Building after the expiration or termination
of the term of this Lease shall be deemed to have been abandoned by Lessee,
and either may be retained by Lessor as its property or may be disposed of in
such manner as Lessor may see fit: provided, however, that, notwithstanding
the foregoing, in the event of any failure of Lessee to promptly remove the
items requested by Lessor to be removed and/or restore any damage to the
Building or demised premises occasioned by such removal, Lessor, at Lessee's
cost and expense, may remove the items Lessee failed to remove and/or effect
all repairs to the Building and demised premises. If such property or any
part thereof shall be sold, Lessor may receive and retain the proceeds of
such sale and apply the same, at its option, against the expenses of the
sale, the cost of moving and storage, any arrears of base rent, additional
rent or other charge payable hereunder and any damages to which Lessor may be
entitled hereunder or pursuant to law. Upon the expiration or other
termination of the term of this Lease, Lessee shall quit and surrender to
Lessor the demised premises, broom clean, in good order and condition,
ordinary wear excepted, and Lessee shall (i) remove all of its property and
other items that it is permitted or required hereunder to remove and (ii)
repair all damage to the Building and/or the demised premises occasioned by
such removal. Lessee's obligation to observe or perform this covenant shall
survive the expiration or other termination of the term of this lease.
13. INDEMNITY: (a) Lessor, its agents and its and their employees
shall not be liable for any damage to property or Lessee or of any other
party claiming by, through or under Lessee, nor for the loss or damage to any
property of Lessee by theft or otherwise; (b) Lessee shall, at its own cost
and expense, be responsible for the repairs or restoration due to, or
resulting from, any theft or otherwise; (c) Lessor or its agent shall not be
liable for any injury or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, electrical disturbance,
water, rain or snow or leaks from any part of the Building or from the pipes,
appliances or plumbing
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works or from the roof, street or sub-surface or from any other place or by
dampness or by any other cause of whatsoever nature; (d) nor shall Lessor or
its agents be liable for any such damage caused by other tenants or persons
in the Building or caused by operations in construction of any private,
public or quasi-public work. Lessee shall reimburse and compensate Lessor as
additional rent for all expenditures made by, or damages or fines sustained
or incurred by, Lessor due to non-performance or non-compliance with or breach
or failure to observe any term, covenants or condition of this Lease upon
Lessee's part to be kept, observed, performed or complied with.
14. NO WAIVER. The failure of Lessor to seek redress for violation of, or
to insist upon the strict performance of, any covenant or condition of this
Lease shall not prevent a subsequent act, which would have originally
constituted a violation from having all the force and effect of an original
violation. The receipt by Lessor of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach. No
provision of this Lease shall be deemed to have been waived by Lessor unless
such waiver be in writing signed by Lessor. No surrender of this Lease shall
be effective without Lessor's written agreement to accept such surrender. No
payment by Lessee, or receipt by Lessor, of a lesser amount than the full rent,
additional rent or payment obligation hereunder shall be deemed to be other
than on account for the sum or sums stipulated hereunder, nor shall any
endorsement or statement on any check or any letter accompanying a payment by
Lessee be deemed an accord and satisfaction and Lessor may accept such check
or payment without prejudice to Lessor's right to recover the balance of such
rent, additional rent or other payment or pursue any other remedy available
to Lessor. No waiver, on the part of Lessor, its successors or assigns, of
any default or breach by Lessee of any covenant, agreement or condition of
this Lease shall be construed to be a waiver of the rights of Lessor as to
any prior or future default or breach by Lessee.
15. SUBORDINATION:
a. Provided that Lessee is granted a non-disturbance agreement on the
applicable lender's then standard form, this Lease is, or will be,
subject and subordinate to the lien of any and all mortgages, deeds
of trust or other security devices which may now or hereafter
affect or encumber all or any portion of the Building or the land
underlying the same and the land and other property appurtenant to
the use and enjoyment of the Building (collectively, the "Land").
Notwithstanding such subordination, Lessee's right to quiet
possession of the demised premises shall not be disturbed if Lessee
is not in default and so long as Lessee shall pay the rent and
observe and perform all of the provisions of this Lease, unless
this Lease is otherwise terminated pursuant to its terms. This
clause shall be self-operative and no further instrument of
subordination shall be required by any mortgagee, or holder of
another security device or holder of a ground leasehold interest. In
confirmation of such subordination, however, Lessee agrees to
execute and acknowledge any documents reasonably required to
effectuate an attornment, a subordination, or to make this Lease or
any option granted herein prior to the lien of any mortgage, deed
of trust or other security devices, as the case may be. Upon
Lessee's request, Lessor shall reasonably pursue a Non-Disturbance
Agreement from Lessor's Lender which shall be agreeable to Lender
and Lessor in its sole discretion.
b. Notwithstanding the foregoing, in the event any such mortgagee or
the holder of any deed to secure debt, other security device or
ground leasehold interest shall elect to make the lien of this
Lease prior to the lien of its mortgage, deed to secure debt, other
security device or ground leasehold interest, then, upon such party
giving
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Lessee written notice to such effect, this Lease shall be deemed
to be prior in lien to the lien of such mortgage deed to secure
debt, other security device or ground leasehold interest,
whether dated prior or subsequent thereto.
16. INSURANCE: Lessee shall, during the term hereof, keep in full force
and effect (i) public liability and property damage insurance with respect to
the demised premises and the use and/or business operated by Lessee in the
demised premises, in which the limits of public liability shall not be less
than Two Million and no/100 ($2,000,000.00) Dollars on account of personal
injury to or the death of any one or more persons, as a result of any
accident or disaster, and One Million and no/100 ($1,000,000.00) Dollars on
account of damage to property; (ii) fire and extended coverage insurance with
VMM and sprinkler leakage coverage in an amount sufficient to cover the cost
of replacing its property and fixtures, (iii) glass breakage and replacement
insurance, (iv) worker's compensation and employer's liability insurance in
accordance with the laws of the Commonwealth of Virginia and (v) when
required by Lessor, such other insurance against other insurable hazards and
in such amounts as may, from time to time, be commonly and customarily
insured against and are generally available.
a. The limits of said insurance shall not, however, in any way limit
the liability of Lessee under this Lease.
b. All insurance policies which Lessee is required to secure and
maintain shall be in such form and by companies acceptable to
Lessor.
c. Lessee shall include in its fire and glass insurance policies
for the demised premises appropriate clauses pursuant to which
the insurance carriers (i) waive all rights of subrogation
against Lessor, Lessor's mortgagees and holders of any ground
lease, with respect to losses payable under such policies and/or
(ii) agree that such policies shall not be invalidated should
the insured waive, in writing, prior to a loss any or all right
of recovery against any party for losses covered by such
policies. If Lessee, at any time is unable to obtain such
inclusion of either of the clauses described in the preceding
sentence, Lessee shall have Lessor, Lessor's mortgagees and
holders of any ground lease named in such policies as insured.
Lessee hereby waives any and all right of recovery which it
might otherwise have against Lessor, its contractors, agents and
its and their employees, for loss or damage to Lessee's
furniture, furnishings, fixtures and other property and all other
losses covered by the insurance required to be carried by
Lessee. Lessee shall, concurrently with its execution of this
Lease (and thereafter, at least thirty (30) days prior to the
expiration of any policy) furnish Lessor with a duplicate
original of all insurance carried by Lessee at the demised
premises with evidence that the premiums therefor have been paid
current.
d. All public liability policies required by this Lease to be
obtained by Lessee shall name Lessor and such other parties as
Lessor shall designate as an insured thereunder.
17. DEFAULT: Time is of the essence with regard to the performance of
Lessee's obligations under this Lease. Any of the following constitutes a
default of this Lease by Lessee:
8
a. Failure to pay any installment of base rent, item of additional
rent or other charge payable under this Lease on the applicable
payment date plus the five (5) day grace period.
