Virginia-Reston-11495 Sunset Hills Road Lease - Spectra-4 LLP and NetStart Inc.
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is dated this 11th day of September,
1996, by and between SPECTRA-4, L.L.P, a Virginia limited liability partnership
(hereinafter referred to as "Landlord"), and NETSTART, INC., a Delaware
corporation qualified in Virginia (hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord has entered into a certain Deed of Lease for the
property known as 11495 Sunset Hills Road, Reston, Virginia; and
WHEREAS, the Tenant desires to sublease the Premises (as defined in
Article II herein) from the Landlord and the Landlord is willing to rent said
space to the Tenant, upon the terms, conditions, covenants and agreements set
forth herein;
The parties hereto, intending to be legally bound, hereinafter covenant
and agree as set forth below:
ARTICLE I
DEFINITIONS
1.1 The terms defined herein shall have the following respective meanings
for all purposes of this Lease:
(a) The "Annual Base Rent" shall mean One Hundred Fourteen Thousand
Two Hundred and Twelve and 50/100 Dollars ($114,212.50), which amount is subject
to adjustment pursuant to Section 4.2 below.
(b) The "Building" shall mean that building, containing the Premises,
located at 11495 Sunset Hills Road, Reston, Virginia 22090, located in Fairfax
County, Virginia and the land owned or leased by the Landlord upon which the
building is located.
(c) The "Expected Occupancy Date" shall be September 15, 1996.
(d) The "Lease Commencement Date" shall mean the later of (i) the
date of this Lease or (ii) the date of tender of possession to Tenant.
(e) The "Period" shall mean a period of sixty (60) consecutive
calendar months.
(f) The "Premises" shall mean that premises known as Suite 210,
located in the second (2nd) floor of the Building, containing approximately Nine
Thousand One Hundred (9,100) rentable square feet.
(g) The "Security Deposit" shall mean Nine Thousand Five Hundred and
Seventeen and 78/100 Dollars ($9,517.78).
(h) The "Tenant Address for Notices" shall mean 516 Herndon Parkway,
Herndon, Virginia, prior to the Lease Commencement Date and 11495 Sunset Hills
Road, Suite 210, Reston, Virginia 22090 after the Lease Commencement Date.
(i) "Permitted Use" shall mean general office use only.
(j) "Proportionate Share" shall mean 22.2% (being 9,100 square feet
divided by 41,000 square feet).
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ARTICLE II
PREMISES
2.1 Landlord hereby leases to Tenant and Tenant hereby rents from
Landlord, for the term and upon the terms and conditions, covenants and
agreements herein provided, the Premises (as defined in Section 1.1(f)).
2.2 The lease of the Premises includes the right, together with other
tenants of the Building (as defined in Section 1.1(b)) and members of the public
and subject to the rules and regulations promulgated by Landlord hereunder, to
use the common and public areas of the Building and the non-exclusive right to
use the surface parking spaces appurtenant to the Building, but includes no
other rights not specifically set forth herein. The lease of the Premises does
not include the right to use the roof of the Building. Landlord may, in its sole
discretion, assign specific parking spaces. Tenant's employees shall not use any
of the parking spaces designated for use by visitors only. Tenant is entitled to
twenty-two (22) non-exclusive, unreserved parking spaces after the Lease
Commencement Date and ten (10) exclusive reserved parking spaces, three (3) of
which are located in the front parking lot and are currently designated "GTI"),
and seven (7) of which are located in the rear parking lot.
2.3 Landlord shall have the right, in its sole discretion, at all times,
and from time to time throughout the Term, without incurring any liability to
Tenant and without it constituting an eviction, to:
a. CHANGE OF SIZE OR LAYOUT. Change the area, appearance, size, level,
location, and/or arrangement of the Building or any part thereof, with the
exception of the Premises (including, without limitation, common areas and the
entrances to and exits from the common areas);
b. BUILD NEW BUILDINGS AND STRUCTURES. Construct other structures, or
improvements in the common areas and elsewhere in the Building, and make
alterations and additions thereto, or rearrangements thereof, demolish parts
thereof, build additional stories (and for such purposes to construct and erect
columns and support facilities in any building), and construct additional
buildings or facilities adjoining or proximate to the Building, provided that
such changes shall not have a material adverse impact upon access to, or
tenantability of, the Premises;
c. EXPAND OR ALTER PARKING AREA. Expand, reduce, or alter the parking
areas in any manner whatsoever including, without limitation, the construction
of parking facilities;
d. RELOCATE EXISTING BUILDINGS. Relocate or rearrange the various
structures, parking areas, and other parts of the Building;
e. ADD PIPES AND COLUMNS. Make changes and additions to the pipes,
conduits, and ducts or other structural and nonstructural installations in the
Premises where desirable to serve the common areas and other premises in the
Building or to facilitate the expansion or alteration of the Building
(including, without limitation, the construction and erection of columns and
support facilities);
f. ADD ADDITIONAL LAND. Add additional real property to the Building;
and
g. TEMPORARILY BLOCK COMMON AREAS. Temporarily obstruct or close off the
common areas or any parts thereof for the purpose of maintenance.
Changes pursuant to this Section 2.3 will not increase or decrease the
Proportionate Share. Further, Tenant shall not be responsible for any additional
Basic Operating Charges resulting
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from the new Building, additions to the Land, or additional floors in the
Building.
ARTICLE III
TERM
3.1 The term of this Lease (hereinafter referred to as the "Lease Term")
shall commence on the Lease Commencement Date, as determined pursuant to Section
3.2 hereof, and shall continue thereafter for the Period (as defined in Section
1.1(e)), unless the Lease Term is renewed or terminated earlier in accordance
with the provisions of this Lease.
3.2 The Lease Commencement Date shall be the earlier of (i) the Lease
Commencement Date, set forth in Section 1.1(d) hereof, or (ii) the date on which
Tenant commences beneficial use of the Premises, whichever event occurs first.
Tenant shall be deemed to have commenced beneficial use of the Premises when
Tenant begins to move furniture, furnishings, inventory, equipment or trade
fixtures into the Premises.
3.3 If the Lease Commencement Date is other than the date set forth in
Section 1.1(d) hereof, promptly after the Lease Commencement Date is
ascertained, Landlord and Tenant shall execute a certificate, which certificate
shall set forth the Lease Commencement Date and the date upon which the initial
term of this Lease will expire.
3.4 If Landlord does not deliver possession of the Premises by the
Expected Occupancy Date, Landlord shall not have any liability whatsoever to
Tenant on account of such failure to deliver possession of the Premises to
Tenant and this Lease shall not be rendered void or voidable as a result of such
delay.
3.5 For purposes of this Lease, the term "Lease Year" shall mean a period
of twelve (12) consecutive months, commencing on the Lease Commencement Date,
and each successive twelve (12) month period thereafter, except that if the
Lease Commencement Date is a day other than the first day of a month, then the
first Lease Year shall commence on the Lease Commencement Date and shall
continue for the balance of the month in which the Lease Commencement Date
occurs and for a period of twelve (12) calendar months thereafter.
ARTICLE IV
BASE RENT
4.1 (a) During the Lease Term, Tenant shall pay to Landlord as annual
base rent for the Premises, without setoff, deduction or demand, the Annual Base
Rent (as defined in Section 1.1(a)), which amount is subject to adjustment from
time to time as provided in Section 4.2 hereof. The Annual Base Rent shall be
divided into twelve (12) equal monthly installments and such monthly
installments shall be due and payable in advance, on the first day of each month
during the Lease Year.
(b) Concurrently with the execution of this Lease, Tenant shall pay
to Landlord an amount equal to One (1) monthly installment of the Annual Base
Rent payable during the first (1st) Lease Year, which amount shall be credited
by Landlord toward the monthly installment of the Annual Base Rent payable for
the first full calendar month falling within the Lease Term. If the Lease
Commencement Date is a day other than the first day of the month, then the
Annual Base Rent from the Lease Commencement Date until the first day of the
following month shall be prorated on a per diem basis at the rate of
one-thirtieth (1/30th) of the monthly installment of the Annual Base Rent
payable during the first Lease Year, and Tenant shall
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pay such prorated installment of the Annual Base Rent in advance on the Lease
Commencement Date.
4.2 Commencing on September 27, 1997, and on the first day of each and
every Lease Year thereafter during the Lease Term, including any renewal term,
the Annual Base Rent (and the monthly installments thereof) shall be adjusted
(increased only) by adding to the Annual Base Rent a sum equal to the Annual
Base Rent then in effect multiplied by three and one-half percent (3.5%). The
Annual Base Rent as established by such adjustment shall continue in effect as
the Annual Base Rent required to be paid hereunder until again adjusted as
herein provided.
4.3 All sums payable by Tenant under this Lease, whether or not stated to
be the Annual Base Rent or additional rent, shall be paid to Landlord in legal
tender of the United States, without setoff, deduction or demand, at the address
to which notices to the Landlord are to be given or to such other party of or to
such other address as Landlord may designate from time to time by written notice
to Tenant. If Landlord shall at any time accept rent after it shall have become
due and payable, such acceptance shall not excuse a delay upon subsequent
occasions or constitute or be construed as a waiver of any of Landlord's rights
hereunder.
4.4 No payment by Tenant or receipt by Landlord of a lesser amount than
any installment or payment of Annual Base Rent or additional Rent ("Rent") due
shall be deemed to be other than on account of the amount due, and no
endorsement or statement on any check or payment of Rent shall be deemed an
accord and satisfaction. Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
payment of Rent, or pursue any other remedies available to Landlord.
ARTICLE V
REAL ESTATE TAXES AND OPERATING COSTS
5.1 An integral part of Landlord's leasing program for the Building
involves the requirement that tenants bear the administrative, operating and
maintenance costs and expenses incurred each calendar year in the ownership and
the operation of the Building.
5.2 Basic Operating Charges.
(a) As additional rent for the Premises, Tenant shall pay to the
Landlord Tenant's Proportionate Share of the Basic Operating Charges (as
hereinafter defined) incurred by Landlord in the operation of the Building
during each calendar year falling entirely or partly within the Lease Term in
excess of Tenant's proportionate share of the Basic Operating Charges incurred
by Landlord during the Base Year. Tenant's proportionate share shall be that
percentage which is equal to a fraction, the numerator of which is the number of
square feet of the Premises, and the denominator of which is the total number of
square feet of area in the Building leased and occupied. For the purpose of this
Lease, the Base Year is calendar year 19957.
(b) The Basic Operating Charges shall mean the sum of the costs and
expenses described in subsection (1) below, but shall not include the costs and
expenses described in subsection (2) below.
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(1) Included costs and expenses:
(A) Gas, water, sewer and other utility charges
(including surcharges) of every type and nature, but excluding electricity
charges except as otherwise provided in subsection (1) (I) below.
(B) Premiums and other charges incurred by Landlord with
respect to all insurance relating to the Building and the operation and
maintenance thereof, including, without limitation, all risk of physical damage
or fire and extended coverage insurance, public liability insurance, elevator
insurance, workman's compensation insurance, boiler and machinery insurance,
sprinkler leakage insurance, rent loss insurance, use and occupancy insurance
and health, accident and group life insurance for employees.
(C) Reasonable management fees (consistent with the
market rate for such fees in the Washington D.C. metropolitan area) and
personnel costs of the Building, including, but not limited to salaries, wages,
fringe benefits and other direct and indirect costs of engineers,
superintendents, watchmen, porters and any other Building personnel.
(D) Costs of service and maintenance contracts,
including, but not limited to, chillers, boilers, controls, window, security
services, if any, and management fees.
(E) All other maintenance and repair expenses and
supplies which are deducted by Landlord in computing its Federal income tax
liability.
(F) Any other costs and expenses incurred by Landlord
in maintaining, repairing or operating the Building, including but not limited
to costs of trash collection.
(G) The costs of any additional services not provided to
the Building at the Lease Commencement Date but thereafter provided by Landlord
in the prudent management of the Building.
(H) Real Estate Taxes (as hereinafter defined in
Section 5.2(c)).
(I) Charges for electricity consumed in the operation
of the Building.
(J) Charges for janitorial and cleaning services and
supplies furnished to the public and common areas of the Building, as reasonably
estimated by Landlord.
(K) Reasonable reserves for replacements, repairs
and contingencies.
(L) Assessments imposed by an association now or
hereafter established to maintain common areas within the Building and the land,
including assessments imposed to finance capital improvements in such common
areas.
(M) Any County Business, Professional and Occupational
License tax payable by the Landlord with respect to the Building.
(N) Auditing and accounting fees including accounting
fees incurred in connection with the preparation of any and all statements
required under this Lease.
(O) All miscellaneous taxes (including, without
limitation, all sales and excise taxes on the
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expenditures enumerated in this Section 5.2) applicable to the Building and any
taxes imposed on personal property in the building owned by Landlord.
(P) The cost of licenses, permits and similar fees
and charges.
(2) Excluded costs and expenses:
(A) Principal or interest payments on any mortgages,
deeds of trust, ground lease or other financing encumbrances.
(B) Leasing commissions payable by Landlord.
(C) Deductions for depreciation for the Building, except
to the extent included in subsection (1) (F) above.
(D) Capital expenditures that are not deducted by
Landlord in computing its Federal income tax liability, except to the extent
included in subsections (1) (F) and (1) (L) above.
(E) The costs of special services or utilities
separately charged to individual tenants of the Building.
(c) As used above, the term "Real Estate Taxes" shall mean (1) all
real estate taxes, including general and special assessments, if any, which are
imposed upon Landlord or assessed against the Building and/or the land (2) any
other present or future taxes or governmental charges that are imposed upon the
Landlord, or assessed against the Building and/or the land which are in the
nature of, or in substitution for, real estate taxes, including, but not limited
to, any tax levied on or measured by the rents payable by tenants of the
Building, and (3) costs (including attorney's fees) incurred in reviewing,
protesting or seeking a reduction of real estate taxes.
5.3 If the average occupancy rate for the entire Building during any
calendar year is less than ninety-seven percent (97%), then Basic Operating
Charges for such calendar year shall be deemed to include all additional costs
and expenses, as reasonably estimated by Landlord, which would have been
incurred during such calendar year if such average occupancy rate had been
ninety-seven percent (97%).
