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EXHIBIT 10.27
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1199 NORTH FAIRFAX STREET
ALEXANDRIA, VIRGINIA
LEASE AGREEMENT
between
BRYCE MOUNTAIN, INC.
as Landlord
and
BIZWATCH, INC.
as Tenant
October 23, 1997
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1199 NORTH FAIRFAX STREET
ALEXANDRIA, VIRGINIA
BASIC LEASE INFORMATION
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DATE: October 23, 1997
LANDLORD: BRYCE MOUNTAIN, INC.
TENANT: BIZWATCH, INC.
PREMISES: Suite 800, 8th Floor and Suite ____, 7th Floor
RENTABLE AREA: Approximately 5,046 square feet
LEASE TERM: Sixty (60) full consecutive calendar months
COMMENCEMENT DATE: November 1, 1997
EXPIRATION DATE: October 31, 2002
FIXED MONTHLY RENT: $8,830.50 (based on $21.00 per rentable square foot), subject to
adjustment as provided herein
PARKING: 10 parking spaces at current market rates
SECURITY DEPOSIT: $8,830.50
TENANT'S PERCENTAGE
SHARE: 5.44%
TENANT'S ADDRESS FOR
NOTICES BEFORE
OCCUPANCY: 3225 N. Street, N.W.
Washington, D.C. 2007
Attn: David Hoppmann
TENANT'S ADDRESS FOR
NOTICES AFTER
OCCUPANCY: At the Premises
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LANDLORD'S ADDRESS FOR
NOTICES: Bryce Mountain, Inc.
c/o DIHC Management Corporation
200 Galleria Parkway, Suite 2000
Atlanta, GA 30339
Attn: Wout Coster
WITH A COPY TO: Kathleen Gately
FAISON
Suite G-10
99 Canal Center Plaza
Alexandria, VA 22314
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TABLE OF CONTENTS
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ARTICLE I THE PREMISES ......................................................................... -1-
ARTICLE II TERM ................................................................................ -2-
ARTICLE III FIXED MONTHLY RENT ................................................................. -3-
ARTICLE IV ADDITIONAL RENT ..................................................................... -4-
ARTICLE V SECURITY DEPOSIT ..................................................................... -8-
ARTICLE VI USE ................................................................................. -9-
ARTICLE VII PARKING SPACES ..................................................................... -11-
ARTICLE VIII ASSIGNMENT AND SUBLETTING ......................................................... -11-
ARTICLE IX TENANT'S MAINTENANCE AND REPAIRS .................................................... -13-
ARTICLE X TENANT ALTERATIONS ................................................................... -14-
ARTICLE XI SIGNS AND FURNISHINGS ............................................................... -16-
ARTICLE XII TENANT'S EQUIPMENT ................................................................. -17-
ARTICLE XIII INSPECTION BY LANDLORD ........................................................... -18-
ARTICLE XIV INSURANCE .......................................................................... -18-
ARTICLE XV SERVICES AND UTILITIES .............................................................. -20-
ARTICLE XVI LIABILITY OF LANDLORD .............................................................. -21-
ARTICLE XVII RULES AND REGULATIONS ............................................................. -24-
ARTICLE XVIII DAMAGE OR DESTRUCTION ............................................................ -24-
ARTICLE XIX CONDEMNATION ....................................................................... -25-
ARTICLE XX DEFAULT BY TENANT ................................................................... -26-
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ARTICLE XXI SUBORDINATION AND ATTORNMENT ................................. -30-
ARTICLE XXII DELIVERY AT END OF LEASE TERM ............................... -31-
ARTICLE XXIII COVENANTS OF LANDLORD ...................................... -32-
ARTICLE XXIV GENERAL PROVISIONS .......................................... -33-
ARTICLE XXV REPAYMENT BY TENANT .......................................... -38-
ARTICLE XXVI SPACE DESIGN/IMPROVEMENT ALLOWANCE .......................... -38-
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EXHIBIT A: Floor Plan
EXHIBIT B: Construction Schedule
EXHIBIT C: Rules and Regulations
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1199 NORTH FAIRFAX STREET
ALEXANDRIA, VIRGINIA
LEASE AGREEMENT
This LEASE AGREEMENT (the "Lease") is made as of the 23 day of October,
1997, by and between BRYCE MOUNTAIN, INC., a Georgia corporation ("Landlord"),
and BIZWATCH, INC., a Delaware corporation ("Tenant").
RECITALS:
A. Landlord is the owner of an office building (the "Building"), located
at 1199 North Fairfax Street, Alexandria, Virginia, in an office building
complex known as TransPotomac Canal Center ("Complex").
B. Tenant desires to hire and lease space in the Building and Landlord is
willing to demise and lease space in the Building to Tenant, upon the terms,
conditions, covenants and agreements set forth herein.
NOW, THEREFORE, the parties hereto, intending legally to be bound, hereby
covenant and agree as set forth below.
ARTICLE I
THE PREMISES
SECTION 1.1 THE PREMISES
Landlord hereby demises and leases to Tenant and Tenant hereby hires and
leases from Landlord, for the term and upon the terms, conditions, covenants
and agreements herein provided, Suite 800, located on the 8th floor of the
Building, and Suite 702, located on the 7th floor of the Building, which space
consists of approximately 5,046 square feet of rentable area (such space being
hereinafter referred to as the "Premises"). The Premises shall not be subject
to any remeasurement. The said approximation of square footage, which has been
determined in accordance with a modified version of the Washington, D.C.
Association of Realtors standard area floor measure standards issued January 1,
1989, shall in no way affect the fixed rental hereunder or any other rent or
sum payable hereunder, or any other provision of this Lease, should any
variance be found to exist between said approximation and actual square
footage. The Premises are cross-hatched on EXHIBIT A attached hereto and made
a part hereof. The lease of the Premises includes the right, together with
other tenants of the Building and members of the public, to use the common
public areas of the Building and the common public areas of the Complex but
includes no other rights not specifically set forth herein.
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SECTION 1.2 RIGHT TO RELOCATE
Landlord reserves the right, at Landlord's option, to relocate Tenant
during the Lease Term to similar quality office space within the Complex of
approximately the same size as the Premises under this Lease, as selected by
Landlord. If Landlord exercises this right to relocate Tenant, then only
reasonable moving expenses incurred by Tenant for physically relocating its
furniture, fixtures and equipment (and no amount for any lost revenues, profits
or other expenses) shall be paid by Landlord. Landlord shall provide written
notice to Tenant of relocation no less than sixty (60) days prior to the
relocation and Tenant shall relocate on or before the date set by Landlord.
Tenant agrees to execute, upon Landlord's request, an amendment to this Lease
confirming the change in location, but Tenant's failure to do so shall not
negate, void or otherwise affect Landlord's rights under this Section. All
other terms and provisions of this Lease shall remain in full force and
effect. Landlord shall have the right of self-help to implement the provisions
of this SECTION 1.2.
ARTICLE II
TERM
SECTION 2.1 TERM
The term of this Lease ("Lease Term") shall commence on the Lease
Commencement Date (hereinafter defined) and shall continue for a period of
sixty (60) full consecutive calendar months thereafter (unless the Lease
Commencement Date is a date other than the first day of a calendar month, in
which case the Lease Term shall continue for the balance of the month in which
the Lease Commencement Date occurs and for a period of sixty (60) full
consecutive calendar months thereafter), unless the Lease Term is terminated
earlier in accordance with the provisions of this Lease. If there is any
renewal or extension of the Lease Term, then the defined term "Lease Term"
shall include any such renewal or extension term. If the Lease Commencement
Date occurs on the first day of a calendar month, the first "Lease Year" is the
twelve (12) month period commencing on such day, and if the Lease Commencement
Date occurs on other than the first day of a calendar month, the first Lease
Year is the first partial month plus the twelve (12) month period commencing on
the first day of the first calendar month after the Lease Commencement Date.
Each twelve (12) month period after the first Lease Year is a Lease Year.
SECTION 2.2 LEASE COMMENCEMENT DATE
The "Lease Commencement Date" (herein so called) shall be the earlier to
occur of (a) the beneficial use or occupancy by Tenant of all or any portion of
the Premises; or (b) November 1, 1997. Tenant shall be liable for the payment
of rent from and after the Lease Commencement Date regardless of the date the
Premises are delivered to Tenant.
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ARTICLE III
FIXED MONTHLY RENT
SECTION 3.1 FIXED MONTHLY RENT
Tenant shall pay to Landlord as fixed monthly rent (herein so called) for
the Premises, without notice, set-off, deduction, recoupment, abatement,
counterclaim, demand or adjustment, the sum of Eight Thousand Eight Hundred
Thirty and 50/100 Dollars ($8,830.50), which sum is subject to adjustment as
provided in SECTION 3.2 hereof. Fixed monthly rent shall be payable on the
Lease Commencement Date and thereafter monthly, in advance, on the first day of
each month during the Lease Term. CONCURRENTLY WITH THE SIGNING OF THIS LEASE,
in addition to the security deposit described in ARTICLE V hereof, Tenant shall
pay to Landlord a sum equal to one month's fixed monthly rent, which sum shall
be credited by Landlord against the fixed monthly rent due for the first full
calendar month of the Lease Term. If the Lease Commencement Date is a date
other than on the first day of a month, fixed monthly rent from such date until
the first day of the following month shall be prorated at the rate of
one-thirtieth (1/30th) of the fixed monthly rent for each day.
SECTION 3.2 INCREASES IN FIXED MONTHLY RENT
Commencing on the first (1st) day of November, 1998 and on each and
every November 1st thereafter during the Lease Term (each, an "Adjustment
Date"), fixed monthly rent defined above shall be increased to an amount equal
to the sum of (i) the fixed monthly rent payable during the calendar year
preceding such Adjustment Date (including any prior adjustments hereunder), and
(ii) two and one-half percent (2.5%) of said fixed monthly rent for the
preceding calendar year (including any prior adjustments hereunder). Tenant
shall be obligated to pay the fixed monthly rent as adjusted without notice,
set-off, deduction, recoupment, abatement, counterclaim, demand or adjustment
of any kind.
SECTION 3.3 LATE PAYMENT; INTEREST CHARGE
If Tenant fails to make any payment of rent on or before the date such
payment is due and payable, Tenant shall pay to Landlord a late charge of five
percent (5%) of the amount of such payment, together with interest on said
overdue amount from the due date until paid at the rate of eighteen percent
(18%) per annum; provided, however, that nothing contained herein shall be
construed as permitting Landlord to charge or receive interest in excess of the
maximum legal rate then allowed by law. Such late charges and interest shall
constitute additional rent due hereunder, shall be paid within five (5) days
after demand therefor by Landlord, and shall be in addition to all other rights
and remedies provided to Landlord in this Lease.
SECTION 3.4 RENT GENERALLY
As used in this Lease, "rent" includes all rent, fixed monthly rent,
adjustments thereto under Section 3.2, all sums payable under ARTICLE IV below,
all additional rent and all other
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sums due to Landlord under this Lease, however called. All rent shall be paid
to Landlord in legal tender of the United States at the address to which
notices to Landlord are to be given or to such other party or to such other
address as Landlord may designate from time to time by written notice to
Tenant. Unless specifically stated otherwise in this Lease, all rent payable
under this Lease shall be paid in full by Tenant, in advance, without notice or
demand and without set-off, deduction, recoupment, abatement, counterclaim or
adjustment of any kind. Tenant's covenant to pay rent is an independent
covenant. If Landlord shall at any time or times accept rent to which
Landlord is entitled hereunder after the same shall become due and payable,
such acceptance shall not excuse a delay upon subsequent occasions, or
constitute, or be construed as, a waiver of any or all of Landlord's rights
hereunder. Tenant's obligation for the payment of rent shall survive the
expiration or sooner termination of this Lease.
ARTICLE IV
ADDITIONAL RENT
SECTION 4.1 INCREASES IN OPERATING CHARGES
(a) Tenant shall pay to Landlord Tenant's proportionate share of the
amount by which the Annual Operating Charges (hereinafter defined) incurred by
Landlord in the operation of the Building during each calendar year falling
entirely or partly within the Lease Term exceeds Annual Operating Charges
incurred by Landlord during calendar year 1998 (the "Base year"). For purposes
of this SECTION 4.1, Tenant's proportionate share of such increase shall be
5.44%, representing the agreed-upon proportion that the total rentable area in
the Premises bears to the total rentable area in the Building.
