Exhibit 10.62
AGREEMENT OF LEASE
This Lease Agreement made on October 5, 2005 by and between South Crater Square
Associates, LLC ("Landlord"), and Star Tek USA, Inc. ("Tenant").
WITNESSETH:
That in consideration of the mutual covenants and agreements herein contained,
it is agreed by and between Landlord and Tenant as follows:
BASIC LEASE SECTION 1. This Section 1 is an integral part of this
PROVISIONS lease and all of the terms hereof incorporated into
this lease in all respects. In addition to the other
provisions which are elsewhere defined in this lease,
the following, whenever used in this lease shall have
the meaning set forth in this Section, and only such
meaning unless such meanings are expressly
contradicted, limited or expanded elsewhere herein:
(a) DATE OF LEASE: October 5, 2005
(b)(1) Landlord's Overnight (2) Landlord's Address
Delivery Address: For Rental Payment:
South Crater Square Associates, LLC South Crater Square Associates, LLC
c/o Weinstein Management Co., Inc. c/o Weinstein Management Co., Inc.
3951-A Stillman Parkway P.O. Box 31335
Glen Allen, VA 23060 Richmond, VA 23294
(c) Tenant's Mailing Address:
Star Tek
44 Cook Street
Denver, CO 80206
Attention: Mr. Grant Lomas
(d) Security Deposit (Sec. 53): None.
(e) Tenant's Trade Name: Star Tek USA
(f) Leased Premises (Sec. 2): Unit number 5-A as
shown on Exhibit A, with approximately 39,600
square feet.
(g) Lease Term ("term" or "term of this lease")
(Sec. 4): Seven (7) years and nine (9)
months.
(h) Fixed Rent (Sec. 6): $5.25 per square foot,
which is $207,900 per annum, payable in equal
monthly installments, in advance at the rate
of $17,325 per month.
(i) Annual rent escalation: None.
(j) Permitted Use (Sec. 22): General office, call
center and any other legally permitted use.
Exclusive use: See Section 22.
(k) Estimated Tax Charge (Sec. 12): $13,188.00
per annum, payable in equal installments, in
advance, at the rate of $1,099.00 per month,
subject to annual adjustments. This charge is
based on 39,600 square feet or approximately
46.59% of the total Taxes, as defined in
Section 12, computed and payable monthly, in
advance.
(l) Estimated Insurance Charge (Sec. 12):
$5,688.00 per annum, payable in equal
installments, in advance, at the rate of
$474.00 per month, subject to annual
adjustments. This charge is based on 39,600
square feet or approximately 46.59% of the
total insurance charge, as defined in Section
12, computed and payable monthly, in advance.
(m) Estimated Common Area Charge (Sec. 34):
$16,800.00 per annum payable in equal
installments, in advance, at the rate of
$1,400.00 per month, subject to annual
adjustment. This charge is based on 39,600
square feet or approximately 46.59% of the
total Operating Costs, as defined in Section
34, computed and payable monthly, in advance.
(n) Estimate Water/Sewer charge (Sec. 47):
$1,032.00 per annum payable in equal
installments, in advance, at the rate of
$86.00 per month, subject to annual
adjustment. This charge is based on 39,600
square feet or approximately 46.59% of the
total operating costs for such utilities for
the Shopping Center, computed and payable
monthly, in advance.
(o) Exhibits: The Exhibits attached to this lease
are hereby incorporated in and made a part of
this lease.
EXHIBIT A: Leased Premises
EXHIBIT B: Shopping Center Plan
EXHIBIT C: Landlord's Work - Vanilla Shell
EXHIBIT D: Form of Subordination Attornment and
Non-Disturbance Agreement
Fixed Rent, Common Area charge, taxes and
insurance will abate in full for the first
nine (9) full months of the term.
PREMISES AND SECTION 2. That in consideration of the rents and
IMPROVEMENTS covenants herein set forth, Landlord hereby leases to
Tenant, and Tenant rents from Landlord, the premises
containing approximately 39,600 square feet,
(hereinafter called the "Leased Premises"), as shown as
unit number 5-A outlined on a drawing identified by the
parties as "Exhibit A", a copy of which is attached
hereto and made a part hereof, and located in the
Shopping Center known as Pinehill Plaza Shopping Center
(hereinafter called the "Shopping Center"), a diagram
of which is shown as "Exhibit B" attached hereto and
made a part hereof. The exact dimensions of the Leased
Premises are subject to final measurement and
verification by an architect acceptable to Landlord and
Tenant. If the area of the Premises is different from
39,600 square feet or if the Shopping Center is ever
enlarged, the amounts based on their areas will be
changed. Landlord represents and warrants to Tenant
that the Premises may lawfully be used by Tenant for
the Permitted Use described in Section 1, and if there
is no agreement affecting Landlord or the Shopping
Center or any part of it, that limits or affects that
use, Landlord represents and warrants that on the date
on which it completes its improvement of the Premises,
the Premises will comply fully with all federal, state,
and local laws, including without limitation laws
related to Hazardous Materials described in Section 58
and ADA described in Section 59.
TITLE; SUBORDINATION SECTION 3. Landlord hereby warrants that Landlord and
no other person or corporation has the right to lease
the premises demised. During the term hereof and as
long as Tenant is not in default hereunder, Tenant
shall have peaceful and quiet use and possession of the
Leased Premises without hindrance on the part of
Landlord or anyone claiming by, through or under
Landlord, and Landlord shall warrant and defend Tenant
in such peaceful and quiet use and possession against
the claims of all persons, claiming by, through or
under Landlord. However, Tenant's rights under this
Lease Agreement may at the sole option of the Landlord
be subordinated to the operation and effect of any
mortgage, deed of trust or other similar security
instrument now or hereafter placed upon the Shopping
Center, or any part or parts thereof, by Landlord, so
long as Tenant and the holder of such instrument enter
into a subordination, non-disturbance and attornment
agreement in form and substance acceptable to Tenant
(an "SNDA").
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Tenant agrees that upon the request of Landlord it will
subordinate this lease to the lien of any present or
future mortgage, deed of trust or similar security
instrument upon the demised premises or the Shopping
Center, irrespective of the time of execution or time
of recording of any such security instrument and agrees
to execute, acknowledge and deliver all instruments
deemed by Landlord necessary or desirable to give
effect to or notice of such subordination, so long as
Tenant and the holder of such instrument enter into a
subordination, non-disturbance and attornment agreement
in form and substance acceptable to Tenant (an "SNDA").
Tenant also agrees that if it shall fail at any time to
execute, acknowledge or deliver any such instrument
requested by Landlord, Landlord may, in addition to any
other remedies available to it, execute, acknowledge
and deliver such instrument as the attorney in fact of
Tenant, in Tenant's name. The word "mortgage" as used
herein includes mortgages, deed of trust, other similar
security instruments and modifications, consolidations,
extensions, renewals, replacements and substitutes
thereof. Tenant agrees that the form of SNDA attached
hereto as Exhibit D is an SNDA acceptable in form and
substance to Tenant.
Within thirty (30) days of execution of the Lease
Agreement, Landlord shall deliver to Tenant a
reasonably acceptable non-disturbance agreement
executed by its mortgagee.
TERM SECTION 4. The term of this lease shall commence on the
earlier of (a) the date on which Tenant's improvements
to the Leased Premises are substantially complete or
(b) one-hundred and twenty (120) days after the date of
execution of this lease. The lease term shall be for a
period of seven (7) years and nine (9) months plus the
part of a month, if any, from the date of commencement
of the term to the first day of the first full calendar
month in the term. Each of the parties hereto agrees,
upon demand of the other, to execute a declaration in
recordable form expressing the commencement and
termination dates of the term as soon as the
commencement date has been determined.
Renewal Option. Provided Tenant is not in default under
any of the terms and provisions of this Lease after the
giving of notice and the passage of any required cure
periods or the Tenant is otherwise endeavoring in good
faith to cure such default, Tenant shall have one (1)
renewal option period of five (5) years. All terms and
conditions of this Lease shall remain in full force and
effect during the renewal option period, except for the
payment of Fixed Rent, which shall be $6.00 per square
foot per year. To exercise the option period, Tenant
shall deliver to Landlord written notice one hundred
eighty (180) days prior to the expiration of the term
of its intent to exercise its option to renew this
Lease. Absent such timely delivery of notice to
exercise an option period, this Lease shall terminate
automatically without further notice or action upon the
expiration of the then current term.
