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EXHIBIT 10.16
SUBLEASE AGREEMENT
This Sublease Agreement (this "Sublease"), is made as of the 25th day of June,
1996 by and between XXXXX INDUSTRIES, INC., a Michigan corporation
("Sublessor"), and DIGITAL COMMERCE CORPORATION, a Delaware corporation
("Sublessee").
RECITALS
A. By Office Lease dated June 23, 1989, with attached Riders 1-4, as
amended by that certain First Amendment To Lease dated September 13, 1989, and
that certain Second Amendment To Lease dated August 10, 1990 (collectively, the
"Xxxxxxxxx"), 3B Limited Partnership, a Virginia limited partnership ("Lessor"),
leased to Xxxxx Aerospace, Inc., a Michigan corporation, as lessee, the Demised
Premises (defined below) located in the office building at 00000 Xxxxxxx Xxxxxx
Xxxxx, Xxxxxx, Xxxxxxxx (the "Building"), at the rent and upon and subject to
the terms and conditions set forth in the Xxxxxxxxx.
B. Sublessor is successor by merger to Xxxxx Aerospace, Inc. under the
Xxxxxxxxx.
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C. CarrAmerica Realty Corporation (formerly known as Xxxx Realty
Corporation) is successor by purchase to 3B Limited Partnership under the
Xxxxxxxxx.
D. Sublessee desires to sublet from Sublessor all of the Demised
Premises and to lease certain furniture and furnishings currently located in the
Demised Premises, and Sublessor desires to sublet the Demised Premises and to
lease certain furniture and furnishings to Sublessee, at the rent and upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the mutual promises
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, for themselves,
their successors and assigns, mutually covenant and agree as follows:
1. Demised Premises and Furnishings.
(a) Demised Premises. Sublessor does hereby sublease to Sublessee, and
Sublessee does hereby sublease from Sublessor, for the Term (defined
hereinafter) and upon the conditions hereinafter provided, approximately 21,630
rentable square feet (the "Demised Premises"), which has been determined and
certified in accordance with the 1989 Washington, D.C. Association of Realtors
Standard Method of Measurement (the "Standard"), comprising the entire Fourth
(4th)
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Floor of the Building, less and except an area located in the computer room (the
"Reserved Space") to be reserved and made accessible to Sublessor on the terms
and conditions set forth herein. The Demised Premises is the Floor Plan attached
hereto and made a part hereof as Exhibit A. The Reserved Space is noted on
Exhibit A. During the term of this Sublease, Sublessor shall have access to and
exclusive use of the Reserved Space. Sublessor shall be provided access to the
Reserved Space twenty-four (24) hours a day under a procedure where an
authorized representative of Sublessor will telephone the reception desk of
Sublessee, to arrange for supervised access to the Reserved Space. Sublessor
shall provide to Sublessee from time to time a written list of its authorized
representatives for this purpose. Sublessor recognizes the need of Sublessee for
security in the Demised Premises, and agrees not to access the Reserved Space
other than by the foregoing method except in an emergency where telephone
contact cannot be made with Sublessee. Sublessee shall cooperate with Sublessor
to facilitate supervised access to the Reserved Space as reasonably requested by
Sublessor. The initial list of Sublessor's authorized representatives is
included as Exhibit C to the Sublease.
(b) Furnishings. Sublessor hereby leases to Sublessee during the Term
all the furniture and furnishings owned by Sublessor and located in the Demised
Premises, as designated on Exhibit B attached hereto and made a part hereof (the
"Furnishings") Sublessee leases the Furnishings in their "as-is" condition and
agrees that all of the Furnishings described on
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Exhibit B shall remain on the Demised Premises at all times with title to the
furnishings remaining with Sublessor.
Upon termination of the lease, Sublessee shall return all the
Furnishings as described on Exhibit B to Sublessor and shall, in addition to any
other obligations owing to Sublessor, pay Sublessor for any Furnishings which
are missing or which have been damaged or destroyed during the term of the
Sublease, normal wear and tear expected. The amount to be paid by Sublessee
shall be the fair market value of such missing, damaged or destroyed Furnishings
at the time of termination of the Sublease determined by catalog or fair market
price as though they were not missing, damaged or destroyed. In the event the
parties are unable to agree upon the replacement value of the furnishings, the
Sublessor and Sublessee shall select an appraiser mutually acceptable to them
and such appraiser's determination of value shall be final and binding upon both
parties.