5.4 (a) Tenant shall make estimated monthly payments to Landlord on
account of charges described in Section 5.2, that are expected to be incurred
during each calendar year. The amount of such monthly payments shall be
determined as follows. At the beginning of the Lease Term and at the beginning
of each calendar year thereafter, Landlord shall submit to Tenant a statement
setting forth Landlord's reasonable estimates of the amounts by which the
charges in each such category of expenses that are expected to be incurred
during such calendar year, and the computation of Tenant's proportionate share
of each such anticipated expenses. Tenant shall pay to Landlord on the first day
of each month following receipt of such statements during such calendar year, an
amount equal to Tenant's proportionate share of the anticipated expenses
multiplied by a fraction, the numerator of which is 1, and the denominator of
which is the number of months during such calendar year which fall within the
Lease Term. If, however, Landlord shall submit such statement for a calendar
year subsequent to the commencement thereof, then: (1) until the first day of
the month following the month in which such statement is furnished to Tenant,
Tenant shall pay to Landlord on the first day of each month an amount equal to
the monthly sum which was payable by Tenant to Landlord under this
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Section for the last month of the preceding calendar year; (2) promptly after
such statement is furnished to Tenant, or together therewith, Landlord shall
give notice to Tenant stating whether the monthly installments previously made
for such calendar year were greater or less than the monthly installments to be
made for such calendar year in accordance with such statement, and (A) if there
shall be a deficiency, Tenant shall pay the amount thereof as additional rent
due hereunder, (B) if there shall have been an overpayment, Landlord shall
credit the amount thereof against any subsequent payment(s) payable by Tenant
under this Section (except upon the expiration of the Lease Term, in which case
the overpayment shall be refunded within thirty (30) days of such
determination), and (C) on the first day of the month following the month in
which such statement is furnished to Tenant, and monthly thereafter through the
remainder of such calendar year, Tenant shall pay to Landlord the appropriate
amount based on such statement. Landlord may at any time or from time to time
furnish to Tenant a revised statement for such calendar year, and in such case,
Tenant's payments of anticipated expenses for such calendar year shall be
adjusted in the same manner as is provided in the immediately preceding
sentence.
(b) Within approximately ninety (90) days after the expiration of
each calendar year, Landlord shall submit to Tenant a statement showing (i)
Tenant's proportionate share of the amounts by which the costs and expenses were
actually incurred in each of the categories described in Section 5.2 during the
preceding calendar year, and (ii) the aggregate amount of the estimated
payments, if any, made by Tenant on account of each such category. If such
statement indicates that the aggregate amount of such estimated payments, if
any, for any such category exceeds Tenant's actual liability with respect to
such category, Tenant shall deduct the net overpayment from its next estimated
payment or payments pursuant to this Article V. If such statement indicates that
Tenant's actual liability with respect to any such category exceeds the
estimated payments, if any, made by Tenant for such category then Tenant shall
pay to Landlord the amount of such excess as additional rent due hereunder.
5.5 In the event the Lease Term commences or expires on a day other than
the first day or the last day of a calendar year, the expenses in the categories
of charges described in Sections 5.2 to be paid by Tenant for such calendar year
shall be apportioned by multiplying the amount of Tenant's proportionate share
thereof for the full calendar year by a fraction, the numerator of which is the
number of days during such calendar year falling within the Lease Term, and the
denominator of which is three hundred sixty-five (365).
5.6 All payments required to be made by Tenant pursuant to this Article V
shall be paid without setoff, deduction or demand.
5.7
(a) Tenant may, upon thirty (30) days advance notice to Landlord,
conduct, at Tenant's sole cost and expense, an audit of Landlord's Operating
Charges charged to Tenant pursuant to this Lease. Tenant may conduct such audit
no more than once per year. Tenant's right to audit Operating Charges for any
calendar year shall expire after the date two (2) years from the last day of
such calendar year.
(b) Tenant shall, upon demand, reimburse Landlord for photocopying
costs and any other cost or expense incurred in connection with such audit.
(c) In the event that Tenant elects to audit Landlord's Operating
Charges in accordance with this Section 5.7, such audit must be conducted by an
independent certified public
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accounting firm that is not being compensated by Tenant on a contingency fee
basis.
(d) All of the information obtained through the Tenant's audit with
respect to financial matters (including, without limitation, costs, expenses,
income) and any other matters pertaining to the Landlord and/or the Building as
well as any compromise, settlement, or adjustment reached between Landlord and
Tenant relative to the results of the audit shall be held in strict confidence
by the Tenant and its officers, agents, and employees; and Tenant shall cause
its auditor and any of its officers, agents, and employees to be similarly
bound pursuant to Subsection (e) below.
(e) As a condition precedent to Tenant's exercise of its right to
audit, Tenant must deliver to Landlord a signed covenant from the auditor, in
form satisfactory to Landlord, acknowledging that all of the information
obtained in, and the results of such audit as well as any compromise,
settlement, or adjustment reached between Landlord and Tenant shall be held in
strict confidence and shall not be revealed in any manner to any person except
upon the prior written consent of the Landlord, which consent may be withheld in
Landlord's sole discretion, or if required pursuant to any litigation between
Landlord and Tenant materially related to the facts disclosed by such audit, or
if required by law.
(f) Tenant understands and agrees that Subsections (d) and (e) above
are of material importance to the Landlord and that any violation of the terms
of these provisions shall result in immediate and irreparable harm to the
Landlord.
(g) Landlord shall have all rights allowed by law or equity if
Tenant, its officers, agents, or employees and/or the auditor violate the terms
of this Section 5.7, including, without limitation, the right to terminate
Tenant's right to audit in the future pursuant to this Section 5.7.
(h) Tenant shall indemnify, defend upon request, and hold Landlord
harmless from and against all costs, damages, claims, liabilities, expenses,
losses, court costs, and attorney's fees suffered by or claimed against
Landlord, based on whole or in part upon the breach of this Section 5.7 by
Tenant and/or its auditor.
ARTICLE VI
USE OF PREMISES
6.1 Tenant shall use and occupy the Premises solely for the Permitted Use
set forth in Section 1.1(i), and for no other use or purpose without the prior
written consent of Landlord, which consent may be withheld in Landlord's sole
and absolute discretion. Restaurant usage is specifically prohibited. Tenant
shall not use or occupy the Premises for any unlawful purpose or in any manner
that will constitute waste, nuisance or unreasonable annoyance to Landlord or
other tenants of the Building. Tenant shall comply with all present and future
laws, ordinances (including zoning ordinances and land use requirements),
regulations, and orders of the United States of America, the Commonwealth of
Virginia, and any other public or quasi-public authority having jurisdiction
over the Premises concerning the use, occupancy and condition of the Premises
and all machinery, equipment and furnishings therein, including, without
limitation, all obligations imposed by the Americans With Disabilities Act of
1990 with respect to the Premises. It is expressly understood that if any
present or future law, ordinance, regulation or order requires an occupancy or
use permit for the Premises, Tenant shall obtain such permit at Tenant's own
expense and shall promptly deliver a copy thereof to
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Landlord. Use of the Premises is subject to all covenants, conditions and
restrictions of record.
6.2 Tenant shall pay any business, rent or other taxes that are now or
hereafter levied upon Tenant's use or occupancy of the Premises, the conduct of
Tenant's business at the Premises, or Tenant's equipment or other personal
property. In the event that any such taxes are enacted, changed or altered so
that any of such taxes are levied against Landlord, or the mode of collection of
such taxes is changed so that Landlord is responsible for collection or payment
of such taxes, Tenant shall pay any and all such taxes to Landlord upon written
demand from Landlord.
6.3 Tenant will handle and store its trash and refuse in the most
hygienic manner possible, to Landlord's full satisfaction.
6.4 Tenant shall keep the Premises and all other parts of the Premises of
which it is a part, free from any and all liens arising out of any work
performed, materials furnished or obligations incurred by or for Tenant, and
agrees to bond against or discharge any such lien (including, without
limitation, any construction mechanic's or materialman's lien) within five (5)
business days after notice thereof.
6.5 Tenant shall not permit noise or odors in the Premises which are
objected to by Landlord and, upon written notice from Landlord, Tenant shall
immediately cease and desist from causing such noise or odor, and failing of
which Landlord may deem the same a material breach of this Lease. The usual and
customary noise associated with Tenant's permitted use shall not be a violation
of this Section 6.6 provided that (i) such noise is not excessive in Landlord's
reasonable judgment, (ii) there is no interference with other tenants, and (iii)
Tenant shall be responsible for strict compliance with all applicable laws,
ordinances, and regulations. Tenant shall not use or permit the use of any
portion of the Premises as sleeping quarters, lodging rooms, or for any unlawful
purposes. Tenant shall not install any radio or television or other similar
device exterior to the Premises and shall not erect any aerial on the roof or
exterior walls of the Building. Landlord may direct the use of all pest
extermination contractors at the sole cost and expense of Tenant and at such
intervals as Landlord shall determine. Tenant's failure to contract with the
designated pest extermination contractor shall entitle Landlord to employ such
contractor with respect to the Premises and Tenant shall reimburse Landlord for
the cost thereof.
6.6 In the event that Tenant fails, refuses or neglects to commence and
complete repairs promptly and adequately, to remove any lien, to pay any lien,
to pay any cost of expense, to reimburse Landlord, or otherwise to perform any
act or fulfill any obligation required of Tenant pursuant to this Lease,
Landlord may, but shall not be required to, make or complete any such repairs,
remove such lien (without inquiring into the validity thereof), pay such cost or
perform such act or the like without prior notice to, but at the sole cost and
expense of Tenant, and Tenant shall reimburse Landlord for all cost and expenses
of Landlord thereby incurred within five (5) days after receipt by Tenant from
Landlord of a statement setting forth the amount of such costs and expenses. The
failure by Tenant so to make repairs, to remove any lien, to pay any such cost
or expense, or to so reimburse Landlord (in the case of reimbursement, within
such ten-day period) shall constitute a default by Tenant under this Lease and
shall carry with it the same consequences as failure to pay any installment of
rental. Landlord's rights and remedies pursuant to this Section 6.7 shall be in
addition to any and all other rights and remedies provided under this Lease or
at law.
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6.7 Tenant shall not obstruct, encumber or use for any purpose other than
ingress or egress to and from the demised Premises, the sidewalks in front of or
abutting any part of the Premises, or the entrances, vestibules, stairways, or
halls thereof and no business shall be conducted by Tenant anywhere outside
the Premises without the prior written consent of Landlord.
6.8 All merchandising, display and advertising shall be in strict
compliance with the terms and provisions of any use or special use permit
granted by the applicable jurisdiction for the Premises.
6.9 No auction or fire or bankruptcy sale shall be conducted at the
Premises, nor shall any special sale or promotion be carried on therein other
than such as are incidental to the normal routine of Tenant's business with its
regular clientele.
6.10 Tenant agrees that it shall not at any time allow any of its
employees, agents, licensees, contractors, patrons, or other invitees to loiter
in any part of the common area.
ARTICLE VII
ASSIGNMENT AND SUBLETTING
7.1 Tenant understands and agrees that the strict limitation on
assignability of this Lease is a material inducement for Landlord to enter into
this Lease. Tenant shall not assign, transfer, mortgage or otherwise encumber
this Lease or all or any of Tenant's rights hereunder or interest herein, or
sublet, rent or permit anyone to occupy the Premises or any part thereof, or
enter into a management agreement with another person or entity for the
management of Tenant's business, without obtaining the prior written consent of
Landlord, which consent may be withheld or granted in Landlord's sole and
absolute discretion except as provided in Section 7.7 hereof. No assignment or
transfer of this Lease or the right of occupancy hereunder may be effectuated by
operation of law or otherwise without the prior written consent of Landlord. The
consent by Landlord to any assignment, subletting or occupancy shall not be
construed as a waiver or release of Tenant from liability for the performance of
any covenant or obligation to be performed by Tenant under this Lease, nor shall
the collection or acceptance of rent from any assignee, subtenant or occupant
constitute a waiver or release of Tenant from any of its liabilities or
obligations under this Lease. Landlord's consent to any assignment, subletting
or occupancy shall not be construed as relieving Tenant or any assignee,
subtenant or occupant from the obligation of obtaining Landlord's prior written
consent to any subsequent assignment, subletting or occupancy. For any period
during which Tenant is in default hereunder, Tenant hereby assigns to Landlord
the rent due from any assignee, subtenant or occupant of Tenant and hereby
authorizes each such assignee, subtenant or occupant to pay said rent directly
to Landlord.
7.2 If Tenant is a partnership, any dissolution of Tenant or a withdrawal
or change, whether voluntary, involuntary or by operation of law, of partners
owning a controlling interest in Tenant shall be deemed a voluntary assignment
of this Lease and subject to the provisions of this Article VII. If Tenant is a
corporation, any dissolution, merger, consolidation or other reorganization of
Tenant, or the sale or transfer of a controlling interest of the capital stock
of Tenant, shall be deemed a voluntary assignment of this lease and subject to
the provisions of Article VII. Any management agreement, or similar arrangement
of any kind, by which operational control of the business is transferred to any
person other than Tenant, shall be
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deemed a voluntary assignment of this Lease and subject to the provisions of
this Article VII. This Section 7.2 shall not apply to an initial public offering
("IPO") where the securities of Tenant sold to the public are registered with
the Securities and Exchange Commission pursuant to the Securities Act of 1933.
7.3 If, at any time during the Lease Term, Tenant desires to transfer,
assign or sublet all or part of the Premises, in connection with Tenant's
request to Landlord for Landlord's consent thereto, Tenant shall give notice to
Landlord in writing ("Tenant's Request Notice") of the identity of the proposed
assignee or subtenant and its business, the terms of the proposed assignment or
subletting ("Proposed Sublease Commencement Date"), and the area proposed to be
assigned or sublet (the "Proposed Sublet Space"). Tenant shall also transmit
therewith the most recent financial statement or other evidence of financial
responsibility of such assignee or subtenant and a certification executed by
Tenant and such proposed assignee or subtenant stating whether or not any
premium or other consideration is being paid for the proposed assignment or
sublease.
7.4 If any sublease, assignment or other transfer (whether by operation
of law or otherwise) provides that the subtenant, assignee or other transferee
thereunder is to pay any amount in excess of the rental and other charges due
under this Lease, whether such excess be in the form of an increased monthly or
annual rental, a lump sum payment, payment for the sale, transfer or lease of
Tenant's fixtures, leasehold improvements, furniture and other personal
property, or any other form (and if the subleased or assigned space does not
constitute the entire Premises, the existence of such excess shall be determined
on a pro-rata basis), Landlord shall be paid one-half (1/2) of such excess or
other premium applicable to the sublease, assignment or other transfer. Any such
premium shall be paid by Tenant to Landlord as additional rent upon such terms
as shall be specified by Landlord and in no event later than ten (10) days after
any receipt thereof by Tenant. Landlord shall have the right to inspect and
audit Tenant's books and records relating to any sublease, assignment or other
transfer. Any sublease, assignment or other transfer shall, at Landlord's
option, be effected on forms supplied or approved by Landlord.
7.5 As this agreement with the Tenant is a material inducement to
Landlord, in the event of an assignment of this Lease, or a sublet with respect
to the proportionate area of the Premises which is subleased, except for an
assignment or sublet permitted under Sections 7.7 or 7.8 hereof, Landlord may,
as a condition of its approval, increase the Annual Base Rent in such manner as
the Landlord shall determine. Further, all options and concessions, if any, are
personal to Tenant and shall not inure to the benefit of any assignee.