TERMINATION SECTION 5. This lease and the tenancy hereby created
shall cease and terminate at the end of the original
term hereof, or any extension or renewal thereof,
without the necessity of any notice from either
Landlord or Tenant to terminate the same, and Tenant
hereby waives notice to vacate the premises and agrees
that Landlord shall be entitled to the benefit of all
provisions of law respecting the summary recovery of
possession of premises from a tenant holding over to
the same extent as if statutory notice had been given.
For the period of six (6) months prior to the
expiration of the original term of this lease or any
renewal or extension thereof, Landlord shall have the
right to display on the exterior of the premises (but
not in any window or doorway thereof) the customary
sign "For Rent," and during such period Landlord may
show the premises and all parts thereof to prospective
tenants between the hours of 9:00 A.M. and 5:00 P.M. on
any day during which Tenant shall be open for business,
with the consent of the tenant as long as consent is
not unreasonably withheld.
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RENTALS PAYABLE SECTION 6. Tenant covenants and agrees to pay Landlord,
as Fixed Rent for the Leased Premises, the sum of $5.25
per square foot per year. Fixed Rent, Common Area
charge, taxes and insurance will abate in full for the
first nine (9) full months of the term.
Fixed Rent SECTION 7. The Fixed Rent shall be payable, without
previous demand and without any setoffs or deductions
whatsoever except as provided in this lease, in equal
monthly installments in advance on the first day of
each calendar month during the term, the first such
payment to include any prorated Fixed Rent for the
period from the date of the commencement of the term to
the first day of the first full calendar month in the
term.
SECTION 8. INTENTIONALLY OMITTED.
"RENTAL YEAR" DEFINED SECTION 9. The first "rental year" shall commence on
the first day of the term and shall end at the close of
the last day of the twelfth full calendar month
following thereafter; thereafter the rental year shall
consist of periods of twelve full calendar months or,
at the end of the term, the portion of such twelve
calendar months included in the term.
SECTION 10. INTENTIONALLY OMITTED.
SECTION 11. INTENTIONALLY OMITTED.
TAXES AND INSURANCE SECTION 12. Throughout the term of this lease, Tenant
agrees to pay to Landlord, as additional rental each
Rental Year, a pro rata share of the following
expenses, which pro rate shall be computed by
multiplying such expenses by a fraction having as its
numerator the Floor Area of the Demised Premises and as
its denominator the Floor Area of all the enclosed
areas of the Shopping Center available for exclusive
use and occupancy by Tenants of the Shopping Center,
whether or not open for business.
(i) All real estate taxes and assessments of every kind
or nature which are now or may hereafter be imposed or
assessed upon the Demised Premises or the Shopping
Center provided, however, that nothing contained in
this Section shall be construed to obligate Tenant to
pay any inheritance, estate, succession, transfer,
gift, or corporation tax that is or may be imposed upon
Landlord.
(ii) All taxes or excises on rent or any other tax,
levy or charge however described levied against the
Landlord by the Federal Government, the State of
Virginia or any political subdivision of the State of
Virginia on account of rentals or other charges payable
to Landlord hereunder or based upon the parking
facilities and/or the number of parking spaces provided
by the Landlord hereunder or based upon the parking
facilities and/or the number of parking spaces provided
by the Landlord in the Shopping Center.
(iii) The cost to Landlord of insurance obtained by
Landlord pursuant to Sections 34 and 38 hereof;
provided, however, that in no event shall the Tenant be
required to pay any portion of such taxes or insurance
covering a taxable or insured period ending prior to
the delivery of the Demised Premises to the Tenant and
such payment is further abated according to Section 1.
Such additional rent for the partial Rental Year of the
term hereby shall be prorated per diem. Landlord shall
submit to Tenant annually a written statement setting
forth the amount of such expenses and showing in
reasonable detail the manner in which they have been
computed.
The charges to Tenant under this Section shall be
computed on a basis of twelve (12) consecutive calendar
months commencing and ending on such dates as may be
designated by Landlord and shall be paid by Tenant in
monthly installments on the first day of each calendar
month in an amount as
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set forth in Section 1, as adjusted to actual expenses
per the terms of this Lease. Landlord shall make
available for Tenant's inspection during normal
business hours at the office of the Landlord,
Landlord's records relating to the taxes and insurance
for such preceding period. On Tenant's request,
Landlord shall provide Tenant with supporting
documentation for any element of taxes or insurance
passed through to Tenant under this Section.
Within sixty (60) days after the end of each Rental
Year, or such other twelve (12) month period designated
by Landlord, Landlord shall submit to Tenant a written
statement setting forth the amount of such expenses and
showing in reasonable detail the manner in which they
have been computed and the calculation of Tenant's
prorata share. Within thirty (30) days after receipt of
such statement, there shall be an adjustment between
Landlord and Tenant with payment to or repayment by
Landlord as the case may require. In the event any
repayment is due to Tenant, then Tenant may take a
credit on Tenant's next succeeding monthly installment.
At the time the aforementioned annual adjustment is
made, Tenant's subsequent monthly tax or insurance
contributions shall be adjusted so that each monthly
installment equals one-twelfth of Tenant's adjusted
annualized contribution.
SECTION 13. INTENTIONALLY OMITTED.
ADDITIONAL RENTALS SECTION 14. Tenant will promptly pay all rentals herein
prescribed when and as the same shall become due and
payable. If Landlord shall pay any monies, or incur any
expenses in correction of the violation of covenants
herein set forth, the amount so paid or incurred shall,
at Landlord's option, and on notice to Tenant, be
considered additional rentals payable by Tenant with
the first installment of rental thereafter to become
due and payable, and may be collected or enforced as
provided by law in respect of rentals.
PAYMENTS AT OFFICE OF SECTION 15. All rentals payable and all statements
LANDLORD delivered by Tenant to Landlord under this Agreement
shall be paid and delivered to South Crater Square
Associates, LLC, c/o Weinstein Management Co., Inc.,
P.O. Box 31335, Richmond, VA 23294, or to such other
address as Landlord may direct by written notice.
NOT A JOINT VENTURE SECTION 16. Any intention to create a joint venture or
partnership relationship between the parties hereto is
hereby expressly disclaimed.
IMPROVEMENTS SECTION 17. Prior to commencement of the term, Landlord
agrees to provide, at its expense, the Improvements to
the Leased Premises substantially in accordance with
the general description of the improvements to be
provided by Landlord as set forth in "Exhibit C"
hereto. Any other improvements to the Leased Premises
shall be provided by Tenant at its sole expense.
Landlord and Tenant are each responsible for obtaining
plans and bids for the work for which each is
responsible for performing. Landlord and Tenant shall
agree on one contractor to perform both Landlord's and
Tenant's work. Landlord and Tenant shall establish a
mutually agreeable construction schedule and completion
date for all improvements to the Leased Premises.
Tenant shall execute a contract with the contractor,
monitor the construction progress, maintain a log of
changes and execute change orders approved by Landlord
(if the change order relates to Landlord's work) and
prepare a punchlist a substantial completion.
DRIVEWAYS AND PARKING SECTION 18. Landlord agrees to provide hard surfaced
AREAS parking areas with adequate drainage and lighting
facilities, including footways and necessary access
roads within the Shopping Center. Landlord represents
that there are at least 320 non-reserved parking spaces
in the parking lot for the Shopping Center that are
available for use.
SECTION 19. On or before the commencement of the Term,
Tenant will
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substantially complete and fixture the Leased Premises.
Tenant shall obtain the prior written approval of
Landlord to all plans and specifications for work upon
the Leased Premises whether interior, exterior,
structural, mechanical, electrical or otherwise. Once
construction plans and specifications shall have been
submitted to and approved in writing by Landlord,
Tenant must construct its improvements in strict
conformity therewith. If, during the course of
construction, Tenant desires any changes in the
approved plans or specifications, such changes must
also first be submitted to and approved by Landlord.
All Tenant's work, as herein provided, shall be done at
the sole cost and expense of Tenant, in accordance with
all applicable laws and governmental regulations.
Furthermore, Tenant shall obtain and furnish
satisfactory evidence of such builder's risk, and other
usual and customary insurance policies, or such
policies as Landlord or Landlord's mortgage lender may
require throughout the period of Tenant's construction,
which policies shall be in form, content, and with such
limits as Landlord and/or Landlord's mortgage lender
may require. Said policies shall name Landlord,
Landlord's mortgage lender, and Landlord's Agent as
additional named insureds, as their respective
interests may appear.