Notwithstanding any provision of this Sublease to the contrary, the
Furnishings are at all tunes subject to the lien rights of Landlord pursuant to
Paragraph 33 of the Xxxxxxxxx entitled "Lien on Personal Property."
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2. Term. The term of this Sublease (the "Term") shall commence on July
1, 1996 (the "Sublease Commencement Date"), and shall end on (i) July 22, 2000,
or (ii) the date upon which the Term may be terminated pursuant to any of the
conditions or limitations or other provisions of this Sublease or by operation
of law.
3. Base Rent. The annual base rent, which Sublessee hereby agrees to
pay to Sublessor and Sublessor hereby agrees to accept shall be a sum equal to
the product of Eighteen Dollars and Fifty Cents ($18.50) multiplied by the
number of rentable square feet (21,630), as certified pursuant to the Standard,
in the Demised Premises (the "Base Rent"). The parties hereby agree that the
Base Rent shall be comprised of the following three elements: (a) rent for the
Demised Premises, $15.63 (b) rent for the Furnishings, $2.75, and (c) Virginia
Sales Tax, $0.12. Notwithstanding this allocation, the entire Base Rent amount
shall be subject to the Annual Base Rent Escalation as set out in Section 4
below. The Base Rent shall be inclusive of Real Estate Taxes and all other
Operating Costs (as such terms are defined in the Xxxxxxxxx). The obligation of
Sublessee to pay Base Rent shall begin on the Sublease Commencement Date. The
annual Base Rent payable during each Sublease Year, as hereinafter defined,
shall be divided into twelve (12) equal monthly installments and such monthly
installments shall be due and payable in advance, on the first day of each month
during each Sublease Year. For the purposes of this Sublease, the term "Sublease
Year" shall mean a period of twelve (12) consecutive months, commencing on the
Sublease Commencement Date, and each successive twelve (12) month
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period thereafter, except that, if the Sublease Commencement Date is a day other
than the first day of a month, then the first Sublease Year shall commence on
the Sublease Commencement Date and shall continue for the balance of the month
in which the Sublease Commencement Date occurs and for a period of twelve (12)
consecutive calendar months after the last day of such month. If the Sublease
Commencement Date is a day other than the first day of a month, then, in the
first Sublease Year, said twelve (12) installments shall be payable beginning on
the first day of the calendar month immediately following the month in which the
Sublease Commencement Date occurs and, in addition, on the Sublease Commencement
Date, a payment of Base Rent shall be payable in an amount equal to the product
of the annual Base Rent then in effect and a fraction, the numerator of which is
the number of days of the Sublease Term in the month in which the Sublease
Commencement Date occurs, and the denominator of which is 365. The monthly Base
Rent, Additional Rent (as defined herein), and any other charges herein reserved
or payable shall be paid to Sublessor by wire transfer to the account of: Xxxxx
Industries Inc, Account Number 3900-0956 Citibank NY, ABA #000-000-000 with
written confirmation of such transfer to the Sublessor at its offices in the
Building, Attention: Xx. Xxxxx Xxxxx or at such other place as Sublessor may
designate in writing, in lawful money of the United States of America, without
demand therefor and without any deduction, setoff or abatement whatever, except
as expressly provided in this Sublease. In the event that Sublessee does not
remit any payment due under this Sublease to Sublessor within seven (7) calendar
days of when it is due, such amount shall be subject to a late fee of 5% of the
amount.
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4. Annual Base Rent Escalation. The annual Base Rent shall be
increased, effective as of the first day of each succeeding Sublease Year after
the first Sublease Year, by an amount equal to Three Percent (3%) of the annual
Base Rent in effect during the Sublease Year preceding the applicable adjustment
without regard to abatement. The attached Exhibit D, incorporated herein by this
reference, sets forth the annual Base Rent during the Term.