7.6 Tenant agrees to pay to Landlord as additional rent hereunder the
reasonable costs (including reasonable attorney's fees) incurred by Landlord in
connection with any request by Tenant for Landlord to give its consent to any
assignment, transfer, mortgage, encumbrance, or subletting by Tenant.
7.7 If Tenant wishes to assign or sublet, Tenant shall provide Landlord
with (i) copies of all instruments of assignment and transaction documents
between Tenant and the proposed assignee or subtenant, (ii) current financial
statements of the proposed assignee or subtenant prepared by an independent
Certified Public Accountant, (iii) copies of the most recent federal income tax
return of the proposed assignee or subtenant, and (iv) such other information as
Landlord may reasonably request. Landlord's consent shall then not be
unreasonably withheld, provided that all of the following criteria are met:
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(i) No Default (hereinafter defined) exists and no event has occurred
which, with notice and/or the passage of time, would constitute a Default if not
cured within the time, including any applicable grace period, specified herein;
(ii) Landlord receives at least thirty (30) days' prior written
notice of Tenant's intention to assign this Lease or sublet any portion of the
Premises;
(iii) The proposed use of the Premises is permitted under the terms
of this Lease and will not violate any other exclusive use agreement(s)
affecting the Premises or the Building;
(iv) The proposed assignee or subtenant (a) is of a type and quality
consistent with the Building; (b) has the financial capacity and
creditworthiness to undertake and perform the obligations of this Lease or the
sublease as applicable; (c) is not a party by whom any suit or action could be
defended on the grounds of sovereign immunity; (d) will not impose any
additional material burden upon Landlord in the operation of the Building; and
(e) shall not intend to use the Premises for a "Prohibited Activity." A
"Prohibited Activity," for purposes of this provision, shall include uses which
will in Landlord's judgment(a) introduce undue amounts of public traffic in the
Building (in excess of average traffic which Landlord reasonably believes is
generated by other tenants of the Building); (b) place a strain on the existing
plumbing, electrical and mechanical systems; or (c) generate unusually high
densities of employees per square foot of rentable space including, without
limitation, the following: electronic data processing, photographic, multilith
or multigraph reproduction (except in connection with Tenant's own business), an
employment agency, an executive search firm or a school or vocational training
center. In no event shall certain governmental agencies (e.g., Veteran's
Administration, Social Security, etc.) that administer in such offices on a
daily basis the claims of members of the general public and, as a result,
produce a very high volume of pedestrian traffic in office buildings in which
they are located) be permitted as an assignee or subtenant;
(v) The proposed assignee or subtenant (or its principals) (I) has
not defaulted under any other lease, or (II) is not the subject of a judgment or
the subject of any litigation which could, in Landlord's judgment, have a
material adverse impact upon the finances or credit-worthiness of the proposed
assignee or subtenant; and
(vi) The proposed assignee or subtenant is not a tenant of the
Building, or a prospective tenant who, within the six (6) months prior to
Tenant's request, has negotiated with Landlord or its brokers or agents directly
connected with leasing space in the Building about the possibility of leasing
space in the Building.
In the event of a request from Tenant pursuant to this Section 7.7
landlord shall respond within thirty (30) days of receipt of information and/or
documents required to be provided by Tenant.
7.8 Notwithstanding anything contained herein to the contrary, Tenant may
assign this Lease without Landlord's consent to any parent or subsidiary entity,
or to an affiliated entity (meaning an entity of which at least 50% of the
equity is owned by the controlling shareholders or members of Tenant). In such
event, Tenant shall promptly notify Landlord of such assignment, and, with such
notification, provide a copy of the agreement or instruments of assignment. In
addition, Tenant shall remain liable for all obligations of this Lease following
such
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assignment and agrees to execute all documents to document the transaction
accordingly.
ARTICLE VIII
MAINTENANCE AND REPAIRS
8.1 Tenant shall keep and maintain the Premises and all fixtures and
equipment located therein in clean, safe and sanitary condition, shall take good
care thereof and make all required repairs thereto, shall suffer no waste or
injury thereto, and shall, at the expiration or other termination of the Lease
Term, surrender the Premises in the same order and condition in which they were
on the Lease Commencement Date, ordinary wear and tear and unavoidable damage by
the elements excepted. All bulbs, tubes and lighting fixtures for the Premises
shall, at Landlord's option, be provided and installed by Landlord at Tenant's
cost and expense.
8.2 Tenant shall be solely responsible for maintenance and/or repairs to
the sewer and drain lines in or about the Premises, and all sewer and drain
lines feeding into or away from the Premises. Tenant shall be responsible for
any and all damages or claims arising out of or connected with said sewer and
drain lines, unless caused by Landlord.
8.3 Except as otherwise provided in Article XVII hereof, all injury,
breakage and damage to the Premises and to any other part of the building or the
land caused by any act or omission of Tenant, or of any agent, employee,
subtenant, assignee, contractor, client, guest, family member, licensee,
customer or invitee of Tenant, shall be repaired by and at the sole expense of
Tenant, except that Landlord shall have the right, at Landlord's option, to make
such repairs and to charge Tenant for all costs and expenses incurred in
connection therewith as additional rent due hereunder. The liability of Tenant
for such costs and expenses shall be reduced by the amount of any insurance
proceeds received by Landlord on account of such injury, breakage or damage.
ARTICLE IX
ALTERATIONS
9.1 It is understood and agreed that Landlord is under no obligation to
make any structural or other alterations, decorations, additions or improvements
in or to the Premises except as specifically set forth in this Lease. Landlord
shall use its reasonable best efforts to upgrade the public areas of the
Building, provided that the scope and nature of such work shall be at Landlord's
discretion.
9.2 Tenant will not make or permit anyone to make any alterations,
decorations, additions, improvements or other changes (hereinafter referred to
collectively as "Alterations") structural or otherwise, in or to the Premises or
the Building, without the prior written consent of Landlord, which consent, in
the case of cosmetic, non-structural alteration (including moving, adding, or
deleting interior walls) that do not impact the Building's HVAC system, shall
not be unreasonably withheld, but otherwise may be withheld in Landlord's sole
and absolute discretion. When granting its consent, Landlord may impose any
conditions it deems appropriate, including without limitation, the approval of
plans and specifications, approval of the contractor or other persons who will
perform the work, and the obtaining of specified insurance. All alterations
permitted by Landlord pursuant to this Section 9.2 must conform to all laws,
regulations and requirements of federal, state and county governments, and any
other public or quasi-public authority having jurisdiction over the Premises. As
a condition precedent to such written consent of Landlord, Tenant agrees to
obtain and
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deliver to Landlord written, unconditional waivers of mechanics' and
materialmen's liens against the Premises, the Building and the land from all
proposed contractors, subcontractors, laborers and material suppliers for all
work, labor and services to be performed and materials to be furnished in
connection with Alterations. If, notwithstanding the foregoing, any mechanics'
or materialmen's lien is filed against the Premises, any equipment within the
Premises, the building and/or the Land, for work claimed to have been done for,
or materials claimed to have been furnished to, the Premises, such lien shall be
discharged by Tenant within ten (10) days thereafter, at Tenant's sole cost and
expense, by the payment thereof or by the filing of a bond acceptable to
Landlord. If Tenant shall fail to discharge any such mechanics' or materialmen's
lien, Landlord may, at its option, discharge such lien without inquiry into the
validity thereof and treat the cost thereof (including attorneys' fees incurred
in connection therewith) as additional rent due hereunder, it being expressly
agreed that such discharge by Landlord shall not be deemed to waive or release
the default of Tenant in not discharging such lien. It is further understood and
agreed that in the event Landlord shall give its written consent to the making
of any Alterations, such written consent shall not be deemed to be an agreement
or consent by Landlord to subject its interest in the Premises or the Building
to any mechanics' or materialmen's liens which may be filed in connection
therewith.
9.3 Landlord's approval of the plans, specifications and working drawings
for Tenant's alterations shall create no responsibility or liability on the part
of Landlord for their completeness, design sufficiency, or compliance with all
laws, rules and regulations of governmental agencies or authorities.
9.4 Tenant shall indemnify and hold Landlord harmless from and against
any and a11 expenses, liens, claims, liabilities and damages (including, without
limitation, attorneys' fees) based on or arising, directly or indirectly, by
reason of the making of any Alterations. If any Alterations are made without the
prior written consent of Landlord. Landlord shall have the right to remove and
correct such Alterations and restore the Premises and the Building to their
condition immediately prior thereto, and Tenant shall be liable for all expenses
incurred by Landlord in connection therewith. All Alterations to the Premises or
the building made by either party shall immediately become the property of
Landlord and shall remain upon and be surrendered with the Premises as part
thereof at the end of the Lease Term; provided, however, that if Tenant is not
in default under this Lease, then Tenant shall have the right to remove, prior
to the expiration or earlier termination of the Lease Term, all movable
furniture, furnishings and equipment installed in the Premises solely at the
expense of Tenant and except that Tenant shall be required to remove all
Alterations in the Premises or the Building which Landlord designates in writing
for removal. Movable furniture, furnishings and equipment shall be deemed to
exclude any item which would normally be removed from the Premises with the
assistance of tools or machinery other than a dolly. All damage and injury to
the Premises or the Building caused by such removal shall be repaired by
landlord, at Tenant's sole expense. If such property of Tenant is not removed by
Tenant prior to the expiration or earlier termination of this Lease, the same
shall became the property of the Landlord and shall be surrendered with the
Premises as a part thereof; provided, however, that Landlord shall have the
right to remove at Tenant's expense such property and any Alteration which
Landlord designates in writing for removal.
9.5 Tenant shall, at Tenant's sole cost and expense, install and complete
the initial Tenant improvements as set forth on the Addendum attached hereto.
Tenant understands and agrees that the foregoing is a material inducement for
Landlord to enter
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into this Lease, and that the failure of Tenant to undertake such improvements
at the commencement of this Lease, and to proceed diligently and in good faith
to completion, shall be a material breach.
ARTICLE X
SIGNS AND FURNISHINGS
10.1 Tenants exterior signage, and any replacements thereto, shall be in
compliance with all applicable laws, regulations, statutes, and ordinances, and
shall be subject to Landlord's approval as to size, type, location, and content.
10.2 Except as provided in Section 10.1 above, no sign, advertisement or
notice referring to Tenant shall be inscribed, painted, affixed or otherwise
displayed on any part of the exterior of the Building or the interior of the
Premises visible from outside the Premises, and then only in such place, number,
size, color and style as are approved in writing by Landlord. All of Tenant's
signs that are approved by Landlord shall be installed by Landlord at Tenant's
cost and expense. If any sign, advertisement or notice that has not been
approved by Landlord is exhibited or installed by Tenant, Landlord shall have
the right to remove the same at Tenant's expense. Landlord shall have the right
to prohibit any advertisement of or by Tenant which in its opinion tends to
impair the reputation of the Building or its desirability as a high-quality
building and, upon written notice from the Landlord, Tenant shall immediately
refrain from and discontinue any such advertisement. Landlord reserves the right
to affix, install and display signs, advertisements and notices on any part of
the exterior or interior of the Building.
10.3 Landlord shall have the right to prescribe the weight and position of
heavy equipment and fixtures (not including personal computers and ordinary
office furniture), which, if approved by Landlord, shall be installed in such
manner as Landlord directs in order to distribute their weight adequately. Any
and all damage or injury to the Premises or the Building caused by moving the
property of Tenant into or out of the Premises, or due to the same being in or
upon the Premises shall be repaired (by Landlord or a contractor selected by
Landlord) at the sole cost of Tenant. No furniture, equipment or other bulky
matter of any description will be received into the Building or carried in the
elevators except as approved by Landlord, and all such furniture, equipment and
other bulky matter shall be delivered only through the designated delivery
entrance of the Building. All moving of furniture, equipment and other materials
shall be under the direct control and supervision of Landlord, who shall not,
however, be responsible for any damage to or charges for moving the same. Tenant
agrees to remove promptly from the sidewalks adjacent to the Building any of
Tenant's furniture equipment or other material there delivered or deposited.
ARTICLE XI
TENANT'S EQUIPMENT
11.1 Tenant will not install or operate in the Premises any electrically
operated equipment or machinery that operates on greater than 220 volt power
without first obtaining the prior written consent of Landlord who may condition
such consent upon the payment by Tenant of additional rent in compensation for
the excess consumption of electricity or other utilities and for the cost of any
additional wiring or apparatus that may be occasioned by the operation of such
equipment or machinery. Tenant shall not use, store, or install any equipment of
any type or nature that will or may necessitate any changes, replacements or
additions to, or in the use of, the water system, heating system,
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plumbing system, air conditioning system or electrical system of the Premises or
the Building without first obtaining the prior written consent of Landlord,
which consent may be withheld in Landlord' sole and absolute discretion.
Machines and equipment belonging to Tenant which cause noise or vibration that
may be transmitted to the structure of the Building or to any space therein to
such a degree as to be objectionable to Landlord or to any tenant in the
Building shall be installed and maintained by Tenant, at Tenant's expense, on
vibration eliminators or other devices sufficient to reduce such noise and
vibration to a level satisfactory to Landlord.
11.2 At the option of the Landlord, Landlord may install checkmeters to
electrical circuits serving Tenant's equipment to verify that Tenant is not
consuming excessive electricity. If Landlord's survey determines that Tenant's
electricity consumption is excessive, Landlord may install, at Tenant's sole
cost and expense, submeters to ascertain Tenant's actual electricity
consumption, and Tenant will thereafter pay as additional rent for Tenant's
actual consumption of electricity at the then current price per kilowatt hour
charged Landlord by the utility. In such event, Tenant's proportionate share of
Operating Charges shall not include electricity charges for areas of the
Building rented to other tenants.
ARTICLE XII
INSPECTION BY LANDLORD
12.1 Upon reasonable advance notice, which may be verbal, except in the
case of emergency, Tenant shall permit Landlord, its agents, mortgagees, and
representatives, any federal, state, county or municipal officer or
representative and prospective purchasers of interests in the Building or
Landlord, to enter the Premises, without charge therefor and without diminution
of the rent payable by Tenant, to examine, inspect and protect the Premises and
the Building, to make such alterations and/or repairs as in the sole judgment of
Landlord may be deemed necessary, or to exhibit the same to prospective tenants
during the last one hundred eighty (180) days of the Lease Term. In connection
with any such entry, Landlord shall endeavor to minimize the disruption to
Tenant's use of the Premises. During the course of any alteration or repair by
Landlord in the Premises, Landlord may store within the Premises all necessary
materials, tools, supplies and equipment. Nothing in this Section shall be
construed as imposing any obligation on Landlord to make any alterations or
repairs.