(b) "Annual Operating Charges" as used herein shall mean the sum of all
costs and expenses incurred by or on behalf of Landlord in connection with
operating, owning, managing, insuring, securing and maintaining the Building or
any part thereof, including, without limitation, the following costs and
expenses: (i) Real Estate Taxes (hereinafter defined); (ii) gas, water, sewer,
electricity, and other utility charges (including surcharges) of every type and
nature; (iii) all insurance whatsoever, including, without limitation,
liability insurance for personal injury, death and property damage (including,
without limitation, to Landlord's personal property), insurance against fire,
extended coverage, theft or other casualties, worker's compensation insurance
covering personnel, fidelity bonds for personnel, insurance against liability
for defamation and claims of false arrest occurring in the Building or on and
about the Complex, rent loss insurance, sprinkler leakage insurance, and plate
glass insurance for glass serving the common areas of the Complex; (iv)
Building personnel costs, 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; (v) costs of service and
maintenance contracts, including but not limited to, chillers, boilers,
controls, elevators, mail chute, window, janitorial and general cleaning,
security services, and management fees; (vi) all other maintenance, repair,
replacement expenses and supplies which are deducted by Landlord in computing
its Federal income tax liability; (vii) amortization and/or depreciation for
capital
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expenditures (including finance charges) incurred by Landlord in connection with
additions, replacements or improvements reasonably calculated by Landlord to
reduce operating expenses, or which are incurred in connection with compliance
with governmental orders; (viii) any other costs and expenses incurred by
Landlord in the operation of the Building, including ground rent, if any; (ix)
any other costs and expenses allocable to the Building (such allocation to be
determined in accordance with generally accepted accounting principles),
including but not limited to the items in (i) through (viii) above, incurred by
Landlord in contributing its share for the operation of the common elements of
the Complex (including, without limitation, all costs associated with any
parking structures); (x) the costs of any additional services not provided to
the Building or the Complex on the Lease Commencement Date but thereafter
provided by Landlord in the prudent management of the Building or in the
operation of the Complex.
(c) If the Building is less than one hundred percent (100%) occupied
during any operating year or part thereof, Annual Operating Charges shall
include all additional costs and expenses of operation, management, insuring,
securing and maintenance of the Building which Landlord determines that it would
have paid or incurred during such operating year if the Building had been one
hundred percent (100%) occupied.
(d) Annual Operating Charges shall not include: (i) principal or interest
payments on any mortgages or deeds of trust; (ii) leasing commissions payable by
Landlord; (iii) deductions for depreciation of the Building or the Complex,
except as provided in SECTION 4.1(b) above; (iv) the cost of capital
improvements that are depreciated by Landlord in computing its Federal income
tax liability, except to the extent that such capital improvements result in an
overall savings in operating expenses which are otherwise included above; or (v)
the costs of special services and utilities separately chargeable to individual
tenants of the Building or the Complex.
(e) "Real Estate Taxes" means the total of all real estate taxes, business
improvement district assessments, ad valorem taxes, transit taxes and other
assessments and charges (including payments in lieu of taxes), general and
special, ordinary and extraordinary, foreseen or unforeseen, assessed, levied,
or imposed upon the Building which are actually paid during the operating year
in question; provided, however, if any assessment is payable in installments,
Real Estate Taxes for any operating year shall include only the installments
payable in such operating year. Real Estate Taxes shall also include legal costs
and other costs and expenses incurred in any appeal of the tax assessment upon
which such Real Estate Taxes are based, whether or not such appeal is
successful. Such costs and expenses shall be included in Real Estate Taxes for
the operating year for which appeal is made without regard to the date such
costs are actually incurred.
(f) Except as provided in SECTION 4.1(g) below, Landlord shall submit to
Tenant each year a statement setting forth the amount payable by Tenant pursuant
to this SECTION 4.1 for the preceding calendar year. Within thirty (30) days
after receipt of such statement, Tenant shall pay to Landlord the amount shown
thereon.
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(g) In lieu of accepting from Tenant one annual payment for Tenant's
proportionate share of increases in the Annual Operating Charges, Landlord shall
have the right, from time to time, to require Tenant to make estimated monthly
payments on account of the amount Tenant will be obligated to pay pursuant to
this SECTION 4.1 for each calendar year falling entirely or partly within the
Lease Term. If Landlord exercises such right, Landlord shall submit to Tenant a
statement setting forth Landlord's reasonable estimate of the amount Tenant will
be obligated to pay pursuant to this SECTION 4.1 for the calendar year in
question, which reasonable estimate may be revised from time to time during the
calendar year, and Tenant shall pay to Landlord on the first (1st) day of each
month following receipt of such statement during such calendar year an amount
equal to such estimated amount multiplied by a fraction, the numerator of which
is one (1) and denominator of which is the number of months during such calendar
year which fall within the Lease Term and follow the date of the foregoing
statement. Within ninety (90) days after the expiration of such calendar year,
or as soon thereafter as reasonably practical, Landlord shall submit to Tenant a
statement showing Tenant's proportionate share of the increase in the Annual
Operating Charges incurred during such calendar year and the aggregate amount of
the estimated payments made by Tenant on account thereof. If the aggregate
amount of such estimated payments exceeds Tenant's actual liability for such
increase, Landlord shall credit such excess to Tenant's account, subject to the
provisions of SECTION 4.1(j) below. If Tenant's actual liability for such
increase exceeds the estimated payments made by Tenant on account thereof, then
Tenant shall immediately pay to Landlord the total amount of such deficiency.
(h) In the event the Lease Term commences or expires during a calendar
year, the increase in the Annual Operating Charges to be paid by Tenant for such
calendar year shall be determined 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 365. At least thirty (30)
days prior to the end of the Lease Term, Landlord shall present to Tenant a
written statement containing an estimate of the amount of Annual Operating
Charges Tenant would be liable for if the actual operating charges for the
calendar year had been determined. Tenant shall be required to pay such
estimated amount on or before the last day of the Lease Term, and if all or any
portion of the payment is not made, Landlord shall be entitled to deduct such
amount from Tenant's Security Deposit (hereinafter defined), if any. Once the
Annual Operating Charges for the last calendar year of the Lease Term have been
determined, Landlord shall provide Tenant with a statement of the actual
operating charges for which Tenant is liable. If Tenant owes an additional
amount, such amount is due on or before thirty (30) days after receipt of the
statement. It Tenant is entitled to a refund, Landlord shall have thirty (30)
days from the date of the statement within which to remit payment to Tenant,
subject to the provisions of SECTION 4.1(j) below.
(i) The parties' obligation to reconcile increases in Annual Operating
Charges and Real Estate Taxes shall survive the expiration or termination of
this Lease, and shall be applicable even if no estimated statement is provided
under SECTION 4.1(g) above. Notwithstanding any dispute which may arise in
connection with the computation or estimate of the amount due under this ARTICLE
IV, Tenant shall be obligated to pay the amount specified by
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Landlord, without set-off, recoupment, abatement, counterclaim, adjustment or
deduction of any kind, pending the resolution of any dispute.
(j) In the event Tenant is in default under this Lease at the time any
credit or payment is otherwise to be made to Tenant under this ARTICLE IV,
Landlord may offset against such credit or payment to compensate it for any
amount owed by Tenant or for damage incurred or that may be incurred by Landlord
as a consequence of said default.
SECTION 4.2 TREATMENT AS ADDITIONAL RENT
All payments required to be made by Tenant pursuant to this Lease, except
for fixed monthly rent, shall be additional rent, whether or not specifically so
defined, and shall be paid to Landlord, without set-off, deduction, recoupment,
abatement, counterclaim, demand or adjustment, in the same manner as fixed
monthly rent is payable pursuant to ARTICLE III hereof.
SECTION 4.3 ADDITIONAL TAXES OR GOVERNMENTAL CHARGES
In the event that any business, rent, or other taxes, or any governmental
charges that are now or hereafter levied upon Tenant's use or occupancy of the
Premises or Tenant's business at the Premises, are charged, 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.
SECTION 4.4 CHANGE IN OR CONTEST OF REAL ESTATE TAXES
In the event of any change by any taxing body in the period or manner in
which any of the Real Estate Taxes are levied, assessed or imposed, Landlord
shall have the right, in its sole discretion, to make equitable adjustments with
respect to computing increases in Real Estate Taxes. Real Estate Taxes which are
being contested by Landlord shall be included in computing Tenant's
proportionate share of the increases in Real Estate Taxes under this ARTICLE IV,
but if Tenant shall have paid additional rent on account of contested Real
Estate Taxes and Landlord thereafter receives a refund of such taxes, Tenant
shall receive a credit toward subsequent rent payments in an amount equal to
Tenant's proportionate share of such refund.
ARTICLE V
SECURITY DEPOSIT
SECTION 5.1 DEFINITION
Simultaneously with the execution of this Lease, Tenant shall deposit with
Landlord the sum of Eight Thousand Eight Hundred Thirty and 50/100 Dollars
($8,830.50) as a security deposit (the "Security Deposit"). Landlord shall not
be required to maintain the Security Deposit
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in a separate account. Such Security Deposit shall not earn interest, unless
required to do so by any provision of law. Such Security Deposit shall be
security for the performance by Tenant of all of Tenant's obligations,
covenants, conditions and agreements under this Lease.
SECTION 5.2 APPLICATION
In the event of any default by Tenant hereunder during the Lease Term,
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
fixed or additional rent or any other sum as to which Tenant is in default, or
(b) the payment of any amount which Tenant may be obligated to pay to repair
physical damage to the Premises or the Building pursuant to SECTION 9.2 hereof,
or (c) the payment of any amount which Tenant may be obligated to pay for the
compensation to 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. If any portion of the Security Deposit is so
used or applied, then 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. The
Security Deposit is not a measure of damages or liquidated damages, and
Landlord's use of the Security Deposit is not a waiver of its other rights and
remedies. Provided Tenant is not in default hereunder, Landlord shall return the
Security Deposit to Tenant, less such portion thereof as Landlord shall have
applied or be entitled to apply to satisfy any default by Tenant hereunder,
after the last to occur of (i) the making of the payment of the final operating
year's increase in Annual Operating Charges under SECTION 4.1 above, or (ii)
within forty-five (45) days following the later to occur of the expiration of
the Lease Term or the vacating and surrendering of the Premises by Tenant to
Landlord.
SECTION 5.3 THIRD PARTIES
In the event of the sale or transfer of Landlord's interest in the
Building, Landlord shall have the right to transfer the Security Deposit to such
a purchaser, in which event Tenant shall look only to the new landlord for the
return of the Security Deposit, and Landlord shall thereupon be released from
all liability to Tenant for the return of such Security Deposit. Tenant hereby
acknowledges that Tenant will not look to the holder of any mortgage (defined in
SECTION 21.1 hereof) encumbering the Building for return of the Security Deposit
if such holder or its successors or assigns shall succeed to the ownership of
the Building whether by foreclosure or deed in lieu thereof, except if and to
the extent such Security Deposit is actually transferred to such holder.
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ARTICLE VI
USE
SECTION 6.1 USE
Tenant shall use and occupy the Premises solely for general office
purposes and for no other use or purpose without the prior written consent of
Landlord. 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.
SECTION 6.2 COMPLIANCE WITH LAWS
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, the City of
Alexandria, and any other public or quasi-public authority having jurisdiction
over the Premises concerning the use, occupancy, facilities in and condition of
the Premises and all machinery, equipment, facilities, entrances thereto, exits
therefrom and furnishings therein. It is expressly understood that Landlord,
with Tenant's cooperation, will obtain an occupancy permit for the Premises, the
cost of which will be deducted from the Space Design/Improvement Allowance
provided in ARTICLE XXVI below. If any present or future law, ordinance,
regulation, or order requires another occupancy permit or other permit for the
Premises, Tenant will obtain such permit at Tenant's sole expense. Tenant shall
pay all costs, expenses, liabilities, losses, damages, fines, penalties, claims,
and demands, including reasonable counsel fees, that may in any manner arise out
of or be imposed because of the failure of Tenant to comply with the covenants
of this SECTION 6.2.
SECTION 6.3 TRASH SORTING
Tenant covenants and agrees, at its sole cost and expense: (a) to comply
with all present and future laws, orders, and regulations of the Commonwealth of
Virginia, the City of Alexandria, federal, municipal, and local governments,
departments, commissions, agencies and boards regarding the collection, sorting,
separation, and recycling of garbage, trash, rubbish and other refuse
(collectively, "trash"); (b) to sort and separate its trash into such categories
as are provided by law; (c) that each separately sorted category of trash shall
be placed in separate receptacles as directed by Landlord; (d) that Landlord
reserves the right to refuse to collect or accept from Tenant any trash that is
not separated and sorted as required by law, and to require Tenant to arrange
for such collection at Tenant's sole cost and expense, utilizing a contractor
satisfactory to Landlord; and (e) that Tenant shall pay all costs, expenses,
fines, penalties, or damages that may be imposed on Landlord or Tenant by reason
of Tenant's failure to comply with the provisions of this SECTION 6.3.
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SECTION 6.4 ENVIRONMENTAL LAWS
(a) The provisions of this SECTION 6.4 shall survive the expiration or
termination of this Lease.
(b) Tenant shall not use any portion or all of the Premises for the
use, generation, treatment, storage or disposal of "toxic substances,"
"contaminants," "pollutants," "hazardous materials", "hazardous waste",
"hazardous substances" or "oil" (collectively, "Materials") as such terms are
defined under the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq., as amended, the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq., as amended, and
any and all other environmental statutes which regulate the use of hazardous
and/or dangerous substances, and the regulations promulgated thereunder and any
and all state and local laws, statutes, codes, ordinances, rules and
regulations, without the express prior written consent of Landlord, and then
only to extent that the presence and/or discharge of the Materials is (i)
properly licensed and approved by all appropriate governmental officials and in
accordance with all applicable laws and regulations, and (ii) in compliance with
any terms and conditions stated in said prior written approval by Landlord.