5. Additional Rent. Beginning on the first day of the second (2nd)
Sublease Year, and on the first day of each Sublease Year thereafter, Sublessee
agrees to pay to Sublessor, as additional rent under this Sublease, Sublessor's
Pro-Rata Share (defined below) of increases in the Real Estate Taxes and
Operating Costs (as such terms are defined in the Xxxxxxxxx), over the Real
Estate Taxes and Operating Costs for calendar year 1996, grossed-up to reflect
that the Building was a fully leased and fully assessed building for Real Estate
Taxes and Operating Expenses throughout calendar 1996 and each of the Sublease
Years being compared (the "Additional Rent"). Any Additional Rent which may be
payable to Sublessor in any Sublease Year shall be apportioned such that
Sublessee shall be obligated to pay to Sublessor a proportionate share of such
Additional Rent which is attributable to the number of days in the Sublease
Year. For the purpose of this Sublease, Sublessor and Sublessee agree that
Sublessor's Pro-Rata Share is equal to a fraction, the numerator of which is the
number of rentable square feet in the Demised Premises, and the denominator of
which is the number of rentable square feet in the Building. Sublessee shall
also pay to Sublessor, or Lessor as Additional Rent, all charges
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for any additional services provided by Sublessor or Lessor to Sublessee and not
provided for or allocated in this Sublease or in the Xxxxxxxxx.
6. Building Services, Parking, Security.
(a) Services. Building cleaning services, electrical and lighting
service, water and sewer service, and heating, ventilation and air-conditioning
will be provided to Sublessee in accordance with Lessor's obligations to
Sublessor under Paragraph 16 of the Xxxxxxxxx. Sublessee shall be allowed access
to the Building and the Demised Premises twenty-four (24) hours per day, seven
(7) days per week. At least one (1) elevator shall be in use and available for
Sublessee's use at all times. Sublessee shall observe Lessor's requirements
related to moving construction materials, furnishings and equipment into or out
of the Demised Premises and the Building. Sublessor shall use its best efforts
to have Lessor provide Sublessee with a listing on the monument sign in front of
the Building at Sublessee's expense and in the Building directory, at no
additional cost to Sublessee.
(b) Parking. Sublessor shall allocate to and allow Sublessee to use, at
no additional cost to Sublessee, 78 of Sublessor's allocation of unreserved
surface parking spaces in the Building's covered parking structure and/or
surface parking lot. Sublessor shall allocate to and allow Sublessee exclusive
use of the six (6) reserved, covered, and marked parking spaces allocated to
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the Sublessor in the parking structure shown on Exhibit E attached hereto as
part of the parking allocation hereunder at no additional cost to Sublessee.
Sublessor shall furnish six (6) reserved parking signs at Sublessee's expense,
if any. The Building parking structure and lot will be accessible to Sublessee
twenty-four (24) hours per day, seven (7) days per week.
(c) Security. Sublessor will cause Lessor to provide an electronic card
or key access system for Sublessee's use, monitored at all Building entrances,
and elevators in accordance with Paragraph 16 of the Xxxxxxxxx. Such access
cards and keys for this system shall be provided to Sublessee in a reasonable
quantity as requested by Sublessee. The first fifty (50) such access cards and
keys shall be provided at the Sublessor's expense. All subsequent cards and keys
shall be provided at the Sublessee's expense. Sublessee shall be responsible for
maintaining an accurate listing of all electronic cards or keys provided to
employees. All costs associated with the granting and maintaining of the
electronic card or key access system shall be the responsibility of the
Sublessee.
7. Deposit. Upon execution of this Sublease, Sublessee shall deposit
with Sublessor the sum of one (1) month's Base Rent. The deposit provided herein
shall be considered as partial security for the payment and performance by
Sublessee of all of Sublessee's obligations, covenants, conditions and
agreements under this Sublease. Upon expiration of the Term, the security
deposit, less any legitimate claims of Sublessor against Sublessee with respect
to this
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Sublease, shall be promptly refunded to Sublessee within thirty (30) days. As
additional security, for the Sublease, Sublessee shall supply Sublessor within
forty-five (45) days of the effective date of the Sublease, a letter of credit
in a form and from an institution reasonably acceptable to Sublessor in the
amount equal to six (6) months of base rental payments to be held for the
duration of the Sublease Term. Provided, however, that if Sublessee is not in
default at the end of the thirty-sixth (36th) month, said letter of credit shall
be reduced by one-half. Whenever Sublessee shall be in default for thirty (30)
days or more, Sublessor shall be entitled to retain the security deposit and the
proceeds from the letter of credit and to demand new security deposits/letter of
credit be put into place.