ARTICLE XIII
INSURANCE
13.1 Tenant shall not conduct or permit to be conducted any activity, or
place any equipment in or about the Premises or the building, which will in any
way increase the rate of fire insurance or other insurance on the Building. If
any increase in the rate of fire insurance or other insurance is stated by any
insurance company or by the applicable insurance rating organization (or other
organization exercising similar functions in connection with the prevention of
fire or the correction of hazardous conditions) to be due to any activity or
equipment of Tenant in or about the Premises or the Building such statement
shall be conclusive evidence that the increase in such rate is due to such
activity or equipment and, as a result thereof, Tenant shall be liable for the
amount of such increase. Tenant shall reimburse Landlord for such amount and any
such amount shall be considered additional rent due hereunder.
13.2 Throughout the Lease Term, Tenant shall obtain and maintain insurance
from a company or companies licensed to do
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business in the Commonwealth of Virginia and approved by Landlord which policy
or policies shall include: (i) a comprehensive general liability policy,
including insurance against assumed or contractual liability under this lease
with respect to the leased premises and the operations of Tenant and any
subtenants of Tenant in, on or about the leased premises in which the limits
with respect to personal liability and property damage shall be not less than
Two Million Dollars ($2,000,000) per occurrence; (ii) all risk property
insurance, including theft and, if applicable, boiler and machinery coverage,
written at replacement cost value in an adequate amount to avoid coinsurance and
a replacement cost endorsement insuring Tenant's merchandise, trade fixtures,
furnishings, equipment and all items of personal property of Tenant and
including property of Tenant's customers located on or in the leased premises;
(iii) workers' compensation coverage as required by law; (iv) products liability
coverage, and (v) with respect to alterations, improvements and the like
required or permitted to be made by Tenant hereunder, contingent liability and
builder's risk insurance, in amounts satisfactory to Landlord. The minimum
limits of coverage as set forth in this paragraph may from time to time, at
Landlord's option, be increased by not more than ten percent (10%) per annum, on
a cumulative basis, with such increase to occur not more often than once during
each lease year during the term hereof. The deductibles under any of such
insurance policies to be carried by Tenant shall not exceed Five Thousand and
00/100 Dollars ($5,000.00). Said insurance shall name Landlord, Landlord's
sublessor, if any, and the holder of any Mortgage (as hereinafter defined in
Section 21.1) now or hereafter encumbering the Building or the land as
additional insured thereunder, shall contain an endorsement that said insurance
shall remain in full force and effect notwithstanding that the insured may have
waived its right of action against any person prior to the occurrence of a loss.
Such policy shall contain an endorsement prohibiting cancellation or reduction
of coverage (a) as to the interests of Landlord or any Mortgagees by reason of
any act or omission of Tenant, and (b) without first giving Landlord fifteen
(15) days' prior written notice of such proposed action.
13.3 A copy of each paid-up policy, appropriately authenticated by the
insurer, evidencing such insurance and containing the provisions specified
herein [or a certificate of the insurer certifying that such policy has been
issued], shall be delivered to Landlord prior to the Lease Commencement Date
and, upon renewals, not less than thirty (30) days prior to the expiration of
such coverage. Landlord may at any time, and from time to time, inspect and/or
copy any and all insurance policies required to be procured by Tenant by this
Lease.
13.4 Tenants's insurance policy shall include a waiver by the insurer of
all rights of subrogation against the Landlord, its directors, partners,
officers, employees, or representatives, which arises or might arise by reason
of any payment under such policy or by reason of any act or omission of
Landlord, its directors, partners, officers, employees, or representatives.
13.5 Each policy evidencing the insurance to be carried by Tenant under
this Lease shall contain a clause that such policy and the coverage evidenced
thereby shall be primary with respect to any policies carried by Landlord, and
that any coverage carried by Landlord shall be excess insurance, unless it is
proven that Landlord is jointly liable.
13.6 In the event Tenant fails to procure, maintain, and/or pay for the
insurance required by this Lease, at the times and for the durations specified
in this Lease, Landlord shall have the right, but not the obligation, at any
time and from time to time, and without notice, to procure such insurance and/or
pay the premiums for such insurance, in which event Tenant shall repay Landlord,
immediately upon demand by Landlord, as
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additional rent, all sums so paid by Landlord together with interest thereon and
any costs or expenses incurred by Landlord in connection therewith, without
prejudice to any other rights and remedies of the Landlord under this Lease.
13.7 The insurance carrier shall be satisfactory to Landlord and licensed
in the state in which the premises are located. The insurance carrier shall at
all times during the term of this lease have a policyholder's rating of not less
than "A" in the most current edition of Best's Insurance Reports.
13.8 Landlord shall ask its insurance carrier for a waiver of subrogation
in favor of Tenant. If Landlord's insurance carrier will do so, at no cost or de
minimis cost (as reasonably determined by Landlord) to Landlord, then Landlord's
insurance policy shall contain a waiver by the insurer of all rights of
subrogation against Tenant. If, however, Landlord's insurance carrier shall
decline to provide such waiver, then Landlord shall not be required to obtain
such waiver of subrogation.
ARTICLE XIV
SERVICES AND UTILITIES
14.1 So long as Tenant is not in Default, Landlord will furnish or cause
to be furnished on a continuous basis electricity for normal business usage.
Tenant's use of electricity in the Premises may not at any time exceed the
capacity of the electrical conductors and equipment serving the Premises.
Landlord reserves the right to install, at the Tenant's sole cost, check meters,
which will be utilized to determine the amount Tenant will reimburse Landlord
for Tenant's excess usage. Without Landlord's prior written consent, Tenant may
not: (i) connect heating or air-conditioning equipment; special lighting in
excess of building standard specifications or any other item of electrical
equipment that consumes more than permitted by, the building standard
specifications or (ii) make any alteration or addition to the electric system of
the Premises. If Landlord grants such consent, Landlord will provide at the cost
to Landlord plus Landlord's overhead charge of ten percent (10%) of the cost,
which cost Tenant shall pay to Landlord on demand, additional risers or other
required equipment. In addition, Landlord may increase the Base Rent by an
amount reflecting the estimated additional capacity of such risers or other
equipment. Notwithstanding, Landlord may require Tenant to install separate
meters, at Tenant's sole cost, and to pay utilities directly to the utility
company.
14.2 So long as Tenant is not in Default, Landlord will furnish or cause
to be furnished to the Premises Monday through Friday from 8:00 a.m. to 6:00
p.m. and Saturday from 8:00 a.m. to 1:00 p.m. (but, not on Sunday, legal
holidays or days Landlord designates for holiday observance) heat or
air-conditioning (depending upon the season) at reasonable temperatures as
determined by Landlord to provide reasonably comfortable occupancy of the
Premises under Normal Business Conditions (defined below) (excepting any areas
that develop excessive heat from machines, lights, sun, overcrowding or other
sources). "Normal Business Conditions" (herein so called) for maintaining
reasonably comfortable temperatures are:
(a) One person per 250 square feet average occupancy per floor:
(b) Two and One Half (2 1/2) watts per square foot for Tenant lighting
and power use average per floor; and
(c) Light-colored blinds, fully drawn and slats at a 45 degree angle
coincident with peak sun lead or equivalent solar barrier.
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If Tenant delivers a written request to Landlord before 12:00 p.m. on the
day prior to the date for which such usage is requested, Landlord will furnish
services at times not specified above in exchange for Tenant's payment therefor
at the hourly rate Landlord establishes from time to time.
14.3 So long as Tenant is not in Default, Landlord will furnish or cause
to be furnished to the Common Areas water from the Fairfax County mains for
drinking, lavatory (including warm water at reasonable temperatures as
determined by Landlord) and toilet purposes. Tenant will not install any
equipment that uses water without Landlord's prior written consent. Tenant will
not waste or permit the waste of water. Landlord reserves the right to install
a water meter for the Premises, and thereafter Tenant shall pay for water based
upon its usage. Tenant shall pay Landlord the cost of the water meter upon
demand.
14.4 So long as Tenant is not in Default, Landlord will furnish or cause
to be furnished to the Premises janitorial services in accordance with the
building standard janitorial specifications established by Landlord from time to
time. Current specifications are attached hereto. Tenant shall pay Landlord for
services above building standard at the charge established by Landlord.
14.5 It is understood and agreed that Landlord and Tenant have entered
into this Lease on the express understanding and agreement that Landlord shall
not have any liability to Tenant whatsoever as a result of utility failure, or
Landlord's failure or inability to furnish any of the services required to be
furnished by Landlord hereunder, whether resulting from breakdown, removal from
service for maintenance or repairs, strikes, scarcity of labor or materials,
acts of God, governmental requirements or from any other cause whatsoever. Any
such failure or inability to furnish the utilities or services required
hereunder shall not be considered an eviction, actual or constructive, of Tenant
from the Premises and shall not entitle Tenant to terminate this Lease or to an
abatement of any rent payable hereunder.
ARTICLE XV
LIABILITY OF LANDLORD
15.1 Landlord and its employees, partners, and agents shall not be liable
to Tenant, Tenant's employees, agents, invitees, licensees, customers, clients,
family members, assignees, subtenants or guests, or to any other person or
entity for, and Tenant shall hold Landlord harmless from and against any damage
(including indirect and consequential damage), injury, loss, obligation,
liability, compensation, or claim, including but not limited to claims for the
interruption of or loss to Tenant's business, based on, arising out of or
resulting from any cause whatsoever (except as otherwise provided in this
Section), including but not limited to the following: repairs to any portion of
the Premises or the Building; interruption in the use of the Premises or any
equipment therein; any accident or damage resulting from the use or operation
(by Landlord, Tenant or any other person or entity) of heating, cooling,
electrical, sewerage, or plumbing equipment or apparatus; the termination of
this Lease by reason of the destruction of the Premises or the Building; any
fire, robbery, theft, vandalism, mysterious disappearance and/or any other
casualty; the actions of any other tenants of the Building or of any other
person or entity; and any leakage in any part or portion of the Premises or the
Building, or from water, rain, ice or snow that may leak into, or flow from, any
part of the Premises or the Building, or from drains, pipes or plumbing fixtures
in the Premises or the Building. Any goods, property or personal effects stored
or placed by Tenant, its employees or agents in or about the Premises or the
Building
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shall be at the sole risk of Tenant, and Landlord shall not in any manner be
held responsible therefor. If any employee of Landlord receives any packages or
articles delivered to the Building for Tenant, such employee shall be acting as
the agent of Tenant for such purposes and not as the agent of Landlord.
Notwithstanding the foregoing provisions of this Section 15.1, Landlord shall
not be released from liability to Tenant for any physical injury to any natural
person caused by the willful misconduct of Landlord or its employees to the
extent such injury is not covered by insurance (a) carried by Tenant or such
person, or (b) required by this Lease to be carried by Tenant.
15.2 Tenant shall indemnify and hold Landlord, its agents, employees, or
partners, harmless from and against all costs, penalties, damages, claims,
causes of action, obligations, liabilities and expenses (including attorney's
fees) suffered by or claimed against Landlord, directly or indirectly, based on,
arising out of or resulting from (i) Tenant's use and occupancy of the Premises
or the business conducted by Tenant therein, (ii) any act or omission by Tenant
or Tenant's employees, agents, assignees, subtenants, contractors, clients,
guests, family members, licensees, customers or invitees (iii) any breach or
default in the performance or observance of Tenant's covenants or obligations
under this Lease, including without limitation any failure to surrender the
Premises upon the expiration or earlier termination of the Lease Term, or (iv)
any entry by Tenant, its employees, agents or contractors upon the land prior to
the Lease Commencement Date. Tenant shall not be required to so indemnify
Landlord from any such damage or claim resulting from the gross negligence or
wilful misconduct of Landlord.
15.3 In the event that at any time any landlord hereunder shall sell or
transfer the Building, said landlord shall not be liable to Tenant for any
obligations or liabilities based on, arising out of or resulting from events or
conditions occurring on or after the date of such sale or transfer.
15.4 In the event that at any time during the Lease Term, Tenant shall
have a claim against Landlord, Tenant shall not have the right to set off or
deduct the amount allegedly owed to Tenant from any rent or other sums payable
to Landlord hereunder, it being understood that Tenant's sole remedy for
recovering upon such claim shall be to institute an independent action against
Landlord, subject to Section 15.5 below.
15.5 Tenant agrees that in the event Tenant or any of Tenant's employees,
agents, subtenants, assignees, contractors, clients, guests, family members,
licensees, customers or invitees is awarded a money judgment against Landlord,
its agents or partners, the sole recourse for satisfaction of such judgment
shall be limited to execution against the estate and interest of Landlord in the
Building (including insurance proceeds therefrom); in no event shall any other
assets of Landlord, or of any partner of Landlord or of any person or entity be
held to have any personal liability for satisfaction of any claims or judgments
against Landlord and/or any partner of Landlord in such partner's capacity as a
partner of Landlord.
ARTICLE XVI
RULES AND REGULATIONS
16.1 Tenant and its agents, employees, invitees, licensees, customers,
clients, family members, guests, assignees and subtenants shall at all times
abide by and observe the rules and regulations as may be promulgated by
Landlord. In addition, Tenant and its agents, employees, invitees, licensees,
customers, clients, family members, guests, assignees and subtenants shall abide
by and observe all other rules or regulations that Landlord may promulgate from
time to time for the operation and
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maintenance of the Building, provided that notice thereof is given to Tenant and
such rules and regulations are not inconsistent with the provisions of this
Lease. Nothing contained in this Lease shall be construed as imposing upon
Landlord any duty or obligation to enforce such rules and regulations, or the
terms, conditions or covenants contained in any other lease, as against any
other tenant, and Landlord shall not be liable to Tenant for the violation of
such rules and regulations by any other tenant or its employees, agents,
assignees, subtenants, invitees, licensees, customers, clients, family members
or guests.
ARTICLE XVII
DAMAGE OR DESTRUCTION
17.1 If the Premises or the Building are totally or partially damaged or
destroyed from any cause, thereby rendering the Premises totally or partially
inaccessible or unusable, Landlord shall (taking into account the time necessary
to effectuate a satisfactory settlement with any insurance company involved)
diligently restore and repair the Premises and the Building to substantially the
same condition they were in prior to such damage; provided, however, that if in
Landlord's judgment the repairs and restoration cannot be completed within
ninety (90) days after the occurrence of such damage (taking into account the
time needed for removal of debris, preparation of plans and issuance of all
required governmental permits), Landlord shall have the right, at its sole
option, to terminate this Lease as of the sixtieth (60th) day after such damage
by giving written notice of termination of Tenant within forty-five (45) days
after the occurrence of such damage. If this Lease is terminated pursuant to the
preceding sentence, all rent payable hereunder shall be apportioned and paid to
the date of termination. If this Lease is not terminated as a result of such
damage, and provided that such damage was not caused by the act or omission of
Tenant, or any of its employees, agents, licensees, invitees, assignees,
subtenants, customers, clients, family members or guests, then until the repair
and restoration of the Premises is substantially complete, Tenant shall be
required to pay the Annual Base Rent and additional rent only for those portions
of the Premises that Tenant is able to use while repairs are being made. Except
as otherwise specified in Section 17.2, Landlord shall bear the costs and
expenses of repairing and restoring the Premises and the Building; provided,
however, that if such damage or destruction was caused by the act or omission of
Tenant, or any of its employees, agents, licensees, invitees, assignees,
subtenants, customers, clients, family members or guests, then Tenant shall pay
to Landlord the amount by which such costs and expenses exceed the insurance
proceeds, if any, actually received by Landlord on account of such damage or
destruction. Notwithstanding anything above to the contrary, Landlord shall have
the right to terminate this Lease in the event (a) Landlord's insurance is
insufficient to pay the full cost of such repair and restoration, (b) any
Mortgagee fails or refuses to make any such insurance proceeds available for
such repair and restoration, or (c) zoning or other applicable laws or
regulations do not permit such repair or restoration. In addition, if more than
30% of the Premises is damaged or destroyed by fire or other casualty, not
resulting from any act or omission of Tenant or Tenant's agents, and Tenant will
be deprived of such use for more than six (6) months, Tenant may terminate this
Lease upon thirty (30) days advance notice.