Tenant hereby indemnifies and saves Landlord, its
Partners and agent harmless from and against any and
all manner of claims for liens, wages, or materials, or
for damages to persons or property caused during the
making of or in connection with said building
construction, including but not by way of limitation,
mechanics' liens claims, which latter claims Tenant
shall bond off within ten (10) business days.
UNAVOIDABLE DELAYS SECTION 20. The obligations of the Landlord and of
Tenant, respectively, under Sections 4, 17, 18, and 19
hereof, are subject to unavoidable delays due to labor
disputes, acts of God or the public enemy, governmental
regulations or controls, fire or other casualties or
other conditions or causes beyond the reasonable
control of the parties.
TRADE FIXTURES SECTION 21. All trade fixtures and apparatus installed
by Tenant in the Leased Premises except such as may be
the property of Landlord shall remain the property of
the Tenant and shall be removable from time to time and
also at the expiration of the term of this lease or any
renewal or extension thereof, or other termination
thereof, provided Tenant shall not at such time be in
default under any covenant or agreement contained in
this Agreement; otherwise Landlord shall have a lien on
said fixtures or apparatus as security against loss and
damage resulting from defaults by Tenant. Tenant shall
repair and restore the Leased Premises following the
removal or replacement of its trade fixtures whether
during or at the termination of this lease.
USE OF PREMISES SECTION 22. The Leased Premises shall be used by tenant
solely for the purpose of conducting therein the
business as set forth in Section 1.
Exclusive use: During the initial lease term and any
extensions, Landlord agrees not to allow any space at
the Shopping Center to be used or occupied by another
call center company.
PROMPT OCCUPANCY AND SECTION 23. Tenant will not use, or permit or suffer
USE the use of, the Leased Premises for any other business
or for residential purposes, and will conduct business
on the premises in its own name unless and until the
use of some other name is approved in writing by
Landlord. Tenant will not permit, allow, or cause any
public or private auction sales to be conducted on or
from the Leased Premises.
OPERATION BY TENANT SECTION 24. Tenant will keep the inside and outside of
all glass in the doors and windows of the Leased
Premises clean; will keep all exterior surfaces clean;
will replace promptly at its own expense with glass of
like kind and quality any plate glass or window glass
of the Leased Premises
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which may become cracked or broken, unless by fire;
will not, without the consent in writing of Landlord,
place or maintain any merchandise or other articles in
any vestibule or entry of the premises, on the front
walks adjacent thereto, or elsewhere on the exterior
thereof; will maintain the premises and the sidewalks
abutting the premises at its own expense in a clean,
orderly and sanitary condition and free of insects,
rodents, vermin and other pests; will not permit undue
accumulations of garbage, trash, rubbish and other
refuse in the Premises, but will remove the same at its
own expense, and will keep such refuse in rat-proof
containers within the interior of the premises until
called for to be removed; will not use or permit the
use of any pool table, foosball, air hockey, video,
pinball or similar arcade type games; will not use or
permit the use of any television or apparatus or
musical instruments for sound reproduction or
transmission in such manner that the sounds so
reproduced, transmitted or produced shall be audible
beyond the interior of the Leased Premises or disturb
the other tenants of the Shopping Center; will not
commit any acts which will increase Landlord's rate of
insurance; will keep all mechanical apparatus free of
vibration and noise which may be transmitted beyond the
confines of the premises; will not cause or permit
objectionable odors to emanate or be dispelled from the
premises; will comply with all laws and ordinances and
valid rules and regulations of governmental
authorities, and all recommendations of the applicable
Fire Insurance Rating Bureau, with respect to the use
or occupancy of the premises by Tenant.
EXTERIOR REPAIRS SECTION 25. Landlord will keep the exterior of the
Shopping Center, including without limitation the
exterior walls, roofs, common areas, driveways, parking
areas, and sidewalks, except any doors, windows and
glass in the Premises, in repair, provided that Tenant
shall give Landlord written notice of the necessity for
such repairs, and provided that the damage thereto
shall not have been caused by negligence of Tenant, in
which event Tenant shall be responsible therefor.
Except as set forth in Sections 26 and 27 of this
Lease, Landlord shall be under no other liability for
repair, maintenance, alteration or any other action
with reference to the Leased Premises or any part
thereof, or plumbing, heating, electrical, air
conditioning or other mechanical installation therein.
Landlord is expressly exculpated from any damage caused
to Tenant's fixtures, inventory, and/or decor caused by
leakage from any pipe, or from leakage in the roof.
INTERIOR REPAIRS; END SECTION 26. Tenant will keep the interior of the
OF THE LEASE TERM premises, together with all electrical, plumbing, and
other mechanical installations, therein in good order
and repair at its own expense; and will surrender the
Leased Premises at the expiration of the term or at
such other time as it may vacate the premises in as
good condition as when received, excepting depreciation
caused by ordinary wear and tear. Tenant will not
overload the electrical wiring serving the premises or
within the premises, and will install at its own
expense, but only after obtaining Landlord's written
approval, any additional electrical wiring which may be
required in connection with Tenant's apparatus.
Notwithstanding the foregoing, however, Landlord
guarantees that the electrical and plumbing systems and
equipment serving the Leased Premises (except any
electrical and plumbing systems installed by Tenant as
part of its improvements to the Leased Premises) are in
good working condition on the Lease Commencement Date.
Landlord shall be responsible for all capital repairs
or replacements related to those systems, unless such
are repairs or replacements are necessitated by
Tenant's negligence or willful acts. If Landlord fails
to perform any of its obligations in this Section and
Landlord fails to initiate efforts within ten (10) days
after Landlord's receipt of written notice from Tenant
to promptly cure such failure, Tenant may, but will not
be obligated to, perform Landlord's obligations on
Tenant's behalf and Tenant may invoice Landlord for the
cost of such repairs plus interest at the rate of ten
percent (10%) per annum.
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HEATING VENTILATING SECTION 27. Tenant, at its sole cost and expense,
AND AIR CONDITIONING shall operate, maintain and repair the heating,
ventilating and air conditioning (HVAC) system
including the making of all necessary replacements
thereto throughout the term of this lease and any
renewal thereof. Tenant shall pay for all fuel, water,
gas and electricity consumed in such operation. During
the entire term hereof, Tenant agrees to contract for
the regular maintenance and repair of the heating,
ventilating and air conditioning equipment with a
reputable service contractor acceptable to Landlord and
to provide an executed copy of such agreement to
Landlord.
Notwithstanding the foregoing, however, Landlord
guarantees that the HVAC systems and equipment serving
the Leased Premises (except any HVAC systems installed
by Tenant as part of its improvements to the Leased
Premises) are in good working condition on the Lease
Commencement Date. Landlord shall be responsible for
all capital repairs or replacements related to those
systems, unless such repairs or replacements are
necessitated by Tenant's negligence or willful acts. If
Landlord fails to perform any of its obligations in
this Section and Landlord fails to initiate efforts
within ten (10) days after Landlord's receipt of
written notice from Tenant to promptly cure such
failure, Tenant may, but will not be obligated to,
perform Landlord's obligations on Tenant's behalf and
may invoice Landlord for the cost of such repairs or
replacement plus interest at the rate of ten percent
(10%) per annum.
If utilities to the Premises are interrupted for more
than three (3) consecutive business days as a result of
the negligent act or omission of Landlord, its agents,
employees, or contractors, Tenant will have the right
to abate rent from the beginning of the interruption of
such services until full resumption of them. If such
interruption continues for thirty (30) consecutive
days, Tenant will have the right to terminate this
lease without liability upon ten (10) days' notice, so
long as such interruption has not been cured before
such termination date.
DAMAGES TO PREMISES SECTION 28. Tenant will repair promptly at its own
expense any damage, including that from forced entry,
to the Leased Premises caused by the bringing into or
taking out of the premises any property for Tenant's
use, or by the installation or removal of such
property, regardless of fault or by whom such damage
shall be caused, unless caused by Landlord, its agents,
employees, or contractors and in default of such
repairs by Tenant, Landlord may make the same and
Tenant agrees to pay the cost thereof to Landlord
promptly upon Landlord's demand therefor.