Tenant may use such Materials as are used for ordinary office purposes in the
ordinary course of Tenant's business, provided that such use is in accordance
with all applicable statutes, laws, codes, ordinances, rules and regulations,
and any manufacturer's instructions; and provided further that Tenant may not
discharge any Materials except as provided by applicable statutes, laws, codes,
ordinances, rules and/or regulations, and specifically may not discharge any
Materials in any public sewer or any drain and/or drainpipe leading or connected
thereto. Tenant shall promptly give written notice to Landlord of any
communication received by Tenant from any governmental authority or other person
or entity concerning any complaint, investigation or inquiry regarding any use,
generation, treatment, storage or disposal (or alleged use, generation,
treatment, storage or disposal) by Tenant of any Materials. Landlord shall have
the right (but not the obligation) to conduct such investigations or tests (or
both) as Landlord shall deem necessary with respect to any such complaint,
investigation or inquiry, and Tenant, at its expense, shall take such action (or
refrain from taking such action) as Landlord may request in connection with such
investigations and tests by Landlord.
(c) Notwithstanding anything in this Lease to the contrary, Tenant
shall not materially adversely affect (as determined by Landlord) the indoor air
quality of the Premises or the Building; without limiting the preceding clause,
it shall apply to (and take precedence over any other provision of this Lease
concerning) the use of the Premises, the type of equipment, furniture,
furnishings, fixtures and personal property that may be brought into the
Premises, the construction materials used in Improvements (hereinafter defined),
the standard of maintenance required for the Premises, and compliance with any
smoking policy now or hereafter adopted for the Building by Landlord or required
by law.
(d) Tenant shall be responsible at its own cost for complying with the
provisions of the Americans with Disabilities Act or any similar federal, state
or local statute, law, ordinance, or code, as they may be amended from time to
time, and the rules and regulations which may be
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adopted thereunder from time to time, as the same may be applicable to the
Premises. Landlord's approval of any Improvement or other act by Tenant shall
not be deemed to be a representation by Landlord that said Improvement or act
complies with applicable law, and Tenant shall remain solely responsible for
said compliance.
ARTICLE VII
PARKING SPACES
The Tenant agrees to lease, in addition to the Premises, ten (10) parking
spaces in the garage of the Building throughout the term of this Lease at
Eighty-Five and No/100 Dollars ($85.00) per space per month for each unreserved
space and One Hundred Five and No/100 Dollars ($105.00) per space per month for
each reserved space, both of which rates are subject to increase pursuant to
SECTION 3.2 hereof. At least five (5) days before the Lease Commencement Date,
Tenant shall advise Landlord how many of its spaces shall be reserved and how
many shall be unreserved; provided, however, in no event shall more than two (2)
of such spaces be reserved. Tenant's rights hereunder shall expire with respect
to any of the ten (10) parking spaces which it fails to notify Landlord of its
desire to lease at least five (5) days before the Lease Commencement Date (the
"Unexercised Contracts"); provided, however, upon notice to Landlord, Tenant
shall have the right to lease additional spaces (not to exceed the amount of
such Unexercised Contracts) if, as and when such spaces become available in the
garage. Such parking contracts will be made available on a month-to-month basis
and Tenant agrees to pay prevailing prices therefor, as said prices may change
from time to time.
ARTICLE VIII
ASSIGNMENT AND SUBLETTING
SECTION 8.1 LANDLORD'S CONSENT REQUIRED
(a) Tenant shall not sell, assign, transfer, mortgage, or otherwise
encumber this Lease or its interest therein (collectively "assign") or sublet,
rent or permit anyone to occupy the Premises, or any part thereof (collectively
"sublet"), without obtaining the prior written consent of Landlord, which
consent may be granted or withheld in Landlord's sole and absolute judgment. No
assignment or sublet may be effectuated by operation of law or otherwise without
the prior written consent of Landlord. Landlord's consent to any assignment or
subletting shall not be construed as relieving Tenant from the obligation of
obtaining Landlord's prior written consent to any subsequent assignment or
subletting. If Tenant is in default hereunder, Tenant hereby assigns to Landlord
the rent due from any subtenant of Tenant and hereby authorizes each such
subtenant to pay said rent directly to Landlord. Tenant agrees to and shall pay
any and all costs, including but not limited to attorneys' fees, incurred by
Landlord with respect to Tenant's request to assign or sublet, whether or not
Landlord consents to any such assignment or subletting.
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(b) In the event Tenant desires to assign this Lease or to sublease
all or any part of the Premises, Tenant shall give written notice thereof to
Landlord. Landlord shall have the right, within fifteen (15) business days after
receipt of written notice from Tenant of Tenant's desire to assign this Lease or
to sublease all or part of the Premises, to retake such premises from Tenant and
to terminate this Lease with respect to any such space so taken.
(c) If Landlord fails to exercise its right to retake the Premises or
such portion thereof from Tenant and to terminate this Lease with respect to any
such space so taken within such fifteen (15) business day period, Tenant may
seek a subtenant or assignee for the Premises or portion thereof, subject to the
provisions of this ARTICLE VIII. Anything herein to the contrary
notwithstanding, if Landlord shall not elect to exercise the rights set forth in
the immediately preceding paragraph, such election shall not under any
circumstances be deemed a consent to the proposed subletting, assignment, sale,
or other transfer of Tenant's interest in and to this Lease and/or the Premises
and it is expressly understood that any determination by Landlord not to
exercise such rights shall not preclude Landlord from withholding its consent to
such proposed subletting, assignment, sale or other transfer, as the case may
be.
(d) If Tenant finds a subtenant or assignee for the Premises or such
portion thereof, Tenant shall send written notice thereof to Landlord, together
with a full and complete copy of the bona fide sublease, assignment or other
agreement applicable to the proposed transaction. Landlord shall have fifteen
(15) business days in which to approve or disapprove such proposed sublease or
assignment, which approval or disapproval may be granted or withheld in
Landlord's sole and absolute judgment.
(e) If Landlord withholds approval to the proposed subletting or
assignment, this Lease shall remain in full force and effect. In the event
Landlord does not approve or disapprove Tenant's request or does not respond to
Tenant's request for Landlord's consent to an assignment or sublease within
fifteen (15) business days after Tenant's request therefor, Landlord shall be
deemed to have withheld approval of the sublease or assignment. If Tenant
thereafter completes a sublease or assignment with a third party, such sublease
or assignment shall be null and void.
(f) If the rental paid under any sublease of all or any part of the
Premises exceeds the rental or pro rata portion of the rental, as the case may
be, for the Premises, Tenant shall pay Landlord each month, as additional rent,
at the same time as the monthly installments of fixed monthly rent become due
hereunder, fifty percent (50%) of the excess of the rental paid under the
sublease or assignment over the rental (or pro rata portion of the rental) paid
under this Lease, less amortized sums attributable to brokerage commissions,
tenant improvements, rental abatements and other reasonable and customary costs
incurred by Tenant in connection with the subleasing or assignment of the
Premises or part thereof.
(g) The consent of Landlord to any assignment or subletting shall not
be construed as a waiver, discharge or release, in whole or in part, of Tenant
from liability for the full performance of all agreements, terms, covenants,
conditions and obligations to be performed by Tenant under this Lease, nor shall
the collection or acceptance of rent from any assignee,
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subtenant, or occupant constitute a waiver or release of Tenant from any of its
liabilities or obligations under this Lease. Tenant shall remain liable for all
obligations of any subtenant or assignee and Tenant waives all suretyship
defenses (including, without limitation further assignments and/or subleases,
renewals, extensions, expansions, or other amendments to this Lease, all without
its knowledge or consent, and bankruptcy or insolvency-related defenses) with
respect thereto.
SECTION 8.2 TRANSFERS OF INTERESTS IN TENANT
If Tenant is a partnership, a withdrawal or change, whether voluntary,
involuntary or by operation of law, of partners owning a controlling or majority
interest in Tenant shall be deemed a voluntary assignment of this Lease and
subject to the provisions of SECTION 8.1. If Tenant is a limited liability
company, a withdrawal or change, whether voluntary, involuntary or by operation
of law, of members owning a controlling or majority interest in Tenant shall be
deemed a voluntary assignment of this Lease and subject to the provisions of
SECTION 8.1. If Tenant is a corporation, any dissolution, merger, consolidation
or other reorganization of Tenant, or the sale or transfer (whether by way of
one or more sales or transfers) of a controlling or majority interest of the
capital stock of Tenant shall be deemed a voluntary assignment of this Lease and
subject to the provisions of SECTION 8.1. However, the preceding sentence shall
not apply to corporations the stock of which is traded through a national or
regional exchange or over-the-counter. It is understood and agreed that a
controlling interest for purposes of this ARTICLE VIII may be less than a
majority interest.
ARTICLE IX
TENANT'S MAINTENANCE AND REPAIRS
SECTION 9.1 MAINTENANCE AND REPAIRS
Tenant will keep and maintain the Premises and all fixtures and equipment
located therein in a clean, safe and sanitary condition, will take good care
thereof and make all required repairs thereto (whether structural or
non-structural, foreseen or unforeseen), will suffer no waste or injury thereto,
and will, at the expiration or other termination of the Lease Term, surrender
the Premises, broom clean, in the same order and condition they were in on the
Lease Commencement Date, ordinary wear and tear and insured damage by the
elements excepted. Landlord, at its cost, shall provide and install all original
florescent tubes within the Premises necessary to provide required lighting and
all replacement tubes for such lighting; all other bulbs, tubes, and lighting
fixtures for the Premises shall be provided and installed by Landlord at
Tenant's cost and expense. Tenant shall reimburse Landlord for such amount upon
written demand from Landlord and such sum shall be considered additional rent
payable hereunder.
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SECTION 9.2 DAMAGE CAUSED BY TENANT
Except as otherwise provided in ARTICLE XVIII hereof, all injury,
breakage and damage to the Premises and to any other part of the Building caused
by any act or omission of Tenant or any agent, employee, subtenant, licensee,
contractor, customer, client, family member, or invitee of Tenant, shall be
repaired by and at the sole expense of Tenant, except that Landlord shall have
the right, at its sole option, to make such repairs and to charge Tenant for all
costs and expenses incurred in connection therewith as additional rent
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.
SECTION 9.3 COMPLIANCE WITH LAWS
During the term of this Lease, Tenant shall, at its own cost and expense,
promptly observe and comply with all present and future laws, ordinances,
requirements, orders, directives, rules, and regulations of the federal, state,
county, town, village, and city governments and of all other governmental
authorities affecting the Premises and appurtenances thereto or any part
thereof, whether the same are in force at the Lease Commencement Date or may in
the future be passed, enacted, or directed, and Tenant shall pay all costs,
expenses, liabilities, losses, damages, fines, penalties, claims, and demands,
including reasonable counsel fees, that may in any manner arise out of or be
imposed because of the failure of Tenant to comply with the covenants of this
SECTION 9.3.
ARTICLE X
TENANT ALTERATIONS
SECTION 10.1 CONSTRUCTION OF PREMISES
The original construction of the Premises by Landlord shall be
accomplished in accordance with EXHIBIT B attached hereto. It is understood and
agreed that Landlord will not make, and is under no obligation to make, any
structural or other alterations, decorations, additions, or improvements in or
to the Premises except as set forth in EXHIBIT B or as otherwise provided in
this Lease.
SECTION 10.2 TENANT'S ALTERATIONS
Tenant will not make or permit anyone to make any alterations,
decorations, additions, or improvements (hereinafter referred to collectively as
"Improvements"), structural or otherwise, in or to the Premises or the Building
without the prior written consent of Landlord. 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 to perform the work, and the obtaining of specified insurance.
All Improvements
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permitted by Landlord must conform to all rules and regulations established from
time to time by the Board of Fire Underwriters having jurisdiction or any
similar body exercising similar functions, and to all laws, regulations, and
requirements of the Federal, Virginia, and/or City of Alexandria governments. As
a condition precedent to such written consent of Landlord, Tenant agrees to
obtain and deliver to Landlord written, unconditional waivers of mechanic's and
materialmen's liens against the Building and the land upon which it is situated
from all work, labor, and services to be performed and materials to be furnished
in connection with Improvements to the Premises. If, notwithstanding the
foregoing, any mechanic's or materialmen's lien is filed against the Premises,
the Building, and/or the land upon which it is situated 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 five (5) days after notice, at
Tenant's sole cost and expense, by the payment thereof or by the filing of a
bond. If Tenant shall fail to discharge any such mechanic's or materialmen's
lien, Landlord may, at its sole option, discharge such lien and treat the cost
thereof (including attorney's fees incurred in connection therewith) as
additional rent payable with the next fixed monthly rent payment falling due. It
is 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 any Improvements to the Premises, other than those
made by Landlord pursuant to EXHIBIT B, shall be conducted on behalf of Tenant
and not on behalf of Landlord, and that Tenant shall not be deemed to be the
agent of Landlord. It is further understood and agreed that in the event
Landlord shall give its written consent to the making of any Improvements to the
Premises, such written consent shall not be deemed to be an agreement or consent
by Landlord to subject its interest in the Premises, the Building or the land
upon which it is situated to any mechanic's or materialmen's liens which may be
filed in connection therewith.