Lessee shall pay Lessor interest at the rate of eighteen (18%)
percent simple interest per annum (or if such rate be illegal,
at the maximum rate permitted by law, and any payment in excess
of that which is permitted by law shall, and be deemed to be, an
advance payment of base rent and shall be applied against the
installments of base rent next becoming due) on all payments due
under this Lease that are not made on the date when due, calculated
from the date when due until paid in full.
b. Failure to cure any other default of Lessee's obligations under
this Lease for a period of ten (10) days after notice specifying
the nature of the default.
c. Vacation or abandonment of the demised premises.
d. Lessee files a voluntary petition in bankruptcy or is adjudicated
insolvent or a bankrupt, or makes an assignment for the benefit
of creditors, or files a petition for relief under any applicable
bankruptcy law, or consents to the appointment of a trustee or
receiver of all or any substantial part of its property; or
e. An involuntary petition under any applicable bankruptcy law is
filed against Lessee and is not vacated within thirty (30) days.
16. LESSOR'S REMEDIES: Upon Lessee's default and the expiration of any
applicable grace period, Lessor may (at Lessor's option and in addition to
all other rights provided in this Lease, at law or in equity) take any one or
more of the following actions without further notice or demand.
a. Terminate this Lease and Lessee's right of possession
of the demised premises, and recover all damages to which Lessor is
entitled under law, specifically including, but without limitation,
all of Lessor's expenses of reletting (including, without
limitation, rental concessions to new tenants, repairs,
alterations, legal fees and brokerage commissions), unless Lessee
cures its default within ten (10) days after Lessor's written
notice of Lessor's intent to exercise this action as described in
this Paragraph 18(a). If Lessor elects to terminate this Lease,
every obligation of the parties shall cease as of the date of such
termination, except that Lessees shall remain liable for payment of
rent and performance of all other terms and conditions of this
Lease to the date of termination.
b. Terminate Lessee's right of possession of the demised
premises without terminating this Lease, in which event Lessor
may, but shall not be obligated to, relet the demised premises, or
any part thereof, for the account of Lessee, for such rent and term
and upon such other conditions as are acceptable to Lessor unless
Lessee cures its default within ten (10) days after Lessor's
written notice of Lessor's intent to exercise this action as
described in this Paragraph 18(b). For purposes of such reletting,
Lessor is authorized to redecorate, repair, alter and improve the
demised premises to the extent necessary to Lessor's sole
discretion. Until Lessor relets the demised premises. Lessee shall
remain obligated to pay rent to Lessor as provided in this Lease.
If and when the demised premises are relet and if a sufficient sum
is not realized from such
9
reletting after payment of all Lessor's expenses of reletting
(including, without limitation, rental concessions to new
tenants, repairs, alterations, legal fees and brokerage
commissions) to satisfy the payment of rent due under this
Lease for any month, Lessee shall pay Lessor any such
deficiency upon demand. Lessee agrees that Lessor may file
suit to recover any sums due Lessor under this paragraph 18b
from time to time and that such suit or recovery of any amount
due Lessor shall not be any defense to any subsequent action
brought for any amount not previously reduced to judgment in
favor of Lessor.
c. Terminate this Lease and Lessee's right of possession of the
demised premises, and recover from Lessee the net present value
of the rent due from the date of termination until the stated
expiration date, discounted at the lesser of the prime rate of
Citibank, N.A. as of the date of termination of five (5%) percent
per annum, unless Lessee cures its default within ten (10) days
after Lessor's written notice of Lessor's intent to exercise this
action as described in this Paragraph 18(c).
d. Re-enter and repossess the demised premises and remove all
persons and effects therefrom, by summary proceeding, ejectment
or other legal action or by using such force as may be necessary.
Lessor shall have no liability by reason of any such re-entry,
repossession or removal.
e. Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the
demised premises are located. Unpaid installments of rent and
other unpaid monetary obligations of Lessee under the terms of
this Lease shall bear interest from the date due at the lesser
of thirteen (13%) percent per annum or the maximum rate then
allowable by law.
f. If Lessor takes possession pursuant to this paragraph 18, with
or without terminating this Lease, Lessor may, at its option,
enter unto the demised premises, remove Lessee's improvements,
signs, personal property, equipment and other evidences of
tenancy, and store or dispose of them, at Lessee's risk and
expense or as Lessor may see fit, and take and hold possession
of the demised premises, provided, however, that if Lessor
elects to take possession only without terminating this Lease,
such entry and possession shall not terminate this Lease or
release Lessee, in whole or in part, from the obligation to
pay the base rent and additional rent and other charges
payable under this Lease for the full term or from any other
obligation under this Lease.
This Lease shall not be deemed to be terminated by Lessor's entry on
the demised premises or by any other act unless Lessor specifically expresses
its intent to terminate this Lease.
Lessor's remedies in this paragraph 18 are cumulative and in addition
to any other remedies available at law or in equity.
19. DESTRUCTION - FIRE OR OTHER CAUSE: If the demised premises shall be
partially damaged by fire or other cause without the fault or neglect of
Lessee or Lessee's servants, employees, agents, invitees or licensees, Lessor
shall, upon Lessor's receipt of the insurance proceeds and to the extent such
proceeds are allocable or attributable to the demised premises, repair the
portions of the demised premises
10
covered by Lessor's insurance, and the rent until such repairs shall have
been made shall be apportioned according to the part of the demised premises,
which is usable by Lessee. But if such partial damage is due to the fault or
neglect of Lessee or Lessee's servants, employees, agents, invitees or
licensees, without prejudice to any other rights and remedies of Lessor and
without prejudice to the rights of subrogation of Lessor's insurer, the
damages shall be repaired by Lessor but there shall be no apportionment or
abatement of rent. If the demised premises are totally damaged or are
rendered wholly untenantable by fire or other cause and Lessor shall decide
not to restore or not to rebuild the same, or if the Building shall be so
damaged that Lessor shall decide to demolish it or not to rebuild it, or if
the damage occurs in the last year of the then term of this Lease, or if the
Building (whether or not the demised premises have been damaged) should be
damaged to the extent of fifty (50%) percent or more of the then monetary
value thereof, or if the damage resulted from a risk not fully covered by
Lessor's insurance, then or in any of such events, Lessor may, within ninety
(90) days after such fire or other cause, given Lessee a notice of Lessor's
election to cancel this Lease, and thereupon the term of this Lease shall
expire by lapse of time upon the third day after such notice is given, and
Lessee shall vacate the demised premises and surrender the same to Lessor.
For purposes of this Lease, the term "Lessor's receipt of insurance proceeds"
shall mean the portion of the insurance proceeds paid over to Lessor free and
clear of any collection by mortgagees for the value of the damage, attorney
fees and other costs of compromise, adjustment, settlement and collection of
the insurance proceeds. Notwithstanding any provisions of this Paragraph 19
to the contrary, if, without fault or neglect of the Lessee, the demised
premises are usable but the Building is so damaged that use of the demised
premises is impractical, rent will be abated until the Building is restored,
and if restoration is not completed within 150 days of the damage occurrence,
either Lessor or Lessee upon written notice can terminate the lease without
further liability on Lessor or Lessee.
20. LEGAL FEES: In the event it shall become necessary for either party
at any time to institute any legal action or proceedings of any nature for
the enforcement of this Lease, or any of the provisions hereof, or to employ
an attorney-at-law therefor and said party prevails in such action or
proceedings, then the non-prevailing party shall pay to the prevailing party
such prevailing party's costs (including a reasonable attorney's fee)
incurred in such action or proceedings.