Further, Sublessee's letter of credit may be released in its entirety
immediately upon Sublessee's ability to achieve and maintain a minimum Net Worth
(as defined below) of $40,000,000, and upon Sublessee's filing of the financial
statements, reports, and information with the Sublessor as described below. If
the Net Worth should fall below $40,000,000 once the letter of credit is
released, the Sublessee shall reinstate such letter of credit. The calculation
of Net Worth must be to the satisfaction of the Sublessor in accordance with the
standards set forth below:
For the purposes of this Sublease, Net Worth shall mean, as of any date as of
which the amount thereof is to be determined, all amounts in respect of the
Sublessee's capital stock, plus the amounts of additional paid in capital,
retained earnings and other items designated as part of the
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Sublessee's stockholders' equity all of which would appear as such on a
consolidated balance sheet of the Sublessee, less the amounts of goodwill or
other intangible assets of the Sublessor, all as of such date prepared in
accordance with US Generally Accepted Accounting Principles (GAAP).
The Sublessee shall furnish to the Sublessor, the following financial
statements, reports, and information:
a) promptly when available and in any event within 90 days after the
close of each fiscal year:
i) consolidated balance sheet at the close of such fiscal year,
and consolidated statements of operations, stockholder's equity
and of cash flow for the fiscal year, of the Sublessee and its
consolidated Subsidiaries certified without qualification, by
Ernst & Young or other independent public accountants of
nationally recognized standing selected by the Sublessee.
ii) a letter report of such accountants at the close of such
fiscal year certifying the amount of Net Worth as defined under
this Sublease.
b) promptly when available and in any event within 30 days after the
close of each of the first three fiscal quarters of each fiscal year,
an unaudited consolidated balance sheet at the close of such fiscal
quarter and unaudited consolidated statements of operations,
stockholder's equity, and cash flows for the period commencing
immediately after the
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close of the previous fiscal year and ending with the close of such
fiscal quarter, of the Sublessee and its consolidated subsidiaries
certified as to fairness and accuracy of presentation and compliance
and consistency with GAAP by the chief accounting or financial officer
of the Sublessee.
c) Simultaneously with the delivery of the financial statements
referred to in b) above, a certificate of the chief accounting or
financial officer of the Sublessee setting forth in reasonable detail
whether the Sublessee was in compliance with the Net Worth requirement
on the date of such financial statements and certifying that no
default exists on the date of delivery of such certificate.
8. Use. Sublessee will use and occupy the Demised Premises solely for
general office purposes and ancillary uses and in accordance with the uses
permitted under the Zoning Ordinance of Fairfax County, Virginia. Without the
prior written consent of Lessor and Sublessor, the Demised Premises will not be
used for any other purposes. Sublessee hereby agrees to use the Demised Premises
in accordance with the Rules and Regulations of the Xxxxxxxxx appended hereto as
Exhibit F and incorporated by this reference.
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9. Subtenant Work and Alterations.
(a) Cost of Improvements. Sublessee shall accept possession of the
Demised Premises in their "as is" condition as of the date of this Sublease,
provided however, Sublessor represents to the best of its knowledge that all
building systems are in good working order at the time of execution. Sublessee
recognizes that there are no telephone or computer networking systems in the
Demised Premises. Sublessee shall pay for the cost of planning, design,
demolition and construction of improvements to the Demised Premises, to include
all architectural and engineering services associated therewith (the "Subtenant
Work"), whether performed by Lessor's or Sublessor's independent contractors.
