EXHIBIT 10.5
XXXXXXXXX MANAGEMENT CORPORATION
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000
COMMERICAL LEASE
THIS LEASE AGREEMENT made this 27th day of February, 1997, by and between
Sterling/Gunston Limited Partnership, hereinafter referred to as "Landlord," and
Network Access Solutions, hereinafter referred to as "Tenant," and Xxxxxxxxx
Management Corporation, hereinafter referred to as "Agent."
WITNESSETH, that for and in consideration of the rent hereafter reserved, and
the covenants contained herein, the parties hereby agree as follows:
1. LEASE PREMISES.
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord for
the term, at the rental and upon the conditions set forth herein, that certain
real property with premises thereon known as 000 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxx, 00000, hereinafter referred to as the "Premises," and as
indicated on Exhibit A attached hereto. The Premises do not include exterior
faces or exterior walls and exterior window glass; anything beyond the interior
face of demising walls; and pipes, ducts, conduits, wires and fixtures serving
other parts of the Building. Tenant may use the Common Areas in common with
other tenants. The Common Areas include the Building's common lobbies,
corridors, stairways, and elevators, the common walkways and driveways necessary
for access to the Building, the common toilets, corridors and elevator lobbies
of any multi-tenant floor, and the parking area for the Building. All use of
the Common Areas shall be only upon the terms set forth at any time by Landlord.
2. TERM AND POSSESSION.
2.1 Term. The term of this Lease shall be for three (3) years,
commencing on the sooner of occupancy or the 1st day of March, 1997, and ending
on the 28th day of February, 2000.
2.2 Possession. Landlord shall reasonably attempt to have Premises ready
for occupancy on the date of commencement. If Landlord should be unable to give
possession of Premises on the date of commencement of the term hereof for any
reason, Landlord shall not be subject to any liability for failure to give
possession on said date. Under such circumstances, the rent reserved and
covenanted to be paid herein shall not commence until the possession of the
Premises is tendered by Landlord with Landlord's notice to Tenant that the same
is ready for occupancy. Should tender of possession of the premises be later or
earlier than the beginning date named, then, and in that event, the term shall
not be adjusted and the ending date of this Lease shall remain as stated in
paragraph 2.1. If permission is given to the Tenant to enter into
possession of the Premises, or to occupy space other than the Premises prior to
the date specified as the commencement of the term of this Lease, Tenant
covenants and agrees that such occupancy shall be deemed to be under all the
terms, covenants and conditions of the provisions of this Lease. Notwithstanding
the foregoing, the rent obligation shall commence even if Premises are not ready
for occupation if due to the action, inaction or delay of Tenant, its agents or
employees.
2.3 Early Possession for Tenant Fit-Up. Tenant shall be given access to
the Premises seven (7) days prior to the lease commencement date for the purpose
of installing special equipment, furniture, telephone equipment, etc. Tenant
shall indemnify landlord for delays and damage to the Building and shall present
Landlord with satisfactory certificates of insurance.
3. RENT.
3.1 Basic Monthly Rent. Upon Tenant's execution of the Lease, tenant
shall prepay the first months rent in an amount equal to one full month of rent.
Therefore, Tenant shall pay to Landlord for the Premises the Basic Monthly rent
without deduction or demand or setoff whatsoever, in advance on the first day of
each calendar month during the term hereof, to and at the office of Xxxxxxxxx
Management Corporation, 0000 Xxxxxxxxx Xxxxxx, X.X, Xxxxx 000, Xxxxxxxxxx, X.X.,
00000, or at such other place as Landlord may from time to time designate to
Tenant in writing. In addition the basic Monthly Rental, Tenant shall pay all
Additional Rent and Rental Adjustments provided herein. Except as specified
elsewhere in this Lease, Additional Rent shall be paid by Tenant with the next
monthly installment of Basic Monthly Rent falling due. Rent checks shall be
made payable to Xxxxxxxxx Management Corporation. Should the term of this Lease
commence on a day other than the first of a calendar month, the parties agree
that rental for the first month in which rent is due shall be pro-rated and rent
for the remaining months shall be due and payable on the first of the month as
provided above. The total of the Basic Monthly Rents is payable monthly as
follows:
March 1, 1997 - February 28, 1998: $5,046.75 per month
March 1, 1998 - February 28, 1999: $5,198.15 per month
March 1, 1999 - February 29, 2000: $5,354.10 per month
3.2 Additional Rent.
(a) Tenant shall pay Landlord, as Additional Rent, Tenant's Share (as
hereinafter defined) of any increase in Landlord's Costs (as hereinafter
defined) above the Base Costs (as hereinafter defined).
(b) For purposes of this Lease:
(i) "Tenant's Share" shall consist of Tenant's Separate Services and
Tenant's Pro Rata Share of Landlord's Costs in excess of Base Costs.
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(ii) "Tenants' Separate Services" shall mean all Operating Expenses
which are attributable solely to Tenant's use and occupancy of the Demised
Premises, such as the cost of electricity consumed in the Demised Premises as
measured by memorandum or sub-meters, special janitorial services or other
services provided by Landlord at Tenant's request. Normal electric consumption
shall be included in Base Costs (as hereinafter defined).
(iii) "Tenant's Pro Rata Share" shall mean ten and 21/100 percent
(10.21%), representing the ratio that the rentable area of the Demised Premises
(4,486 square feet) bears to the total rentable area in the Property (43,942
square feet).