21. CONDEMNATION: If all of the Building is taken by or under the power
of eminent domain (or conveyance in lieu thereof), this Lease shall terminate
on the date the condemning authority takes possession. In all other cases of
any taking of the Building or the Land by the power of eminent domain (or
conveyance in lieu thereof), Lessor shall have the option of electing to
terminate this Lease. If Lessor does not elect to terminate, Lessor shall do
the work necessary so as to constitute the portion of the Building not so
taken a complete architectural unit and Lessee shall do all other work
necessary for it to use and occupy the demised premises for its permitted
purpose. During the period of Lessor's repairs, rent shall ▇▇▇▇▇ in an amount
bearing the same ratio as the portion of the demised premises usable by
Lessee bears to the entire demised premises. Rent shall be equitably
adjusted, as of the date the condemning authority permanently acquires
possession of any portion of the demised premises, to reflect any permanent
reduction in the tenantable portion of the demised premises. Lessee shall not
be entitled to, hereby expressly waives, and hereby assigns to Lessor all
Lessee's right, title and interest in and to any condemnation award for any
taking (or consideration paid for a conveyance in lieu thereof), whether
whole, partial, temporary or permanent, and whether for diminution of the
value of Lessee's interest in this Lease or term thereof or to the lease
improvements or for any other claim or damage, (including, without
limitation, severance damages and loss of, or damage to, Lessee's trade
fixtures, except Lessee shall not be precluded from seeking a separate claim
for leasehold improvements, business damages or moving expenses against the
condemning authority provided any awards or proceeds sought by, or paid to,
Lessee does not reduce or diminish in any way or amount the awards or
proceeds otherwise payable to Lessor. Notwithstanding any provisions of this
Paragraph 20 to the
11
contrary, if a condemnation reduces the amount of usable square feet in the
demised premises below 19,195 square feet, Lessee shall have the option of
terminating the lease without further liability following said termination.
22. ASSIGNMENT AND SUBLETTING: Lessee shall not assign this Lease or
sublease all or any portion of the demised premises during the term of this
Lease without first obtaining the written consent of Lessor, which consent
will not be unreasonably delayed or withheld.
23. PARKING: Lessee shall not park any vehicle, in any area, where said
parking will constitute a problem to other tenants. Parking areas shall be
provided at no additional cost to Lessee. Lessor reserves the right at all
times during the term hereof to designate and redesignate such parking areas
and to proscribe the use thereof by reasonable rules and regulations. Lessee,
its officers, employees, guests, invitees and visitors shall not at any time
park trucks or vehicles in any of the areas designated for automobile
parking. Lessor shall have no responsibility to police or otherwise insure
Lessee's or other lessees' use thereof. Lessee shall not be entitled to any
designated parking spaces. Parking areas shall be provided by Lessor for use
by Lessee, its officers, employees, guests, invitees and visitors in common
with the other tenants of the Office Park, their officers, employees, guests,
invitees, visitors and such other parties as Lessor shall, from time to time,
permit, on a "first come-first served" basis. All parking spaces and parking
areas shall be non-attended and shall be utilized at the vehicle owner's own
risk. Lessor shall not be liable for any injury to persons or property or
loss by theft or otherwise to any vehicle or its contents. Vehicles parked on
lawn areas are subject to being towed away at vehicle owner's expense.
24. KEYS: Lessor shall, at the commencement of the term of this Lease,
furnish Lessee, at no cost to Lessee, with two (2) keys for the entrance to
the demised premises. Lessee acknowledges that such locks may be master
keyed. If Lessee needs additional keys, such keys must be obtained from
Lessor and Lessee will pay to Lessor the then standard Building charge for
additional keys. At the expiration or earlier termination of this Lease,
Lessee shall surrender all such keys to Lessor. Lessee shall not add
additional locks or change locks without Lessor's prior written consent and
then only if Lessee furnishes Lessor with two (2) copies of each key required
to gain access to all portions of the demised premises.
25. MECHANICS' LIENS: Neither Lessor nor the property shall be liable
for any labor, services or materials furnished or to be furnished to Lessee
upon credit, and no mechanic's or other lien for any such labor, services or
materials shall attach to, encumber or in any way affect the reversionary
interest or other estate or interest of Lessor in and to the Building or the
Land. Nothing in this Lease shall be construed as a consent by Lessor to
subject Lessor's reversionary interest in the demised premises to liability
under any lien or other law. If, as a result of any work or installation made
by, or on behalf of Lessee, or Lessee's maintenance and repair of the demised
premises, a claim of lien or lien is filed against the demised premises or
all or any portion of the Building or the Land, within ten (10) days after it
is filed, Lessee shall either satisfy the claim of lien or lien. If Lessee
fails to do so within the ten (10) day period, Lessor may satisfy the lien,
and Lessee shall reimburse Lessor for all Lessor's costs and expenses
(including reasonable attorneys' fees) incurred in connection therewith.
26. NOTICES: All notices by Lessee to Lessor or by Lessor to Lessee with
regard to this Lease must be in writing and shall be deemed conclusively
delivered when same are either hand delivered, or deposited in the U.S. mail,
postage prepaid, certified, return receipt requested, or picked up for
delivery by a nationally recognized courier for overnight delivery with such
delivery charge being prepaid, if to Lessor, addressed to Lessor at the
address set forth for Lessor on page 1 of this Lease or if to Lessee, at the
address set forth for Lessee on page 1 of this Lease prior to Lessee's
initial occupancy of the demised premises and thereafter with a duplicate to
Lessee at the
12
demised premises, attention: Manager of Facilities. Either party hereto may,
by notice given as aforesaid, designate a different address or addresses for
notices.
27. LESSEE'S PROPORTIONATE SHARE:
a. Lessee agrees to pay its proportionate share of (i) any increase
in real property taxes and assessments, as hereinafter defined
(including any changes or additions to any existing method of
taxation) over and above those imposed, levied or assessed
against the Land and Building for the base year (namely, calendar
year 1997), (ii) any increase in premiums for fire, casualty and
extended coverage (including, without limitation, rent insurance
and VMM) and public liability insurance premiums over and above
those charged for the base year (namely, calendar year 1997) for
the Land and Building and (iii) any increase in Operating
Expenses, as such term is hereinafter defined, for the Land and
Building over and above those incurred or expended by Lessor for
the base year (namely, calendar year 1997). Lessee's proportionate
share for the purposes of this paragraph 27 shall be Forty-six
and Fifteen Hundredths percent (46.15%). The percentage was
computed on the basis that the demised premises consist of
Nineteen Thousand, One Hundred Ninety-Five (19,195) gross
rentable square feet and the Building consists of Forty-One
Thousand, Five Hundred Ninety-Six (41,596) gross rentable square
feet. Lessee's proportionate share shall be recomputed if, and
each time, the aggregate size of the Building is reduced.
b. As used herein, the term "Operating Year" shall mean each
calendar year subsequent to the base year and the term "Operating
Expenses" shall mean the total of the amount of expenses, costs
or charges expended, paid or incurred by Lessor in any calendar
year with respect to the repair, replacement, operation and
maintenance of the Building and Land, such as, by way of
illustration only not intended to be all inclusive, electricity,
water, fuel, water rates, sewer charges or rent, air
conditioning, labor costs, security costs, elevator charges,
service contracts, management charges, window and other cleaning,
refuse removal, landscaping, interior and exterior repairs and
replacements, and drainage and parking field operation,
maintenance, repairs and replacements (including, without
limitation, lighting, striping and resurfacing), the cost of
painting and decorating the common areas of the Building and all
other expenses, costs and charges relative to the repair,
replacement, operation and maintenance of the Building and Land,
including all legal and auditing fees necessarily incurred in
connection with the foregoing and including all improvements and
equipment required by any federal, state or local law or
government regulation.