SECTION 10.3 INDEMNIFICATION
Tenant shall indemnify and hold Landlord harmless from and against any
and all expenses, suits, actions, proceedings, costs, losses, liens, claims,
liabilities and damages based on or arising directly or indirectly by reason of
the making by Tenant of any Improvements to the Premises. If any Improvements
are made without the prior written consent of Landlord, Landlord shall have the
right to remove and correct such Improvements and restore the Premises to their
condition immediately prior thereto and Tenant shall be liable for all expenses
incurred by Landlord in connection therewith. All Improvements 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 except that (a) if Tenant is not in default
under this Lease, Tenant shall have the right to remove, prior to the expiration
of the Lease Term, all movable furniture, furnishings and equipment installed in
the Premises solely at the expense of Tenant, and (b) Landlord shall have the
right to require Tenant to remove all tenant Improvements and fixtures at the
end of the Lease Term at the sole cost of Tenant. All damage and injury to the
Premises or the Building caused by such removal shall be repaired by Tenant, at
Tenant's sole expense. If such property of Tenant is not removed by Tenant prior
to the expiration or termination of this Lease, the same shall become the
property of Landlord and shall be surrendered with the Premises as a part
thereof, which property may be
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retained by Landlord or disposed of at Tenant's expense. Tenant's obligation to
pay for any costs incurred by Landlord for the disposal of such abandoned
property shall survive the expiration or earlier termination of this Lease.
ARTICLE XI
SIGNS AND FURNISHINGS
SECTION 11.1 SIGNS
No sign, advertisement, or notice referring to Tenant shall be inscribed,
painted, affixed, or otherwise displayed on any part of the exterior or the
interior of the Building except on the directories and the doors of offices or
beside suite entries and such other areas as are designated by Landlord, and
then only in such place, number, size, color, and style as are compatible with
the Building design, signage and graphic program and are approved by Landlord.
All of Tenant's signs that are approved by Landlord shall be installed by
Landlord at Tenant's sole cost and expense. Tenant shall reimburse Landlord for
such amount upon written demand from Landlord. 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 Landlord's opinion tends to impair the reputation of the Building or
its desirability as a high-quality office building and, upon written notice from
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 except the Premises.
SECTION 11.2 FURNISHINGS
Landlord shall have the right to prescribe the weight and position of
file systems, safes, computer systems, and other heavy items, equipment, and
fixtures, which shall, if considered necessary by the Landlord, be positioned in
consultation with Landlord in order to distribute their weight. 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 and 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 and the designated freight
elevator. 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
promptly to remove from the sidewalks adjacent to the Building any of Tenant's
furniture, equipment, or other materials there delivered or deposited.
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ARTICLE XII
TENANT'S EQUIPMENT
SECTION 12.1 ELECTRICAL CAPACITY
Tenant will not install or operate in the Premises any electrically
operated equipment or machinery that operates on greater than 110 volt power or
which generates an undue amount of heat in the Premises or anything other than
normal office equipment and appliances without first obtaining the prior written
consent of Landlord, which consent may be granted or withheld in the discretion
of Landlord and which consent may be conditioned, inter alia, upon the payment
by Tenant of additional rent in compensation for the excess consumption of
electricity or other utilities (including, but not limited to any excess
utility, sales or other taxes and resultant increases in electricity charges for
the Building) and for the cost of any additional wiring or apparatus (including
supplementary air conditioning capacity and/or electrical systems) that may be
occasioned by the operation of such equipment or machinery. Simultaneously with
requesting Landlord's consent hereunder, Tenant shall provide Landlord with a
list of any additional equipment to be used in the Premises, including type,
manufacturer, model number and power required.
SECTION 12.2 OTHER INFRASTRUCTURE
Tenant shall not install any equipment of any type or nature that will or
may necessitate any changes, replacement or additions to, or in the use of, the
water system, heating system, plumbing system, air conditioning system or
electrical system of the Premises or in the Building, without first obtaining
the prior written consent of Landlord. Business machines and mechanical
equipment belonging to Tenant which causes noise or vibrations 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.
ARTICLE XIII
INSPECTION BY LANDLORD
Tenant will permit Landlord or its agents or representatives to enter the
Premises, at any time and from time to time, without charge therefor to Landlord
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 Landlord's sole judgement may be deemed necessary, or to exhibit the same
to prospective purchasers and mortgagees and, during the last two hundred
seventy (270) days of the Lease Term or at any time following the initiation of
any eviction proceedings, to prospective tenants. In connection with any such
entry, Landlord shall endeavor to minimize the disruption to Tenant's use of the
Premises but shall not be required to make any entry at a time other than normal
working hours.
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ARTICLE XIV
INSURANCE
SECTION 14.1 TENANT'S INSURANCE
Tenant covenants and agrees to procure at its expense on or before the
Lease Commencement Date and to keep in force during the Lease Term the following
insurance naming Landlord, its management agent for the Complex (the "Agent"),
and Tenant as insured parties: (a) a commercial general liability insurance
policy or such successor comparable form of coverage in the broadest form then
available providing Tenant with a minimum of Two Million Dollars ($2,000,000.00)
of coverage (a "Liability Policy") written on an "occurrence basis" including,
without limitation, blanket contractual liability coverage, business
interruption, automobile, broad form property damage, independent contractor's
coverage and personal injury coverage, protecting Landlord, the Agent and Tenant
against any liability whatsoever occasioned by any occurrence on or about the
Premises or any appurtenances thereto; (b) a fire and other casualty policy (a
"Fire Policy") insuring the full replacement value of Tenant's leasehold
improvements, regardless of by whom installed, and all of the furniture, trade
fixtures and other personal property of Tenant located in the Premises against
loss or damage by fire, theft and such other risks or hazard; and (c) a policy
of insurance against loss or damage to the major components of the
air-conditioning and heating system, flywheels, steam pipes, steam turbines,
steam engine, steam boilers, and other pressure vessels, high pressure piping
and machinery, if any, such as are installed by or on behalf of Tenant in the
Premises. Such policies shall also insure against physical damage to the
Premises arising out of an accident covered thereunder. Such policies are to be
written by good and solvent insurance companies licensed to do business in the
Commonwealth of Virginia and otherwise satisfactory to Landlord and shall be in
such limits and with such maximum deductibles as Landlord may reasonably
require. Tenant will furnish Landlord with such information as Landlord may
reasonably request from time to time as to the value of the items specified in
clause (b) above within ten (10) days after request therefor. Prior to the time
insurance under this SECTION 14.1 is first required to be carried by Tenant, and
thereafter at least thirty (30) days prior to the expiration date of any such
policy, Tenant agrees to deliver to Landlord a certificate evidencing such
insurance and payment of the premium therefor. Said certificate shall contain an
endorsement that such insurance may not be canceled or amended except upon
thirty (30) days prior written notice to Landlord. Tenant's failure to provide
and keep in force the aforementioned insurance shall be regarded as a material
default hereunder entitling Landlord to exercise any or all of the remedies
provided in this Lease in the event of Tenant's default. Notwithstanding
anything to the contrary contained in this Lease, the carrying of insurance by
Tenant in compliance with this SECTION 14.1 shall not modify, reduce, limit or
impair Tenant's obligations and liabilities under any and every indemnity by
Tenant to Landlord set forth in this Lease.
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SECTION 14.2 INCREASES IN INSURANCE RATES
Tenant shall not do or permit to be done any act or thing upon or about
the Premises, the Building or the Complex which will (a) result in the assertion
of any defense by the insurer to any claim under, (b) invalidate, or (c) be in
conflict with, the policies covering the Building and/or the Complex and
fixtures and property therein, or which would increase the rate of fire
insurance applicable to the Building and/or the Complex to an amount higher than
it otherwise would be; and Tenant shall neither do nor permit to be done any act
or thing, upon or about the Building and/or the Complex which shall or might
subject Landlord to any liability or responsibility for injury to any person or
persons or to property; but nothing in this SECTION 14.2 shall prevent Tenant's
use of the Premises for the purposes stated in this Lease. If, as a result of
any act or omission by or on the part of Tenant or violation of this Lease by
Tenant, whether or not Landlord has consented to the same, the rate of "All
Risk" or other type of insurance maintained by Landlord on the Building shall be
increased to an amount higher than it otherwise would be, Tenant shall reimburse
Landlord for all increases of Landlord's insurance premiums so caused; such
reimbursement to be additional rent payable within five (5) days after demand
therefor by Landlord. If, due to abandonment of or failure to occupy the
Premises by Tenant, any such insurance shall be canceled by the insurance
carrier, then Tenant hereby indemnifies Landlord against liability which would
have been covered by such insurance. In any action or proceeding wherein
Landlord and Tenant are parties, a schedule or "make-up" of rates for the
Building or Premises issued by the body making fire insurance rates or
established by the insurance carrier providing coverage for the Building, the
Complex and/or Premises shall be presumptive evidence of the facts stated
therein, including the items and charges taken into consideration in fixing the
"All Risk" insurance rate then applicable to the Building, the Complex and/or
the Premises.
SECTION 14.3 NOTICE OF ACCIDENTS
Tenant shall give Landlord notice in case of fire or accidents in the
Premises promptly after Tenant is aware of such event.
SECTION 14.4 WAIVER OF SUBROGATION
Notwithstanding anything to the contrary contained in this Lease, Tenant
agrees that it will, at its sole cost and expense, include in its property
insurance policies appropriate clauses pursuant to which the insurance companies
(a) waive all right of subrogation against Landlord, and any tenant of space in
the Building, with respect to losses payable under such policies, and (b) agree
that such policies shall not be invalidated should the insured waive in writing
prior to a loss any or all right of recovery against any party for losses
covered by such policies. Tenant shall furnish Landlord evidence satisfactory to
Landlord evidencing the inclusion of said clauses in Tenant's property insurance
policies. Provided that Landlord's right of full recovery under its property
insurance policies is not adversely affected or prejudiced thereby, Landlord
hereby waives any and all right of recovery which it might otherwise have
against Tenant, its servants, agents and employees, for loss or damage occurring
to the Building and fixtures, appurtenances
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and equipment therein to the extent to the same is covered by Landlord's
insurance, notwithstanding that such loss or damage may result from the
negligence or fault of Tenant, its servants, employees or agents. Tenant hereby
waives any and all right of recovery which it might otherwise have against
Landlord, its agents, servants and employees, and against every other tenant in
the Building which shall have executed a similar waiver as set forth in this
SECTION 14.4, for loss or damage to Tenant's furniture, furnishings, fixtures
and other property removable by Tenant under the provisions hereof to the extent
that same is covered by Tenant's insurance as required by this Lease whether or
not such insurance is maintained, notwithstanding that such loss or damage may
result from the negligence or fault of Landlord, its servants, agents or
employees, or such other tenant or the servants, agents, or employees thereof.
ARTICLE XV
SERVICES AND UTILITIES
SECTION 15.1 SERVICES AND UTILITIES
Landlord shall furnish to the Premises (through the existing Building
system) air conditioning and heat during the seasons when they are required, as
and to the extent determined in Landlord's reasonable judgment. Landlord shall
also provide reasonably adequate electricity, water, exterior window-cleaning
service, and char and janitorial service after 6:00 p.m. on Monday through
Friday only (excluding legal holidays), as required in Landlord's sole but not
unreasonable judgment. Landlord will also provide at least one elevator subject
to call; provided, however that Landlord shall have the right to remove
elevators from service as may be required for moving freight, or for servicing
or maintaining the elevators and/or the Building. The normal hours of operation
of the Building will be 8:00 a.m. to 6:00 p.m. on Monday through Friday (except
legal holidays) and 9:00 a.m. to 2:00 p.m. on Saturday (except legal holidays).
There will be no normal hours of operation of the Building on Sundays or legal
holidays and Landlord shall not be obligated to maintain or operate the Building
at such times unless special arrangements are made by Tenant. Tenant shall have
access to the Building and the Premises twenty-four (24) hours per day, three
hundred sixty-five (365) days per year, subject to exclusion during emergencies
or repairs if, in Landlord's sole judgment, such exclusion is necessary.
Landlord will furnish all services and utilities required by this Lease only
during the normal hours of operation of the Building unless otherwise specified
herein. It is also agreed that if Tenant requires air-conditioning or heat
beyond the normal hours of operation set forth herein, Landlord will furnish
such air conditioning or heat provided Tenant gives Landlord's agent sufficient
advance notice of such requirement and Tenant agrees to pay for the cost of such
extra service in accordance with Landlord's then-current schedule of costs and
assessments for such extra service. Tenant shall also be responsible for the
cost of all above-standard or non-standard uses of the utilities and services
provided to the Premises.
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SECTION 15.2 INTERRUPTION OF SERVICE AND UTILITIES
It is understood and agreed that Landlord shall not have liability to
Tenant whatsoever as a result of Landlord's failure or inability to furnish any
of the utilities or 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 other than for Landlord's gross
negligence. It is further agreed that 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 or reduction of any
rent payable hereunder. Notwithstanding the foregoing, in the event that (a)
Landlord's failure or inability to furnish any of the utilities or services
required to be furnished by Landlord hereunder is a result of Landlord's gross
negligence, (b) such failure materially adversely affects Tenant's use of the
Premises for its intended purposes, and (c) such interference continues for a
period of more than five (5) consecutive business days after written notice
from Tenant, Tenant's obligation to pay rent shall be abated for each day after
such five (5) business day period until such utility or service is provided.