(iv) "Landlord's Costs" shall mean Taxes and Assessments and
Operating Expenses.
(v) "Taxes and Assessments" shall mean all taxes and assessments and
governmental charges (including personal property and real estate taxes),
whether federal, state, county or municipal, and whether they be by taxing
districts or authorities presently taxing the Property or by others subsequently
created, and any other taxes and assessments (including franchise taxes)
attributable to the Property or its operation, whether or not directly paid by
Landlord, excluding, however, federal and state taxes on income, unless such
income taxes replace real estate taxes. The Tenant shall be responsible for ad
valorem taxes on its personal property.
(vi) "Operating Expenses" shall mean all of the costs and expenses
incurred in operating and maintaining the Property, as determined by Landlord in
accordance with standard accounting practices, whether paid to employees of
Landlord or independent contractors engaged by Landlord, and shall include the
following costs by way of illustration, but not limitation: water and sewer
charges, insurance premiums, utilities, janitorial services, labor, including
direct labor overhead, air conditioning and heating, landscaping, elevator
maintenance, supplies, costs and upkeep of all parking and common areas, supply
and cleaning of uniforms and work clothes, security of the Building, fees
incurred for the management of the Building including legal, inspection,
consultation and accounting fees, and a property management fee equal to the
generally prevailing rate consistent with the type of occupancy and the services
rendered, but not less than three percent (3%) nor more than five percent (5%)
of the total rent collected from tenants of the Property. Operating Expenses
shall not include depreciation of the buildings of which the Demised Premises
are a part or equipment therein, loan payments, executive salaries and any
brokerage commissions but shall include amortization, with reasonable interest,
of capital items which reduce Operating Expenses or are required by governmental
authority.
(vii) "Base Costs" shall mean Landlord's costs incurred for 1997
calendar year.
(viii) "Beginning January 1, 1998, and continuing for each subsequent
calendar year or portion thereof during the Term, Costs shall be passed through
to Tenant based on the actual increase over Base Costs.
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(c) Landlord shall endeavor to give to Tenant on or before the first (1st)
day of April of each year a statement of the increase in the Additional Rent
payable by Tenant hereunder, but failure by Landlord to give such statement by
said date shall not constitute a waiver by Landlord of its right to require an
increase in the Additional Rent. Upon receipt of the statement Tenant shall pay
the total amount of the increase in full. In addition, for the then current
year, an amount equal to one hundred five percent (105%) of any such increase
shall be used as an estimate for said current year and this amount shall be
divided into twelve (12) equal monthly installments and Tenant shall pay to
Landlord concurrently with the regular minimum Rent payment next due following
the receipt of such statement, an amount equal to one (1) monthly installment
multiplied by the number of months form January in the calendar year which said
statement is submitted to the month of such payment, both months inclusive.
Subsequent installments shall be payable concurrently with the regular minimum
Rent payments for the balance of that calendar year and shall continue until the
next year's statement is rendered. If the next or any succeeding year results
in a greater increase in Landlord's Costs, then upon receipt of a statement for
Landlord, Tenant shall pay a lump sum equal to such total increase over the Base
Costs, less the total of the monthly installments of estimated increases paid in
the previous calendar year for which comparison is then being made; and the
estimated monthly installments to be paid for the next year, following said
comparison year, shall be adjusted to reflect one hundred five percent (105%) of
such increase in the manner set forth above. If in any year Tenant's Share
shall be less than the preceding year, then upon receipt of Landlord's
statement, any other payments made by Tenant on the monthly installment basis
provided above shall be credited toward the next installment of Minimum Rent
falling due and the estimated monthly installments of Landlord's Costs to be
paid shall be adjusted to reflect such lower Taxes and Assessments and Operating
Expenses for the most recent comparison year, but not less than the Base Costs,
Upon termination of this Lease, any money owed by one party to the other shall
be promptly paid.
(d) Should this Lease commence or terminate at any time other than the
first (1st) day of a calendar year, the cost adjustment referred to in Sections
3.2(a), 3.2(b) and 3.2(c) shall be calculated for the commencement or
termination year on a pro rata basis, based upon the number of calendar days
during which Tenant leases the Demised Premises.
(e) Each statement provided by Landlord pursuant to this Section shall be
conclusive and binding upon Tenant unless fifteen (15) days after receipt of the
statement, Tenant shall notify Landlord that it disputes the correctness of the
statement, specifying the respects in which the statement is claimed to be
incorrect. If Landlord and Tenant are unable to resolve the dispute, Tenant
shall then have the right to request that Landlord provide, at tenant's expense,
an audit of its books and records relating to the statement. Pending
determination of the dispute, Tenant shall pay within ten (10) days from notice
any amounts due Tenant in accordance with the statement, but such payment shall
be without prejudice to tenant's position.
(f) Notwithstanding any other provisions herein to the contrary: (a) in
the event the Property is not fully occupied during the year, an adjustment
shall be made in computing the Landlord's Costs for such year so that the cots
shall be computed for such year as though the Building had been fully occupied
during such a year; and (b) the Landlord shall generally have
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the right, in its reasonable judgment (and upon reasonable substantiation of
such allocation to the Tenant), to allocate Landlord's Costs to the Tenant, or
to other tenants of the Building in a manner which deviates from the exact
Tenant's Pro Rata Share, or those of such other tenants, as may be necessary to
more accurately reflect accountability for unusual or extra costs resulting form
excessive usage, the manner of layout or finishes requiring special maintenance,
or the like. The terms of this Section shall be solely for the benefit of the
Landlord and may not be relied upon nor construed for the benefit of the Tenant,
other tenants in the building, or any other person.