c. As used herein, the term "real property taxes and assessments"
shall include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than
inheritance, personal income or estate taxes) imposed on the Land
and/or Building by an authority having the direct or indirect
power to tax, including any local, city, state or federal
government, or any school, agricultural, sanitary, fire, street,
drainage or other improvement district thereof, as against any
legal or equitable interest of Lessor in the Land and/or
Building, as against Lessor's right to rent or other income
therefrom or as against Lessor's
13
business of leasing the Land and/or Building. The term "real
property taxes and assessments" shall also include any tax,
fee, levy, assessment or charge (i) in substitution of, or in
addition to, partially or totally, any tax, fee, levy,
assessment or charge herein-above included within the
definition of "real property taxes and assessments", or
(ii) the nature of which was hereinbefore included within the
definition of "real property taxes and assessments" or
(iii) which is imposed by reason of this transaction or any
modification or changes hereto.
d. Lessee shall pay, prior to delinquency, all taxes assessed
against and levied upon trade fixtures, furnishings, equipment
and all other personal property of Lessee contained in the
demised premises. When possible, Lessee shall cause said trade
fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately form the real
property of Lessor.
e. If any of Lessee's personal property shall be assessed with
Lessor's real property, Lessee shall pay Lessor the taxes
attributable to Lessee's property within ten (10) days after
receipt of a written statement from Lessor setting forth the
taxes applicable to Lessee's property.
f. In determining Operating Expenses for an Operating Year, if
less than all of the Building's rentable area shall have been
occupied by tenants at any time during any such Operating
Year, Operating Expenses shall be determined for such Operating
Year to be an amount equal to the like expenses which would
normally be expected to be incurred had all such areas been
occupied throughout such Operating Year.
g. Real property taxes and assessments, premiums for insurance
carried by Lessor and Operating Expenses shall hereafter
collectively be referred to as the "Expenses".
h. Lessee shall, on the first day of the month following the date
Lessor furnishes Lessee with Lessor's estimate of Lessee's
proportionate share of the increase in Expenses over the base
year, commence paying to Lessor the amount so estimated by
Lessor, which estimated amount shall be payable in equal
monthly installments in the amount necessary to pay the
estimated increase in Expenses prior to the expiration of the
first calendar year subsequent to the base year, which
installments shall continue to be paid by Lessee on the first
day of each month in advance until Lessor furnishes Lessee with
a statement setting forth the actual increase in Expenses for
the applicable calendar year and showing Lessee's proportionate
share thereof, together with notice to Lessee stating whether
the installments of Lessee's proportionate share of the
increase in Expenses previously made for the period of time to
which such statement relates is greater or less than the amount
actually paid, or payable, by Lessor for such period and (i) if
there shall be a deficiency, Lessee shall pay the amount
thereof within (10) days after demand therefor or (ii) if there
shall be an overpayment, Lessor shall promptly either refund to
Lessee the amount thereof or permit Lessee to credit the amount
thereof against subsequent payments payable under this
paragraph 27, and on the first day of the month following the
month in which the applicable statement is furnished to Lessee
and monthly thereafter until a new statement shall be furnished
to Lessee by Lessor, Lessee shall pay to Lessor an
14
amount equal to one-twelfth (1/12th) of Lessee's proportionate
share of the actual increase in Expenses shown on the statement
last submitted to Lessee. Lessor may, no more than twice in any
calendar year, furnish to Lessee a revised statement of Lessor's
estimate of Lessee's proportionate share of Expenses for such
calendar year, and in each such case, the monthly installments
of Lessee's proportionate share of Expenses shall be adjusted and
paid substantially in the same manner as provided in the
preceding sentence. Lessee's obligation to pay base rent and
additional rent for any period of time attributable or allocable
prior to the expiration of this Lease shall survive the
expiration or earlier termination of this Lease and any failure
of Lessor to provide Lessee with a statement shall not relieve or
release Lessee for its obligation to pay its proportionate share
of any increase in Expenses at such time as the applicable
statement is furnished to Lessee.
i. "Operating Expenses" shall exclude the following: (i) Legal fees,
space planners' fees, real estate brokers' leasing commissions
and advertising expenses incurred in connection with the original
or future leasing of space in the Building; (ii) Costs of
correcting defects in, or inadequacy of, the design or
construction of the Building or the materials used in the
construction of the Building or the equipment or appurtenances
thereto to the extent covered by warranties and recovered
by Lessor; (iii) Depreciation, interest and principal payments on
mortgages and other debt costs, if any, other than amortization of
and the interest factor attributable to permitted capital
improvements; (iv) the cost of any item or items for which Lessor
is reimbursed by insurance or reimbursed by Lessee or by other
Lessees of the building, (v) ground rent; (vi) costs incurred as
a result of the negligent or torrious acts or omissions of
Lessor, its agents, employees and contractors; (vii) any bad debt
loss or rent loss; (viii) salaries and other compensation paid to
executive employees above the grade of Building Manager; and (ix)
costs of any services provided to any Lessee in the Building and
not made available to Lessee on the same basis.
28. SECURITY SERVICES: Lessee acknowledges that Lessor is not providing,
and is not obligated to provide, any security protection services to the
demised premises, Building or Land.
29. "AS IS": Lessor at its sole cost and expense, shall do the work
identified as "Lessor's Work" on the annexed Exhibit B. All other work
necessary for Lessee's use occupancy and operation of the demised premises
for their intended purposes (other than for the repairs and other work
Lessor is, by the terms of paragraph 4 of this Lease, expressly obligated to
do) shall be done by Lessee, at Lessee's sole cost and expense, pursuant to
the terms and conditions of this Lease.
30. WAIVER OF JURY AND COUNTERCLAIM: It is mutually agreed by and between
Lessor and Lessee that the respective parties hereto shall 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 demised premises and/or
any claim of injury or damage and any emergency statutory or any other
statutory remedy. It is further mutually agreed that in the event Lessor
commences any summary proceeding or action for non-payment of rent,
additional rent or other charge payable hereunder, Lessee will not interpose
any counterclaim of whatsoever nature or description in such proceeding or
action or seek to consolidate any action or proceedings with Lessor's action
or proceeding. Lessor and
15
Lessee agree that in the event of any litigation regarding this
Lease, its terms and the enforcement of the rights and obligations
of the parties hereto, the sole proper venue for any such
litigation shall be in Fairfax County, Virginia.
31. SECURITY: Lessee has deposited with Lessor the sum of Twenty-One
thousand, Five Hundred Ninety-Four and 38/100 Dollars ($21,594.38) as
security for the faithful performance and observance by Lessee of the terms,
provisions and conditions of this Lease; it is agreed that in the event
Lessee defaults in respect of any of the terms, provisions and conditions of
this Lease, Lessor may, without prejudice to any other remedy which Lessor
may have on account therefor, appropriate, use, apply or retain the whole or
any part of the security so deposited to the extent required for the payment
of any sum as to which Lessee is in default and Lessee shall forthwith, upon
demand of Lessor, restore said security to the original sum deposited. Lessor
may commingle the security deposit with its other funds and no interest shall
be payable to Lessee. In the event that Lessee shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this
Lease, the security shall be returned to Lessee after the date fixed at the
end of this Lease and after delivery of entire possession of the demised
premises to Lessor. In the event of a sale of the Land and Building or
leasing of the Building, Lessor shall have the right to transfer the security
to the vendee or lessee and Lessor shall thereupon be released by Lessee from
all liability for the return of such security.
32. VIRGINIA LAW: This Lease shall be governed by and
construed in accordance with the laws of, or applicable to, the
Commonwealth of Virginia.
33. BROKER: Lessee represents that the sole broker
instrumental in consummating this Lease was The ▇▇▇▇ ▇▇▇▇▇▇▇
Company and that no dealings or prior negotiations were had with
any other broker concerning the renting of the demised premises.
Lessee agrees to hold Lessor harmless against any claims for
brokerage commissions, other than those made by The ▇▇▇▇ ▇▇▇▇▇▇▇
Company, arising out of any conversations had by Lessee with any
broker other than The ▇▇▇▇ ▇▇▇▇▇▇▇ Company.