17.2 Notwithstanding anything above the contrary, if Landlord repairs and
restores the Premises as provided in Section 17.1, Landlord shall not be
required to repair, restore or replace any decorations, alterations or
improvements to the Premises previously made by Tenant or any trade fixtures,
furnishings, equipment or personal property belonging to Tenant.
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It shall be Tenant's sole responsibility to repair and restore all such items.
17.3 Notwithstanding anything to the contrary contained herein, if there
is damage to or destruction of the Building that exceeds twenty-five percent
(25%) of the replacement value of the Building, excluding the land, then,
whether or not the Premises are damaged or destroyed, Landlord shall have the
right to terminate this Lease by written notice to Tenant.
ARTICLE XVIII
CONDEMNATION
18.1 If the whole or a substantial part (as hereinafter defined) of the
Premises, or the use or occupancy of the Premises, shall be taken or condemned
by any governmental or quasi-governmental authority for any public or
quasi-public use or purpose (including a sale thereof under threat of such a
taking), then this Lease shall terminate on the date title thereto vests in such
governmental or quasi-governmental authority, and all rent payable hereunder
shall be apportioned as of such date. If less than a substantial part of the
Premises, or if the use or occupancy of less than a substantial part of the
Premises, is taken or condemned by any governmental or quasi-governmental
authority for any public or quasi-public use or purpose (including a sale
thereof under threat of such a taking), then this Lease shall continue in full
force and effect except that as of the date title vests in the governmental or
quasi-governmental authority Tenant shall not be required to pay the Annual Base
Rent and additional rent with respect to the portion of the Premises taken or
condemned. For purposes of this Section 18.1, a substantial part of the Premises
shall be considered to have been taken if more than one-third (1/3) of the
rentable area of the Premises is rendered unusable as a result of such
condemnation.
18.2 All awards, damages and other compensation paid by the condemning
authority on account of such taking or condemnation (or sale under threat of
such a taking) shall belong to Landlord, and Tenant hereby assigns to landlord
all rights to such awards, damages and compensation. Tenant agrees not to make
any claim against the Landlord or the condemning authority for any portion of
such award or compensation attributable to damages to the Premises, the value of
the unexpired Lease Term, the loss of profits or goodwill, leasehold
improvements or severance damages. Nothing contained herein, however, shall
prevent Tenant from pursuing a separate claim against the condemning authority
for the value of furnishings, equipment and trade fixtures installed in the
Premises at Tenant's expense and for relocation expenses, provided that such
claim shall in no way diminish the award or compensation payable to or
recoverable by Landlord in connection with such taking or condemnation.
18.3 Notwithstanding anything to the contrary contained herein, if
twenty-five percent (25%) or more of the land or of the Building (excluding the
Land) is taken, condemned, or sold under threat of such a taking, Landlord shall
have the right, in Landlord's sole discretion, to terminate this Lease as of the
date title vests in the governmental or quasi-governmental authority.
ARTICLE XIX
DEFAULT
19.1 The occurrence of any of the following shall constitute a default by
Tenant under this Lease:
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(a) If Tenant shall fail to pay any payment of the Annual Base Rent
or additional rent when due, or shall fail to make due any other payment
required by this Lease, and such failure shall continue for a period of five (5)
days;
(b) If Tenant shall violate or fail to perform any other term,
condition, covenant, or agreement to be performed or observed by Tenant under
this Lease, and such failure shall continue for a period of ten (10) days;
provided, however, that if the violation cannot reasonably be cured within ten
(10) days, Tenant will not be in default if Tenant immediately commences to
cure, and thereafter continues diligently and in good faith until such cure is
completed, further provided that the cure period may not exceed sixty (60) days;
(c) If Tenant shall vacate, abandon, or fail to continuously occupy
the Premises;
(d) An Event of Bankruptcy as specified in Article XX with respect
to Tenant any guarantor of Tenant's obligations under this Lease (a "Guarantor")
or any general partner of Tenant (a "General Partner"); or
(e) A dissolution or liquidation of Tenant.
19.2 If there shall be any default by Tenant under this Lease, including
without limitation any default by Tenant prior to the Lease Commencement Date,
Landlord shall have the right, at its sole option, to terminate this Lease. In
addition, with or without terminating this Lease, Landlord may re-enter,
terminate Tenant's right of possession and take possession of the Premises and
the provisions of this Article XIX shall operate as a notice to quit, any other
notice to quit or of Landlord's intention to re-enter the Premises being hereby
expressly waived. If necessary, Landlord may proceed to recover possession of
the Premises under and by virtue of the laws of the Commonwealth of Virginia, or
by such other proceedings, including re-entry and possession, as may be
applicable. If Landlord elects to terminate this Lease and/or elects to
terminate Tenant's right of possession, everything contained in this Lease on
the part of Landlord to be done and performed shall cease without prejudice,
however, to the right of Landlord to recover from Tenant all rent and other sums
accrued up to the time of termination or recovery of possession by Landlord,
whichever is later. If there shall be any default by Tenant under this Lease,
then whether or not this Lease and/or Tenant's right of possession is terminated
by reason of Tenant's default, Landlord may relet the Premises or any part
thereof, alone or together with other premises, for such term(s) (which may be
greater or less than the period which otherwise would have constituted the
balance of the Lease Term) and on such terms and conditions (which may include
concessions or free rent and alterations of the Premises) as Landlord, in its
sole discretion, may determine, but Landlord shall not be liable for, nor shall
Tenant's obligations hereunder be diminished by reason of, any failure by
Landlord to relet the Premises or any failure by Landlord to collect any rent
due upon such relating. If there shall be any default by Tenant under this
Lease, then whether or not this Lease is terminated by reason of Tenant's
default, Tenant nevertheless shall remain liable for any Annual Base Rent,
additional rent or damages which may be due or sustained prior to such default,
all costs, fees and expenses including, but not limited to, attorney's fees,
brokerage fees, expenses incurred in placing the Premises in first-class
rentable condition, and other costs and expenses incurred by Landlord in pursuit
of its remedies hereunder, or in renting the Premises to other from time to time
(all such Annual Base Rent, additional rent, damages, costs, fees and expenses
are hereinafter referred to as "Termination Damages") and additional damages
(hereinafter referred to as "Liquidated Damages"), which, at the election of
Landlord, shall be either:
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(a) an amount equal to the Annual Base Rent and additional rent which
would have become due during the remainder of the Lease Term, less the amount of
the rental, if any, which Landlord shall receive during such period from others
to whom the Premises may be rented (other than any additional rent received by
Landlord as a result of any failure of such other person to perform any of its
obligations to Landlord), in which case such Liquidated Damages shall be
computed and payable in monthly installments, in advance, on the first day of
each calendar month following Tenant's default and continuing until the date on
which the Lease Term would have expired but for Tenant's default. Separate suits
or actions may be brought to collect any such Liquidated Damages for any
month(s), and such separate suits or action shall not in any manner prejudice
the right of Landlord to collect any Liquidated Damages for any subsequent
month(s) by similar proceedings, or Landlord may defer any suits or actions
until after the expiration of the Lease Term; or
(b) an amount equal to the present value (as of the date of Tenant's
default) of all Annual Base Rent and additional rent which would have become due
during the remainder of the Lease Term, which Liquidated Damages shall be
payable to Landlord in one lump sum on demand. For purposes of this Section
19.2(b), "present value" shall be computed by discounting at a discount rate
equal to one percentage point above the discount rate then in effect at the
Federal Reserve Bank nearest to the Building.
The provisions contained in this Section shall be in addition to, and shall not
prevent the enforcement of, any claim Landlord may have against Tenant for
anticipatory breach of this Lease.
19.3. All rights and remedies of Landlord set forth in this Lease are in
addition to all other rights and remedies available to Landlord at law or in
equity. All rights and remedies available to Landlord pursuant to this Lease or
at law or in equity are expressly declared to be cumulative. The exercise by
Landlord of any such right or remedy shall not prevent the concurrent or
subsequent exercise of any other right or remedy. No delay or failure by
Landlord to exercise or enforce any of Landlord's rights or remedies or Tenant's
obligations shall constitute a waiver of any such rights, remedies or
obligations. Landlord shall not be deemed to have waived any default by Tenant
hereunder unless such waiver expressly is set forth in a written instrument
signed by Landlord. If Landlord waives in writing any default by Tenant, such
waiver shall not be construed as a waiver of any covenant, condition or
agreement set forth in this Lease except as to the specific circumstances
described in such written waiver.
19.4 If Landlord shall institute proceedings against Tenant and a
compromise or settlement thereof shall be made, the same shall not constitute a
waiver of the same or of any other covenant, condition or agreement set forth
herein, nor of any of Landlord's rights hereunder. Neither the payment by Tenant
of a lesser amount than the monthly installment of the Annual Base Rent,
additional rent or of any sums due hereunder nor any endorsement or statement on
any check or letter accompanying a check for payment of rent or other sums
payable hereunder shall be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such rent or other sums or to pursue any other remedy available
to Landlord. No re-entry by Landlord, and no acceptance by Landlord of keys from
Tenant, shall be considered in acceptance of a surrender of this Lease.
19.5 If Tenant defaults in the making of any payment or in the doing of
any act herein required to be made or done by Tenant, then Landlord may, but
shall not be required to, make such payment or do such act. The taking of such
action by Landlord shall not be considered as a cure of such default by
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Tenant or prevent Landlord from pursuing any remedy it is otherwise entitled to
in connection with such default. If Landlord elects to make such payment or do
such act, all costs and expenses incurred by Landlord, plus interest thereon at
a rate (the "Default Rate") equal to the greater of eighteen percent (18%) per
annum or the rate per annum which is five (5) whole percentage points higher
than the prime rate announced from time to time by The Riggs National Bank of
Washington, D.C. from the date incurred by Landlord to the date of payment
thereof by Tenant, shall constitute additional rent due hereunder, provided,
however, that nothing contained herein shall be construed as permitting Landlord
to charge or receive interest in excess of the maximum rate then allowed by law.
If The Riggs National Bank of Washington, D.C. ceases to announce a prime rate
or announces more than one prime rate, then for purposes of determining the
Default Rate, Landlord shall have the right to designate a substitute rate which
Landlord deems comparable.
19.6 If Tenant fails to make any payment of the Annual Base Rent,
additional rent or any other sum on or before the date such payment is due and
payable (without regard to any grace period specified in Section 19.1), Tenant
shall pay to landlord a late charge of five percent (5%) of the amount of such
payment. In addition, such payment and such late fee shall bear interest at the
Default Rate from the date such payment or late fee, respectively, became due to
the date of payment thereof by Tenant; provided, however, that nothing contained
herein shall be construed as permitting Landlord to charge or receive interest
in excess of the maximum rate then allowed by law. Such late charge and interest
shall constitute additional rent due hereunder.
ARTICLE XX
BANKRUPTCY
20.1 The following shall be Events of Bankruptcy under this Lease:
(a) Tenant's, a Guarantor's or a General Partner's becoming
insolvent, as that term is defined in Title 11 of the United States Code (the
"Bankruptcy Code"), or under the insolvency laws of any state, district,
commonwealth or territory of the United States (the "Insolvency Laws");
(b) The appointment of a receiver or custodian for any or all of
Tenant's, a Guarantor's or a General Partner's property or assets, or the
institution of a foreclosure action upon any of Tenant's, a Guarantor's or a
General Partner's real or personal property;
(c) The filing of a voluntary petition by Tenant, a Guarantor or a
General Partner under the provisions of the Bankruptcy Code or Insolvency Laws;
(d) The filing of an involuntary petition against Tenant, a Guarantor
or a General Partner as the subject debtor under the Bankruptcy Code or
Insolvency Laws, which either (i) is not dismissed within thirty (30) days of
filing, or (ii) results in the issuance of an order for relief against the
debtor, or
(e) Tenant's, a Guarantor's or a General Partner's making or
consenting to an assignment for the benefit of creditors or a common law
composition of creditors.
20.2 (a) Upon occurrence of an Event of Bankruptcy, Landlord shall have
all rights and remedies available to Landlord pursuant to Article XIX; provided,
however, that while a case in which Tenant is the subject debtor under the
Bankruptcy Code is pending, Landlord shall not exercise its rights and remedies
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pursuant to Article XIX so long as (i) the Bankruptcy Code prohibits the
exercise of such rights and remedies, and (ii) Tenant or its Trustee in
Bankruptcy (hereinafter referred to as "Trustee") is in compliance with the
provisions of Sections 20.2(b) below.
(b) In the event Tenant becomes the subject debtor in a case pending
under the Bankruptcy Code, Landlord's right to terminate this Lease pursuant
to Section 20.2(a) shall be subject, to the extent required by the Bankruptcy
Code, to any rights of Trustee to assume or assign this Lease pursuant to the
Bankruptcy Code. Trustee shall not have the right to assume or assign this Lease
unless Trustee promptly (i) cures all defaults under this Lease, (ii)
compensates Landlord for monetary damages incurred as a result of such defaults,
(iii) provides adequate assurance of future performance on the part of Tenant as
debtor in possession or on the part of the assignee of Tenant, and (iv) complies
with all other requirements of the Bankruptcy Code. Tenant agrees in advance
that this Lease may be terminated by Landlord in accordance with Section 20.2(a)
if the foregoing criteria for assumption or assignment are not met, or if, after
such assumption or assignment, Tenant, Trustee or such assignee defaults under
this Lease.