SECTION 15.3 CONSERVATION CONTROLS
The parties hereto agree to comply with all mandatory energy, water, or
other conservation controls or requirements applicable to office buildings
instituted by the Federal, Virginia, or City of Alexandria governments
including, without limitation, controls on the permitted range of temperature
settings in office buildings or requirements necessitating curtailment of the
volume of energy consumption or the hours of operation of the Building. Any
terms or conditions of this Lease that conflict or interfere with compliance
with such controls or requirements shall be suspended for the duration of such
controls or requirements. It is further agreed that compliance with such
controls or requirements 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 or reduction of any rent payable
hereunder.
ARTICLE XVI
LIABILITY OF LANDLORD
SECTION 16.1 NO LIABILITY OF LANDLORD
Landlord shall not be liable to Tenant, its employees, agents, business
invitees, licensees, customers, clients, family members or guests for any
damage, injury (including death), loss, compensation, or claim, including but
not limited to claims for the interruption or loss of Tenant's business, based
on, arising out of, or resulting from any cause whatsoever, including but not
limited to the following: repairs to any portion of the Premises or the
Building; interruption in the use of the Premises; any accident or damage
resulting from the use or operation (by Landlord, Tenant, or any other person
or persons) of elevators, or of the heating, cooling,
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electrical, or plumbing equipment or apparatus; the termination of this Lease
by reason of the destruction of the Premises; any fire, explosion, falling
plaster, steam, gas, robbery, theft, mysterious disappearance, and/or any other
casualty; the actions of any other tenants of the Building or of any other
person or persons; any failure or inability to furnish any of the utilities or
services required to be furnished by Landlord hereunder, any leakage in any
part or portion of the Premises or the Building, or from water, rain or snow
that may leak into, or flow from, any part of the Premises or the Building, or
from drains, pipes or plumbing work in the Building or from the roof, street or
subsurface or resulting from dampness or from any other cause of whatsoever
nature. The occurrence of any of the foregoing items described in this SECTION
16.1 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, set-off, counterclaim against, or reduction of, any rent payable
hereunder. Any goods, property, or personal effects stored or placed by Tenant
or its employees in or about the Premises or Building shall be at the sole risk
of Tenant, and Landlord shall not in any manner be held responsible therefor.
It is understood that the employees of Landlord are prohibited from receiving
any packages or other articles delivered to the Building for Tenant, and if any
such employee receives any such package or articles, such employee shall be
acting as the agent of Tenant for such purposes and not as the employee or
agent of Landlord. In no event shall Tenant make any claim against Landlord for
consequential, indirect or special damages. Notwithstanding the foregoing
provisions of this SECTION 16.1, Landlord shall not be released from liability
to Tenant for any damage or injury caused by the gross negligence or willful
misconduct of Landlord or its employees.
SECTION 16.2 INDEMNIFICATION BY TENANT
Tenant shall indemnify and defend Landlord and save it harmless from and
against any and all claims, suits, actions, proceedings, liabilities, damages,
costs or expenses, including attorneys' fees, arising (a) from any act,
omission, or negligence of Tenant or its officers, contractors, licensees,
agents, employees, guests, invitees, or visitors in or about the Complex, (b)
from Tenant's use or occupancy of the Premises or the business conducted by
Tenant therein, (c) from any breach or default under this Lease by Tenant, (d)
from, or relating to, the enforcement by Landlord of the provisions of this
Lease as against Tenant, or (e) from any accident, injury, or damage, howsoever
and by whomsoever caused, to any person or property, occurring in or about the
Building, the Premises or the Complex. This provision shall not be construed to
make Tenant responsible for loss, damage, liability or expense resulting from
injuries (or death) to third parties to the extent caused solely and directly
by the negligence of Landlord or its officers, contractors, licensees, agents,
employees, or invitees. The provisions of this SECTION 16.2 shall survive the
expiration or termination of this Lease.
SECTION 16.3 TRANSFER BY LANDLORD
In the event that at any time Landlord shall sell or transfer the
Building, the Landlord named herein shall not be liable to Tenant for any
obligations or liabilities based on or arising out of events or conditions
occurring on or after the date of such sale or transfer.
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SECTION 16.4 NO DEDUCTIONS OR OFFSET
(a) 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 deduct the
amount allegedly owed to Tenant from any rent or other sums payable to Landlord
hereunder, it being understood that Tenant's sole method for recovering upon
such claim shall be to institute an independent action against Landlord.
(b) If, as a result of any alleged breach or default in the
performance of any of the provisions of this Lease, Landlord uses the services
of an attorney in order to secure compliance with such provisions or recover
damages therefor or possession of the Premises, or if Landlord is made a party
to any action as a result of any alleged act or failure to act of Tenant, then
Tenant shall reimburse Landlord, upon demand for any and all reasonable
attorneys' fees and expenses so incurred by Landlord as additional rent within
five (5) days after Landlord's demand therefor.
SECTION 16.5 EXTENT OF LANDLORD'S LIABILITY
Notwithstanding any other provision of this Lease whatsoever, no recourse
shall be had on any of Landlord's obligations hereunder or for any claim based
thereon or otherwise in respect thereof against any incorporator, subscriber to
the capital stock, shareholder, officer or director, past, present or future,
of any corporation, or any partner or joint venturer of any partnership or
joint venture, or any member or manager of any limited liability company, which
shall be Landlord hereunder or included in the term "Landlord" or of any
successor of any such corporation, limited liability company, partnership or
joint venture, or against any principal, disclosed or undisclosed, or any
affiliate of any party which shall be Landlord or included in the term
"Landlord", whether directly or through Landlord or through any receiver,
assignee, trustee in bankruptcy or through any other person, firm or
corporation, whether by virtue of any constitution, statute or rule of law or
by enforcement of any assessment or penalty or otherwise, all such liability
being expressly waived and released by Tenant. Tenant shall look solely to
Landlord's estate and interest in the Building and the Premises for the
satisfaction of any right or remedy of Tenant for the collection of a judgment
or other judicial process or arbitration award requiring the payment of money
by Landlord. No other property or assets of Landlord, Landlord's agents,
incorporators, shareholders, officers, directors, partners, members, managers,
principals (disclosed or undisclosed) or affiliates shall be subject to levy,
lien, execution, attachment, or other enforcement procedure for the
satisfaction of Tenant's rights and remedies under or with respect to this
Lease, the relationship of Landlord and Tenant hereunder or under law, or
Tenant's use and occupancy of the Premises, or any other liability of Landlord
to Tenant.
ARTICLE XVII
RULES AND REGULATIONS
Tenant and its agents, employees, invitees, licensees, customers,
clients, family members, guests and subtenants shall at all times abide by and
observe the rules and regulations
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promulgated by Landlord and attached hereto as EXHIBIT C and made a part
hereof. In addition, Tenant and its agents, employees, invitees, licensees,
customers, clients, family members, guests and subtenants shall abide by and
observe all other rules or regulations that Landlord may promulgate from time
to time for the operation and maintenance of the Building, provided that notice
thereof is given to Tenant and such rules and regulations are not inconsistent
with 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 or regulations by any other tenant or its
employees, agents, business invitees, licensees, customers, clients, family
members, guests or subtenants.
ARTICLE XVIII
DAMAGE OR DESTRUCTION
SECTION 18.1 CASUALTY
If during the Lease Term 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 diligently
(taking into account the time necessary to effectuate a satisfactory settlement
with any insurance company involved) restore and repair the Premises and the
Building to substantially the same condition they were in prior to such
damage; provided, however, if Landlord reasonably believes that the repairs and
restoration cannot be completed despite reasonable efforts 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 by giving written notice of termination to 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 the occurrence of such damage. If this
Lease is not terminated as a result of damage, and provided that such damage
was not caused by the act or omission of Tenant or any of its employees,
agents, licensees, subtenants, customers, clients, family members, or guests,
until the repair and restoration of the Premises is completed Tenant shall be
required to pay fixed monthly rent and additional rent only for that part of the
Premises that Tenant is able to use while repairs are being made, based on the
ration that the amount of usable rentable area bears to the total rentable area
in the Premises. Landlord shall bear the costs and expenses of repairing and
restoring the Premises, except that if such damage or destruction was caused by
the act or omission of Tenant or any of its employees, agents, licensees,
subtenants, customers, clients, family members, or guests, upon written demand
from Landlord, Tenant shall pay to Landlord the amount by which such costs and
expenses exceed the insurance proceeds, if any, received by Landlord on account
of such damage or destruction. Nothing in this Lease shall be construed as
requiring Landlord to spend more than the net proceeds of any insurance
available to it for any restoration, repair or rebuilding.
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SECTION 18.2 LIMITATIONS ON LANDLORD'S OBLIGATIONS
Notwithstanding anything in SECTION 18.1 or any other part of this Lease,
if Landlord is obligated to repair and restore the Premises as provided in
SECTION 18.1, Landlord shall not be required to repair or restore any
Improvements to the Premises (regardless of by whom made) or any trade fixtures,
furnishings, equipment, or personal property belonging to Tenant. It shall be
Tenant's sole responsibility to repair and restore all such items.
SECTION 18.3 RIGHT TO TERMINATE
Notwithstanding anything to the contrary contained herein, if there is a
destruction of the Building that exceeds twenty-five percent (25%) of the
replacement value of the Building from any risk, whether or not the Premises are
damaged or destroyed, Landlord shall have the right to terminate this Lease by
written notice to Tenant.
ARTICLE XIX
CONDEMNATION
SECTION 19.1 TERMINATION FOR CONDEMNATION
If the whole or a substantial part (as hereinafter defined) of the
Premises and/or the Building 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 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 the use and occupancy thereof) 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), this Lease
shall continue in full force and effect, but the fixed monthly rent and
additional rent thereafter payable hereunder shall be equitably adjusted (on the
basis of the ratio of the number of square feet of rentable area taken to the
total rentable area in the Premises prior to such taking) as of the date title
vests in the governmental or quasi-governmental authority. For purposes of this
SECTION 19.1, a substantial part of the Premises shall be considered to have
been taken if more than twenty-five percent (25%) (in the case of a temporary
taking only if for a term greater than one year) of the Premises is rendered
unusable as a result of such taking.
SECTION 19.2 AWARD
All awards, damages, and other compensation paid by the condemning
authority on account of the 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 Landlord or the condemning author-
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ity for any portion of such award or compensation attributable to damages to the
Premises, the value of the unexpired term of this Lease, 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.
ARTICLE XX
DEFAULT BY TENANT
SECTION 20.1 DEFAULTS
The occurrence of any of the following shall constitute a default by
Tenant under this Lease:
(a) If Tenant fails to make any payment of fixed monthly rent,
additional rent, or any other sum due under this Lease when due.
(b) If Tenant violates or fails to perform any obligation set forth in
ARTICLE VIII, SECTION 10.2, SECTION 21.1, SECTION 24.2 or SECTION 24.5 of this
Lease beyond the expiration of any notice or cure period set forth therein.
(c) If Tenant violates or fails to perform any other term, condition,
covenant or agreement to be performed or observed by Tenant under this Lease
(other than as specified in SECTION 20.1(b) above), and such violation or
failure shall continue for twenty (20) days after written notice from Landlord
to Tenant of such violation or failure, or, for a default which cannot be cured
within such period, so long as Tenant shall commence to remove or cure the same
within such 20-day period and shall diligently and expeditiously proceed to
complete the cure or removal thereof.
(d) If Tenant shall abandon or vacate the Premises.
(e) If Tenant or any guarantor (i) is voluntarily adjudicated a
bankrupt or insolvent, (ii) seeks or consents to the appointment of a receiver
or trustee for itself or for all or a part of its property, (iii) files a
petition seeking relief under the bankruptcy or similar laws of the United
States or any state or any other jurisdiction, (iv) makes a general assignment
for the benefit of creditors, or (v) admits in writing its inability to pay its
debts as they mature.
(f) If a petition shall be filed against Tenant or any guarantor
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future federal or state law
or other statute, law, or regulation and shall remain undismissed or unstayed
for thirty (30) days, or if any trustee, receiver or liquidator of
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Tenant or any guarantor, or of all or any substantial part of its properties,
shall be appointed without the consent or acquiescence of Tenant or any
guarantor, and such appointment shall remain unvacated or unstayed for thirty
(30) days.
(g) If any attachment or execution of any type shall be issued against
Tenant or any guarantor, or Tenant's property located on the Premises, or
Tenant's rights or interest in the Lease, or guarantor's or Tenant's assets of
any type or nature whatsoever, including but not limited to federal, state, or
municipal tax liens, and such is not dismissed or released within ten (10) days
thereafter.
SECTION 20.2 LANDLORD'S RIGHTS
If Tenant shall be in default under this Lease, Landlord shall have the
right, at its sole option, to terminate this Lease. With or without terminating
this Lease, Landlord may re-enter and take possession of the Premises and the
provisions of this ARTICLE XX shall operate as a notice to quit, and any other
notice to quit or notice of Landlord's intention to re-enter the Premises is
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, everything
contained in this Lease on the part of the 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. Whether or not this Lease is
terminated by reason of Tenant's default, the Premises may be relet by Landlord
for such rent and upon such terms as Landlord deems reasonable under the
circumstances and, if the full rental provided herein plus the costs, expenses,
and damages described below shall not be realized by Landlord, Tenant shall be
liable for all damages sustained by Landlord, including, without limitation,
past due fixed and additional rent, deficiency in fixed and additional rent as
provided in SECTION 20.3 below, return of abated rent, brokerage commissions and
tenant improvement costs as provided in ARTICLE XXV below, reasonable attorneys'
fees, brokerage fees and commissions, marketing and reletting costs (if Landlord
elects to relet the Premises, it being understood that it is under no obligation
to do so), costs of tenant improvements and other expenses of placing the
Premises in first-class rentable condition. Any damages or loss of rent
sustained by Landlord may be recovered by Landlord, at Landlord's option, at the
time of the reletting or in separate actions, from time to time, as said damage
shall have been made more easily ascertainable by successive relettings, or, at
Landlord's option, may be deferred until the expiration of the Lease Term, in
which event Tenant hereby agrees that the cause of action shall not be deemed to
have accrued until the date of expiration of the Lease Term. The provisions
contained in this SECTION 20.2 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.