34. RECORDING: Lessee shall not record this Lease or a
memorandum thereof without the written consent of Lessor.
35. RULES AND REGULATIONS: Lessee shall observe faithfully and
comply strictly with the rules and regulations set forth in Exhibit
C attached hereto and made a part hereof and any amendments or
supplements thereto and such further rules and regulations as
Lessor may, from time to time, adopt or promulgate.
36. FAILURE TO DELIVER POSSESSION: If Lessor is unable to
deliver possession of all or any portion of the demised premises,
because of the holding-over or retention of possession of any
tenant, under tenant or occupant, or for any other reason, Lessor
shall not be subject to any liability for failure to give
possession and the validity of this Lease shall not be impaired
under such circumstances, nor shall the same be construed in any
way to extend the term of this Lease. If permission is given to
Lessee to enter into the possession of all or any portion of the
demised premises prior to the date specified as the commencement
of the term of this Lease, Lessee covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants,
conditions and provisions of this Lease, except as to the covenant
to pay rent. Lessor represents and warrants that the demised
premises are currently vacant and are not currently under lease.
37. WAIVER OF LIABILITY: The term "Lessor" as used in this
Lease shall mean only the owner or mortgagee in possession, for the
time being, of the Building, or the lessee or leasehold mortgagee
in possession, for the time being, of a lease of the Building
(which may include a lease of the Land), so that in the event of
any transfer of title to the Building or any assignment of said
lease, or in the event of a lease of the
16
Building or of the Land and Building, the entity so transferring, assigning
or leasing shall be and hereby is entirely freed and relieved of all
covenants and obligations of Lessor hereunder, and it shall be deemed and
construed as a covenant running with the Land without further agreement
between the parties and their successors in interest, or between the parties
and any such transferee, assignee or lessee, that the said transferee,
assignee or lessee has assumed and agreed to carry out any and all covenants
and obligations of Lessor hereunder. Lessee agrees to look solely to (a) the
estate and interest of Lessor in the Land and Building, and subject to prior
right of any mortgage of the Land and/or Building, for the collection of any
judgment (or other judicial process) recovered against Lessor based upon the
breach by Lessor of any of the terms, conditions or covenants of this Lease
on the part of Lessor to be performed, (b) available insurance coverage, and
no other property or assets of Lessor shall be subject to levy, execution or
other enforcement procedures for the satisfaction of Lessee's remedies under
or with respect to either this Lease, the relationship of Lessor or Lessee
hereunder, or Lessee's use and occupancy of the demised premises.
38. RIGHT OF LESSOR TO DISCHARGE OBLIGATIONS OF LESSEE: If Lessee shall
fail to perform or observe any of the terms, obligations or conditions
contained herein on its part to be performed or observed hereunder, within
the time limits set forth herein, Lessor may, at its option, but shall be
under no obligation to do so, perform or observe the same and all costs and
expenses incurred or expended by Lessor in such performance or observance
shall, upon demand by Lessor, be immediately repaid to Lessor by Lessee
together with interest thereon at the higher of eighteen (18%) percent per
annum or one hundred twenty (120%) percent of the prime rate charged by
Citibank, N.A. (or if both rates be illegal, at the maximum rate permitted by
law) to the date of repayment. For the purposes of this Lease, the term
"prime rate" shall mean the rate then being charged by citibank, N.A. to its
largest corporate customers for unsecured loans of ninety (90) days or less.
39. INABILITY TO PERFORM: If, by reason of (1) strike, (2) labor
troubles, (3) governmental pre-emption in connection with a national
emergency, (4) any rules, order or regulation of any governmental agency, (5)
conditions of supply or demand which are affected by war or other national,
state or municipal emergency or (6) any cause beyond Lessor's control, Lessor
shall be unable to fulfill its obligations under this Lease or shall be
unable to supply any service which Lessor is obligated to supply under this
Lease, this Lease and Lessee's obligation to pay rent hereunder shall in no
wise be affected, impaired or excused, provided, however, that as soon as
Lessor shall learn of the happening of any of the foregoing conditions,
Lessor shall notify Lessee of such event and, if ascertainable, its estimated
duration and will proceed with the fulfillment of its obligations as soon as
reasonably possible. In no event will Lessor ever be liable for, and Lessee
hereby expressly waives, any consequential damages, compensation or claims
for inconvenience, annoyance or for loss of business rents or profits was a
result of Lessor's failure to perform under this Lease or failure to provide
any service which it has, under the terms of this Lease, agreed to provide.
40. BINDING ON SUCCESSORS, ETC.: Except as otherwise provided in this
Lease, the covenants, conditions and agreements contained in this Lease shall
bind and insure to the benefits of Lessor and Lessee and their respective
legal representatives, successors and assigns.
41. LATE CHARGE: Lessee shall pay to Lessor a late charge of ten (10
CENTS) cents per dollar for any installment of base annual rent, any item of
additional rent or other charge payable hereunder which Lessee has failed to
pay to Lessor within ten (10) days of Lessor's demand, not as a penalty, but
to help defray administrative and other expenses involved in handling
delinquent payments. In the event any check given to Lessor by, or on behalf
of, Lessee is returned to Lessor by its bank for insufficient funds or for
any other reason or is otherwise uncollectible, Lessee shall pay to Lessor a
service charge in the sum equal to the higher of (i) Ten and no/100 ($10.00)
Dollars for each check so returned or otherwise uncollected or (ii) five (5%)
percent of the amount of the
17
check so returned or otherwise uncollected, which service charge, if
applicable and if not prohibited by law, shall be in addition to, and not in
substitution of, any "late charge".
42. ATTORNMENT: If Lessor's interest in the ground lease or demised
premises or the Building is encumbered by a mortgage and such mortgagte is
foreclosed, or Lessor's interest in the ground lease, the demised premises or
the Building is acquired by deed in lieu of foreclosure of if Lessor's
interest in the ground lease, the demised premises or Building are sold
pursuant to such foreclosure or by reason of a default under said mortgage,
then notwithstanding such foreclosure, such acquisition by deed in lieu of
foreclosure, such sale, or such default (i) Lessee shall not disaffirm this
Lease or any of its obligations hereunder and (ii) at the request of the
applicable mortgagee, transferee by deed in lieu of foreclosure or purchaser
at such foreclosure or sale, Lessee shall attorn to such mortgagee,
transferee or purchaser and execute a new lease for the demised premises for
the rentals reserved herein and otherwise setting forth all of the provisions
of this Lease except that the term of such new lease shall be for the balance
of the term of this Lease.
43. EXECUTION OF LEASE: The submission of this Lease for examination
does not constitute a reservation or option of any kind or nature whatsoever
on or for the demised premises or any other space within the Building and
shall vest no right in either party. This Lease shall become effective as a
lease only upon execution and legal delivery thereof by the parties hereto.
This Lease may be executed in more than one counterpart, and each such
counterpart shall be deemed to be an original document.
44. MORTGAGEE PROTECTION CLAUSE: Lessee agrees to give any mortgage
and/or trust deed holders, by certified mail, a copy of any notice of default
served upon Lessor. Lessee further agrees that if Lessor shall have failed
to cure such default within the time provided for in this Lease, then the
mortgagees and/or trust deed holders shall have such additional time as may
be necessary to cure such default (including, but not limited to,
commencement of foreclosure proceedings, if necessary to effect such cure),
in which event this Lease shall not be terminated while such remedies are
being so pursued.