ALTERATIONS BY TENANT SECTION 29. Tenant will not alter the storefront of the
leased premises and will not make any structural or
non-structural alteration or addition to the Leased
Premises or any part thereof, or the Shopping Center
without first obtaining Landlord's written approval,
which will not be unreasonably denied, conditioned or
delayed; and Tenant agrees that any improvements made
by it shall immediately become the property of the
Landlord and shall remain upon the premises in the
absence of agreement to the contrary. Tenant further
may install fixtures, apparatus and equipment of any
kind to any part of the premises without first
obtaining Landlord's written consent. In the event
Tenant performs any initial improvements or subsequent
alterations or repairs to the Leased Premises, Tenant
shall do all things reasonably necessary to prevent the
filing of any mechanics' or other liens against the
Leased Premises. If any such lien shall at any time be
filed, Tenant shall either cause the same to be vacated
and canceled within ten (10) days after the date of
filing thereof, or, Tenant shall furnish such security
by surety bond or otherwise as may be necessary to
release the same as a lien against the real property.
At the expiration of the Lease, Tenant shall remove at
its expense, all alterations and additions which were
made in the demised premises or the Shopping Center by
the Tenant after the initial preparation of the
Premises and which are designated by the Landlord for
removal at the time Lessee requests Lessor's consent to
them. Tenant shall repair, at its expense, any damage
caused by removal of the alterations and additions.
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PAINTING AND DECORATION SECTION 30. Tenant will not paint or decorate any part
of the exterior of the Leased Premises without first
obtaining Landlord's written approval of such painting
or decoration.
SECTION 31. INTENTIONALLY OMITTED
ROOF AND WALLS SECTION 32. So long as Landlord does not unreasonably
interfere with the operation of Tenant's business,
Landlord shall have the exclusive right to use all or
any part of the roof of the premises for any purpose;
to erect on the roof to the Leased Premises other
structures; and to erect in connection with the
construction thereof of temporary scaffolds and other
aids to construction on the exterior of the premises,
provided that access to the premises shall not be
denied. Tenant further agrees that Landlord may make
any use it desires of the side or rear walls of the
premises, provided that there shall be no encroachment
upon the interior of the Leased Premises.
COMMON FACILITIES SECTION 33. Landlord grants to Tenant during the term
the right of non-exclusive use, in connection with
others, of all automobile parking areas within the
Shopping Center for the accommodation and parking of
passenger automobiles of Tenant's customers. All
parking areas, access roads and facilities which may be
furnished by Landlord in or near the Shopping Center,
including employee parking areas, the truck way or
ways, loading docks, package pick-up stations,
pedestrian sidewalks, and ramps, landscaped areas,
retaining walls, lighting facilities, public telephone
facilities and other areas and improvements which may
be provided by Landlord for the general use, in common,
of tenants, their officers, agents, employees, and
customers, shall at all times be subject to the
exclusive control and management of Landlord, and
Landlord shall have the right from time to time to
establish, modify and enforce reasonable rules and
regulations with respect to all facilities and areas
mentioned in this Section. Landlord shall have the
right to police the same. Landlord shall have the right
from time to time to change the area, location and
arrangement of parking areas and other facilities
referred to in this Section 33, to change truck routes
to such extent as the Landlord may desire, provided
that the Leased Premises are adequately served by the
new route; to restrict parking by tenants, their
officers, agents and employees to employee parking
areas; to construct surface or elevated parking areas
and facilities; to establish and from time to time
change the level or parking surfaces; to close all or
any portion of said areas or facilities to such extent
as may, in the opinion of the Landlord's counsel, be
legally sufficient to prevent a dedication thereof or
the accrual of any rights to any person or to the
public therein; to close temporarily all or any portion
of the parking areas or facilities; to discourage
non-customer parking; and to do and perform such other
acts in and to said areas and improvements as, in the
use of good business judgment, the Landlord shall
determine to be advisable with a view of the
improvement of the convenience and use thereof by
tenants, their officers, agents, employees and
customers.
Landlord reserves the right in its sole discretion from
time to time to change, rearrange, alter or modify any
or all of the facilities designed for the common use
and convenience of all tenants so long as adequate
facilities in common are made available to the Tenant
herein.
EXPENSES OF COMMON SECTION 34. Landlord, will, at its expense (subject to
FACILITIES the reimbursement provisions hereinafter set forth),
operate and maintain the common facilities referred to
in Section 33. In each rental year Tenant will pay to
Landlord such proportion of Landlord's operating costs
related to maintaining the common facilities as the
gross floor area of the premises leased hereby bears to
the total gross floor area of all stores in the Center.
9
For the purposes of this Section, Landlord's operating
costs in connection with the common facilities of the
shopping center buildings shall be those of operating
and maintaining the common facilities in a manner
deemed by the Landlord reasonable and appropriate and
for the best interest of the tenants in the Center,
including without limitation, all cost and expense of
operating, repairing, lighting, cleaning, painting,
striping, insuring, removing of snow, ice, debris,
maintaining landscaped areas, policing, inspecting and
all costs and expense of replacement of paving, curbs,
walkways, landscaping, draining and lighting
facilities, plus an administrative cost of fifteen
percent (15%) of all such Operating Costs.
The charges to Tenant under this Section shall be
computed on a basis of twelve (12) consecutive calendar
months commencing and ending on such dates as may be
designated by Landlord and shall be paid by Tenant in
monthly installments on the first day of each calendar
month in an amount as set forth in Section 1 and
adjusted to actual expenses per the terms of this
Lease. Landlord shall make available for Tenant's
inspection during normal business hours at the office
of the Landlord, Landlord's records relating to the
Operating Costs of the common facilities for such
preceding period. On Tenant's request, Landlord shall
provide Tenant with supporting documentation for any
element of the common facility expenses or other
charges passed through to Tenant under this Lease.
Within sixty (60) days after the end of each Rental
Year, or such other twelve (12) month period designated
by Landlord, Landlord shall submit to Tenant a written
statement setting forth the amount of such expenses and
showing in reasonable detail the manner in which they
have been computed and the calculation of Tenant's
prorata share. Within thirty (30) days after receipt of
such statement, there shall be an adjustment between
Landlord and Tenant with payment to or repayment by
Landlord as the case may require. In the event any
repayment is due to Tenant, then Tenant may take a
credit on Tenant's next succeeding monthly installment.
At the time the aforementioned annual adjustment is
made, Tenant's subsequent monthly operating cost
contributions shall be adjusted so that each monthly
installment equals one-twelfth of Tenant's adjusted
annualized contribution.
No more than once each year, Tenant and/or Tenant's
representatives shall have the right following
reasonable notice to Landlord to inspect and audit
Landlord's books and records pertaining to common
facility expenses and any other charges passed through
to Tenant under this Lease. Such inspection or audit
shall take place at Landlord's principal office for the
Shopping Center. In the event any such inspection or
audit indicates that Tenant has overpaid any charges
under this Lease by more than five percent (5%),
Landlord shall pay Tenant's reasonable costs incurred
in such inspection or audit and credit such overpayment
to the next charges due Landlord under this Lease or
refunded to Tenant if for the final year. At the time
the aforementioned adjustment is made, Tenant's
subsequent monthly common facility expenses or other
contributions shall be adjusted so that each monthly
installment equals one-twelfth of Tenant's adjusted
annualized contribution. The provisions of this Section
shall survive termination or expiration of this Lease.
PUBLIC LIABILITY SECTION 35. Tenant will keep in force at its own
INSURANCE expense so long as this lease remains in effect public
liability insurance with respect to the Leased Premises
in companies and in form acceptable to Landlord,
covering Tenant, Landlord, and Landlord's agents, with
minimum limits of One Million Dollars ($1,000,000) on
account of bodily injuries to or death of any person(s)
as the result of any one accident or disaster; and
property damage insurance with minimum limits of Three
Hundred Thousand Dollars ($300,000); and Tenant will
further deposit the policy or policies of insurance or
certificates thereof, with Landlord. If Tenant shall
not comply with its covenants made in this Section,
Landlord may, at its option, cause insurance as
aforesaid to be issued, and in such event Tenant agrees
to pay the premium for such insurance promptly upon
Landlord's demand.