3.3 Late Charge. Tenant hereby recognizes and acknowledges that if rental
payments are not received within ten (10) days of when due, Landlord will suffer
damages and additional expenses thereby and Tenant therefore agrees that a late
charge equal to five percent (5%) of the basic Monthly Rent (including
additional rent as hereinafter provided) may be assessed by landlord or Agent as
additional rental. Furthermore, Landlord or Agent shall have the right to
require that rental payments be made by certified or cashier's check, in the
event Tenant monetarily defaults two or more times.
4. SECURITY DEPOSIT.
Tenant shall deposit with Landlord, upon execution hereof, Five Thousand Forty-
Six and 75/100 ($5,046.75) as security for the faithful performance of Tenant's
obligation hereunder. During the Term of this Lease, Landlord shall also have
the right to proceed with any other legal or equitable remedies available to it.
5. USE.
The Premises shall used and occupied by the Tenant only for office use
under the business name of Network Access Solutions.
5.1 Prohibited Uses. Tenant shall not use, or permit the use of, all or
any part of the Leased Premises for any disorderly, illegal or hazardous purpose
and will not manufacture any commodity therein other than computer software.
Tenant shall not use, or permit the use of, all or any part of the Leased
Premises for any purpose that interferes with the use or enjoyment by other
tenants of any portion of the Building, nor which, in Landlord's opinion,
impairs, or might impair, the reputation of the Project. Tenant shall not xxx
utility services in excess of amounts reasonable determined by Landlord to be
within the normal range of demand for general office use. Tenant shall not
obstruct any of the Common Areas or any portion of the Property outside the
Premises, and shall not place or permit any signs, curtains, blinds, shades,
awnings, aerials or flagpoles, or the like, visible from outside the Premises.
5.2 Floor Load; Prevention of Vibration and Noise. Tenant shall not place
a load upon the floor of the Premises exceeding the 100 pounds per square foot
such floor was designed to carry, as determined by Landlord or its structural
engineer. Partitions shall be considered as part of the load. Landlord may
prescribe the weight and position of all safes, files and heavy equipment that
Tenant desires to place in the Premises, so as properly to distribute their
weight.
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Tenant's business machines and mechanical equipment shall be installed and
maintained so as not to transmit noise or vibration to the Building structure or
to any other space in the Building. Tenant shall be responsible for the cost of
all structural engineering required to determine structural load and all
acoustical engineering required to address any noise or vibration caused by
Tenant.
6. SERVICES FURNISHED BY LANDLORD.
Landlord shall furnish services, utilities, facilities and supplies as
shown on the Landlord Services list attached as Exhibit B. If Landlord
furnishes any additional services at Tenant's request, such services shall be
charged at reasonable rates established by Landlord, which shall be considered
additional rent.
6.1 Repairs and Maintenance. Landlord shall repair and maintain the
Common Areas and structural portions of the Building and the basic plumbing,
electrical, mechanical and heating, ventilating, and air-conditioning systems
therein, including the roof and windows.
6.2 Quiet Enjoyment. Upon Tenant's paying the rent and performing its
other obligations, Landlord shall permit Tenant to peacefully and quietly hold
and enjoy Premises, subject to the provisions hereof.
6.3 Insurance. Landlord shall insure the Property, including the Building
(with limits no less than eighty percent of the actual replacement cost of same)
against damage by fire and standard extended coverage perils, and shall carry
public liability insurance, all in such reasonable amounts with such reasonable
deductibles as would be carried by a prudent owner of a similar building in the
area. Landlord may carry any other forms of insurance as it or its mortgagee
may deem advisable. Tenant shall have no right to any proceeds from such
policies except in the event of Landlord's gross negligence. Landlord shall not
carry any insurance on any of Tenant's property, and shall not be obligated to
repair or replace any of it.
6.4 Changes by Landlord. Landlord may at any time make any changes,
additions, improvements, repairs or replacements to the Property, including the
Common Areas, that it considers desirable. In so doing, Landlord may use or
temporarily close any of the Common Areas, or permanently change their
configuration. Landlord shall use reasonable efforts to minimize interference
with Tenant's normal activities, but no such interference shall constitute
constructive eviction or give rise to any abatement or rent or liability of
Landlord to Tenant. If these changes impact Tenant's business, Landlord must
obtain Tenant's approval, such approval not to be unreasonably withheld.
6.5 Access to Premises; Utility Suspension. Landlord shall have
reasonable access to the Premises to inspect Tenant's performance hereunder and-
-subject to reasonable advance notice--(except in an emergency situation) to
perform any acts required of or permitted to Landlord herein, and may
temporarily stop any service or utility system in conjunction therewith.
Landlord shall use best efforts to minimize interference with Tenant's normal
activities, but no
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such interference shall constitute constructive eviction or give rise to any
abatement of rent or liability of Landlord to Tenant.