45. MISCELLANEOUS:
A. Lessor reserves the right to: (a) change the street address and
name of the Building or the Office Park; (b) change the arrangement and
location of entrances passageways, doors, doorways, corridors, elevators,
stairs, toilets or other public parts of the Building and the Office Park
and, in connection with such work, to temporarily close door entry ways,
common or public spaces and corridors of the Building or the Office Park so
long as the demised premises remain reasonably accessible; (c) erect, use and
maintain pipes and conduits in and through the demised premises; (d) grant to
anyone the exclusive right to conduct any particular business in the Building
or the Office Park not inconsistent with the premitted use of the demised
premises; (e) use or lease exclusively the roof areas, the sidewalks and
other exterior areas; (f) resubdivide the Land or to combine the Land with
other lands; (g) construct improvements (including kiosks) on the Land and in
the public and common areas of the Building; (h) relocate or change roads,
driveways and parking areas and to alter the means of access to all or any
portion of the Building; (i) install and display signs, advertisements and
notices on any part of the exterior or interior of the Building; (j) install
such access control systems and devices as Lessor deems appropriate; (k)
create easements over the Land and Building and in the entrances, aisles and
stairways therein or in any parking areas for utilities, telephone lines,
sanitary sewer, storm sewer, water lines, pipes, conduits, drainage ditches,
sidewalks, pathways, emergency vehicles, and ungress and egress for the use
and benefit of others, without Lessee joining in the execution thereof and
this lease shall automatically be subject and subordinate thereto; and (l)
alter the site plan, landscaping, walkways and common areas outside the
Building within the context of general site improvements, repairs and
maintenance. Exercise of any such
18
right shall not be considered a constructive eviction or a disturbance of
Lessee's business or occupancy. Lessor shall use reasonable efforts to
minimize the interference with Lessee's intended use of the demised premises
as a commercial office, including computer sales and service.
B. Unless specifically provided otherwise in this Lease, where
Lessor's consent or approval is required (whether under the terms of this
Lease or pursuant to any rule or regulation now existing or hereafter
promulgated by Lessor as hereinafter provided), Lessor may withhold or delay
such approval or consent in its sole discretion and without justification.
46. PARTIAL INVALIDITY: If any provision of this Lease or application
thereof to any person or circumstance shall to any extent be invalid, the
remainder of this Lease of the application of such provision to persons or
circumstances other than those as to which it is held invalid shall not be
affected thereby and each provision of this Lease shall be valid and enforced
to the fullest extent permitted by law.
47. HOLDING OVER: Any holding over after the expiration of the terms
or any validly exercised renewal term shall be constructed to be a tenancy
from month to month at the rent equal to twice the base and additional
rentals and other charges specified herein (prorated on a monthly basis) and
shall otherwise be on the terms herein specified so far as applicable.
48. ESTOPPEL CERTIFICATE: Lessee agrees, at any time, and from time to
time, upon not less than ten (10) days' prior notice by Lessor, to execute,
acknowledge and deliver to Lessor, a statement in writing addressed to Lessor
or such other party as Lessor shall designate certifying that this Lease is
unmodified and in full force and effect (or, if there have been modifications,
that the same is in full force and effect as modified and stating the
modification), stating the dates to which base rent, additional rent and
other charges have been paid, the amount of security deposited, if any, and
stating whether or not there exists any default in the performance of any
covenant, agreement, term, provisions or condition contained in this Lease,
and, if so, specifying each such default and containing such other
information, items and certifications as Lessor shall request, it being
intended that any such statement delivered pursuant hereto may be relied upon
by Lessor and by any purchaser, mortgagee or prospective mortgagee of any
mortgage affecting all or any portion of the Office Park and by any lessor
under a ground or underlying lease affecting all or any portion of the Office
Park.
49. FINANCIAL STATEMENT: Lessee hereby agrees, from time to time and
at the request of Lessor, to furnish Lessor, within thirty (30) days of each
such request, with such audited financial statements of Lessee as Lessor shall
require in order to reasonably determine the financial condition of Lessee.
Such statements shall be prepared by an independent certified public
accountant and shall include, without limitation, Lessee's net worth
statements and statements of financial position and retained earnings
statement of Lessee and its subsidiaries, if any, for the preceding three (3)
years. Lessee agrees that Lessor statements may furnish any of its lenders or
potential lenders or purchasers copies of such financial statements and records.
Lessor agrees to hold, and to cause its lender and potential lenders and
purchasers to hold, such financial statements in confidence and not to disclose
such records to any party other than such party as shall have a financial
interest in the Office Park or who has a loan on all or any portion of the
Office Park or who has a loan on all or any portion of the Office Park or who is
interested in making a loan on all or any portion of the Office Park or who
is interested in purchasing all or a portion of the Office Park.
50. HAZARDOUS MATERIALS: Lessee covenants and agrees, at its sole cost
and expense, to (i) indemnify, protect and save Lessor harmless against and
from any and all fines, damages, losses, liabilities, obligations,
penalties, claims litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements or expenses (including without limitation,
attorneys' and experts' reasonable fees and disbursements) of any kind or of
any nature whatsoever (collectively, the "Indemnified
19
Matters") which may at any time be imposed upon, incurred by or asserted or
awarded against Lessor and arising from, or out of, the presence, existence,
storage, handling or disposition of any Hazardous Materials (as hereinafter
defined) on, in, under, from, or affecting all or any portion of the demised
premises and (ii) promptly, upon Lessor's demand, (y) remove, or cause to be
removed, from the Office Park and properly disposed of, all Hazardous
Materials and (z) undertake and complete all remediation. As used herein,
"Hazardous Materials" means petroleum, petroleum products or distillates,
petroleum derived substances, asbestos, asbestos containing materials or any
other materials, wastes or substances which are (or would or could, upon
attainment of a certain level or concentration, be) regulated, defined,
determined or identified as hazardous, toxic or special waste in any Laws (as
hereinafter defined) or such other items or materials that, in Lessor's
reasonable determination, could constitute or pose a potential threat to the
environment or a potential health threat. As used herein, "Laws" means any
Federal, State or local laws, rules or regulations (whether now existing or
hereafter enacted or promulgated) and any judicial or administrative
interpretation thereof, including any judicial or administrative orders or
judgments.
Indemnified Matters shall include, without limitation, all of the
following: (i) the costs of removal, and proper disposal, of any and all
Hazardous Materials from all or any portion of the demised premises or any
surrounding areas, (ii) additional costs required to take necessary precautions
to protect against the release of Hazardous Materials on, in, under or
affecting the demised premises into the air, any body of water, any other
public domain or any surrounding areas and (iii) costs incurred to bring the
demised premises and any surrounding areas into compliance with all
applicable Laws with respect to Hazardous Materials. All removal work
referred to in clause (i) above, all work and other actions to take
precautions against release referred to in clause (ii) above and all work
and other actions performed in order to comply with Laws referred to in
clause (iii) above are herein collectively referred to as "Corrective Work".
Lessor's rights under this paragraph 50 shall be in addition to all
other rights of Lessor under this Lease. Notwithstanding anything to the
contrary contained herein, the indemnity provided for under this paragraph 50
with respect to surrounding areas shall not extend to the cost of Corrective
Work on, in, under or affecting any surrounding areas, if the applicable
Hazardous Materials did not originate from any portion of the demised
premises, unless the removal of any Hazardous Materials on, in, under or
affecting any surrounding areas is required by Law or by order or directive
of any Federal, State or local governmental authority in connection with the
Corrective Work on, in, under or affecting any portion of the demised
premises.
[Signature Page To Follow]
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IN WITNESS WHEREOF, we have hereunto set our hands and seals
the day and year first above written.
LESSOR:
Witnesses: APA PROPERTIES NO. 6, L.P.
by INS'95 CORP.,
General Partner
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------- ------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------- -------------------
Title: Vice President
-------------------
LESSEE:
Witnesses: STMS, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------- ------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------- --------------------
Title: CEO
--------------------
21
EXHIBIT A
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
19,195 Rentable Square Feet
22
EXHIBIT B
1. Lessor and Lessee each hereby acknowledge that the plans and
specifications for the work to be done in the demised premises to ready the
same for Lessee's use and occupancy shall be drawn by Lessor's architect and
approved by Lessor and Lessee prior to the commencement of Lessor's work.