ARTICLE XXI
SUBORDINATION, ATTORNMENT AND ESTOPPEL CERTIFICATES
21.1 This Lease is subject and subordinate to the lien, provisions,
operation and effect of any and all mortgages, deeds of trust, ground leases or
other security instruments (collectively, "Mortgages") which may now or
hereafter encumber the Building or the Land, to all funds and all indebtedness
intended to be secured by such Mortgages, and to all and any renewals,
extensions, modifications, recastings or refinancings thereof. The holder of any
Mortgage to which this Lease is subordinate shall have the right (subject to any
required consents or approvals of the holders of superior Mortgages) at any time
to declare this Lease to be superior to the lien, provisions, operation and
effect of such Mortgage and Tenant agrees to execute all documents required by
such holder in confirmation thereof. Landlord shall use its reasonable best
efforts to obtain non-disturbance protection from any future holder of any
Mortgage on the Building, provided that (i) there is no representation or
assurance that non-disturbance protection will be obtained, (ii) Landlord shall
not be required to spend any money or incur any obligation or liability in order
to obtain such non-disturbance, and (iii) Landlord shall not be required to
forego any loan or agreement with a lender or prospective lender due to the
failure to provide non-disturbance.
21.2 In confirmation of the foregoing subordination, Tenant shall, at
Landlord's request, promptly execute any requisite or appropriate certificate or
other document. Tenant hereby constitutes and appoints Landlord as Tenant's
attorney-in-fact to execute any such certificate or other document for or on
behalf of Tenant. If the Building or Landlord's interest therein is sold at a
foreclosure sale or by deed in lieu of foreclosure, and this Lease is not
extinguished upon such sale or by the purchaser following such sale, then, at
the request of such purchase, Tenant shall attorn to such purchase and shall
recognize such purchaser as the landlord under this Lease, and Tenant waives the
provision of any statute or rule of law, now or hereafter in effect, which may
give or purport to give Tenant any right to terminate or otherwise adversely
affect this Lease and the obligations of Tenant hereunder in the event any such
foreclosure proceeding is prosecuted or completed or in the event of any such
sale. Tenant agrees that upon such attornment, such purchaser shall not be (a)
bound by any payment of the Annual Base Rent or additional rent for more than
one (1) month in advance, except
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prepayments in the nature of security for the performance by Tenant of its
obligations under this Lease but only to the extent such prepayments have been
delivered to such purchaser, (b) bound by any amendment of this Lease made
without the consent of any lender providing construction or permanent financing
for the Building, (c) liable for damages for any act or omission of any prior
landlord, or (d) subject to any offsets or defenses which Tenant might have
against any prior landlord; provided, however, that after succeeding to
landlord's interest under this Lease, such purchaser shall perform in accordance
with the terms of this Lease all obligations of Landlord arising after the date
such purchaser acquired title to the Land, the Building or Landlord's interest
therein. Within five (5) days after request by such purchaser, Tenant shall
execute and deliver an instrument or instruments confirming its attornment.
21.3 Tenant understands that the Landlord herein is the lessee under an
underlying lease of the Building of which the leased premises and any
improvements thereon demised herein form a part and that this Lease is subject
and subordinate to such underlying lease and any extensions or modifications
thereof. Tenant covenants and agrees that if, by reason of any default upon the
part of the Landlord herein as lessee under such underlying lease, the
underlying lease is terminated by summary proceedings, voluntary agreement or as
otherwise permitted or required by law, the Tenant herein will attorn to and
recognize the lessor under such underlying lease as Tenant's landlord under this
Lease. Tenant further agrees to execute and deliver at any time, upon request of
the lessor under the underlying lease or of any person, firm or corporation
which shall succeed to the interest of such lessor, an instrument to evidence
such attornment. In the event Landlord sells, conveys or otherwise transfers its
interest in the Building or any portion thereof containing the leased premises,
or conveys its interest in Landlord's sublease, or if Landlord's interest is
acquired by Sublessor, this Lease shall remain in full force and effect and
Tenant hereby attorns to, and covenants and agrees to execute an instrument in
writing reasonably satisfactory to the new owner or sublessor whereby Tenant
attorns to such successor in interest and recognizes such successor as the
Landlord under this Lease. Payment by or performance of this Lease by any
person, firm or corporation claiming an interest in this lease or the leased
premises by, through or under Tenant without Landlord's consent in writing shall
not constitute an attornment or create an interest in this Lease or the leased
premises.
21.4 Tenant shall, without charge, at any time and from time to time,
within thirty (30) days after request therefor by Landlord, Mortgagee, or any
purchaser of the Building, execute, acknowledge and deliver to such requesting
party a written estoppel certificate certifying, as of the date of such estoppel
certificate, the following: (i) that this Lease is unmodified and in full force
and effect (or if modified, that the Lease is in full force and effect as
modified and setting forth such modifications; (ii) that the Term has commenced
(and setting forth the Commencement Date and Expiration Date); (iii) that Tenant
is presently occupying the Premises; (iv) the amounts of Base Rent and
Additional Rent currently due and payable by Tenant (or, if not, specifying the
same); (v) that any Alterations required by the Lease to have been made by
Landlord, if any, have been made to the satisfaction of Tenant (or, if not,
specifying the same); (vi) that there are no existing set-offs, charges, liens,
claims or defenses against the enforcement of any right hereunder, including,
without limitation, Basic Rent or Additional Rent (or, if alleged, specifying
the same in detail); (vii) that no Basic Rent (except the first installment
thereof) has been paid more than thirty (30) days in advance of its due date;
(viii) that Tenant has no knowledge of any then uncured default by Landlord of
its obligations under this Lease, (or, if Tenant has such knowledge, specifying
the same in detail); (ix)
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that Tenant is not in default; (x) that the address to which notices to Tenant
should be sent is as set forth in the Lease (or, if not, specifying the correct
address); and (xi) any other reasonable certifications requested by Landlord.
ARTICLE XXII
HOLDING OVER
22.1 Tenant acknowledges that it is extremely important that Landlord have
substantial advance notice of the date on which Tenant will vacate the Premises,
both because Landlord will require an extensive period to locate a replacement
tenant and because Landlord will plan its entire leasing and renovation program
for the Building in reliance on the expiration dates of this Lease and other
leases. Tenant also acknowledges that if Tenant fails to surrender the premises
at the expiration or earlier termination of the Lease Term, it will be
conclusively presumed that the value to Tenant of remaining in possession of the
Premises, and the loss that will be suffered by Landlord as a result thereof,
far exceed the amount of the Annual Base Rent and additional rent that would
have been payable had the Lease Term continued during such holdover period.
Therefore, if Tenant shall not immediately surrender the Premises on the date of
the expiration or earlier termination of the Lease Term, the rent payable by
Tenant hereunder shall be increased to equal the greater of (a) fair market rent
for the Premises, or (b) one hundred and fifty percent (150%) of the Annual Base
Rent, additional rent, and other sums that would have been payable pursuant to
the terms of this Lease if the Lease Term had continued during such holdover
period. Such rent shall be computed by Landlord on a monthly basis and shall be
payable by Tenant on the first day of such holdover period and the first day of
each calendar month thereafter during such holdover period until the Premises
have been vacated by Tenant. Landlord's acceptance of such rent from Tenant
shall not in any manner impair or adversely affect Landlord's other rights and
remedies hereunder, including, but not limited to, (i) Landlord's right to evict
Tenant from the Premises, and (ii) Landlord's right to recover damages pursuant
to this Lease and such other damages as are available to Landlord at law or in
equity.
ARTICLE XXIII
COVENANTS OF LANDLORD
23.1 Landlord covenants that it has the right to make this Lease for the
term aforesaid, and that if Tenant shall pay all rent when due and punctually
perform all the covenants, terms, conditions and agreements of this Lease to be
performed by Tenant, Tenant shall, during the Lease Term, freely, peaceably and
quietly occupy and enjoy the full possession of the Premises without hindrance
by Landlord or any party claiming through or under Landlord, subject, however,
to the provisions of this Lease, including but not limited to Rules and
Regulations and the provisions of Section 23.2 hereof.
23.2 Landlord hereby reserves to itself and its successors and assigns the
following rights (all of which are hereby consented to by Tenant): (i) to
change the street address and/or name of the Building and/or the arrangement
and/or location of entrances, passageways, doors, doorways, corridors,
elevators, stairs, toilets, or other public parts of the Building; (ii) to
erect, use and maintain pipes and conduits in to and through the Premises; (iii)
to grant to anyone the exclusive right to conduct any particular business or
undertaking in the Building whether or not consistent with Tenant's permitted
use of the Premises; (iv) the exclusive right to use and/or lease the roof
areas, and the sidewalks and other exterior areas; (v) the right to resubdivide
the land or to combine the land with other lands; and (vi) the
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right to relocate any parking areas designated for Tenant's use, if any.
Landlord may exercise any or all of the foregoing rights without being deemed to
be guilty of an eviction, actual or constructive, or a disturbance or
interruption of the business of Tenant or of Tenant's use or occupancy of the
Premises.
23.3 Tenant acknowledges and agrees that all rights of Tenant to use and
occupy the Premises and all rights, terms and conditions of this Lease are in
all respects subject to all applicable zoning and land use restrictions, to all
covenants, conditions, and restrictions of record, and to any master lease or
prior lease pertaining to the Building. In the event that this Lease is
terminated due to the termination of Landlord's lease for the Building, unless
due to any act or omission of Tenant or Tenant's agents, Landlord will indemnify
and hold Tenant harmless from any costs, damages, or losses directly arising
therefrom, such as moving costs (but excluding consequential damages).
Landlord's liability for additional rent, if any, shall not exceed 10% of the
monthly Base Rent and proportionate share of Operating Charges then due under
this Lease, per month, and shall not extend beyond the remainder of the Lease
Term.
ARTICLE XXIV
SECURITY DEPOSIT
24.1 Simultaneously with the execution of this Lease, Tenant shall deposit
with Landlord the Security deposit (as defined in Section 1.1 (g)). The Security
Deposit shall be security for the performance by Tenant of all of Tenant's
obligations, covenants, conditions and agreements under this Lease. Landlord
shall not be required to maintain the Security Deposit in a separate account.
Landlord shall have no fiduciary responsibilities or trust obligations
whatsoever with regard to the Security Deposit and shall not assume the duties
of a trustee for the Security. Except as may be required by law, Tenant shall
not be entitled to interest on the Security Deposit. Within approximately thirty
(30) days after the later of the expiration of the Lease Term or Tenant's
vacating the Premises, Landlord shall return the Security Deposit to Tenant,
less such portion thereof as Landlord shall have appropriated to satisfy any
default by Tenant hereunder. In the event of any default by Tenant hereunder,
Landlord shall have the right, but shall not be obligated, to use, apply or
retain all or any portion of the Security Deposit for (a) the payment of any
Annual Base Rent or additional rent or any other sum as to which Tenant is in
default, (b) the payment of any amount which Landlord may spend or become
obligated to spend to repair physical damage to the Premises or the Building
pursuant to Article VIII hereof, or (c) the payment of any amount Landlord may
spend or become obligated to spend, or for the compensation of Landlord for any
losses incurred, by reason of Tenant's default, including, but not limited to,
any damage or deficiency arising in connection with the reletting of the
Premises. The Security will not be a limitation on Landlord's damages or other
rights and remedies available under the Lease, or at law or equity, nor shall
the Security be a payment of liquidated damages. If any portion of the Security
Deposit is so used or applied, within three (3) business days after written
notice to Tenant of such use or application, Tenant shall deposit with Landlord
cash in an amount sufficient to restore the Security Deposit to its original
amount, and Tenant's failure to do so shall constitute a default under this
Lease.
24.2 If Tenant is in default under this Lease more than two (2) times
within any twelve-month period, irrespective of whether or not such default is
cured, then, without limiting Landlord's other rights and remedies provided for
in this Lease or at law or equity, Tenant shall, upon demand, deposit with
Landlord an
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additional security deposit equal to an amount equal to the greater of:
a. two (2) times the original Security Deposit, or
b. two (2) months' Minimum Rent, which shall be paid by Tenant to
Landlord forthwith on demand.
24.3 If Landlord transfers the Security Deposit to any purchaser or
transferee of Landlord's interest in the Building, Tenant shall look only to
such purchaser or transferee for the return of the Security Deposit, and
Landlord shall be released from all liability to Tenant for the return of the
Security Deposit.
ARTICLE XXV
TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS
25.1 As used in this Lease, the term "Hazardous Material" means any
flammable items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "infectious wastes", "hazardous materials", or "toxic substances" now
or subsequently regulated under any applicable federal, state or local laws or
regulations including, without limitation, oil, petroleum-based products,
paints, solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds and other chemical products, asbestos, PCBs and similar compounds, and
including any different products and materials which are subsequently found to
have adverse effects on the environment or the health and safety of persons.
25.2 Tenant shall not cause or permit any Hazardous Material to be
generated, produced, brought upon, used, stored, treated or disposed of in or
about the Premises, the Building or the land by Tenant or its agents or
sublessees without the prior written consent of Landlord. Landlord shall be
entitled to take into account such factors or facts as Landlord may in its sole
and exclusive discretion determine to be relevant in determining whether to
grant, condition or withhold consent to Tenant's proposed activity with respect
to Hazardous Material and Tenant shall indemnify, defend and hold Landlord
harmless from any and all actions (including, without limitation, remedial or
enforcement actions of any kind, administrative or judicial proceedings, and
orders or judgments arising out of or resulting therefrom), costs, claims,
damages (including, without limitation, punitive damages), expenses (including,
without limitation, attorneys', consultants' and experts' fees, court costs and
amounts paid in settlement of any claims or actions), fines, forfeitures or
other civil, administrative or criminal penalties, injunctive or other relief
(whether or not based upon personal injury, property damage, contamination of,
or adverse effects upon, the environment, water tables or natural resources),
liabilities or losses (economic or other) arising from a breach of this
prohibition by Tenant, its agents or sublessees. In no event, however, shall
Landlord be required to consent to the installation or use of any storage tanks
in, on or under the Premises, the Building or the land. If Landlord consents to
the generation, production, use, storage, treatment or disposal of Hazardous
Materials in or about the Premises by Tenant, its agents or sublessees, then, in
addition to any other requirements or conditions that Landlord may impose in
connection with such consent, (1) Tenant promptly shall deliver to Landlord
copies of all permits, approvals, filings, and reports reflecting the legal and
proper generation, production, use, storage, treatment or disposal of all
Hazardous Materials generated, used, stored, treated or removed from the
Premises, the Building and the land and, upon Landlord's request, copies of all
hazardous waste manifests relating thereto, and (2) upon expiration or
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earlier termination of this Lease, Tenant shall cause all Hazardous Materials
arising out of or related to the use or occupancy of the Premises by Tenant or
its agents, affiliates, sublessees, or assigns to be removed from the Premises,
the Building and the land and transported for use, storage or disposal in
accordance with all applicable laws, regulations and ordinances and Tenant shall
provide Landlord with evidence reasonably satisfactory to Landlord of the same.
25.3 In the event that Hazardous Materials are discovered upon, in, or
under the Premises, and the applicable governmental agency or entity having
jurisdiction over the Premises requires the removal of such Hazardous Materials,
Tenant shall be responsible for removing those Hazardous Materials, whether or
not related to the use or occupancy of the Premises by Tenant or its agents,
affiliates, customers, employees, business associates or assigns.