10
INDEMNITY BY TENANT SECTION 36. Tenant will indemnify Landlord and
Landlord's agents and save them harmless from and
against any and all: (a) claims, actions, damages,
liability and expense in connection with loss of life,
personal injury and/or damage to property arising from
or out of the occupancy or use by Tenant of the Leased
Premises or any part thereof, or occasioned wholly or
in part by any act or omission of Tenant, its agents,
contractors, or employees; and (b) claims, actions or
demands for labor, materials or related services
incurred by Tenant in connection with any work done
upon the Leased Premises by Tenant or anyone claiming
under Tenant so that the Leased Premises shall at all
times be free of liens. If any such lien shall at any
time be filed the Tenant shall either cause the same to
be vacated and canceled of record within ten (10) days
after the date of the filing thereof or if Tenant in
good faith determines that such lien should be
contested, Tenant shall furnish such security, by
security bond or otherwise, as may be necessary or be
prescribed by law to release the same as a lien against
the Leased Premises or an interest thereon and to
prevent any foreclosure of such lien during the
pendency of such contest. If Tenant shall fail to
vacate or release such lien in the manner and within
the time period aforesaid then, and in addition to any
other right or remedy of Landlord resulting from
Tenant's said default, the Landlord may, but shall not
be obligated to, vacate or release the same either by
paying the amount claimed to be due or by procuring the
release of such lien by giving security or in such
other manner as may be prescribed by law. Tenant shall
repay Landlord, as additional rent hereunder on demand,
all sums disbursed or deposited by Landlord pursuant to
the foregoing provisions of this lease, including
Landlord's costs, expenses and attorney's fees incurred
in connection therewith. However, nothing contained
herein shall imply any consent or agreement on the part
of Landlord (or any ground or underlying Landlord) or
Mortgagees or holders of deeds of trust upon the
Shopping Center to subject to their respective estates
or interests to liability under any mechanic's or other
lien law, whether or not the performance or the
furnishing of work, labor, services, or materials to
Tenant or anyone holding the Leased Premises or a part
thereof through or under Tenant, shall have been
consented to by Landlord and/or any of such parties.
Tenant shall further indemnify and hold Landlord
harmless from and against any penalty or expense
resulting from Tenant's violation of any provision of
law to which the Leased Premises shall from time to
time be subjected.
SECTION 37. INTENTIONALLY OMITTED.
FIRE INSURANCE SECTION 38. Tenant will not do or suffer to be done, or
keep or suffer to be kept, anything in, upon or about
the Leased Premises which will contravene Landlord's
policies insuring against loss or damage by fire or
other hazards (including, but not limited to, public
liability) or which will prevent Landlord from
procuring such policies in companies acceptable to
Landlord provided Tenant is first given adequate notice
of the requirements of such policies. If anything done,
omitted to be done or suffered to be done by Tenant, or
kept or suffered by tenant to be kept, in, upon or
about the premises shall cause the rate of fire
insurance or the insurance on the Leased Premises or
other property of Landlord in companies acceptable to
Landlord to be increased beyond the minimum rate from
time to time applicable to the premises for use for the
purposes permitted under this Agreement or to such
other property for the use or uses made thereof, Tenant
will pay the amount of such increase promptly upon
Landlord's demand.
FIRE OR OTHER CASUALTY SECTION 39. If the Leased Premises shall be damaged by
fire, the elements, unavoidable accident or other
casualty, but are not thereby rendered untenable in
whole or in part, Landlord shall promptly at its own
expense cause such damage to be repaired, and the rent
shall not be abated; if by reason of such occurrence,
the premises shall be rendered untenable only in part;
Landlord shall promptly at its own expense cause the
damage to be repaired, and the Fixed Rent shall be
abated proportionately as to the portion of the
premises rendered untenable; if by reason of such
occurrence the premises shall be
11
rendered wholly untenable, Landlord shall promptly at
its own expense cause such damage to be repaired, and
the minimum annual rent shall be abated on a pro rata
basis, unless within thirty (30) days after said
occurrence Landlord shall give Tenant written notice
that it has elected to cancel and terminate the
remainder of the demised term (together with available
renewal options) in which event this lease and the
tenancy hereby created shall cease as of the date of
said occurrence and the Fixed Rent to be adjusted as of
such date. If the damage is such that the Premises
cannot be returned to their condition on the
commencement of the Term within one hundred eighty
(180) days after their damage or destruction, Tenant
may terminate this Lease by written notice to Landlord
given within thirty (30) days after such occurrence and
if Landlord undertakes to repair such damage or
destruction and Landlord does not do so within one
hundred eighty (180) days after the date of such
occurrence, Tenant may cancel this Lease at any time
thereafter so long as such repair has not occurred.
Landlord hereby waives any and all rights of recovery
against Tenant for or arising out of damage to or
destruction of the Premises or the Shopping Center from
causes that are included under special form insurance
policies or endorsements, and Tenant waives all rights
of recovery against Landlord for or arising out of
damage to or destruction of Tenant's property in the
Premises or the Shopping Center from such causes.
Landlord and Tenant each agree that they shall rely
solely upon insurance obtained by them for any such
losses.
CONDEMNATION SECTION 40. If the whole or any part of the Leased
Premises or Shopping Center shall be taken under the
power of eminent domain, then this lease shall
terminate as to the part so taken on the day when
Tenant is required to yield possession thereof, and
Landlord shall make such repairs and alterations as may
be necessary in order to restore the part not taken to
useful condition; and the Fixed Rent shall be reduced
proportionately as to the portion of the Leased
Premises so taken. If the amount of the Leased Premises
so taken is such as to impair substantially the
usefulness of the Leased Premises for the purpose for
which the same are hereby leased, then either party
shall have the option to terminate this lease as of the
date when Tenant is required to yield possession. All
compensation awarded for such taking of the fee and the
leasehold shall belong to and be the property of the
Landlord; provided, however, that the Landlord shall
not be entitled to any portion of the award made to the
Tenant for loss of business and for the cost of removal
of stock and fixtures.
INSPECTIONS BY LANDLORD SECTION 41. Upon twenty-four (24) hours prior written
notice, Tenant will permit Landlord, its agents,
employees, and contractors to enter the Leased Premises
and all parts thereof during business hours to inspect
the same and to enforce or carry out any provision of
this Agreement.
ASSIGNMENTS & SUBLETTING SECTION 42. Tenant shall have the right to freely
sublease or assign all or any portion of the space
throughout the term of the lease and renewal, subject
only to Landlord's approval of sub lessees and
assignees, which approval shall not be unreasonably
qualified, withheld, conditioned or delayed. Acceptance
of rent by Landlord from an assignee or sub lessee who
has not been approved by Landlord shall not waive the
default created by failure to obtain Landlord's
consent. As a condition of approving any proposed
assignee or sub lessee, Landlord may require such
financial and other information concerning the proposed
assignee or sublessee that Landlord deems appropriate
in order to determine sub lessee's or assignee's
ability to meet its financial obligations. Approval of
a proposed sublease or assignment in any one instance
shall not affect Landlord's right to approve all
subsequent assignments and subleases.
Tenant shall have the right to sublease or assign all
or any portion of the Leased Premises to any wholly
owned subsidiary or affiliate of Tenant, without the
prior written consent of Landlord.
12
No subletting or assignment shall release Tenant from
any obligation pursuant to this lease or alter the
primary liability and obligation of Tenant to pay the
rent and to perform all other obligations to be
performed by Tenant hereunder. Landlord shall be
furnished with a duplicate executed original of all
subleases and assignments.
BANKRUPTCY, ETC. OF SECTION 43. If any sale of Tenant's interest in the
TENANT premises created by this Agreement shall be made under
execution or similar legal process, or if Tenant shall
be adjudicated to be bankrupt or insolvent, and such
adjudication is not vacated within thirty (30) days, or
if a receiver or trustee shall be appointed for its
business or property, and such appointment shall not be
vacated within thirty (30) days, or if a corporate
reorganization of the Tenant or an arrangement with its
creditors shall be approved by a court under the
Federal Bankruptcy Act, or if Tenant shall make an
assignment for the benefit of creditors, or if in any
other manner Tenant's interest under this Agreement
shall pass to another by operation of law, then, in any
of said events, Tenant shall be deemed to have breached
a material covenant of this lease and Landlord may, at
its option, re-enter premises and declare this lease
and the tenancy hereby created terminated, but
notwithstanding such termination Tenant shall remain
liable for all rent or damages which may be due at the
time of such termination and, further, shall be liable
for the liquidated damages set forth in paragraph B of
Section 45 of this lease.