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SECTION 20.3 ACCELERATION OF RENT
At Landlord's sole option, in the event of a default by Tenant the entire
sum, including, but not limited to fixed monthly rent, additional rent, any
payments due or to be due Landlord for Improvements to the Premises, and all
other sums due or to be due Landlord at any time during the Lease Term shall
become immediately due and payable. In the event that Landlord chooses not to
accelerate the amounts due as herein permitted, Tenant shall remain liable for
any deficiency between fixed monthly rent and other amounts received by Landlord
upon reletting, if any, of the Premises as compared with the fixed monthly rent
and other amounts reserved which Landlord would have been entitled to receive
over the unexpired portion of the Lease Term. Tenant also shall not be entitled
to receive any excess of any such rents collected over the rents reserved
herein. The provisions of this SECTION 20.3 shall be without prejudice to
Landlord's right to prove and collect, in full, damages for all rent and
additional rent accrued prior to the termination of this Lease but not paid.
SECTION 20.4 LANDLORD'S RIGHTS AND REMEDIES CUMULATIVE
All rights and remedies of Landlord set forth herein are in addition to
all other rights and remedies available to Landlord at law or in equity. All
rights and remedies available to Landlord hereunder 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.
SECTION 20.5 NO WAIVER BY LANDLORD
No delay in the enforcement or exercise of any such right or remedy shall
constitute a waiver of any default by Tenant hereunder or of any of Landlord's
rights or remedies in connection therewith. Landlord shall not be deemed to have
waived any default by Tenant hereunder unless such waiver 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. 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 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
installments of fixed monthly 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 reentry by Landlord, and
no acceptance by Landlord of keys from Tenant, shall be considered an acceptance
of a surrender of this Lease.
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SECTION 20.6 LANDLORD'S RIGHT TO CURE
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. If the Landlord elects to
make such payment or do such act, all costs and expenses incurred by Landlord,
plus interest thereon at the rate of eighteen percent (18%) per annum from the
date paid by Landlord to the date of payment thereof by Tenant, shall be paid by
Tenant to Landlord; provided, however, that nothing contained herein shall be
construed as permitting Landlord to charge or receive interest in excess of the
maximum legal rate then allowed by law. The taking of such action by Landlord
shall not be considered as a cure of such default by Tenant or prevent Landlord
from pursuing any remedy it is otherwise entitled to pursue in connection with
such default.
SECTION 20.7 LANDLORD'S LIEN
Landlord shall have a lien upon, and Tenant hereby grants to Landlord a
security interest in, all personal property owned (but not leased) by Tenant
and located in the Premises (but expressly excluding business records, files
and other confidential or proprietary materials), as security for the payment
of all rent and the performance of all other obligations of Tenant required by
this Lease. In order to perfect said lien and security interest, Tenant agrees
to execute all financing statements required by Landlord. At any time after a
default by Tenant hereunder, Landlord may seize and take possession of any and
all personal property belonging to Tenant which may be found in and upon the
Premises. If Tenant fails to redeem the personal property so seized by payment
of all sums due Landlord under and by virtue of this Lease, Landlord shall have
the right, after twenty (20) days' written notice to Tenant, to sell such
personal property so seized at public or private sale and upon such terms and
conditions as may appear advantageous to Landlord. After the payment of all
proper charges incident to such sale, the proceeds thereof shall be applied to
the payment of any and all sums due to Landlord pursuant to this Lease. In the
event there shall be any surplus remaining after the payment of any sums due to
Landlord, such surplus shall be paid over to Tenant.
SECTION 20.8 TERMINATION OF CURE RIGHTS
If Tenant shall be in default of this Lease for the same or substantially
the same reason more than twice during any twelve (12) month period during the
term of this Lease, then, at Landlord's election, Tenant shall not have any
right to cure such repeated default, the terms and conditions of SECTION 20.1 of
this Lease notwithstanding. In the event of Landlord's election not to allow a
cure of a repeated default, Landlord shall have all of the rights provided for
in such section of this Lease for any uncured default.
SECTION 20.9 ATTORNEY'S FEES
If, as a result of any alleged breach or default in the performance of
any of the provisions of this Lease, Landlord uses the services of an attorney
in order to secure compliance with such
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provisions or recover damages therefor or possession of the Premises, or if
Landlord is made a party to any action as a result of any alleged act or
failure to act of Tenant, then Tenant shall reimburse Landlord upon demand for
any and all reasonable attorneys' fees and expenses so incurred by Landlord as
additional rent within five (5) days after Landlord's demand therefor.
ARTICLE XXI
SUBORDINATION AND ATTORNMENT
SECTION 21.1 SUBORDINATION
This Lease and Tenant's interest hereunder is and shall remain subject
and subordinate to the lien of any and all current and future mortgages and/or
any ground leases (which term "mortgages" shall include both construction and
permanent financing and shall include deeds of trust, similar security
instruments and ground leases) which may now encumber the Building and/or the
Complex, or any part thereof, and to all and any renewals, extensions,
modifications, recastings, or refinancings thereof. At any time after the
execution of this Lease, the holder of any mortgage to which this Lease is
subordinate shall have the right to declare this Lease to be superior to the
lien of such mortgage and Tenant agrees to execute all documents required by
such holder in confirmation thereof. The foregoing shall be automatic and shall
not require execution of a separate instrument of subordination to be effective;
however, in confirmation of the foregoing subordination, Tenant shall, within
ten (10) days after Landlord's request, 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.
SECTION 21.2 ATTORNMENT
Tenant agrees that in the event any proceedings are brought for the
foreclosure of any mortgage encumbering the Building and/or the Complex, or any
part thereof, or the termination of any ground lease affecting the Building
and/or the Complex, or any part thereof, Tenant shall attorn to the purchaser at
such foreclosure sale or any ground lessor, as the case may be, if requested to
do so by such party, and shall recognize such party as the Landlord under this
Lease, and Tenant waives the provisions 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.
SECTION 21.3 RIGHTS OF MORTGAGEES AND GROUND LESSORS
Tenant agrees to simultaneously furnish to any ground lessor and/or
mortgagee of which Tenant has notice copies of any default or other notices
delivered by Tenant to Landlord in connection with this Lease, and no such
notice shall be effective unless and until a copy of it is sent to each such
ground lessor or mortgagee. Each such ground lessor and mortgagee shall
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have the right (but not the obligation) to cure any default by Landlord within
the same time period afforded to Landlord to cure any such default, plus such
additional period of time thereafter as may be reasonably necessary for such
holder to cure such default.
ARTICLE XXII
DELIVERY AT END OF LEASE TERM
SECTION 22.1 SURRENDER OF PREMISES
On the date of the expiration or termination of the Lease Term, Tenant
shall quit and surrender the Premises broom clean and in good condition and
repair (ordinary wear and tear and insured damage by fire or other casualty
excepted), together with all Improvements which may have been made in or
attached to the Premises, unless otherwise directed by Landlord pursuant to
SECTION 10.3 hereof.
SECTION 22.2 HOLDING OVER
In the event that Tenant or any party claiming under Tenant shall not
immediately surrender the Premises on the date of expiration of the Lease Term,
Tenant shall become a Tenant by the month at twice the fixed monthly rent in
effect during the last month of the Lease Term, plus one hundred percent(100%)
of all additional rent in effect during the last month of the Lease Term
(subject to increases thereafter as determined by Landlord in accordance with
the provisions of this Lease). Said monthly tenancy shall commence on the first
day following the expiration of the Lease Term. As a monthly Tenant, Tenant
shall be subject to all the terms, conditions, covenants, and agreements of
this Lease, except as to the amount of the monthly rent, which shall be in the
amount specified in this SECTION 22.2. As a monthly Tenant, Tenant shall give
to Landlord at least thirty (30) days written notice of any intention to quit
the Premises, and Tenant shall be entitled to thirty (30) days written notice
to quit the Premises, unless Tenant is in default hereunder, in which event
Tenant shall not be entitled to any notice to quit, the usual thirty (30) days'
notice to quit being hereby expressly waived. Notwithstanding the foregoing
provisions of this SECTION 22.2, in the event Tenant shall hold over after the
expiration of the Lease Term, and if Landlord shall desire to regain possession
of the Premises promptly at the expiration of the Lease Term, then at any time
prior to Landlord's acceptance of rent from Tenant as a monthly tenant
hereunder, Landlord, at its option, may forthwith reenter and take possession of
the Premises without process, or by any legal process in force in the
Commonwealth of Virginia. To the extent permitted by law, Landlord may accept
rent in the holdover amount and concurrently commence legal proceedings to
regain possession of the Premises. Tenant shall also pay to Landlord all damages
sustained by Landlord resulting from retention of possession by Tenant,
including the loss of any proposed subsequent tenant for all or any portion of
the Premises. Notwithstanding the provisions of SECTION 24.20 hereof to the
contrary, force majeure is not an excuse to holding over by Tenant.
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ARTICLE XXIII
COVENANTS OF LANDLORD
SECTION 23.1 COVENANTS OF LANDLORD
Landlord covenants that it has the right to make this Lease for the Lease
Term and that if Tenant shall pay all rent when due and punctually perform all
of the covenants, terms, conditions, and agreements of this Lease to be
performed by Tenant, Tenant shall have the right, during the term hereby
created, to freely, peaceably, and quietly occupy and enjoy the full possession
of the Premises without molestation or hindrance by Landlord or any party
claiming through or under Landlord, subject to the provisions of this Lease.
SECTION 23.2 LANDLORD'S RESERVATION OF RIGHTS
Landlord hereby reserves to itself and its successors and assigns the
following rights (all of which are hereby consented to by Tenant): (a) 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 and to change the design
or configuration of the Building; (b) to decorate and make repairs, alterations,
additions and improvements, whether structural or otherwise, in, to and about
the Building and any part thereof, and, during the continuance of any such work,
to temporarily close doors, entry ways, and common areas in the Building and to
interrupt or temporarily suspend Building Services and facilities, all without
affecting Tenant's obligations hereunder, so long as the Premises remain
reasonably accessible to Tenant's customers and business invitees; (c) to alter,
relocate, reconfigure and reduce the common areas of the Building, as long as
the Premises remain reasonably accessible to Tenant's customers or business
invitees; (d) to alter, relocate, reconfigure, reduce and withdraw the common
areas located outside the Building, including parking and access roads, but not
so as to render the Premises reasonably inaccessible; (e) to erect, use, and
maintain pipes and conduits in and through the Premises; and (f) to grant to
anyone the exclusive right to conduct any particular business or undertaking in
the Building. 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 or giving rise to any claim by Tenant for any reason
whatsoever.
ARTICLE XXIV
GENERAL PROVISIONS
SECTION 24.1 NO REPRESENTATIONS
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
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except as herein expressly set forth, and no rights, privileges, easements, or
licenses are acquired by Tenant except as herein expressly set forth.
SECTION 24.2 FINANCING REQUIREMENTS
If any person, including but not limited to any bank, insurance company,
university, pension or welfare fund, savings and loan association, real estate
investment trust, business trust, or other financial institution providing any
construction and/or permanent financing for the Building and/or Complex
requires, as a condition of such financing, that modifications to this Lease be
obtained, and provided that such modifications (a) do not materially adversely
affect Tenant's use of the Premises as herein permitted, (b) do not materially
alter the approved architectural plans and specifications or the description of
Landlord's work in EXHIBIT B, and (c) do not increase the rent and other sums
required to be paid by Tenant hereunder, Landlord shall submit an amendment to
this Lease containing such required modifications to Tenant, and Tenant agrees
to execute said amendment within thirty (30) days thereafter. If Tenant does not
enter into and execute a written amendment hereto incorporating such required
modifications within thirty (30) days after the same have been submitted to
Tenant by Landlord, then Landlord shall thereafter have the right, at its sole
option, to (i) cancel this Lease, (ii) to sign said amendment on behalf of
Tenant pursuant to a power of attorney, which is hereby irrevocably and
expressly granted to the Landlord by Tenant, or (iii) to declare an event of
default under this Lease. Such options shall be exercisable by Landlord giving
Tenant written notice of the option elected.
SECTION 24.3 NO PARTNERSHIP
Nothing contained in this Lease shall be construed as creating a
partnership or joint venture of or between Landlord and Tenant, or to create any
other relationship between the parties hereto other than that of Landlord and
Tenant.