(b) Design of Subtenant Work. Following Sublessee's delivery of plans
for the Subtenant Work (the "Subtenant Work Plan"), Sublessee shall provide a
list of proposed contractors selected by Sublessee to perform the Subtenant Work
to Sublessor and Lessor for approval, Sublessor shall use its best efforts to
obtain immediate written consent for approval to perform from Lessor the
Subtenant Work. Sublessee shall pay any fees or reasonable out of pocket costs
incurred in obtaining the consent from Lessor. The consent from Lessor will be
based upon the Subtenant Work Plan's conformance to the requirements of the
Zoning Ordinance of Fairfax County, Virginia, the contractors being properly
licensed and experienced, and upon the conditions contained in the Xxxxxxxxx.
The consent of Lessor, once obtained, shall be deemed to include the consent of
Sublessor.
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(c) Construction of Subtenant Work. Sublessee shall cause the Subtenant
Work to be constructed in accordance with the Subtenant Work Plan and the
Xxxxxxxxx, and in accordance with all applicable building codes of the Town of
Reston, County of Fairfax, State of Virginia, and any applicable Federal code
including, but not limited to, the American Disabilities Act.
(d) Alterations. Except as otherwise expressly provided in the
Subtenant Work Plan, Sublessee shall not make any alteration, improvement, or
installation other than corrective, cosmetic or decorative improvements
hereinafter called ("Alterations") in or to the Demised Premises, without in
each instance obtaining the prior written consent of Sublessor and Lessor (which
consent of Sublessor shall not be unreasonably withheld, conditioned or
delayed). With reasonable notice to Sublessee, Lessor and Sublessor shall at all
times upon reasonable notice during normal business hours have the right to
inspect the work performed by any contractor selected by Sublessee to perform
the Subtenant Work and any Alterations.
10. Restoration. Upon the expiration of the Term of this Sublease,
Sublessee shall surrender the Demised Premises in good condition, subject only
to reasonable wear and tear.
11. Enforcement of Xxxxxxxxx. Except as otherwise expressly provided
herein, all of the terms, provisions, covenants and conditions of this Sublease
are subject to the Xxxxxxxxx. In the event of a conflict between the Terms of
this Sublease agreement and the Xxxxxxxxx, the Terms
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of the Xxxxxxxxx shall apply. Sublessor and Sublessee shall each observe and
perform all of the terms, covenants and conditions hereunder. Sublessor shall
observe and perform all applicable terms, covenants and conditions as tenant
under the Xxxxxxxxx with respect to the Demised Premises; and Sublessee shall
observe and perform all applicable terms, covenants and conditions of the
Xxxxxxxxx with respect to the Demised Premises to which Sublessee at the sole
discretion of Sublessor may be subrogated in performing its obligations under
this Sublease. Sublessee shall obtain and maintain all insurance types and
coverages as specified in the Xxxxxxxxx to be obtained and maintained by
Sublessor as "Tenant" in amounts not less than those specified in the Xxxxxxxxx.
All policies of Sublessee shall name Lessor and its Agent as additional insureds
thereon in accordance with the Xxxxxxxxx, and Sublessee's insurance shall be
primary over Lessor's, Agent's and Sublessor's. Except for Riders 1 through 4 to
the Xxxxxxxxx and as otherwise set out in this Sublease, Sublessor agrees to
subrogate Sublessee to the rights and privileges of Sublessor under the
Xxxxxxxxx, and agrees to furnish for Sublessee the following services,
including, without limitation, the furnishing of electrical, lighting, heating,
Building standard ventilation and air-conditioning, water and sewer, elevator
service, cleaning, window washing, and rubbish removal services, which include
all services of which Lessor is obligated to furnish to Sublessor pursuant to
the Xxxxxxxxx. Sublessor shall use its best efforts to obtain and enforce the
full performance by Lessor pursuant to the terms of the Xxxxxxxxx.
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12. Covenants and Warranties.
(a) Sublessor's Covenants. Sublessor covenants, warrants and agrees not
to do or omit to do anything which would constitute a default under the
Xxxxxxxxx, including without limitation anything which Sublessor is obligated to
do under the terms of this Sublease.
(b) Sublessee's Covenants. Sublessee covenants and agrees not to do or
omit to do anything which would constitute a default under the Xxxxxxxxx,
including without limitation anything which Sublessee is obligated to do under
the terms of this Sublease.