PERFORMANCE BY TENANT SECTION 44. Tenant covenants and agrees that it will
perform all agreements herein expressed on its part to
be performed, and that it will promptly upon receipt of
written notice specifying action desired by Landlord in
connection with any such covenant commence to comply
with such notice to the satisfaction of Landlord within
five (5) days after delivery thereof. If Tenant fails
to so commence such performance then Landlord may, at
its option, enter upon the premises and do the things
specified in said notice, and Landlord shall have no
liability to Tenant for any loss or damage resulting in
any way from such action by Landlord, and Tenant agrees
to pay promptly upon demand any expense incurred by
Landlord in taking such action.
REMEDIES OF LANDLORD SECTION 45. (A) If Tenant shall fail to comply with any
covenant or obligation hereunder, including, but not
limited to, Tenant's covenant and obligation to pay
rent as and when required hereunder and such failure
shall continue for five (5) days after Tenant's receipt
of notice of such failure, Tenant shall be
automatically deemed, without any notice required, to
be in default of this Agreement ("Tenant Default").
Upon any such Tenant Default, Landlord shall have the
right, among the remedies available to it, to exercise
self-help and re-enter and take possession of the
Leased Premises, peaceably or by force, and remove any
property found therein without any liability to Tenant
for any damage thereto and without any obligation to
store any such property. Landlord may exercise such
self-help remedies without terminating this Lease, and
the exercise of any such self-help shall not be deemed
a termination of this Lease. However, nothing herein
shall prohibit Landlord, upon a Tenant Default, from
declaring this Agreement and the tenancy created
terminated. In such event, Landlord will so notify
Tenant, in writing, that the Agreement is terminated in
accordance with one of the agreed methods for
delivering notice to Tenant as provided hereunder. In
addition, Landlord shall be entitled, upon any Tenant
Default, to avail itself of any other remedies
available at law or in equity, including, but not
limited to, the pursuit of Tenant for the collection of
all sums owed under this Agreement and the recovery of
the Leased Premises by way of eviction, unlawful
detainer, or summary ejectment. Notwithstanding, any
further or additional remedies provided to the Landlord
in this Lease or otherwise available to the Landlord by
law, if Tenant shall violate its obligation to pay rent
or any additional sum due to the Landlord under this
Lease and such failure shall continue for five (5) days
after Tenant's receipt of notice of such failure,
Tenant agrees to pay an additional sum equal to five
percent (5%) of the sum so payable to the Landlord.
Such additional sum shall be due and payable as
additional rent with the next installment of rent
becoming due under this Lease to reimburse Landlord for
the additional costs of collection.
13
In default of the payment thereof Landlord may, at its
election, exercise all remedies provided herein or
otherwise provided by law following Tenant's failure to
pay rent.
(B) Tenant further agrees that in any proceeding based
upon Tenant's default in performing any covenant and
whether or not Landlord shall re-enter the Leased
Premises, Tenant shall remain liable for any rent or
damages which may be due or sustained prior thereto
together with all reasonable costs, professional fees,
and attorneys' fees, and any expenses incurred by
Landlord in such proceedings against Tenant or in
leasing the premises to another Tenant, and Tenant
shall further be liable for a sum of money, as
liquidated damages and not as penalty, to be calculated
in the following manner: Tenant shall pay an amount of
money equal to the total rent which but for such
termination would have become payable during the
unexpired portion of the term remaining at the time of
such termination, less the amount of rent, if any,
which Landlord may receive during such period from
others to whom the premises may be rented on such terms
and conditions and at such rentals as Landlord, in its
sole discretion, shall deem proper. Landlord shall
first be reimbursed for all costs and expenses
(including legal fees and court disbursements) incurred
in recovering possession of the Leased Premises
together with the cost and expense of repairs,
alterations, changes, real estate commissions and other
costs incurred in the re-rental of the premises. Such
liquidated damages shall be payable in monthly
installments, in advance, on the first day of each
calendar month following such termination, and
continuing until the date originally fixed herein for
the expiration of the then current term of this lease
and any suit or action brought to collect the amount of
any deficiency for any month shall not in any manner
prejudice the right of Landlord to collect any
deficiency for any subsequent month by a similar
proceeding. Within one month after the date originally
fixed herein for the expiration of the then current
term of this lease, Landlord shall give a written
statement to Tenant showing all sums received by
Landlord by way of liquidated damages and all sums
received from others to whom the premises may have been
rented. In the event it appears that Tenant has paid a
greater sum of money than is due, as determined by the
terms of this Paragraph B of this Section 45, then, and
in such event, Landlord will promptly refund to Tenant
any such excess.
(C) No payment by Tenant or receipt by Landlord of
lesser amounts than the rent (or other sum) herein
stipulated shall be deemed to be satisfaction nor shall
any such payment, endorsement or statement on any check
or any letter accompanying any check or payment be
deemed an accord and satisfaction. Landlord may accept
such check or payment without prejudice to its right to
recover the balance due or pursue any other remedy in
this lease provided.
REMEDIES CUMULATIVE; SECTION 46. No mention in this lease or any specific
WAIVER OF JURY TRIAL right or remedy shall preclude Landlord from exercising
any other right, from having any other remedy or from
maintaining any action to which it may otherwise be
entitled either at law or in equity; and the failure of
Landlord to insist in any one or more instances upon a
strict performance of a covenant of this Agreement or
to exercise any option or right herein contained shall
not be construed as a waiver or relinquishment for the
future of such covenant, right, or option, but the same
shall remain in full force and effect unless the
contrary is expressed in writing by Landlord. Landlord
and Tenant agree that in any trial or similar
proceeding under this lease each shall (and hereby
does) waive any right to trial by a jury as may be
provided for by applicable law.
WATER, GAS, ELECTRICITY SECTION 47. The Tenant covenants that it will promptly
& TRASH REMOVAL pay all utility bills for utilities requested by
Tenant, including but not limited to, water (which may
include sewer charge) telephone/data, and electricity
as the same shall become due. If Landlord shall pay any
monies or incur any expenses in correction of violation
of Tenant's covenants herein set forth, the amounts so
paid or incurred shall, at Landlord's option, and on
notice to Tenant, be considered additional rentals
payable by Tenant with the first installment of
14
rental thereafter due and payable and may be collected
or enforced as by law provided in respect of rentals.
Tenant shall also be responsible for providing for, at
its sole expense, the removal of all trash from the
Leased Premises.
SUCCESSOR AND ASSIGNS SECTION 48. This Agreement and the covenants and
conditions herein contained, shall inure to the benefit
of and be binding upon Landlord, its successors and
assigns, and shall be binding upon Tenant, its
successors and assigns, and shall inure to the benefit
of Tenant and only such assigns of Tenant to whom the
assignment by Tenant has been consented to by Landlord.
If all or any part of the Landlord's interest in this
lease or in the Shopping Center shall be held or owned
(directly, indirectly or beneficially) by or for any
individual, partnership, tenancy-in-common, joint
venture, corporation or trust it is agreed that no such
owner, joint tenant, beneficiary, trustee, shareholder
or corporate entity shall be personally responsible or
liable with respect to any of the covenants, conditions
or provisions of this Lease to be performed by the
Landlord. In the event of a default by Landlord under
this Lease, Tenant agrees that in all events Landlord's
liability shall be limited to the actual equity
interest of Landlord in the Shopping Center for the
satisfaction of Tenant's remedies under this Lease.
NOTICES SECTION 49. All notices between Tenant and Landlord
required or permitted by any provision of this
Agreement shall be directed by U.S. or Certified Mail
(Return Receipt Requested) or reputable overnight
delivery service to the address set forth in Section 1.
Notices shall be deemed to be received three (3)
business days after placed in the U.S. mail and one (1)
business day after delivery to an overnight delivery
service.
Either party may, at any time or from time to time,
designate by notice given as herein provided,
substitute address for that set forth in Section 1.
Thereafter notice shall be directed to such substitute
address.
APPLICABLE LAW SECTION 50. This Lease Agreement shall be construed
under the laws of the Commonwealth of Virginia.
CAPTIONS AND HEADINGS SECTION 51. The captions and headings throughout this
lease are for convenience and reference only and the
words contained therein shall in no way be held or
deemed to define, limit, describe, explain, modify,
amplify or add to the interpretation, construction or
meaning of any provision of or the scope or intent of
this lease nor in any way affect this lease. This lease
and the Exhibits, and Rider, if any, attached hereto
and forming a part hereof, set forth all the covenants,
promises, agreements, conditions and understandings
between Landlord and Tenant. There are no covenants,
promises, agreements, conditions and understandings,
either oral or written between them other than are
herein set forth. Except as herein otherwise provided,
no subsequent alteration, amendment, change or addition
to this lease shall be binding upon Landlord and Tenant
unless reduced to writing and signed by both parties.