Said plans shall be attached hereto as Exhibit B-1 after such approval.
2. Lessor shall perform the work ("Lessor's Work") shown on the
Plans to be performed by Lessor. The costs of Lessor's Work shall be
determined by the inclusion of the actual cost of such work plus an industry
standard ▇▇▇▇-up for supervision, overhead and profit, the costs of
architectural and engineering fees and expenses and permit fees, and the
costs to review the plans and specifications of Lessee's Work. The
construction management fee shall be limited to five percent (5%) of the
actual cost. All Lessor's Work shall be awarded following a competitive bid
format. All Lessor's Work shall be performed in a workmanlike manner and in
compliance with all applicable governmental regulations. Lessee shall have
the right to review, monitor and reasonably approve the plans for the tenant
improvements.
Lessor shall obtain all permits, certificates and other governmental
approvals from all governmental entities having jurisdiction there over which
are necessary for the completion of Lessor's Work.
3. If the aggregate cost of Lessor's Work is more than One Hundred
Fifteen Thousand, One Hundred Seventy and no/100 ($115,170.00) Dollars,
Lessee shall, within ten (10) days of Lessor's written demand therefor, pay
the excess cost to Lessor. If the aggregate cost of Lessor's work is less
than $115,170.00, Lessor shall credit the differential to the base rent
payable under the Lease as the monthly installments of the same become due
and payable until the rent credit is exhausted.
4. A "Substantial Completion" of the demised premises shall be
conclusively deemed to have occurred as soon as the improvements to be
installed by Lessor pursuant to this Lease have been constructed in
accordance with the approved Plans and Specifications and approved change
orders and the demised premises are ready to be utilized for their intended
purpose, as certified by Lessor's architect. The issuance of a temporary
certificate of occupancy by the proper governmental entity shall be deemed
conclusive evidence that Substantial Completion has occurred. Notwithstanding
the above, the demised premises shall be considered Substantially Complete
and ready to be utilized for their intended purpose even though (a) there
remain to be completed in the demised premises punch list items reasonably
acceptable to Lessor and Lessee, including but not limited to minor or
insubstantial details of construction, decoration or mechanical adjustment,
the lack of completion of which will not materially interfere with Lessee's
permitted use of the demised premises, and/or (b) there is a delay in the
Substantial Completion of the demised premises due to a delay by Lessee as
set forth above. It is understood that the lease term shall commence no
earlier than May 1, 1997.
B. In the event that: (1) Lessor or its contractors shall be
delayed in the Substantial Completion of Lessor's Work as a result of:
(a) Any change or requested change by Lessee in the Plans or
in any specification, detail or finish schedule;
(b) Lessee's delays in submitting or resubmitting approved
Plans or in submitting, resubmitting, or in approving any other plans,
specifications, finishes, details, estimates, shop drawings or in supplying
information requested by Lessor or its contractors;
23
(c) disputes as to the quality of performance or completion of work
by any person, firm or corporation employed by Lessee and any delays caused
by any person, firm or corporation employed by Lessee;
(d) Lessee's request for materials, finishes or installations other
than Building Standard or those immediately available to Lessor;
(e) the fact that non-Building Standard work requires lead time to
obtain or construction time to perform, in excess of that required for
Building Standard work;
(f) any direction by Lessee that Lessor hold up proceeding with a
segment of Lessor's Work or any dispute as to whether any item of work shall
constitute Lessor's Work;
(g) Lessee's refusal, failure or delay in giving authorizations or
approvals or supplying information; or
(h) any other act, omission or negligence of Lessee, its agents,
employees or contractors, including any default by Lessee in the performance
of its obligations under this Work Letter or the Lease, then the date
provided for the commencement date of the Lease and the obligations of Lessee
to pay the base rent, additional rent and other charges payable under the
Lease shall commence as of the date that Lessor could, absence the delays
caused by acts attributable to Lessee, have completed Lessor's Work, whether
or not Lessor has completed such work, but Lessor's obligation to perform
such work shall nevertheless continue in full force and effect, except that
if by reason of such delay Lessor shall incur additional costs and expenses,
Lessee shall be obligated to pay such additional costs and expenses.
5. If, (1) Lessee requests materials or any installation other than
as listed on the Plans or as part of Lessor's Work that Lessor has agreed to
do, or (2) if Lessee hereafter subsequently requests changes in the work
shown on the Plans or in Lessor's Work, then, in any or all of such events,
if such change of materials, installations or changes in work shown on said
Plans or in Lessor's Work delay the work to be performed by Lessor, then the
happening of these delays shall in no case postpone the Commencement Date or
the payment of rent reserved under the Lease and the Commencement Date of
the Lease and Lessee's obligation to pay base rent, additional rent and the
other charges payable under the Lease shall commence as of the date that
Lessor could, absence the delays attributable to changes requested by Lessee,
have completed Lessor's Work.
24
EXHIBIT B-1
(Plans To Be Attached)
25
EXHIBIT C
RULES AND REGULATIONS
The following rules and regulations have been adopted by Lessor for the care,
protection and benefit of the Building and for the general comfort and
welfare of all tenants:
1. The rights of Lessee in the sidewalks, entrances, corridors and
elevator of the Building are limited to ingress to and egress from the
demised premises for Lessee and its employees, licensees and invitees, and
Lessee shall not use, or permit the use of, such sidewalks, entrances,
corridors or elevator for any other purposes. Fire exits and stairways are
for emergency use only, and they shall not be used for invitees. Lessor shall
have the right to regulate the use of and operate the public portions of the
Building, as well as portions furnished for the common use of the tenants, in
such manner as it deems best for the benefit of the tenants generally.
2. Lessor may refuse admission to the Building outside of ordinary
business hours to any person not having a pass issued by Lessor or not
properly identified, and may require all persons admitted to or leaving the
Building outside of ordinary business hours to register. Lessor may require
any person leaving the Building with any package or other object to exhibit a
pass from the tenant from whose premises the package or object is being
removed, but the establishment or enforcement of such requirement shall not
impose any responsibility on Lessor for the protection of Lessee against the
removal of property from the demised premises.
3. No tenant shall purchase or contract for waxing, rug shampooing,
venetian blind washing, interior glass washing, furniture polishing, lamp
servicing, cleaning of electric fixtures, removal of waste paper, rubbish and
garbage, towel service or for alterations in the demised premises except from
contractors, companies or persons approved by Lessor. Such services shall
be furnished only at such hours, in such places within the demised premises
and under such regulations as may be fixed by Lessor.
4. Where any damage to the public portions of the Building or to any
portions used in common with other tenants is caused by Lessee or its
employees, licensees or invitees, the cost of repairing the same shall be
paid by Lessee upon demand.
5. Except as shall be approved in writing by Lessor, no lettering, sign,
advertisement, trademark, emblem, notice or object shall be displayed in or
on the windows or doors, or on the outside of the demised premises.
6. 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, rags or other substances shall be thrown therein.
7. No awnings or other projections of any kind over or around the windows
or entrances of the demised premises shall be installed by Lessee, and only
such window blinds and shades as are approved or supplied by Lessor shall be
used in the demised premises.
8. Linoleum, tile or other floor covering shall be laid in the demised
premises only in a manner approved by Lessor.
9. Lessor shall have the right to prescribe the weight and position of
safes and other objects of excessive weight. If, in the reasonable judgment
of Lessor, it is necessary to distribute the concentrated weight of any safe
or heavy object, the work
26
involved in such distribution shall be done in such manner as Lessor shall
reasonably determine and the expense thereof shall be paid by Lessee. The
moving of safes and other heavy objects shall take place only upon previous
notice to, and at times and in a manner approved by, Lessor, and the persons
employed to move the same in and out of the Building shall be acceptable to
Lessor.