SECTION 24.4 BROKERS
Landlord recognizes FAISON and Barnes, Morris, Pardoe & Foster as the
sole brokers procuring this Lease. Landlord shall pay FAISON a commission
therefor pursuant to a separate agreement between FAISON and Landlord and FAISON
shall pay Barnes, Morris, Pardoe & Foster. Landlord and Tenant each represent
and warrant to the other that, except as provided above, neither of them has
employed or dealt with any broker, agent, or finder in carrying on the
negotiations relating to this Lease, nor is any other broker, agent or finder
entitled to any fee, commission or other compensation as a result of any service
provided to or engagement by Landlord or Tenant, as the case may be. Landlord
shall indemnify and hold Tenant harmless, and Tenant shall indemnify and hold
Landlord harmless, from and against any claim or claims for brokerage or other
commissions arising from or out of any breach of the foregoing representation
and warranty by the respective indemnitor. No broker is a third party
beneficiary of this Lease.
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SECTION 24.5 TENANT ESTOPPEL CERTIFICATES
Tenant agrees, at any time from time to time, upon not less than five (5)
days' prior written notice by Landlord, to execute, acknowledge and deliver to
Landlord a statement in writing (a) certifying that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the Lease is
in full force and effect as modified and stating the modifications); (b) stating
whether any rate abatements remain under the Lease and the dates to which the
rent and any other charges hereunder have been paid by Tenant; (c) stating
whether or not, to the best knowledge of Tenant, Landlord is in default in the
performance of any covenant, agreement, or condition contained in this Lease
and, if so, specifying the nature of such default; (d) if any improvements are
required to be performed by Landlord under this Lease, stating that all such
work has been satisfactorily completed or, if not, providing a list of items
excepted; (e) stating the address to which notices to Tenant are to be sent; (f)
stating the Lease Commencement Date, the rent commencement date, and the
scheduled expiration date of the Lease Term; (g) stating whether any security
deposit has been posted; (h) stating whether Tenant has any knowledge of any
environmental problem affecting the Premises, the Building or the Complex; (i)
stating whether Tenant has any expansion, contraction, renewal, or termination
options of any sort or any right to purchase the Building and/or the land on
which it is situated and, if Tenant does have any of the foregoing, stating
whether Tenant has exercised such option(s); and (j) certifying as to such other
matters as may reasonably be requested. Any such statement delivered by Tenant
may be relied upon by Landlord, any owner of the Building or the Land, any
prospective purchaser of the Building or Land, any mortgagee or prospective
mortgagee of the Building or the land on which it is situated or of Landlord's
interest therein, or any prospective assignee of any such mortgagee. Any failure
by Tenant to execute, acknowledge and deliver within the aforesaid five (5) day
period any estoppel certificate shall be deemed a default under this Lease.
Notwithstanding the foregoing, Tenant hereby irrevocably constitutes and
appoints Landlord as Tenant's attorney-in-fact to execute, acknowledge and
deliver any such certificate for or on behalf of Tenant should Tenant fail to
deliver such certificate within the five (5) day period described above. Any
such statement delivered by Landlord as Tenant's attorney-in-fact may be relied
upon as aforesaid.
SECTION 24.6 WAIVER OF JURY TRIAL
LANDLORD AND TENANT EACH HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST THE OTHER 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.
SECTION 24.7 NOTICES
(a) Whenever any notice, demand or request is required or permitted
hereunder, such notice, demand or request shall be in writing and shall be
hand-delivered in person, sent by
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established overnight commercial courier (such as Federal Express) with delivery
charges prepaid, or sent by United States Mail, registered or certified, return
receipt requested, postage pre-paid, to the addresses set forth below:
TENANT: Before the Lease Commencement Date:
3225 N. Street, N.W.
Washington, D.C. 20007
Attn: David Hoppmann
After the Lease Commencement Date:
At the Premises
LANDLORD: Bryce Mountain, Inc. c/o DIHC
Attention: Wout Coster
200 Galleria Parkway, Suite 2000
Atlanta, GA 30339
with a copy to: Kathleen Gately
FAISON
Suite G-10
99 Canal Center Plaza
Alexandria, VA 22314
Tenant shall also send a copy of any notice to any mortgagee or ground lessor
pursuant to SECTION 21.3 above.
(b) Any notice, demand, or request which shall be served upon either
of the parties in the manner aforesaid shall be deemed sufficiently given for
all purposes hereunder (i) at the time such notice, demand, or request is
hand-delivered in person, (ii) one (1) business day after such notice is thus
delivered to such overnight commercial courier, or (iii) on the third day after
the mailing of such notice, demand, or request in accordance with the preceding
portion of this SECTION 24.7.
(c) Either party may change its address for the giving of notices by
notice given in accordance with this SECTION 24.7.
SECTION 24.8 PARTIAL INVALIDITY
If any provision of this Lease or the application thereof to any person
or circumstances shall to any extent be invalid or unenforceable, the remainder
of this Lease, or the application of such provision to persons or circumstances
other than those as to which it is invalid or
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unenforceable, shall not be affected thereby, and each provision of this Lease
shall be valid and enforced to the fullest extent permitted by law.
SECTION 24.9 PRONOUNS
Feminine or neuter pronouns shall be substituted for those of masculine
form, and the plural shall be substituted for the singular number, in any place
or places herein in which the context may require such substitution.
SECTION 24.10 SUCCESSORS AND ASSIGNS
The provisions of this Lease shall be binding upon, and shall inure to
the benefit of, the parties hereto and each of their respective representatives,
successors, and assigns, subject to the provisions hereof prohibiting assignment
or subletting by Tenant.
SECTION 24.11 ENTIRE AGREEMENT
This Lease and the Exhibits hereto contain the entire agreement of the
parties hereto, and no representations inducements, or agreements, oral or
otherwise, not contained in this Lease shall be of any force or effect.
SECTION 24.12 AMENDMENT
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.
SECTION 24.13 GOVERNING LAW
This Lease shall be governed by and construed in accordance with the laws
of the Commonwealth of Virginia, without regard to conflicts of laws.
SECTION 24.14 SECTION HEADINGS
Article and section headings are used herein for the convenience of
reference and shall not be considered when construing or interpreting this
Lease.
SECTION 24.15 NO OFFER
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.
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SECTION 24.16 MULTIPLE COUNTERPARTS
This Lease may be executed in multiple counterparts, each of which shall
be deemed an original and all of which together shall constitute one and the
same document.
SECTION 24.17 TIME OF ESSENCE
TIME IS OF THE ESSENCE WITH RESPECT TO THE CARRYING OUT BY TENANT OF EACH
AND EVERY TERM AND PROVISION OF THIS LEASE TO BE PERFORMED BY TENANT.
SECTION 24.18 CONFLICT
In the event of any conflict between the main text of this Lease and any
Exhibit hereto, the provisions of the main text of this Lease shall prevail.
SECTION 24.19 EXECUTION BY TENANT
If Tenant is a corporation, a limited liability company, an association
or a partnership, it shall, concurrently with the signing of this Lease, at
Landlord's option, furnish to Landlord certified copies of the resolutions of
its board of directors (or of the executive committee of its board of directors)
or consent of its members or partners authorizing Tenant to enter into this
Lease. Moreover, each individual executing this Lease on behalf of Tenant hereby
represents and warrants that he or she is duly authorized to execute and deliver
this Lease and that Tenant is a duly organized corporation, limited liability
company, association or partnership under the laws of the state of its
incorporation or formation, is qualified to do business in the jurisdiction in
which the Building is located, is in good standing under the laws of the state
of its incorporation or formation and the laws of the jurisdiction in which the
Building is located, has the power and authority to enter into this Lease, and
that all corporate or partnership action requisite to authorize Tenant to enter
into this Lease has been duly taken.
SECTION 24.20 FORCE MAJEURE
In the event that either party hereto shall be delayed or hindered in or
prevented from the performance of any act required hereunder by reason of a
labor strike, lockout, inability to procure materials, failure of power, riot,
insurrection, war, or other reason of a like nature not the fault of the party
delayed in performing work or doing acts required under the terms of this Lease,
then performance of such act shall be excused for a period equivalent to the
period of such delay. The provisions of this SECTION 24.20 shall not operate to
excuse Tenant from prompt payment of fixed monthly rent, additional rent, or any
other payment required by the terms of this Lease.
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SECTION 24.21 NO CONSTRUCTION OF LEASE AGAINST DRAFTER
Should any provision of this Lease require judicial interpretation, it is
agreed that the court interpreting or considering same shall not apply the
presumption that the terms hereof shall be more strictly construed against a
party by reason of the rule or conclusion that a document should be construed
more strictly against the party who itself or through its agent prepared the
same, it being agreed that all parties hereto have participated in the
preparation of this Lease and that legal counsel was consulted by each party
hereto (or opportunity for such legal consultation afforded to each party)
before the execution of this Lease.
SECTION 24.22 JOINT AND SEVERAL LIABILITY
If more than one person or entity signs this Lease as Tenant, the
liability of each such person and entity shall be joint and several.
ARTICLE XXV
REPAYMENT BY TENANT
If Tenant is in default under this Lease at any time during the Term,
Tenant shall be liable to Landlord for repayment of (a) the unamortized costs of
the Space Design/Improvement Allowance assuming amortization at ten percent
(l0%) per year and including an imputed interest rate of eleven percent (11%)
thereon, and (b) the unamortized costs of any leasing commissions paid by
Landlord in connection with this Lease, assuming amortization at ten percent
(10%) per year and including an imputed interest rate of eleven percent (11%)
thereon. Such sums shall immediately become due and payable by Tenant to
Landlord. The provisions of this ARTICLE XXV shall be in addition to the other
remedies provided in this Lease and by law.
ARTICLE XXVI
SPACE DESIGN/IMPROVEMENT ALLOWANCE
SECTION 26.1 SPACE DESIGN/IMPROVEMENT ALLOWANCE
(a) Tenant shall, at its sole cost and expense, be responsible for any
and all improvements in the Premises, subject to the application of the
allowances provided in this SECTION 26.1 for the initial improvements to be
constructed pursuant to EXHIBIT B attached hereto. Any and all such improvements
by Tenant shall be subject to Landlord's prior written approval.
(b) Landlord will provide Tenant with a one-time maximum space design
and improvement allowance of up to Five and 75/100 Dollars ($5.75) per rentable
square foot ("Space Design/Improvement Allowance"), for a maximum Space
Design/Improvement Allowance of Twenty-Nine Thousand Fourteen and 50/100
Dollars ($29,014.50).
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(c) In addition to the Space Design/Improvement Allowance, upon
written request of Tenant on or before November 30, 1997, Landlord will provide
Tenant with an additional one-time maximum space design and improvement
allowance of up to Three and 00/100 Dollars ($3.00) per rentable square foot
("Additional Improvement Allowance"), for a maximum Additional Improvement
Allowance of Fifteen Thousand One Hundred Thirty-Eight and No/l00 Dollars
($15,138.00), which Additional Improvement Allowance shall be amortized into the
fixed monthly rate at 11% per annum. In the event of Tenant's timely election to
utilize the Additional Improvement Allowance, Tenant shall execute an amendment
to this Lease, or such other instrument(s) as Landlord deems reasonably
necessary, to reflect the increase in fixed monthly rent due as a result of
Tenant's utilization of such Additional Improvement Allowance.
(d) The terms and conditions for Tenant's improvements to which the
Space Design/Improvement Allowance and the Additional Improvement Allowance
(collectively, the "Allowance") is applicable pursuant to this SECTION 26.1 are
more fully set forth in EXHIBIT B attached hereto. The Allowance may be applied
to any and all space design expenses, including, without limitation, mechanical,
electrical and plumbing architectural and engineering working drawings, and any
and all improvements. Tenant shall be solely responsible for any costs incurred
in excess of the Allowance. Tenant shall not be entitled to apply any unused
portion of the Allowance to rent or to any other cost except space design or
improvements, respectively, for the Premises pursuant to EXHIBIT B attached
hereto.
ARTICLE XXVII
RIGHT TO CANCEL
Provided Tenant is not in default at the time its notice hereunder is
required to be given and provided that Tenant timely pays to Landlord the
cancellation fee set forth herein, Tenant may cancel this Lease at the end of
the third (3rd) Lease Year. Tenant shall give Landlord written notice of its
intent to so cancel (the "Cancellation Notice") at least two hundred seventy
(270) days prior to the end of the third (3rd) Lease Year. TIME IS OF THE
ESSENCE IN TENANT'S GIVING SUCH NOTICE. As consideration for Landlord's
agreement to permit Tenant to cancel this Lease, Tenant shall pay to Landlord,
on the date which is thirty (30) days prior to the last day of the third (3rd)
Lease Year, a cancellation fee (the "Cancellation Fee") equal to [Sixty-Four
Thousand One Hundred Seventy and 15/100 Dollars ($64,170.15)] plus the
unamortized costs of Tenant's Additional Improvement Allowance, if any, at an
interest rate of 11% per annum. The Cancellation Fee shall be deemed earned upon
Landlord's receipt thereof. If Tenant fails to timely pay the Cancellation Fee
to Landlord, Tenant's right to cancel this Lease pursuant to this ARTICLE XXX
shall be null and void and Tenant shall have no further right to cancel this
Lease. In the event of Tenant's timely election to cancel this Lease, and upon
timely payment of the Cancellation Fee to Landlord, Tenant shall execute an
amendment to this Lease, or such other instrument(s) as Landlord deems
reasonably necessary, to reflect such cancellation. Upon receiving the
Cancellation Notice, Landlord shall have the right to immediately show the
Premises to prospective tenants.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under
seal on the day and year first above written.