6.6 Failure to Provide Services and Repairs. Landlord shall not be liable
for any failure to perform any act or provide any service required hereunder
unless Tenant shall have given notice of such failure, and such failure
continues for at lest thirty days thereafter. If any such failure is caused by
factors beyond Landlord's reasonable control, then Landlord shall not be liable
to tenant in any event, and such failure shall not constitute constructive
eviction or give rise to any rental abatement or reduction. Tenant hereby
waives any right to make repairs or provide maintenance at Landlord's expense
under any law or ordinance. If Premises remain untenantable for reasons other
than force majeure for a period of more than ten (10) business days, rent shall
xxxxx during the period of untenantability. If Premises remain untenantable for
reasons other than force majeure for more than thirty (30) days, Tenant may at
Tenant's option be released from all obligations under the Lease.
7. ALTERATIONS.
Tenant shall not make any alterations, additions, modifications or
improvements to the Premises without the prior written consent of Landlord,
which consent will not be unreasonably withheld, provided that such alterations,
additions, modifications or improvements are not structural or involve building
systems. If Tenant desires to make any such alterations, etc., plans for same
shall first be submitted to and approved by landlord, and same shall be done by
Tenant, at its own expense, and Tenant agrees that all such work shall be done
in a good and workmanlike manner (Landlord having the right to approve all
contractors), that the structural integrity of the building shall not be
impaired, that no liens shall attach to the Premises by reason therefor, and
that Tenant will secure all necessary permits pertaining to the aforementioned
alterations, etc. All alterations, additions, improvements and fixtures (other
than Tenant's Personal Property, provided the same are installed at no cost or
expense to Landlord) which may be made or installed by either party upon the
Leased Premises shall be and remain the property of Landlord and shall remain
upon and be surrendered with the Leased Premises, unless Landlord requests their
removal, in which event Tenant shall remove the same and restore the Lease
Premises to its original condition, taking into account normal wear and tear, at
tenant's sole cost and expense and Tenant shall pay the entire cost of such
removal to Landlord upon Tenant's receipt of Landlord's written demand
therefore. If Tenant fails to remove such property and restores the Leased
Premises as aforesaid, Landlord may do so and tenant shall pay the entire cost
thereof to Landlord within 10 days after Tenant's receipt of Landlord's written
demand therefore.
8. HAZARDOUS STORAGE.
Tenant agrees that it will not store gasoline or other explosive, flammable
or toxic material in the Premises or do anything which may cause Landlord's
insurance company to void the policy covering the Premises or to increase the
premium thereon, and that Tenant will immediately conform to all rules and
regulations form time to time made or established by the Landlord's insurance
company or insurance rating bureau.
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9. INSURANCE.
9.1 Fire Insurance. Tenant agrees, in addition to the provisions of
paragraph 8, that it will not do anything that will cause Landlord's insurance
against loss by fire or other hazards, as well as public liability insurance, to
be canceled or that will prevent Landlord from procuring same in acceptable
companies and at standard rates. Tenant will further do everything reasonably
possible and consistent with the conduct of Tenant's business to obtain the
lowest possible rates for insurance on the Premises. If, however, the cost to
Landlord of obtaining insurance on the Premises (or the building in which the
Premises are located) is increased due to the Tenant's occupancy thereof, Tenant
agrees to pay, promptly upon demand, as additional rental, any such increase.
9.2 Liability Insurance and Indemnification of Landlord. Landlord shall
not be liable to Tenant for any injury, loss or damages to the Tenant or to any
other person or property occurring upon the Premises or the approaches thereto
or the parking facilities in or adjacent thereto from any cause other than the
negligence of Landlord. Tenant agrees to indemnify and save the Landlord
harmless against and form any and all liability, damages, expenses, including
reasonable attorneys fees, claims and demands of every kind that may be brought
against it, for or on account of any damage, loss or injury to persons or
property in or about the Premises during the term of this Lease, or during any
occupancy by Tenant prior to the liability insurance, in a form and with a
company satisfactory to Landlord, with limits of (1) at least FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) for injury, including death, to any one person
and (2) at least ONE MILLION DOLLARS ($1,000,000.00), for injury, including
death, in any one casualty, and (3) with property damage coverage of at least
ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00), or in such greater amounts as
Landlord may from time to time reasonably require. All such policies shall name
the Tenant, the Landlord, and XXXXXXXXX MANAGEMENT CORPORATION (as Agent) as
parties insured and shall contain a provision that the same may not be canceled
without giving the Landlord and the Agent at least twenty (20) days prior
written notice. In addition, such policies or certificates evidencing that such
policies are in effect, shall be delivered to Landlord and Agent at the
commencement of the term hereof and renewals shall be delivered at least twenty
(20) days prior to the expiration or cancellation of any such policy. The Agent
is, however, expressly relieved of any obligation to see that Tenant obtains and
carries such insurance.
10. PERMITS - COMPLIANCE WITH LAWS.
10.1 Permits. Tenant shall, at its own expense, promptly obtain from the
appropriate governmental authorities any and all permits, licenses and the like
required to permit Tenant to occupy the Premises for the purposes herein stated.
This requirement shall not relieve the Tenant of its liability for rent from the
commencement date hereinabove set forth.
10.2 Compliance with Laws. Tenant shall thereafter promptly comply with
all statutes, laws ordinances, orders, rules, regulations and requirements of
the Federal, State and local governments and of the Board of Fire Underwriters
applicable to Tenant's use of the Premises,
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for the correction, prevention and abatement of nuisances or violations in, upon
or connected with the Premises during the term of this Lease.