Notwithstanding the foregoing, Tenant shall not take any remedial action in or
about the Premises, the Building or the land, nor enter into any settlement
agreement, consent decree or other compromise with respect to any claims
relating to any Hazardous Material in any way connected with the Premises, the
Building or the land without first notifying Landlord of Tenant's intention to
do so and affording Landlord the opportunity to appear, intervene or otherwise
appropriately assert and protect Landlord's interest with respect thereof.
Tenant shall immediately notify Landlord in writing of: (i) any spill, release,
discharge or disposal of any Hazardous Material in, on or under the Premises,
the Building, the land or any portion thereof, (ii) any enforcement, cleanup,
removal or other governmental or regulatory action instituted, contemplated, or
threatened pursuant to any hazardous Materials Laws; (iii) any claim made or
threatened by any person against Tenant, the Premises, the Building or the land
relating to damage, contribution, cost recovery, compensation, loss or injury
resulting from or claimed to result from any Hazardous materials; and (iv) any
reports made to any environmental agency arising out of or in connection with
any hazardous Materials in, on or removed from the Premises, the Building or the
land, including any complaints, notices, warnings, reports or asserted
violations in connection therewith. Tenant also shall supply to Landlord as
promptly as possible, and in any event within five (5) business days after
Tenant first receives or sends the same, copies of all claims, reports,
complaints, notices, warnings or asserted violations relating in any way to the
Premises, the Building, the land or Tenant's use thereof.
25.4 The respective rights and obligations of Landlord and Tenant under
this Article 25 shall survive the expiration or earlier termination of this
Lease.
ARTICLE XXVI
GENERAL PROVISIONS
26.1 Tenant acknowledges that neither Landlord nor any broker, agent or
employee of Landlord has made any representations or promises with respect to
the Premises or the Building except as herein expressly set forth, and no
rights, privileges, easements or licenses are being acquired by Tenant except as
herein expressly set forth. Tenant, by taking possession of the Premises shall
accept the Premises and the Building "AS IS,", and such taking of possession
shall be conclusive evidence that the Premises and the Building are in good and
satisfactory condition at the time of such taking of possession (except for
latent defects and punch-list items reported to Landlord within thirty (30) days
of tender of possession).
26.2 Nothing contained in this Lease shall be construed as creating a
partnership or joint venture of or between Landlord
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and Tenant, or to create any other relationship between the parties hereto other
than that of Landlord and Tenant.
26.3 Landlord and Tenant each represents and warrants to the other that
neither of them has employed or dealt with any broker, agent or finder, in
carrying on the negotiations relating to this Lease, other than The Donohoe
Companies and Jefferson/LBG, LLC ("Broker"). Tenant shall indemnify and hold
Landlord harmless from and against any claim or claims for brokerage or other
commissions asserted by any broker, agent or finder engaged by Tenant or with
whom Tenant has dealt, other than the Broker(s).
26.4 If Tenant fails or refuses to execute and deliver any instrument or
certificate required to be delivered by Tenant hereunder (including, without
limitation, any instrument or certificate required under Article 21 hereof)
within the time periods required herein, then Tenant hereby appoints Landlord as
its attorney-in-fact with full power and authority to execute and deliver such
instrument or certificate for and in the name of Tenant. Any such certificate,
instrument, or statement delivered by Tenant may be relied upon by any owner of
the Building or the Land, any prospective purchaser of the Building or the Land,
any Mortgagee or prospective Mortgagee of the Building or the land or of
Landlord's interest therein, any prospective assignee any of such Mortgagee or
any other person or entity. Tenant acknowledges that time is of the essence to
the delivery of such certificates, instruments, or statements by Tenant, and
that Tenant's failure or refusal to do so may result in substantial damages to
Landlord resulting from, for example, delays suffered by Landlord in obtaining
financing or refinancing secured by the Building. Tenant shall be liable for all
such damages suffered by Landlord.
26.5 Tenant hereby waives trial by jury in any action, proceeding, claim
or counterclaim brought by either party in connection with any matter arising
out of or in any way connected with this Lease, the relationship of Landlord and
Tenant hereunder, Tenant's use or occupancy of the Premises, and/or any claim of
injury or damage. Landlord and Tenant each hereby waives any objection to the
venue of any action filed by either party in any court situated in Fairfax
County, Virginia, and each party further waives any right, claim or power, under
the doctrine of forum non conveniens or otherwise, to transfer any such action
filed by any party in a court situated in Fairfax County to any other court.
26.6 All notices or other communications required hereunder shall be in
writing and shall be deemed duly given if delivered in person (with receipt
therefor), or if sent by certified or registered mail, return receipt requested
postage prepaid, to the following address (i) if to Landlord: Spectra-4, L.L.P.,
11491 Sunset Hills Road, Reston, Virginia 22090, with copy to Rees, Broome &
Diaz, P.C., 8133 Leesburg Pike, Ninth Floor, Vienna, Virginia 22182, Attention:
Joel M. Birken, Esquire; (ii) if to Tenant, at the Tenant Address for notices
(as defined in Section 1.1 (h)). Either party may change its address for the
giving of notices by notice given in accordance with this Section.
Notwithstanding the foregoing, no notice shall be deemed void or insufficient if
(i) the party for whom such notice is intended admits to its receipt or (ii)
receipt of such notice is otherwise proven.
26.7 Each provision of this Lease shall be valid and enforced to the
fullest extent permitted by law. If any provision of this Lease or the
application thereof to any person or circumstance shall to any extent be invalid
or unenforceable, such provision shall be deemed to be replaced by the valid and
enforceable provision most substantively similar to such invalid or
unenforceable provision, and the remainder of this Lease, or the application of
such provision to persons or circumstances
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other than those as to which it is invalid or unenforceable, shall not be
affected thereby.
26.8 Feminine or neuter pronouns shall be substituted for those of the
masculine form, and the plural shall be substituted for the singular number, in
any place or places herein in which the content may require such substitution.
26.9 The provisions of this Lease shall be binding upon, and shall inure
to the benefit of, the parties hereto and each of their representatives,
successors and assigns, subject to the provision hereof restricting assignment
or subletting by Tenant.
26.10 This Lease contains and embodies the entire agreement of the
parties hereto and supersedes all prior agreements, negotiations and discussions
between the parties hereto. Any representation, inducement or agreement that is
not contained in this Lease shall not be of any force or effect. This Lease may
not be modified or changed in whole or in part in any manner other than by an
instrument in writing duly signed by both parties hereto.
26.11 This Lease shall be governed by and construed in accordance with the
laws of the Commonwealth of Virginia.
26.12 Article and section headings are used herein for the convenience of
reference and shall not be considered when construing or interpreting this
Lease.
26.13 The submission of an unsigned copy of this document to tenant for
Tenant's consideration does not constitute an offer to lease the Premises or an
option to or for the Premises. This document shall become effective and binding
only upon the execution and delivery of this Lease by both Landlord and Tenant.
26.14 Time is of the essence with respect to each of Tenant's obligations
under this Lease.
26.15 This Lease is being executed in multiple counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document.
26.16 This Lease shall not be recorded except that upon the request of
Landlord, Tenant agrees to execute, in recordable form, a short-form memorandum
of this Lease, provided that such memorandum shall not contain any of the
specific rental terms set forth herein. Such memorandum may be recorded at
Landlord's expense in the land records of the Commonwealth of Virginia.
26.17 Landlord reserves the right, without the consent of Tenant, to make
reasonable changes and modifications to the plans and specifications for the
Building, provided that such changes or modifications do not change the
character of the Building.
26.18 In the event of dispute, the rentable area in the Building and in the
Premises shall be determined by Landlord's architect, whose determination shall
be final.
26.19 Except as otherwise provided in this Lease, any additional rent or
other sum owner due Tenant to Landlord, and any cost, expense, damage or
liability incurred by Landlord for which tenant is liable, shall be paid by
Tenant to Landlord not later than the later of (a) ten (10) days after the date
Landlord notified Tenant of the amount of such additional rent, sum, cost,
expense, damage or liability, or (b) the first day of the first calendar month
following the date Landlord so notifies Tenant; provided, however, that if
Landlord so notifies Tenant prior to the commencement or after the expiration or
earlier termination of the Lease Term, such additional rent, sum, expense,
damage or
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liability shall be paid by Tenant to Landlord not later than ten (10) days after
Landlord so notifies Tenant.
26.20 Any liability of Tenant to Landlord existing hereunder at the
expiration or earlier termination of the Lease Term shall survive such
expiration or earlier termination.
26.21 In the event Landlord is in any way delayed, interrupted or prevented
from performing any of its obligations under this Lease, and such delay,
interruption or prevention is due to fire, act of God, governmental act or
failure to act, strike, labor dispute, inability to procure materials, or any
other cause beyond Landlord's reasonable control (whether similar or
dissimilar), then the time for performance of the affected obligation(s) by
Landlord shall be excused for the period of the delay and extended for a period
equivalent to the period of such delay, interruption or prevention.
IN WITNESS WHEREOF, Landlord and Tenant have set their hands and
seals upon this Lease on the day and year first above written.
LANDLORD:
SPECTRA-4, L.L.P.
By: /s/ PHILIP S. HUNTER [SEAL]
----------------------
TENANT:
NETSTART, INC.
By: /s/ ROBERT McGOVERN [SEAL]
---------------------
34
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TENANT IMPROVEMENT ADDENDUM
Tenant shall take Premises in its as-is condition. Tenant further agrees
to perform Tenant Improvements in the Premises in the amount of $64,000.00
during the period from September 27, 1996 to September 27, 1997. This work shall
include, by way of example only and not limitation, construction, carpeting,
painting, and permanent wiring, and shall exclude by way of example only and not
limitation, telephone systems, move related costs, stationery, etc. and shall be
confirmed by paid invoices from contractors. In the event Tenant fails to
perform Tenant Improvement as outlined herein, the base rent shall then increase
September 1, 1997 to $118,781.00 and this shall be the amount subject to
adjustment pursuant to Section 4.2.
Tenant, at Tenant's sole cost and expense, may install signage on the
exterior of the Building, subject to Landlord, county and governmental approval.
The size of said signage shall be commensurate with a tenant occupying 1/3 of
the Building.
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OPTION TO RENEW
Tenant shall have at the end of the Lease Term, two (2) three (3)-year
renewal options, if during the Lease Term there have been no events of default
by providing the Landlord with six (6) month prior written notice. The "Annual
Base Rent" for these renewal terms shall be mutually agreed upon. In the event
Landlord and Tenant cannot mutually agree upon an "Annual Base Rent" for these
renewal terms, the 3 Broker Method will be utilized.
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OPTION TO EXPAND
Tenant may periodically request from Landlord a listing of available
space within the Building.
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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("First Amendment") is made and entered
into this 30th day of December, 1996, by and between SPECTRA-4, L.L.P., a
Virginia limited liability partnership ("Landlord") and NETSTART, INC., a
Delaware corporation authorized to conduct business in the Commonwealth of
Virginia ("Tenant").
WHEREAS, Landlord and Tenant are parties to a certain Lease Agreement,
dated as of September 11, 1996 (hereinafter referred to as the "Lease") for the
rental of a certain premises known as Suite 210, at 11495 Sunset Hills Road,
Reston, Virginia, as further defined in the Lease, which definition is
incorporated herein (the "Initial Premises"); and
WHEREAS, Tenant wishes to add additional space to the Premises, and the
Landlord and Tenant wish to memorialize certain agreements between them with
respect to the Lease;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed as follows:
1. Additional Space: Effective as of February 1, 1997 (the "First
Amendment Commencement Date"), the space identified on Exhibit A attached
hereto, containing approximately 2,913 rentable square feet (the "First
Amendment Space") shall be added to the Premises. Effective as of the First
Amendment Commencement Date, Section 1.1(f) of the Lease is hereby amended to
provide that the term "Premises" means the Initial Premises and the First
Amendment Space.
2. Modification of Base Rent: Effective as of the First Amendment
Commencement Date, Section 1.1(a) of the Lease is amended to read as follows:
(a) The "Annual Base Rent" shall mean One Hundred and Fifty
Four Thousand Nine Hundred and Ninety Four and 50/100 Dollars
($154,994.50), which amount is subject to adjustment pursuant to Section
4.2 below.
3. Modification of Proportionate Share: Effective as of the First
Amendment Commencement Date, Section 1.1(j) of the Lease is amended to read as
follows:
(j) "Proportionate Share" shall mean 29.3% (being 12,013 square
feet divided by 41,000 square feet).
4. Acceptance of First Amendment Space: Landlord shall tender the
First Amendment Space broom-clean, with all trash and debris removed. Other than
the foregoing, Landlord has no
<PAGE> 39
obligation or undertaking of any kind whatsoever to perform any alterations,
construction, improvements, or decorations of any kind whatsoever in the First
Amendment Space. Tenant acknowledges that Tenant is currently in possession of
the Initial Premises, that neither Landlord nor any broker, agent or employee of
Landlord has made any representations or promises with respect to the Premises
or the Building, and no rights, privileges, easements or licenses are being
acquired by Tenant except as herein expressly set forth. Tenant, by taking
possession of the First Amendment Space shall accept such First Amendment Space
"AS IS,", and such taking of possession shall be conclusive evidence that the
First Amendment Space is in good and satisfactory condition at the time of such
taking of possession.
5. Correction of Typographical Error: In the last sentence of Section
5.2(a) of the Lease, the phrase "calendar year 19957" is corrected to read
"calendar year 1997".
6. No Further Modification of Lease: The modifications to the Lease
set forth herein are the only modifications agreed to by and between Landlord
and Tenant. Except as expressly set forth herein, the Lease is unmodified,
remains in full force and effect, and continues as a binding and enforceable
agreement between the parties hereto.
7. Miscellaneous Provisions:
(a) No Waiver of Breach: The waiver or forbearance by Landlord of a
breach of any provision of the Lease, as amended by this First Amendment, shall
not operate or be construed as a waiver of any subsequent breach.
(b) Incorporation of Recitations: The recitations set forth on the
first page of this First Amendment are incorporated into this First Amendment
and made a part hereof, as if fully set forth herein.
(c) Governing Law: This First Amendment shall be construed and
administered in accordance with the laws of the United States of America and the
Commonwealth of Virginia.
(d) Severability: In the event that any one or more of the provisions
of this First Amendment shall for any reason be held to be invalid, illegal, or
unenforceable, the remaining provisions of this First Amendment shall be
unimpaired, and shall continue in full force and effect.
(e) Singular and plural, genders: The singular shall be substituted
for the plural, and any gender or the neuter for any other gender, as
appropriate.
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(f) Construction: This First Amendment shall be interpreted in
accordance with its plain meaning, and the rule that ambiguities shall be
construed against the drafter of the document shall not apply in connection with
the construction or interpretation hereof.