ATTEST: LANDLORD:
BRYCE MOUNTAIN, INC., a Georgia
corporation
[SIG] By: [SIG] [SEAL]
--------------------------- ---------------------------
Title: [ILLEGIBLE] Name: [SIG]
--------------------- -------------------------
(Corporate Seal) Title: Vice President
------------------------
TENANT:
BIZWATCH, INC., a Delaware corporation
By: [SIG] [SEAL]
--------------------------- ---------------------------
Title: Name: [SIG]
--------------------- -------------------------
(Corporate Seal) Title: President & CEO
------------------------
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<PAGE> 46
1199 NORTH FAIRFAX STREET
EXHIBIT A
PREMISES
To be attached upon completion of working drawings
A-1
<PAGE> 47
1199 NORTH FAIRFAX STREET
EXHIBIT B
CONSTRUCTION SCHEDULE
It is the intent of this Exhibit that Tenant shall be permitted freedom
in the interior design and layout of its space, consistent with applicable
building codes and sound architectural and construction practices in first-class
office buildings, provided that no interference is caused to the operation of
the Building's mechanical heating, cooling, electrical or life safety system or
other building operations or functions, and no increase in maintenance or
utility charges will be incurred by Landlord. Any additional cost of design,
construction, operation or maintenance which results from Tenant's deviation
from Building Standard quantities or specifications shall be charged to Tenant.
A. IMPROVEMENTS
All improvements required by Tenant in the Premises shall be at the sole
cost and expense of Tenant, subject to application thereto of the Allowance
provided in SECTION 26.1 of the Lease.
B. PLANS AND SPECIFICATIONS
1. Tenant may use the services of the space planner retained by
Tenant, at Tenant's sole cost, to prepare a preliminary space plan and final
working drawings as required for improvements to the Premises. The preliminary
space plan shall include, as required, a reflected ceiling plan, requested
heating, ventilating, and air conditioning requirements above-Building Standard,
and telephone and electrical outlet locations. No later than October 27, 1997,
Tenant shall deliver to Landlord working drawings, approved by Tenant, for all
improvements. Upon receipt of the approved working drawings, Landlord will
submit them to a contractor for determination of the cost of performing the
work. After Landlord obtains said estimate, Landlord shall submit the estimate
to Tenant, who shall have five (5) days to approve it in writing or request a
revision thereto. If Tenant requests a revision, it shall have five (5) days
after such revision is presented to it to approve the same in writing. After
approval by Tenant of the cost of performing the improvement work, Landlord
shall proceed to have the work accomplished. Tenant acknowledges and agrees that
all improvement work, including the cost of preparing the plans and working
drawings therefor, shall be at Tenant's sole cost and expense, except that the
maximum Allowance provided in SECTION 26.1 of the Lease shall apply thereto.
Both Landlord and Tenant shall meet the applicable time schedules set forth
herein. Tenant shall pay the amount in excess of its Allowance to Landlord at
the time of approval of the costs.
2. All amounts owed by Tenant for design and improvements in excess
of the Allowance shall be considered additional rent.
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<PAGE> 48
3. Tenant shall remain liable for the payment of rent from the Lease
Commencement Date regardless of the date the Premises are delivered to Tenant.
C. CONSTRUCTION
1. By Landlord. All work in the Premises shall be performed only by
Landlord's contractor, as determined pursuant to PARAGRAPH B above. Landlord's
agent shall act as project manager during the construction of all improvements.
2. Changes. If there are any changes requested by Tenant after
Tenant's approval of Tenant's plans for the improvements, Tenant shall be
responsible for all costs and expenses resulting from or relating to such
changes, including without limitation architectural and engineering costs,
design expenses, and the cost of making such changes. No such changes shall be
made without prior written approval of Landlord. Upon the completion of such
revised working drawings and specifications, Landlord shall notify Tenant in
writing of the cost which will be chargeable to Tenant by reason of such
changes. Tenant shall within five (5) business days notify Landlord in writing
whether it desires to proceed with such changes. If Tenant does not notify
Landlord whether it desires such changes within the aforesaid five (5) day
period, Landlord shall not be obligated to continue work on Tenant's Premises
and may suspend work until such notice is given by Tenant. In the event Tenant
authorizes any changes pursuant to this PARAGRAPH C2, Tenant shall pay the
entire cost of same to Landlord prior to Landlord's making of such changes.
3. Tenant Inspection. Tenant is authorized by Landlord to make
periodic inspections of the Premises during construction, provided that such
inspections are made during reasonable business hours and that Tenant is
accompanied by a representative of the Landlord or Landlord's contractor. Any
other presence in the Premises shall be considered trespassing.
D. ACCEPTANCE OF PREMISES
Prior to delivery of possession and acceptance of the Premises by Tenant,
Tenant, together with the Landlord's representative, shall make a final
inspection of the Premises to make certain that the construction has been
accomplished according to the Tenant's plan. A punch-list of items to be
completed or corrected shall be prepared.
E. FINAL PAYMENT OF EXCESS COSTS
Tenant shall pay to Landlord the entire unpaid balance of any and all
excess costs of work and improvements payable by reason of PARAGRAPH B or C
hereinabove prior to occupancy or the Lease Commencement Date, whichever is
earlier. Upon default by Tenant in payment thereof, Landlord shall (in addition
to all other remedies) have the same rights as in case of default in rent under
the Lease.
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<PAGE> 49
F. INCORPORATION IN LEASE
This EXHIBIT B is and shall be incorporated by reference in the Lease,
and all of the terms and provisions of said Lease are and shall be incorporated
herein by this reference.
B-3
<PAGE> 50
1199 NORTH FAIRFAX STREET
EXHIBIT C
RULES AND REGULATIONS
The following rules and regulations have been formulated for the safety
and well-being of all tenants of the Building. Strict adherence to these rules
and regulations is necessary to guarantee that each and every tenant will enjoy
a safe and unannoyed occupancy in the Building. Any repeated or continuing
violation of these rules and regulations by Tenant after notice from Landlord
shall be sufficient cause for termination of the Lease at the option of
Landlord. Wherever any provision of these rules and regulations is inconsistent
with any provision of the Lease and/or any Work Agreement entered into between
Landlord and Tenant, the provisions of the Lease and the Work Agreement shall
control. In particular, the parties recognize that Tenant will be constructing
improvements within the Premises.
1) Sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls or other parts of the Building not
occupied by any tenant shall not be obstructed or encumbered by
any tenant or used by tenant for any purpose other than ingress
and egress to and from the Premises. Landlord shall have the right
to control and operate the public portions of the Building, and
the facilities furnished for the common use of the tenants, in
such manner as Landlord deems best for the benefit of the tenants
generally. No tenant shall permit the visit to the Premises of
persons in such numbers or under such conditions as to interfere
with the use and enjoyment by other tenants or the entrances,
corridors, elevators, and other public portions or facilities of
the Building.
2) No awning or other projections shall be attached to the outside
walls of the Building without the prior written consent of
Landlord. No drapes, blinds, shades or screens shall be attached
to or hung in, or used in connection with, any window or door of
the Premises without the prior written consent of Landlord. Such
awnings, projections, curtains, blinds, shades, screens, or other
fixtures must be of a quality, type, design and color, and
attached in the manner approved by Landlord.
3) No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any tenant visible
outside of the Premises or the Building without the prior written
consent of Landlord. In the event of the violation of the
foregoing by Tenant, Landlord may remove same without any
liability and may charge the expense incurred by such removal to
the tenant or tenants violating this rule. Signs on directory
tablet shall be inscribed or affixed for each tenant by Landlord
at the expense of such tenant, and shall be of a size, color, and
style acceptable to Landlord.
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<PAGE> 51
4) No show cases or other articles shall be put in front of or
affixed to any part of the exterior of the Building, nor placed in
the Mall, Plaza or other Common Areas, without the prior written
consent of Landlord.
5) The water and wash closets and other plumbing fixtures shall not
be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other substances
shall be thrown therein. All damages resulting from any misuse of
the fixtures shall be borne by the tenant who, or whose servants,
employees, agents, visitors or licensees, shall have caused the
same.
6) There shall be no marking, painting, drilling into or in any way
defacing any part of the Premises or the Building. No boring,
cutting or stringing of wires shall be permitted. Tenant shall not
construct, maintain, use or operate within the Premises or
elsewhere within or on the outside of the Building, any electrical
device, wiring or apparatus in connection with a loud speaker
system or other sound system that can be heard outside the
Premises.
7) No bicycles, vehicles, or animals, birds or pets of any kind
except guide dogs shall be brought into or kept in or about the
Premises. No tenant shall cause or permit any unusual or
objectionable odors to be produced upon and permeate from the
Premises.
8) No space in the Building shall be used for manufacturing or the
sale of merchandise, goods or property or any kind at auction.
9) No tenant shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this
or neighboring buildings or premises of those having business with
them whether by the use of any musical instrument, radio, talking
machines, unmusical noise, whistling, singing or in any other way.
No tenant shall throw anything out of the doors or windows or down
the corridors or stairs.
10) No inflammable, combustible or explosive fluid, chemical or
substance shall be brought or kept upon the Premises.
11) No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by any tenant, nor shall any changes be
made in existing locks or the mechanism thereof without the prior
written consent of Landlord which shall not be unreasonably
withheld or delayed. The doors leading to the corridors or main
halls shall be kept closed during business hours, except as they
may be used for ingress and egress. Each tenant shall, upon the
termination of his tenancy, restore to Landlord all keys of
stores, offices, storage and toilet rooms either furnished to or
otherwise procured by such tenant, and in the event of the loss of
any keys so furnished, said tenant shall pay to Landlord the cost
thereof.
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12) All removals, or carrying in or out of any safes, freight,
furniture, merchandise, goods or bulky matter of any description
must take place during the hour which Landlord or its agent may
determine from time to time through delivery entrances designated
by Landlord. Landlord reserves the right to inspect all freight to
be brought into the Building and to exclude from the Building all
freight which violates any of these Rules and Regulations or the
Lease of which these Rules and Regulations are a part.
13) Any person employed by any tenant to do janitor work within the
Premises must obtain Landlord's consent and such person shall,
while in the Building and outside of said Premises, comply with
all instructions issued by the Superintendent of the Building. No
tenant shall engage or pay any employees on the Premises, except
those actually working for such tenant on said Premises.
14) Landlord shall have the right to prohibit any advertising by any
tenant which, in Landlord's reasonable opinion, tends to impair
the reputation of the Building or its desirability, and upon
written notice from Landlord, Tenant shall refrain from or
discontinue such advertising.
15) Landlord reserves the right to exclude from the Building at all
times any person who is not known or does not properly identify
himself to the Building management or watchman on duty. Landlord
may, at his option, require all persons admitted to or leaving the
Building between the hours of 6:00 p.m. and 8:00 a.m., Monday
through Friday, and on Saturdays, Sundays and legal holidays, to
register. Each tenant shall be responsible for all persons for
whom he authorizes entry into or exit out of the Building, and
shall be liable to the Landlord for all acts of such persons.
16) The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purposes.
17) No tenant shall occupy or permit any portion of the Premises to be
used or occupied as an office for a public stenographer or typist,
or for the possession, storage, manufacture or sale of narcotics
in any form, or as a barber or manicure shop, or as an employment
bureau, unless said tenant's lease express grants permission to do
so. No tenant shall advertise for laborers giving an address at
the Premises.
18) Each tenant, before closing and leaving the Premises at any time,
shall see that all windows are closed and all lights turned off.
19) The requirements of tenants will be attended to only upon
applications at the office of the Building. Employees shall not
perform any work or do anything outside of
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their regular duties, unless under special instruction from the
management of the Building.
20) Canvassing, soliciting and peddling in the Building is prohibited
and each tenant shall cooperate to prevent the same.
21) No water cooler, plumbing or electrical fixtures shall be
installed by any tenant, except pursuant to the Work Agreement or
with Landlord's express consent.
22) There shall not be used in any space, or in the public halls of
the Building, either by any tenant or by jobbers or others, in the
delivery or receipt of merchandise, any hand trucks, except those
equipped with rubber tires and side guards.
23) Access plates to underfloor conduits shall be left exposed. Where
carpet is installed, carpet shall be cut around access plates.
24) Mats, trash or other objects shall not be placed in the public
corridors.
25) Landlord does not maintain suite finishes which are nonstandard,
such as kitchens, bathrooms, wallpaper, special lights, etc.
However, should the need for repairs arise, Landlord will arrange
for the work to be done at tenant's expense.
26) Drapes installed by Landlord for the use of tenant or drapes
installed by tenant which are visible from the exterior of the
Building must be cleaned by tenant at tenant's expense as required
to maintain an image consistent with a first-class building.
Landlord may, upon request by any tenant, waive the compliance by such
tenant with any of the foregoing rules and regulations, provided that (a) no
waiver shall be effective unless signed by Landlord or Landlord's authorized
agent, (b) any such waiver shall not relieve such tenant from the obligation to
comply with such rule or regulation in the future unless expressly consented to
by Landlord, and (c) no waiver granted to any tenant shall relieve any other
tenant from the obligation of complying with the foregoing rules and regulations
unless such other tenant has received a similar waiver in writing from Landlord.
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