11. ASSIGNMENT AND SUBLETTING.
Tenant agrees that it will not transfer assign or sublet the Premises, in
whole or in art, without Landlord's prior written consent, which will be based
upon the credit-worthiness, use, and reputation of assignees or sublessees.
Landlord agrees that it will not arbitrarily withhold its consent, and if such
consent is given, Tenant shall not be relieved from any liability under this
Lease. Tenant further agrees that if it intends to assign or sublet the entire
premises, it will first notify Landlord in writing and Landlord shall have
fifteen (15) days to notify Tenant that Landlord, at its option may accept a
surrender of the Premises, in which event Landlord shall release Tenant from any
further liability under this Lease.
12. SUBORDINATION.
Tenant accepts this Lease, and the tenancy created hereunder, subject and
subordinate to any leases, mortgages, deeds of trust, leasehold mortgage or
other security interests now or hereafter a lien upon or affecting the building
or the Real Property or any part thereof. Tenant shall, at any time hereafter,
on reasonable request, execute any instruments, leases or other documents that
may be required by any mortgage, mortgagee, deed of trust, trustee or underlying
owner or Landlord hereunder to subordinate Tenant's interest hereunder to the
lien of any such mortgage or mortgages, deed or deeds of trust or underlying
lease, and the failure of Tenant to execute any such instruments, leases or
documents shall constitute a default hereunder.
13. ATTORNMENT.
Tenant agrees that upon any termination of Landlord's interest in the
Leased Premises, Tenant will, upon request, attorn to the person or organization
then holding title to the reversion of the Leased Premises (the "Successor") and
to all subsequent Successors, and shall pay to the Successor all rents and other
monies required to be paid by the Tenant hereunder and perform all of the other
terms, covenants, conditions and obligations contained in this Lease.
14. NON-DISTURBANCE.
Landlord agrees, at Tenant's request, to use commercially reasonable
efforts in obtaining a non-disturbance agreement from Landlord's Lender on that
Lender's standard form.
15. PROPERTY LOSS OR DAMAGE.
15.1 Tenant hereby expressly agrees that Landlord shall not be responsible
in any manner for any damage or injury to the person or property of Tenant or
any other person or business directly or indirectly caused by (i) dampness or
water, whether due to a break or leak in any part of the roof, heating, or
plumbing within the Premises, or in the building in which the
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Premises are located, no matter how caused; (ii) theft; (iii) fire or other
casualty; (iv) any other cause whatsoever.
15.2 Subject to the provisions of paragraph 16, Landlord shall not be
liable for damage or injury to person or property of Tenant or of any other
person or business unless notice in writing of any defect (a) which Landlord has
under the terms of this Lease the duty to correct and (b) which has caused such
damage or injury, shall have been given insufficient time before the occurrence
of such damage or injury reasonably to have enabled Landlord to correct such
defect, and even then only is such damage or injury due to Landlord's gross
negligence.
16. TENANT'S FAILURE TO PERFORM.
In the event that Tenant fails, after fifteen (15) days' written notice
form Landlord, to do any act or make any payment or perform any term or covenant
on tenant's part required under this Lease or otherwise fails to comply
wherewith, Landlord may (at its option, but without being required to do so)
immediately, or at any time thereafter and without notice, perform the same on
the account that Tenant has failed to do so, and if Landlord makes any
expenditures, or incurs any obligations for the payment of money in connection
therewith, including, but not limited to, attorney's fees in instituting
prosecuting or defending any action or proceeding, such sums paid or obligations
incurred, with interest at the rate of twelve percent (12%) per annum and costs,
shall be deemed to be additional rent hereunder and shall be paid by Tenant to
Landlord within five (5) days of rendition of any xxxx or statement to tenant
therefor. All rights given to Landlord in this section shall be in addition to
any other right or remedy of Landlord herein contained.
17. LANDLORD'S RIGHT TO SHOW PREMISES.
Tenant agrees that Landlord may, within the last four (4) months of the
Lease term, display a "For Lease" or "For Sale" sign on the Premises and show
prospects through the Premises at any reasonable time, with twenty-four (24)
hours' prior notice to allow Tenant to arrange for escorted tours.
18. SURRENDER AT END OF TERM.
Except as otherwise provided, Tenant shall vacate the Premises at the
expiration or other termination of this Lease and shall remove all goods and
effects not belonging to Landlord and shall surrender possession of the Premises
and all fixtures and systems thereof in good repair, reasonable wear, tear and
damage by fire or other unavoidable casualty excepted. If Tenant shall fail to
perform any of the foregoing obligations, Landlord is hereby expressly
authorized to do so on Tenant's behalf and Landlord may sell such articles on
the Premises as Landlord in its sole discretion deems saleable, and may dispose
of others in any manner which it chooses. The proceeds of any such sale shall
be applied toward the expenses thus incurred and Tenant will receive net
proceeds if any and agrees to pay any remaining balance promptly.
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19. HOLDING OVER.
If Tenant shall not immediately surrender possession of the Premises at the
termination of this Lease, Tenant shall become a month-to-month Tenant, at twice
the monthly rental just prior to termination of this Lease, said rental to be
payable in advance; but unless Landlord elects to accept such rental from
Tenant, the Landlord shall continue to be entitled to re-take possession of the
Premises. Immediately upon the expiration of the term hereof, and the Tenant
hereby agrees that all of the obligations of the Tenant and all rights of the
Landlord applicable during the term of this Lease shall be equally applicable
during such period of subsequent occupancy, whether or not a month-to-month
tenancy shall have been created as aforesaid. Tenant further agrees that it
shall be liable for any reasonable damages suffered by Landlord by reason of
Tenant's failure to immediately surrender the Premises.