(c) Warranty of No Default. Sublessor warrants and represents to
Sublessee that the Xxxxxxxxx has not been amended or modified except as
expressly set forth in the recitals above, that there is no cross-default or
other contractual relationship between the Xxxxxxxxx and Sublessor's lease
covering the Third Floor at the Building, that Sublessor is the tenant by
operation of law (merger) from its affiliated Xxxxx Aerospace, Inc., under the
Xxxxxxxxx and has full capacity to enter into and perform under this Sublease,
that this Sublease will be binding and fully enforceable against Sublessor, that
Sublessor is not now, and as of the Sublease Commencement Date will not be, in
default or breach of any term, condition or provision of the Xxxxxxxxx, and that
Sublessor has no knowledge of any claim by Lessor that Sublessor is in default
or breach of the Xxxxxxxxx.
13. Brokers. Sublessor and Sublessee hereby represent and warrant to
the other that neither of them has employed or dealt with any broker in
connection with this Sublease for the
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Demised Premises other than the firms of Xxxxx & Xxxxx and The Irving Group
(representing Sublessee), and each hereby agrees to indemnify and hold harmless
the other against any claim by any other broker, agent or finder with whom the
Indemnitor has dealt. Sublessor shall be responsible for the payment of the
brokers' commissions to Xxxxx & Xxxxx.
14. Indemnification. Sublessor and Sublessee each shall and hereby does
indemnify and hold the other and Lessor harmless from and against any and all
actions, claims, demands, damages, liabilities and expenses (including, without
limitation, reasonable attorneys' fees) asserted against, imposed upon or
incurred by the other or Lessor by reason of (a) any violation caused, suffered
or permitted by the Indemnitor, its agents, servants, employees or invitees, of
any of the terms, covenants or conditions of the Sublease or the Xxxxxxxxx and
(b) any damage or injury to persons or property occurring upon or in connection
with the Building, including without limitation, the Demised Premises, except as
a result of the acts or omissions of the Indemnitor, or its respective agents,
employees or invitees.
15. Signage. Sublessee shall have the right, at its sole expense, to
install signage on the west side of the Building viewable from the Dulles Access
Road and Virginia Route 267, replacing the existing Xxxxx sign, subject only to
written consent by Lessor and to any governmental restrictions. Sublessor shall
use best efforts to obtain Lessor's written consent to such signage. Sublessor
and Sublessee shall coordinate the removal of the "Xxxxx" sign from the
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west side of the Building, with the installation of Sublessee's sign. Sublessee
shall be responsible for the cost of installing its sign and for the cost of
removal of the Sublessor's sign. The parties will use best efforts not to damage
the Building or the Sublessor's sign.
16. Quiet Enjoyment. Sublessor covenants that it has the right to make
this Sublease for the Term and upon all of the terms and provisions hereof, and
that if Sublessee pays the Base Rent and Additional Rent and performs all of the
covenants, terms and conditions of this Sublease to be performed by Sublessee,
then Sublessee shall, during the Term, freely, peaceably and quietly occupy and
enjoy the full possession of the Demised Premises and all rights under this
Sublease granted to Sublessee, without molestation or hindrance by Sublessor,
Lessor, or any party claiming through or under either Sublessor or Lessor.
17. Entire Agreement. This Sublease contains all of the covenants,
agreements. terms, provisions, conditions, warranties and understandings between
the parties hereto relating to the subleasing of the Demised Premises. All
understandings and agreements, if any, between the parties are merged in this
Sublease, which alone fully and completely expresses the agreement of the
parties. The failure of Sublessor or Sublessee to insist in any instance upon
the strict observance or performance of any covenant, agreement, term, provision
or condition of this Sublease or to exercise any election herein contained shall
not be construed as a waiver or relinquishment for the future of such covenant,
agreement, term, provision, condition or election,
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but the same shall continue and remain in full force and effect. No waiver or
modification of any covenant, agreement, term, provision or condition of this
Sublease shall be deemed to have been made unless expressed in writing and
signed by Sublessor and Sublessee. No surrender of possession of the Demised
Premises or of any part thereof or of any remainder of the Term of this Sublease
shall release Sublessor or Sublessee from any of its obligations hereunder
unless accepted by Sublessor and Sublessee in writing.