10. No machines, machinery or electrical or electronic equipment or
appliances of any kind shall be placed or operated so as to disturb other
tenants.
11. Freight, furniture, business equipment, merchandise and packages of
any description shall be delivered to and removed from the demised premises
only during hours and in a manner approved by Lessor.
12. No dangerous, inflammable, combustible or explosive object or material
shall be brought into or kept in the Building by Lessee or with the
permission of Lessee, except as permitted by law and the insurance companies
insuring the Building or the property therein.
13. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows in the demised premises and no lock on any door shall be
changed or altered in any respect. Duplicate keys for the premises and toilet
rooms shall be procured only from Lessor, and Lessee shall pay to Lessor
Lessor's reasonable charge therefor. Upon the termination of the Lease, all
keys of the demised premises and toilet rooms shall be delivered to Lessor.
14. All entrance doors in the demised premises shall be left locked by
Lessee when the demised premises are not in use.
15. Canvassing, soliciting and peddling in the Building is prohibited and
each tenant shall cooperate to prevent the same.
16. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards. No hand trucks shall be used in passenger elevators.
17. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the demised premises, and no cooking shall be done or
permitted by Lessee on the demised premises except in the kitchen of the
dining facility, if any, as set forth in Lessee's layout, which is to be used
only as provided in the Lease. Lessee shall not cause or permit any unusual
or objectionable odors to be produced upon or emanate from the demised
premises.
18. Lessee reserves the right at all times to exclude the general public
from the Building during such hours as in Lessor's sole judgment will be in
the best interest of the Building and its tenants.
19. No wires of any kind or type (including, without limitation, television
and radio antennas) shall be attached to the outside of the Building, and no
wires shall be run or installed in any part of the Building without Lessor's
prior written consent.
20. Lessee shall provide a plexiglass or comparable carpet protection mat
for each desk chair customarily used by Lessee. Carelessness in this respect
may result in Lessee being requested by Lessor to pay the cost of repair
and/or replacement of said carpet, in whole or in part, as additional rent
when and if, in Lessor's sole judgment, such repair and/or replacement is
deemed necessary.
21. Suite doors are to remain closed except during ingress and egress.
This is mandatory to comply with the Fire Code.
27
22. Smoking is prohibited in the Building.
23. Lessor reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed by Lessor when it deems it necessary,
desirable or proper for its best interest or for the best interests of the
tenants, and no rescission, alteration or waiver of any rule or regulation in
favor of one tenant shall operate as a rescission, alteration or waiver in
favor of any other tenant. Lessor shall not be responsible to Lessee for the
nonobservance or violation by any other tenant of any of the rules or
regulations at any time prescribed by Lessor.
28
EXHIBIT D
CLEANING SPECIFICATIONS
SPECIFICATIONS FOR NIGHT CLEANING
TENANT SPACES
(Includes any private bathrooms and kitchen areas)
DAILY
- Empty and wipe all ashtrays.
- Empty all wastebaskets and reline. Replace plastic liner as required.
Remove trash to designated area.
- Recyclable materials removed to designated area.
- Dust and wipe clean all telephones, tables, bookcases, file cabinets,
convertors and grills, chair and chair bases, with treated cloth, etc.
Desks and credenza's will be dusted and wiped with treated cloth so as
not to disturb papers and other articles therein.
- Clean all glass furniture tops.
- Vacuum all carpeting, detail all corners.
- Spot clean all carpeting.
- Sweep and mop all non-carpeted area, and maintain uniform finish.
- Damp wipe with disinfectant cleaner all telephones.
- Clean doors, door frames, walls and switchplates to remove fingerprints,
spills and other markings.
- Clean all interior partitions, glass windows, glass entrance doors.
- Clean all metal trimwork.
- Clean all counters and counter tops in kitchen areas. Remove dust from
all spaces above finish floor.
- Wash, clean, and polish all water coolers.
- Lights will be turned off and doors will be locked (except where
specifically designated otherwise).
- Windows are to remain closed/locked and venetian blinds adjusted, as
requested.
WEEKLY
- Dust clean all window frames, window ▇▇▇▇▇, chair rails, convector tops,
pictures or wall hanging above finish floor.
- Vacuum upholstered furniture and wipe all chair legs with treated cloth.
- Edge vacuum all carpeted areas and dust, wipe, and polish baseboards.
- Buff all composition floors, maintaining uniform finish daily.
- High dusting of all area above 60" from floor with a treated cloth.
MONTHLY
- Clean all baseboards.
- Dust all window blinds. Blinds to be dust free at all times.
- Dust all lighting and ventilation fixtures.
- Vacuum all lighting and ventilation fixtures.
- Machine scrub, strip, seal, and wax all composition floors.* Skid
resistant finish to be used at all times.
*Note: Some special floor treatments may exist in certain tenant areas. When
an unfamiliar surface is encountered, check with building management.
AS NEEDED
- Wash out waste receptacles as necessary.
- Any work defined herein is at the direction of the Owner.
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SPECIFICATIONS FOR NIGHT CLEANING
DOCK/TRASH AREA
DAILY
-----
-- Remove all trash and debris, sweep concrete floor and mop.
STAIRWAYS AND LANDINGS
DAILY
-----
-- Police for debris.
-- Remove graffiti as seen
-- Sweep and/or damp mop all flooring and stairs
-- Damp wipe with non-abrasive detergent and clean base of all doors,
walls, switches, glass, hand rails, etc.
MONTHLY
-------
-- Damp wipe clean from floor to ceiling all light fixtures ledges,
moldings, walls, grills, vents, piping, etc.
SPECIFICATIONS FOR NIGHT CLEANING
RESTROOMS
DAILY
-----
-- Damp wipe with mild, non-abrasive detergent all doors, kickplates,
door frames, walls, light switches, glass thresholds and partitions.
-- Clean and polish towel and toilet tissue dispensers, flushometers,
shelves, piping, tampon machines, toilet hinges, and other metal
surfaces to remove all soil as necessary.
-- Clean glass mirrors and vanity top removing all fingerpirnts,
streaks, smudges and splash marks.
-- Empty and damp wipe all waste containers using proper odorless
disinfectant, deodorant and germicide combination cleaner. Reline
with proper liner for each container, liners should be minimally
visible from outside the container.
-- Clean toilets, toilet seats, and urinals with proper combination
non-abrasive lavatory cleaner disinfectant and deodorizer removing
all streaks, stains, and deposits. Clean and polish all chrome
work.
-- Wash and disinfect both sides of toilet seats.
-- Floors: Remove all litter, wet mop with proper combination
lavatory cleaner of disinfectant, deodorizer and fungicide. Rinse
and mop with plain water. Remove all stains from underneath sinks,
toilets and urinals.
-- Refill all toilet tissue, towel, sanitary napkin, air freshener,
and toilet seat cover dispensers.
WEEKLY
------
-- Partitions: Wash to remove streaks, stains, smudges with proper
non-abrasive combination lavatory cleaner, disinfectant and
deodorizer. Remove graffiti, where possible.
-- Damp, wipe all baseboards.
-- Dust ventilating diffusers and light lenses.
-- Pour clean, clear water down all traps.
MONTHLY
-------
-- Machine scrub all ceramic flooring, and refinish.
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AS NEEDED
---------
-- Tile walls: Wash completely (floor to ceiling) with proper
combination cleaner, disinfectant, deodorant and fungicide.
-- MAINTAIN BATHROOM IN A CLEAN AND ODOR FREE, FIRST-CLASS CONDITION
AT ALL TIMES. PARTICULAR ATTENTION SHOULD BE PAID TO MAINTAIN
DETAILED CLEAN CORNERS, GROUT, AND AREAS WHICH CAN ACCUMULATE
GRIME.
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