20. DESTRUCTION - FIRE OR OTHER CASUALTY.
In case of partial damage to the Premises by fire or other casualty,
insured against by Landlord, Tenant shall give immediate notice thereof to
Landlord, and Landlord, to the extent that insurance proceeds respecting such
damage and subject to and, in fact, are under the control and use of Landlord,
shall thereupon cause such damage to all property owned by Landlord to be
repaired with reasonable speed at the expense of Landlord, due allowance being
made for reasonable delay which may arise by reason of adjustment of loss under
insurance policies on the party of Landlord and/or Tenant, and for reasonable
delay on account of "labor troubles" or any other cause beyond Landlord's
control, and to the extent that the Leased Premises are rendered untenantable,
the rent shall proportionately xxxxx, unless Tenant cannot materially conduct
business, in which case the Premises shall be deemed untenantable provided the
damage above mentioned occurred without the fault or neglect of Tenant, those
employing or retaining the services of Tenant, Tenant's servants, employees,
agents, licensees, invitees or visitors. But if such partial damage is due to
the fault or neglect of Tenant or any of other said persons, or to the extent
that insurance proceeds respecting such damage are not subject to and, in fact,
are not under the control and use of Landlord, the damage shall be repaired by
Landlord at Tenant's expenses and there shall be no apportionment or abatement
of rent. In the event the damage shall be so extensive to the whole building as
to render it uneconomical, in Landlord's opinion, to restore for the use of
Tenant, as specified in paragraph 5 hereof, or Landlord shall decide not to
repair or rebuild the building, this Lease shall expire by lapse of time upon
the third day after such notice is mailed, and Tenant shall thereupon vacate the
Premises and surrender the same to Landlord, but such termination shall not
release Tenant from any liability to Landlord arising from such damage or from
any breach of the obligations imposed on Tenant hereunder.
21. EMINENT DOMAIN.
If the entire Premises shall be substantially taken (either temporarily or
permanently) for public purposes, or in the event Landlord shall convey or lease
the property to any public authority in settlement of a threat or condemnation
or taking, the rent shall be adjusted to the date of such taking or leasing or
conveyance, and this Lease shall thereupon terminate. If only a portion of the
Premises shall be so taken, leased or condemned as a result of such partial
taking,
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and Tenant is reasonably able to use the remainder of the Premises for the
purposes intended hereunder then this Lease shall not terminate, but, effective
as of the date of such taking, leasing or condemnation, the rent hereunder shall
be abated in any amount thereof proportionate to the area of the Premises so
taken, leased or condemned. If, following such partial taking, tenant shall not
be reasonably able to use the remainder of the Premises for the purposes
intended hereunder, then this Lease shall terminate as if the entire Premises
had been taken, leased or condemned. In the event of a taking, lease or
condemnation as described in this Paragraph, whether or not there is a
termination hereunder, Tenant shall have no claim against Landlord other than an
adjustment of rent, to the date of taking lease or condemnation, and Tenant
shall not be entitled to any portion of any amount that may be awarded as
damages or paid as a result or in settlement of such proceedings or threat.
22. DEFAULTS - REMEDIES.
The occurrence of any one or more of the following events shall constitute a
material default and breach of this Lease by Tenant:
(a) The vacating or abandonment of the Premises by Tenant for more than
sixty (60) days.
(b) The failure by Tenant to make any payment of rent or any other payment
required to be made by Tenant hereunder, as and when due.
(c) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Tenant
other than described in Paragraph 22(b) hereinabove, where such failure shall
continue for a period of ten (10) days after written notice thereof from
Landlord to Tenant; provided, however, that if the nature of the Tenant's
default if Tenant commences such cure within said ten (10) day period and
thereafter, diligently prosecutes such cure to completion.
(d) The making by Tenant of any general assignment or general arrangement
for the benefit of creditors, filing by or against Tenant of petition to have
Tenant adjudged a bankrupt or a petition for reorganization or arrangement under
any law relating to bankruptcy (unless in the case of a petition filed against
Tenant, the same is dismissed within sixty (60) days), the appointment of a
Trustee or receiver to take possession of substantially all of the Tenant's
assets located in the Premises or the Tenant's interest in this Lease where
possession is not restored to Tenant within thirty (30) days or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or Tenant's interest in this Lease, where such seizure
is not discharged within thirty (30) days.
In the event of such material default or breach by Tenant, Landlord may, at
any time hereunder, with or without notice or demand, without limiting Landlord
in the exercise of any right or remedy which Landlord may have by reason of such
default or breach, proceed in the following manner:
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(i) Terminate Tenant's right to possession of the Premises by any lawful
means, in which case Tenant's possession shall be terminated and Tenant shall
immediately surrender possession of the Premises to the Landlord. In such
event, Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including necessary renovation or
alteration of the Premises; reasonable attorney's fees; any real estate
commission actually paid; that portion of the Lease and commission paid by
Landlord pursuant to Agency agreement hereinafter stated applicable to the
unexpired term of this Lease; and such other out-of-pocket expenses as the
Landlord might incur. Unpaid installments of rent or other sums shall bear
interest from date due at the rate of twelve percent (12%) per annum, after the
Tenant's right to possession has been terminated.