18. Successors and Assigns. The obligations of this Sublease shall bind
and benefit the successors and permitted assigns of the parties with the same
effect as if mentioned in each instance where a party hereto is named.
19. Notices. Any and all communications delivered hereunder shall be
sent by first-class mail: if to Sublessor, Attention: Xx. Xxxxx Xxxxx in the
Building; and if to Sublessee, Attention: Mr. Xxxxxx Xxxxxx in the Building, or
to such other addresses as either of the above shall notify the other in
writing.
20. Binding Effect. The terms and provisions of this Sublease will
inure to the benefit of, and will be binding upon, the successors, assigns,
personal representatives, heirs, devises and legatees of the Sublessor and the
Sublessee.
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21. Severability. If any term, provision, covenant or condition of this
Sublease is held by a court of competent jurisdiction to be invalid, void or
unenforceable, such term, provision, covenant or condition shall be interpreted
so as to be enforceable to the fullest extent permitted by law, and the
remaining terms, provisions, covenants and conditions contained herein shall not
be affected thereby.
22. Headings. The headings of the sections and subsections used in this
Sublease are inserted for the convenience of reference only and are not intended
to affect the meaning or interpretation of this Sublease.
23. Governing Law. This Sublease shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia.
24. Lessor's Consent. This Sublease shall be effective upon the date
Sublessee receives written consent to this Sublease by Lessor. It is hereby
acknowledged by Sublessor and Sublessee that Lessor's consent to this Sublease
shall not make Lessor or its Agent, Xxxx Real Estate Services Partnership (or
Agent's subcontractor, Xxxx Real Estate Services, Inc.) a party to this
Sublease, shall not create any contractual liability, privity or duty on the
part of Lessor or its Agent to the Sublessee, and shall not in any manner
increase, decrease, modify or otherwise
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affect the rights and obligations of Lessor and Sublessor, as "Tenant" under the
Xxxxxxxxx, in respect to the Demised Premises.
25. Payment of Fees. In the event either Sublessor or Sublessee shall
commence an action against the other (including collections under bankruptcy) in
respect to this Sublease, the losing party shall pay the prevailing party all of
its reasonable costs and expenses in connection with such action, including but
not limited to reasonable attorney fees.
26. Sublessor's Right to Terminate. Upon thirty (30) days written
notice to Sublessee, Sublessor shall have the right at any time to terminate the
Sublease after the end of the third (3rd) month in the event Sublessee fails to
achieve and maintain a Net Worth of $5,000,000 initially and $10,000,000 at all
times after the completion of Digital Commerce Corporation's initial public
offering.
For purposes of this paragraph, Sublessee shall provide to Sublessor,
financial statements and certifications as required in paragraphs 7(b) and 7(c)
as of and for the fiscal period ended on the date coincident with the end of the
third month of the Sublease.
IN WITNESS WHEREOF, Sublessor and Sublessee have duly executed this
Sublease under seal as of the day and year first above written.
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SUBLESSOR:
XXXXX INDUSTRIES INC., a Michigan corporation
By: (SEAL)
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Accounting Director
SUBLESSEE:
DIGITAL COMMERCE CORPORATION a Delaware
corporation
By: (SEAL)
------------------------------
Name: Xxxx Xxxxxx Xxxxxx
Title: Chairman/CEO
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This Sublease is consented to by Lessor upon the terms and conditions
acknowledged by Sublessor and Sublessee in the Paragraph of this Sublease
entitled "Lessor's Consent" and in accordance with the terms and conditions of
the Xxxxxxxxx. Lessor's consent shall be required for an assignment of this
Sublease or any further subleasing of the Demised Premises or any portion
thereof.
LESSOR:
CARRAMERICA REALTY CORPORATION, a Maryland
corporation (formerly known as Xxxx Realty Corporation)
By: (SEAL)
------------------------------
Name: Xxxxxx X. Xxxx
Title: President and COO