JOINT AND SEVERAL SECTION 52. In the event that two or more individuals,
LIABILITY corporations, partnerships or other business
associations (or any combination thereof) shall sign
this Lease Agreement as Tenant, the liability of each
such individual, corporation, partnership, or other
business association to pay rent and perform all other
obligations hereunder shall be deemed to be joint and
several. In like manner, in the event that the Tenant
named in this Lease Agreement shall be a partnership or
other business association the members of which are, by
virtue of statute or general law, subject to personal
liability then, and in the event, the liability of each
such member shall be deemed to be joint and several.
15
SECTION 53. INTENTIONALLY OMITTED.
CERTIFICATE SECTION 54. At any time after the commencement of the term of
this lease and within ten (10) days after written request
therefor by Landlord, Tenant agrees to deliver to Landlord or
to any mortgagee a certificate stating that Tenant has entered
into occupancy of the demised premises in accordance with the
provisions of this lease, that this lease is in full force and
effect, that Landlord has performed the construction required
of Landlord and any other information reasonably requested.
AGENT SECTION 55. Landlord and Tenant acknowledge that David Johnson
of Johnson Real Estate Advisors and Mark Specter of Specter
Properties Inc. (collectively "Agent") are and shall be the
sole exclusive brokers in connection with the lease of the
premises and shall be compensated pursuant to a separate
agreement between Landlord and Agent.
SIGNS & SECTION 56. Tenant will not place or suffer to be placed or
ADVERTISING maintained on the exterior of the Demised Premises any sign,
advertising matter or other thing of any kind, and will not
place or maintain any decoration lettering or advertising
matter on the glass of any window or door of the Demised
Premises without first obtaining the Landlord's written
approval thereof. It is understood that any work of any kind
made and done under this Section shall be made and done at
Tenant's own cost. Tenant agrees to comply with all applicable
codes and agrees to indemnify and hold Landlord harmless from
any and all mechanic's liens that may be filed by reason
thereof.
At Tenant's cost, Landlord shall permit a building sign at a
mutually agreeable location as well as appropriate signage on
the existing tenant panel sign on South Crater Road.
COVENANT SECTION 57. Tenant shall do all things necessary to prevent
AGAINST LIENS the filing of any mechanics' or other liens against the
Premises by reason of any work, labor, services or materials
performed or supplied or claimed to have been performed or
supplied to Tenant, or anyone holding the Premises, or any
part thereof, through or under Tenant. Without limiting the
generality of the foregoing, Tenant agrees that the Shopping
Center shall not be subject to attachment and Tenant shall
include in all contracts and subcontracts for work to be
performed on Tenant's behalf at the Premises provisions
whereby such contractor or subcontractor acknowledges that
Landlord has no liability under such contracts and
subcontracts and that such contractor or subcontractor waives
any right it may have to file a lien against or attach the
Shopping Center. If any such lien shall at any time be filed,
Tenant shall either cause the same to be vacated and cancelled
of record within ten (10) days after the filing thereof or, if
Tenant in good faith determines that such lien should be
contested, Tenant shall furnish such security as may be
necessary to release the same as a lien against the real
property. If Tenant fails to procure a release of such lien as
prescribed in this Paragraph, Landlord shall have the right,
but not the obligation, to procure a release of the lien and
charge the expense incurred in so doing (including the amount
of the lien) to Tenant as additional rent.
HAZARDOUS SECTION 58. Except for products reasonably necessary and
MATERIALS customarily associated with the use of the Premises described
in Section 1 (i) of this Lease, Tenant shall not use,
generate, manufacture, produce, store, release, discharge or
dispose of on, in or under the Premises or the property of
which the Premises are a part (the "Property"), or transport
to or from the Premises or the Property, any Hazardous
Materials (as defined below).
Tenant shall comply with all local, state or federal laws,
ordinances or regulations relating to Hazardous Materials on,
in under or about the Premises.
Tenant shall promptly notify Landlord should Tenant receive
notice of or otherwise become aware of any (i) pending or
threatened environmental regulator action against Lessee, the
Premises or the Property; (ii) claims made
16
or threatened by any third party relating to any loss or
injury resulting from any Hazardous material; or (iii) release
or discharge or threatened release or discharge of any
hazardous Material in, on, under or about the Premises or the
Property.
Tenant shall protect, indemnify and hold harmless Landlord,
its directors, Officers, employees, agents, successors and
assigns from and against any and all loss, damage, cost
expense or liability (including attorney's fees and costs)
directly or indirectly out of or attributable to Tenant's
failure to comply with this Section 58, including without
limitation (i) all foreseeable consequential damages; and (ii)
the costs of any required or necessary repair, cleanup, or
detoxification of the Premises or the Property and the
preparation and implementation of any closure, remedial or
other required plans. This indemnity shall survive the
termination or cancellation of this lease for any reason.
Landlord shall protect, indemnify and hold harmless Tenant,
its directors, officers, employees, agents, successors, and
assigns from and against any and all loss, liability damage,
cost expense or liability (including attorney's fees and
costs) directly or indirectly out of or attributable to the
presence of Hazardous Materials in the Premises or the
Shopping Center unless arising from the act or omission of
Tenant, its agents, employees or contractors. This indemnity
shall survive the termination or cancellation of this Lease
for any reason.
Upon 24 hours prior notice, Tenant shall permit Landlord or
its agents to inspect the premises in order to confirm
Tenant's compliance with this Section 58; Tenant shall also
provide Landlord copies of all notices it may receive
concerning the environmental condition of the Premises (or
property) for any governmental agency.
"Hazardous Materials" shall mean any flammable explosives,
radioactive materials, hazardous wastes, toxic substances or
related materials, including, without limitation, any
substances defined as or included in the definition of
"hazardous substances," "hazardous wastes," "hazardous
materials," or "toxic substances," under any applicable
federal or state laws or regulations.
ADA SECTION 59. The Shopping Center, restrooms in the Leased
COMPLIANCE Premises and common areas of the Shopping Center shall be in
compliance with the Americans with Disabilities Act of 1990
("ADA") and all other applicable building codes as of the
Commencement Date. Tenant represents and covenants that it
shall conduct its occupancy and use of the Premises in
accordance with the Americans With Disabilities Act (the
"ADA") (including, but not limited to, modifying its policies,
practices and procedures, and providing auxiliary aids and
services to disabled persons). If the Lease provides that
Tenant is to complete certain alterations and improvements to
the Premises, Tenant agrees that all such work shall comply
with the ADA. Furthermore, Tenant covenants and agrees that
any and all future alterations or improvements made by Tenant
to the premises shall comply with the ADA. Landlord and Tenant
agree to indemnify the other for any costs, claims, damages,
losses or expenses (including the costs of consulting and
legal fees) arising out of the other's breaching its
respective responsibilities for compliance with the ADA as
required in this Lease. This indemnity shall survive the
termination of this Lease.
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
LANDLORD:
South Crater Square Associates, LLC
___________________________________ By:___________________________________
Date Ivan P. Jecklin
TENANT:
Star Tek USA, Inc.
___________________________________ By:___________________________________
Date
______________________________________
Title
18
EXHIBIT A
LEASED PREMISES
1
Exhibit A
EXHIBIT B
SHOPPING CENTER PLAN
1
Exhibit B
EXHIBIT C
LANDLORD'S WORK - VANILLA SHELL
At Landlord's Expense:
- - Landlord to provide all utilities into space. Natural gas is not
available.
- - Sanitary Sewer connected to toilet facilities (one location only)
- - Domestic water connected to toilet facilities (one location only)
- - Install demising wall per code to roof deck. Sheetrock shall be
taped/floated and ready for paint.
- - Demo pegboard system from all other walls and install sheetrock where it
is missing from those walls. All sheetrock shall be taped/floated/ready to
receive paint.
- - Remove carpet from floor. Existing VCT to remain. Floor condition to
remain as is after removal of the carpets.
- - ADA compliant restrooms with water heater in one location: Eight women's
bathrooms and eight men's bathrooms. Location of bathrooms will based on a
mutually agreed upon space plan.