(g) Counterparts: This First Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(h) No Binding Effect Until Execution and Delivery. The submission of
this First Amendment to Tenant is not an offer. This instrument is not effective
as a Lease, or modification or extension of the Lease, or otherwise unless and
until executed by and distributed to both Landlord and Tenant.
(i) Entire Agreement: This First Amendment contains the entire
understanding of the parties with respect to the extension or modification of
the Lease. The Lease and this First Amendment contains the complete agreement of
the parties. All prior promises, understandings, or agreements relating thereto
are merged herein. The Lease and this First Amendment may not be changed orally,
but only by an agreement in writing, signed by the party against whom
enforcement of any waiver, change, modification, or discharge is sought.
IN WITNESS WHEREOF, the parties have set their hands and seals on the day
and year first above written.
WITNESS: LANDLORD:
SPECTRA-4, L.L.P.
/s/ VIRGINIA L. BACA By: /s/ PHILIP S. HUNTER (SEAL)
--------------------- ------------------------
Printed Name: Philip S. Hunter
--------------------
Title: Managing Partner
---------------------------
WITNESS: TENANT:
NETSTART, INC.
By: /s/ ROBERT McGOVERN (SEAL)
--------------------- ------------------------
Printed Name: Robert McGovern
--------------------
Title: President & CEO
---------------------------
3
<PAGE> 41
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE ("Second Amendment") is made and entered
into this 14th day of March, 1997, by and between SPECTRA-4, L.L.P., a Virginia
limited liability partnership ("Landlord") and NETSTART, INC., a Delaware
corporation authorized to conduct business in the Commonwealth of Virginia
("Tenant").
WHEREAS, Landlord and Tenant are parties to a certain Lease Agreement,
dated as of September 11, 1996, as amended by the First Amendment to Lease,
dated as of December 30, 1996 (hereinafter collectively referred to as the
"Lease") for the rental of a certain premises known as Suite 210, at 11495
Sunset Hills Road, Reston, Virginia, as further defined in the Lease, which
definition is incorporated herein (the "Initial Premises") and the additional
space identified in the First Amendment (the "First Amendment Space"); and
WHEREAS, Tenant wishes to add additional space to the Premises, and the
Landlord and Tenant wish to memorialize certain agreements between them with
respect to the Lease;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed as follows:
1. Additional Space: Effective as of March 15, 1997 (the "Second
Amendment Commencement Date"), the space identified as Suite 201 on Exhibit A
attached hereto, containing approximately 2,447 rentable square feet (the
"Second Amendment Space") shall be added to the Premises. Effective as of the
Second Amendment Commencement Date, Section 1.1(f) of the Lease is hereby
amended to provide that the term "Premises" means the Initial Premises, the
First Amendment Space, and the Second Amendment Space.
2. Modification of Base Rent: Effective as of the Second Amendment
Commencement Date, Section 1.1(a) of the Lease is amended to read as follows:
(a) The "Annual Base Rent" shall mean One Hundred and Eighty
Nine Thousand Eight Hundred and Sixty Four and 25/100 Dollars
($189,864.25), which amount is subject to adjustment pursuant to Section
4.2 below.
3. First Month Rent: On or before the Second Amendment Commencement
Date, Tenant shall pay Landlord the sum of $1,452.91, being the base rent for
the Second Amendment Space from March 15, 1997 to March 31, 1997. On or before
April 1, 1997, and on or before the first day of each month thereafter, Tenant
shall then pay the monthly installment of Annual Base Rent, as set forth in
Paragraph 2 above.
<PAGE> 42
4. Modification of Proportionate Share: Effective as of the First
Amendment Commencement Date, Section 1.1(j) of the Lease is amended to read as
follows:
(j) "Proportionate Share" shall mean 35.3% (being 14,460 square
feet divided by 41,000 square feet).
5. Acceptance of Second Amendment Space: Landlord shall tender the
Second Amendment Space broom-clean, with all trash and debris removed. Other
than the foregoing, Landlord has no obligation or undertaking of any kind
whatsoever to perform any alterations, construction, improvements, or
decorations of any kind whatsoever in the Second Amendment Space. Tenant
acknowledges that Tenant is currently in possession of the Initial Premises and
the First Amendment Space, that neither Landlord nor any broker, agent or
employee of Landlord has made any representations or promises with respect to
the Premises or the Building, and no rights, privileges, easements or licenses
are being acquired by Tenant except as herein expressly set forth. Tenant, by
taking possession of the Second Amendment Space shall accept such Second
Amendment Space "AS IS,", and such taking of possession shall be conclusive
evidence that the Second Amendment Space is in good and satisfactory condition
at the time of such taking of possession.
6. Security Deposit:
(a) Upon execution of this Second Amendment, Tenant shall deposit with
the Landlord the sum of Two Thousand Nine Hundred and Five and 81/100 Dollars
($2,905.81), as an additional security deposit.
(b) Upon receipt of the additional deposit, Section 1.1(g) shall be
amended to read as follows:
(g) The "Security Deposit" shall mean Twelve Thousand Four
Hundred and Twenty Three and 59/100 Dollars ($12,423.59)
7. No Further Modification of Lease: The modifications to the Lease
set forth herein are the only modifications agreed to by and between Landlord
and Tenant. Except as expressly set forth herein, the Lease is unmodified,
remains in full force and effect, and continues as a binding and enforceable
agreement between the parties hereto.
8. Miscellaneous Provisions:
(a) No Waiver of Breach: The waiver or forbearance by Landlord of a
breach of any provision of the Lease, as amended by this Second Amendment, shall
not operate or be construed as a waiver of any subsequent breach.
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<PAGE> 43
(b) Incorporation of Recitations: The recitations set forth on the
first page of this Second Amendment are incorporated into this Second Amendment
and made a part hereof, as if fully set forth herein.
(c) Governing Law: This Second Amendment shall be construed and
administered in accordance with the laws of the United States of America and the
Commonwealth of Virginia.
(d) Severability: In the event that any one or more of the provisions
of this Second Amendment shall for any reason be held to be invalid, illegal, or
unenforceable, the remaining provisions of this Second Amendment shall be
unimpaired, and shall continue in full force and effect.
(e) Singular and plural, genders: The singular shall be substituted
for the plural, and any gender or the neuter for any other gender, as
appropriate.
(f) Construction: This Second Amendment shall be interpreted in
accordance with its plain meaning, and the rule that ambiguities shall be
construed against the drafter of the document shall not apply in connection with
the construction or interpretation hereof.
(g) Counterparts: This Second Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(h) No Binding Effect Until Execution and Delivery. The submission of
this Second Amendment to Tenant is not an offer. This instrument is not
effective as a Lease, or modification or extension of the Lease, or otherwise
unless and until executed by and distributed to both Landlord and Tenant.
(i) Entire Agreement: This Second Amendment contains the entire
understanding of the parties with respect to the extension or modification of
the Lease. The Lease (as modified by the First Amendment and the Second
Amendment) contains the complete agreement of the parties. All prior promises,
understandings, or agreements relating thereto are merged herein. The Lease, as
modified by the First Amendment and the Second Amendment, may not be changed
orally, but only by an agreement in writing, signed by the party against whom
enforcement of any waiver, change, modification, or discharge is sought.
IN WITNESS WHEREOF, the parties have set their hands and seals on the day
and year first above written.
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<PAGE> 44
WITNESS: LANDLORD:
SPECTRA-4, L.L.P.
By: (SEAL)
--------------------- ------------------------
Printed Name:
--------------------
Title:
---------------------------
WITNESS: TENANT:
NETSTART, INC.
/s/ RICHARD WATHEN By: /s/ ROBERT McGOVERN (SEAL)
--------------------- ------------------------
Printed Name: Robert McGovern
--------------------
Title: President & CEO
---------------------------
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<PAGE> 45
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE ("Third Amendment") is made and entered
into this 7th day of August, 1997, by and between SPECTRA-4, L.L.P., a
Virginia limited liability partnership ("Landlord") and NETSTART, INC., a
Delaware corporation authorized to conduct business in the Commonwealth of
Virginia ("Tenant").
WHEREAS, Landlord and Tenant are parties to a certain Lease Agreement,
dated as of September 11, 1996, as amended by the First Amendment to Lease,
dated as of December 30, 1996, and the Second Amendment to Lease, dated as of
March 14, 1997, (hereinafter collectively known as the "Lease") for the rental
of certain premises known as Suite 210, at 11495 Sunset Hills Road, Reston,
Virginia, as further defined in the Lease. which definition is incorporated
herein (the "Initial Premises") and the additional space identified in the
First Amendment (the "First Amendment Space") and the additional space
identified in the Second Amendment ("Second Amendment Space"); and
WHEREAS, Tenant wishes to add additional space to the Premises, and the
Landlord and Tenant wish to memorialize certain agreements between them with
respect to the Lease;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed as follows:
1. Additional Space: Effective as of August 10, 1997 (the "Third Amendment
Commencement Date"), the space identified as Suite 125 on Exhibit A attached
hereto, containing approximately 2,422 rentable square feet (the "Third
Amendment Space") shall be added to the Premises. Effective as of the Third
Amendment Commencement Date, Section 1.1(f) of the Lease is hereby amended to
provide that the term "Premises" means the Initial Premises, the First
Amendment Space, the Second Amendment Space, and the Third Amendment Space.
2. Modification of Base Rental: Effective as of the Third Amendment
Commencement Date, Section 1.1(a) of the Lease is amended to read as follows:
(a) The "Annual Base Rent" shall mean Two Hundred Eleven Thousand
Six Hundred Sixty-Two and 25/100 Dollars ($211,662.25), which amount is subject
to adjustment pursuant to Section 4.2 below.
<PAGE> 46
3. First Month's Rent: On or before the Third Amendment
Commencement Date, Tenant shall pay Landlord the sum of One Thousand Two
Hundred Eleven and 00/100 Dollars ($1,211.00), being the base rent for the
Third Amendment Space from August 10, 1997 to August 30, 1997. On or
before September 1, 1997, and on or before the first day of each month
thereafter, Tenant shall then pay the monthly installment of Annual Base Rent,
as set forth in Paragraph 2 above.
4. Modification of Proportionate Share: Effective as of the Third
Amendment Commencement Date, Section 1.1(j) of the Lease is amended to read as
follows:
(j) "Proportionate Share" shall mean 41.2% (being 16,882 square
feet divided by 41,000 square feet).
5. Acceptance of Third Amendment Space: Landlord shall tender the
Third Amendment Space broom-clean, with all trash and debris removed. Other
than the foregoing, Landlord has no obligation or undertaking of any kind
whatsoever to perform any alterations, construction, improvements, or
decorations of any kind whatsoever in the Third Amendment Space. Tenant
acknowledges that Tenant is currently in possession of the Initial Premises,
the First Amendment Space and the Second Amendment Space, that neither Landlord
nor any broker, agent, or employee of Landlord has made any representations or
promises with respect to the Premises or the Building, and no rights,
privileges, easements, or licenses are being acquired by Tenant except as
herein expressly set forth. Tenant, by taking possession of the Third Amendment
Space shall accept such Third Amendment Space "AS-IS," and such taking of
possession shall be conclusive evidence that the Third Amendment Space is in
good and satisfactory condition at the time of such taking of possession.
6. Security Deposit:
(a) Upon execution of this Third Amendment, Tenant shall deposit
with the Landlord the sum of One Thousand Eight Hundred Sixteen and 50/00
Dollars ($1,816.50), as an additional security deposit.
(b) Upon receipt of the additional deposit, Section 1.1(g) shall be
amended to read as follows:
(g) The "Security Deposit" shall mean Fourteen Thousand Two Hundred
Forty and 09/100 Dollars ($14,240.09).
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<PAGE> 47
7. Expiration Date for Third Amendment Space: The Lease with respect to
the Third Amendment Space shall expire on July 31, 1999 (if not terminated
previously), at which time the Lease shall continue with respect to the
remainder of the Premises without regard to this Third Amendment.
8. No Further Modification of Lease: The modifications to the Lease set
forth herein are the only modifications agreed to by and between Landlord and
Tenant. Except as expressly set forth herein, the Lease is unmodified, remains
in full force and effect, and continues as a binding and enforceable agreement
between the parties hereto.
9. Broker: Tenant recognizes The Staubach Company as Broker involved with
and representing Tenant in the First, Second, and Third Amendments to Lease.
Tenant represents that it has not dealt with any other broker with respect to
the First, Second, or Third Amendments.
10. Miscellaneous Provisions:
(a) No Waiver of Breach: The waiver or forbearance by Landlord of a
breach of any provision of the Lease, as amended by this Third Amendment, shall
not operate or be construed as a waiver of any subsequent breach.
(b) Incorporation of Recitations: The recitations set forth on the
first page of this Third Amendment are incorporated into this Third Amendment
and made a part hereof, as if fully set forth herein.
(c) Governing Law: This Third Amendment shall be construed and
administered in accordance with the laws of the United States of America and
the Commonwealth of Virginia.
(d) Severability: In the event that any one or more of the
provisions of this Third Amendment shall for any reason be held to be invalid,
illegal, or unenforceable, the remaining provisions of this Third Amendment
shall be unimpaired, and shall continue in full force and effect.
(e) Singular and Plural, Genders: The singular shall be substituted
for the plural, and any gender or the neuter for any other gender, as
appropriate.
(f) Construction: This Third Amendment shall be interpreted in
accordance with its plain meaning, and the rule that ambiguities shall be
construed against the drafter of the document shall not apply in connection
with the construction or interpretation hereof.
(g) Counterparts: This Third Amendment may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
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<PAGE> 48
(h) No Binding Effect Until Execution and Delivery: The submission
of this Third Amendment to Tenant is not an offer. This instrument is not
effective as a Lease, or modification or extension of the Lease, or otherwise
unless and until executed by and distributed to both Landlord and Tenant.
(i) Entire Agreement: This Third Amendment contains the entire
understanding of the parties with respect to the extension or modification of
the Lease. The Lease (as modified by the First Amendment, The Second Amendment,
and the Third Amendment) contains the complete agreement of the parties. All
prior promises, understandings, or agreements relating thereto are merged
herein. The Lease, as modified by the First Amendment, the Second Amendment,
and the Third Amendment, may not be changed orally, but only by an agreement in
writing, signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
IN WITNESS WHEREOF, the parties have set their hands and seals on the
day and year first above written.
WITNESS: LANDLORD:
SPECTRA-4, L.L.P.
BY: /s/ PHILIP S. HUNTER (SEAL)
--------------------------------- -----------------------------
PRINTED NAME: PHILIP S. HUNTER
-------------------------
TITLE: MANAGING PARTNER
--------------------------------
WITNESS: TENANT:
NETSTART, INC.
/s/ LISA REAGAN BY: /s/ RICHARD WATHEN (SEAL)
--------------------------------- -----------------------------
PRINTED NAME: RICHARD WATHEN
-------------------------
TITLE: CONTROLLER
--------------------------------
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