(ii) Maintain Tenant's right to possession in which case this Lease shall
continue in effect whether or not Tenant shall have abandoned the Premises. In
such event, Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, including the right to recover the rent as it becomes
due hereunder.
(iii) Pursue any other remedy now or hereafter available to Landlord under
the laws or jurisdictional decisions of the state in which the Premises is
located.
(iv) Landlord shall not be in default unless Landlord fails to perform
obligations required of landlord within a reasonable time, but in no event,
sooner than ten (10) days after written notice by Tenant to Landlord specifying
wherein Landlord has failed to perform such obligations; provided, however, that
if the nature of the Landlord's obligations such that more than ten (10) days is
required for performance, then Landlord shall not be in default if Landlord
commences performance within such ten (10) days and thereafter diligently
prosecutes the same to completion.
(v) While XXXXXXXXX MANAGEMENT CORPORATION shall be collecting the
rentals due from the tenant, it is hereby authorized by the Landlord to expend
such sums as may be reasonably necessary in connection with the enforcement of
payment of rental and the securing or possession of the Premises in case of
Tenant's default and to reimburse itself from said rentals to the extent that
may be available therefore. The Landlord agrees to pay XXXXXXXXX MANAGEMENT
CORPORATION any of such expenses not so reimbursed promptly upon demand.
23. SEVERAL LIABILITY.
If the Tenant shall be one or more individuals, corporations or other
entities, whether or not operating as a partnership or joint venture, then each
such individual corporation, entity, joint venture or partner shall be deemed to
be both jointly and severely liable for the payment of the entire rent and other
payments specified herein and all other duties and obligations hereunder.
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24. ACCEPTANCE OF PREMISES.
Tenant's occupancy of the Premises shall constitute acceptance thereof as
complying with all requirements of Tenant and Landlord with respect to the
condition, order and repair thereof.
25. ESTOPPEL CERTIFICATES.
Tenant agrees at any time and from time upon not less than five (5) days
prior notice by Landlord to execute, acknowledge and deliver to Landlord a
statement in writing 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 modifications) and the dates to which the
rent and other charges have been paid in advance, if any, and stating whether or
not, to the best knowledge of the signer of such certificate, Landlord is in
default in performance of any covenant, agreement or condition contained in this
Lease and, if so, specifying each such default of which the signer may have
knowledge, if being intended that any such statement delivered hereunder may be
relied upon by any third party to this Lease.
26. NOTICES.
All notices, demands and requests required under this Lease shall be in
writing. All such notices shall be deemed to have been properly given if sent
by United States registered or certified mail, return receipt requested, postage
prepaid, addressed to the Landlord at:
Xxxxxxxxx Management Corporation
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
and to the Tenant at: Premises. Either party may designate a change of address
by written notice to the other party.
Notices, demands and requests which shall be served by registered or
certified mail in the manner aforesaid shall be deemed sufficiently served or
given for all purposes hereunder at the time such notice, demand or request
shall e mailed by United States registered or certified mail as aforesaid in any
Post Office or Branch Post Office regularly maintained by the United States
Governments.
27. SEPARABILITY.
If any term or provision of this Lease or the application thereof to any
person or circumstances shall, to any extent, be invalid or unenforceable, the
remainder of this Lease or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term and provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.
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28. CAPTIONS.
All headings in this Lease are intended for convenience of reference only
and are not to be deemed or taken as a summary of the provisions to which they
pertain or as construction thereof.
29. SUCCESSORS AND ASSIGNS.
The covenants, conditions and agreements contained in this Lease shall bind
and insure to the benefit of Landlord and Tenant, and their respective heirs,
distributees, executors, administrators, successors and, except as otherwise
provided in this Lease, their assigns.
30. GOVERNING LAW.
This Lease was made in the State of Virginia and shall be governed by and
construed in all respects in accordance with the laws of the State of Virginia
and Loudoun County.
31. INCORPORATION OF PRIOR AGREEMENTS.
This Lease contains all agreements of the parties with respect to any
matters contained herein. No prior agreement or understanding pertaining to any
such matter shall be affected. This Lease may be modified only in writing and
signed by the parties in interest at the time of the modification.
32. CUMULATIVE REMEDY.
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
33. SIGNAGE.
Tenant agrees that no signage on doors, windows or elsewhere about the
leased Premises, is to be displayed without the same being first approved in
writing by the Landlord. Any signs which have been placed without approval may
be removed by Landlord at Tenant's expense.
34. CONTINGENCY.
This Lease Agreement is contingent upon Landlord obtaining a termination
from MTI Technology, Inc. for their existing lease for suite 202 (to be renamed
suite 206 for Network Access Solutions). Upon the termination of the MTI lease
and upon commencement of this Lease, Network Access Solutions shall have no
further obligation for their current lease for 2,067 square feet and that lease
dated October 20, 1995 shall become null and void.
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35. MISCELLANEOUS.
(a) As used in this Lease, and where the context requires: (1) the
masculine shall be deemed to include the feminine and neuter and vice versa; and
(2) the singular shall be deemed to include the plural and vice versa.
(b) Landlord and Tenant do hereby waive trial by jury in any action,
proceeding or counterclaims brought by either of the parties hereto against the
other on any matters what soever arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy
of the Premises, and/or any claim of injury or damage, and any emergency
statutory or any other statutory remedy.