- - Janitor sink and drinking fountain, if required by code.
- - Replace all ceiling tiles in ceiling grid. Existing 2x4 ceiling grid shall
remain as is.
- - Replace all fluorescent light fixtures in ceiling grid with indirect
fluorescent lights. Landlord shall provide an allowance for lighting of
$110,000, or $2.75 per square foot installed. Any cost savings achieved
shall benefit the Landlord.
- - Heating/air conditioning capacity equal to 120 tons per 40,000 sq. ft.
Landlord will need to add 45 tons of HVAC to reach this capacity. Duct
system on existing units to remain as is. Duct system for new units shall
be one main trunic line.
- - Power:
- There is 1000 amp, 480 volt service for the entire former Rose's
department store building, including the 12,400 square foot space
occupied by Clay Home Medical.
- Dominion Power will be able to bring additional service to the
building, but this will take time and we cannot guarantee delivery
within 90 days.
- At a minimum. Landlord will provide 7 watts per square foot to the
Premises.
- - Junction box with pull string from storefront sign band to electrical
panel.
- - Exit and emergency lighting as required by code.
- - Ensure that existing main breaker panel is set up so that Tenant's
electrical usage is isolated from other tenant in building.
- - Landlord to provide corridor to shared warehouse area if Clay Home Medical
requires a rear door to its space.
1
Exhibit C
EXHIBIT D
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT
THIS AGREEMENT, made and entered into as of this ___ day of ____________,
____, by and among SOUTH CRATER SQUARE ASSOCIATES, L.C., a Virginia limited
liability company ("Landlord"), STAR TEK, INC. ("Tenant"), and BANK SERVICES OF
VIRGINIA, INC. ("Lender").
RECITALS:
A. Landlord and Tenant have entered into that certain Lease Agreement,
dated ________________________ (hereinafter referred to as the "Lease"), with
respect to space in the Pinehill Plaza Shopping Center located on South Crater
Road in the City of Petersburg, Virginia (hereinafter referred to as the
"Premises"), said Premises more particularly described in the Lease.
B. Lender has made a mortgage loan to Landlord, secured by a Deed of Trust
and Security Agreement, which covers the property upon which the Premises are
located, and an Assignment of Rents and Leases, which provides for assignment of
all leases relating to the Premises, including the Lease. Said Deed of Trust and
Security Agreement and Assignment of Rents and Leases are referred to herein as
the "Security Instruments."
C. The parties desire to execute this instrument to express their
agreement that the Lease will be subordinate to the Security Instruments and
that Tenant's possession of the Premises will not, subject to the terms and
conditions of this Agreement, be disturbed by reason of a foreclosure of the
lien of the Security Instruments on the Premises.
AGREEMENT
NOW, THEREFORE, the parties covenant and agree as follows:
1. The Lease shall at all times be subject and subordinate in all respects
to the Security Instruments and to all renewals, modifications and extensions
thereof, subject to the terms and conditions of this Agreement.
2. Tenant shall give prompt written notice to Lender of all defaults by
Landlord of those obligations under the Lease which are of such a nature as to
give Tenant a right to terminate the Lease, to reduce rent, or to credit or
offset any amounts against future rents, and Lender shall have a reasonable
opportunity (but shall not be required) to cure the same.
3. So long as Tenant is not in default in the payment of rent, additional
rent or other charges or conditions of the Lease, Tenant shall not be disturbed
by Lender in Tenant's possession, enjoyment, use and occupancy of the Premises
during the original or any renewal term of the Lease or any extension or
modification thereof.
4. No person or entity who exercises a right, arising under the Security
Instruments or any assignment of the Lease, to receive the rents payable by
Tenant under the Lease shall thereby become obligated to Tenant for the
performance of any of the terms, covenants, conditions and agreements of
Landlord under the Lease. Landlord and Tenant agree that Tenant shall make the
payments to be made by Tenant under the Lease to such person or entity upon
receipt of written notice of the exercise of such rights, and Tenant agrees not
to prepay any sums payable by Tenant under the Lease. Such receipt of rent by
any other party shall not relieve Landlord of its obligations under the Lease,
and Tenant shall continue to look to Landlord only for performance thereof.
5. If the interest of Landlord shall be acquired by Lender by reason of
foreclosure of its mortgage or other proceedings brought to enforce the rights
of the holder thereof, by deed in lieu of foreclosure or by any other method,
and Lender succeeds to the interest of Landlord under the Lease, the Lease shall
continue in full force and effect and shall not be terminated or disturbed
except in accordance with the terms of the Lease. Tenant shall thereupon be
bound to Lender under all of the terms, covenants and conditions of the Lease
for the balance of the term thereof remaining, and any extensions or renewals
thereof which may be effected in accordance with any option therefor contained
in the Lease, with the same force and effect as if Lender were the landlord
under the Lease. Tenant does hereby attorn to Lender as its landlord, said
attornment to be effective and self-operative without the execution of any other
instruments on the part of either party hereto immediately upon Lender's
succeeding to the interest of Landlord under the Lease, and Tenant hereby agrees
that Lender shall not be responsible or liable in any way for any default under
the Lease occurring prior to the time Lender obtains title to the leasehold
estate owned by Landlord and is entitled to actual, unrestricted possession of
the Premises.
1
Exhibit D
6. In addition to and not in lieu of all the provisions of this Agreement,
Lender shall not in any way or to any extent be:
(a) liable for any act or omission of any prior landlord (including
Landlord); or
(b) subject to any offsets or defenses which Tenant might have
against any prior landlord (including Landlord); or
(c) bound by any rent or additional rent which Tenant might have
paid for more than thirty (30) days in advance to any prior landlord (including
Landlord); or
(d) bound by any amendment or modification of the Lease made without
Lender's consent; or
(e) in any way responsible for any deposit or security which was
delivered to Landlord but which was not subsequently delivered to Lender.
7. All notices, demands, or requests, and responses thereto, required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed to have been properly given or served and shall be effective upon
being deposited in the United States mail, postage prepaid and registered or
certified with return receipt requested; provided, however, the time period in
which a response to any notice, demand, or request must be given shall commence
on the date of the return receipt of the notice, demand, or request by the
addressee thereof. Rejection or other refusal to accept or inability to deliver
because of changed address of which no notice has been given shall constitute
receipt of the notice, demand, or request sent. Any such notice if given to
Landlord shall be addressed as follows:
South Crater Square Associates, L.C.
c/o Weinstein Management Co., Inc.
3951-A Stillman Parkway
Glen Allen, VA 23060
if given to Lender shall be addressed as follows:
9112 Virginia Avenue
Bassett, VA 24055
if given to Tenant shall be addressed as follows:
Star Tek, Inc.
100 Garfield Street
Denver, CO 80206
or at such other address in the United States as Landlord, Lender or Tenant may
by notice in writing designate for notice.
8. This Agreement shall be binding upon and inure to the benefit of the
parties, their respective heirs, successors and assigns.
[Signature Pages Follow]
2
Exhibit D
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
LANDLORD:
SOUTH CRATER SQUARE ASSOCIATES, L.C.
a Virginia limited liability company
By: _____________________________________
Marcus M. Weinstein
Manager
COMMONWEALTH OF VIRGINIA
COUNTY OF HENRICO, TO-WIT:
The foregoing instrument was acknowledged and before me this ___ day of
___________, 2005, by Marcus M. Weinstein, as Manager of South Crater Square
Associates, L.C., a Virginia limited liability company.
_________________________________________
Notary Public
My commission expires: ________________.
TENANT:
Star Tek, Inc.
By: ___________________________________________
Its ___________________________________________
STATE OF __________________
CITY/COUNTY OF ________________, TO-WIT:
The foregoing instrument was acknowledged and before me this ___ day of
___________, 2005, by ______________________, as ___________________ of
____________________, a ________________, on behalf of said _________________.
_________________________________________
Notary Public
My commission expires: ________________.
LENDER:
BANK SERVICES OF VIRGINIA
By: ___________________________________________
Phyllis Karavatakis
STATE OF _____________
3
Exhibit D
CITY/COUNTY OF ____________, TO-WIT:
The foregoing instrument was acknowledged and before me this ___ day of
__________, 2005, by Phyllis Karavatakis, as _____________________ of Bank
Services of Virginia.
_________________________________________
Notary Public
My commission expires: ________________.
4
Exhibit D