(c) Tenant covenants and agrees that it shall not inscribe, affix, or
otherwise display signs, advertisements or notices in, on, upon, or behind any
windows or on any door, partition or other part of the interior or exterior of
the building without the prior written consent of the Landlord. If such consent
is given by Landlord, but the cost of same shall be charged to and be paid by
Tenant, Tenant agrees to pay same promptly and on demand.
(d) Tenant covenants and agrees that it shall not attached or place
awnings, antennas or other projections to the outside walls or any exterior
portion of the building. No curtains, blinds, shades or screens shall be
attached to or hung in, or used in connection with any window or door of the
Premises without the prior written consent of the Landlord.
(e) Tenant further covenants and agrees that it shall not pile or place or
permit to be placed any goods on the sidewalks or parking lots in the front,
rear or sides of the building, or to block said sidewalks, parking lots and
loading areas and not to do anything that directly or indirectly will take away
any of the rights of ingress or egress or of light from any other tenant of the
Landlord.
(f) Tenant, Tenant's servants, its agent's invitees, employees and
licensees shall not park or store on, or otherwise utilize any parking or
loading areas on the Real Property, except as provided in writing by Landlord.
(g) Tenant waives statutory notice to quit prior to commencement of an
action for summary possession for non-payment of rent.
(h) In the event of a default of any of the provisions of this Lease by
either Landlord or Tenant, the defaulting party shall reimburse the other for
any attorneys' fees and court costs incurred, provided a binding judgment has
been entered in a court of law.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed
this Lease as of the day an year first above written.
WITNESS OR ATTEST: LANDLORD:
Sterling/Gunston Limited Partnership
By: Xxxxxxxxx Development Corporation,
General Partner
BY: /s/ Xxxxxx X. Xxxxxxx
___________________________ ---------------------------
Xxxxxx X. Xxxxxxx
Vice President
TENANT:
Network Access Solutions
BY: /s/ Longma M. Aust
___________________________ ---------------------------
Agency Acceptance:
XXXXXXXXX MANAGEMENT CORPORATION, AGENT, in the above captioned Lease,
hereby agrees to act as Agent as set forth in the Lease Agreement.
XXXXXXXXX MANAGEMENT CORPORATION
BY: /s/ Xxxxxx X. Xxxxxxx (SEAL)
---------------------------
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GUARANTY
The undersigned, Guarantors, hereby guarantee to Sterling/Gunston
Limited Partnership (Landlord), its legal representatives, successors, and
assigns, the full and faithful performance and observance by Tenant, its
successors and assigns, of all terms, covenants, conditions, agreements,
restrictions, and limitations of the Lease, including without limitation the
payment of all rent and compliance with any rules and regulations prescribed by
Landlord, together with the payment of all costs, attorney's fees, and other
expenses incurred by Landlord in enforcing such performance and observation.
Guarantors further covenant that (1) the liability of the Guarantors is
primary, shall not be subject to deduction for any claim of offset, counterclaim
or defense which Tenant may have against Landlord, and Landlord may proceed
against Guarantors separately or jointly, before, after or simultaneously with
any proceeding against Tenant for default; (2) this Guaranty shall not be
terminated or impaired in any manner whatsoever by reason of the assertion by
Landlord against Tenant of any of the rights or remedies reserved to Landlord
pursuant to the provisions of such Lease, by reason of summary or other
proceedings against Tenant, by the omission of Landlord to enforce any of its
rights against Tenant, or by reason of any extension of time or indulgence
granted by Landlord to Tenant; (3) Guarantors expressly waive any requirement of
notice of non-payment, non-performance or non-observance, or proof of notice or
demand; (4) this Guaranty shall be absolute and unconditional and shall remain
and continue in full force and effect as to any renewal, extension, amendment,
additions, assignments, sublease, transfer or other modification of the Lease;
and (5) in any action or proceeding brought by Landlord against Guarantors on
account of this Guaranty all obligations and liabilities of Guarantors pursuant
to this Guaranty shall be binding upon the heirs, personal representatives and
assigns of the Guarantors. This Guaranty shall be governed by and construed in
accordance with the laws of Virginia.
In witness whereof, the undersigned has executed this Guaranty this
27th day of February, 1997.
Witness: Guarantor:
/s/ Longma M. Aust
______________________
Guarantor:
/s/ Xxxxxxxx Xxxx
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Exhibit B
---------
000 Xxxxxxxxx Xxxxx
Building Services
ACCESS: Building will be accessible twenty-four (24) hours per
days, seven (7) days per week. Electronic card access
system will be provided at the main entrance with
monitoring of first floor fire exits. Up to five (5)
access cares will be provided for Tenant's use at no
charge. Additional or lost card replacements will be
provided at Twenty-Five Dollars ($25.00) per card.
CLEANING SERVICES: Building cleaning services will be provided five (5)
days per week.
HVAC SERVICES: Heating, ventilation and air conditioning will be
provided from 8:00 a.m. to 6:00 p.m. Monday through
Friday and 9:00 a.m. to 1:00 p.m. on Saturday.
Additional service can be provided with at least one
business day's notice at a rate of Twenty-Five Dollars
($25.00) per hour (such additional service charge is
subject to change by Landlord from time to time).
PARKING: Free surface, unreserved parking will be provided at a
ration of 3.3 spaces per 1,000 square feet leased.
MANAGEMENT: Management of the building will be provided by
Xxxxxxxxx Management Corporation.
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