Virginia-Reston-12020 Sunrise Valley Drive Lease - Reston Plaza I & II LLC and Talk.com Inc.
OFFICE LEASE
by and between
RESTON PLAZA I & II, LLC
("Landlord")
and
TALK.COM, INC.
("Tenant")
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TABLE OF CONTENTS
Section Page
1. Demise
2. Term
3. Rent
4. Permitted Use
5. Expenses
6. Additional Rent
7. Sorting and Separation of Refuse and Trash
8. Hazardous Substances
9. Insurance
10. Damage or Destruction
11. Indemnification
12. Assignment and Subletting
13. Care of Premises
14. Alteration by Tenant
15. Condemnation
16. Subordination
17. Access to Premises
18. Rules and Regulations
19. Covenants of Right to Lease
20. Mechanic's Liens
21. Expiration of Lease and Surrender of Possession
22. Default-Remedies
23. Re-Entry by Landlord
24. Additional Rights to Landlord
25. Successors, Assigns and Liability
26. Notices
27. Mortgagee's Approval
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28. Estoppel Certificates
29. Default Rate of Interest
30. Exculpatory Provisions
31. Mortgage Protection
32. Reciprocal Covenant on Notification of ADA Violations
33. Laws that Govern
34. Financial Statements
35. Parking
36. Signage
37. Recordation
38. Force Majeure
39. Intentionally Omitted
40. Brokers
41. Confidentiality
42. Lease/Deed of Lease
43. Miscellaneous
EXHIBIT A - Premises
EXHIBIT B - Improvements
EXHIBIT C - Declaration of Lease Commencement
EXHIBIT D - Rules and Regulations
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OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT ("Lease") is made by and between RESTON PLAZA I &
II, LLC, whose address for the purpose of this Lease shall be 801 Grand Avenue,
Des Moines, Iowa 50392-1360, hereinafter referred to as "Landlord", and
TALK.COM, INC., whose address for the purpose of this Lease shall be 12020
Sunrise Valley Drive, Reston, Virginia, 20191 hereinafter referred to as
"Tenant".
IT IS AGREED AS FOLLOWS:
1. DEMISE
Landlord does hereby lease to Tenant and Tenant does hereby lease from
Landlord the premises consisting of (a) 4,842 square feet of net rentable
area known as Suite #210 (sometimes referred to herein as "Suite #210") and
(b) 3,723 square feet of net rentable area known as Suite #250 (sometimes
referred to herein as "Suite #250") (collectively, the "Premises"), each
located in the property known as Reston Plaza II at 12020 Sunrise Valley
Drive, Reston, Virginia ("Property"). The Premises is located within the
Property specifically identified on the plan attached hereto and marked
Exhibit "A" as incorporated herein by reference. The Premises does not
include the roof or exterior surfaces of the walls of the Premises or the
Property, or any improvements or areas outside of such walls, all of which
are reserved for Landlord's exclusive use. Tenant shall have the
non-exclusive right to use the common areas of the Property, as designated
by Landlord, in common with other tenants of the Property.
Improvements. Any improvements to the Premises required by virtue of this
Lease are set forth in Exhibit "B", which is attached hereto and made a
part hereof by reference ("Improvements"). The total cost for the
Improvements including, but not limited to space planning, construction
drawings, furniture, fixtures, equipment, the actual construction and
construction management is to be paid by Landlord up to a maximum amount of
$31,262.25 ($3.65 per square foot of the Premises) ("Allowance"). In the
event the total cost of the Improvements exceeds the Allowance
("Improvement Overage"), Tenant shall pay to Landlord any Improvement
Overage advanced by Landlord within five (5) days of demand by Landlord.
Notwithstanding anything to the contrary herein, this Lease shall not
become effective unless and until Landlord has entered into a Lease
Termination Agreement with Cybermation, Inc. with respect to Suite #210, on
terms and conditions satisfactory to Landlord. Landlord with use reasonable
efforts to complete the Lease Termination Agreement on or before the Suite
#210 Commencement Date.
2. LEASE TERM.
With respect to Suite #210, the term of this Lease shall be for a period of
sixty seven (67) months, commencing on the 1st day of May, 2000 (the "Suite
#210 Commencement Date"), and with respect to the 3,723 square feet
comprising Suite #250 of the Premises, the term of this Lease shall
commence on December 1, 2000 (the "Suite #250 Commencement Date"), and
ending for the entire Premises at midnight on the 30th day of November,
2005 ("Lease Term"). If for any reason Landlord cannot deliver possession
of Suite #210 to the Tenant on or before the Suite #210 Commencement Date,
or cannot deliver possession of Suite #250 to the Tenant on or before the
Suite #250 Commencement Date, Tenant shall not be obligated to pay Rent for
a suite comprising part of the Premises until possession of such suite is
tendered to Tenant. In such event, the Lease Term shall be extended so that
the term remains 67 months. If the Premises is delivered on a date other
than the first day of the month, Rent for that month shall be prorated and
the Lease Term shall be extended so that the term shall be 67 months from
the first day of the following month. In the event that delivery of
possession results from Tenant's failure to perform work for which Tenant
is responsible, or Tenant fails to furnish or approve the plans and
specifications as provided above, or fails to make timely selections of
materials, color choices or other matters for which Tenant is responsible,
Rent and Additional Rent shall, nonetheless, commence on the Commencement
Date. If Tenant occupies the Premises prior to the Commencement Date, such
occupancy shall be subject to all provisions hereof and shall not advance
the last day of the Lease Term, and Tenant shall pay Rent for such period
at the initial monthly rate set forth below.
At the request of Landlord, Tenant hereby agrees to execute a declaration
in the form attached hereto as Exhibit C ("Declaration") as incorporated
herein by reference. Tenant's failure to execute the Declaration
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shall not affect the Suite #210 Commencement Date, the Suite #250 Commencement
Date or the Lease Term, as the same are determined by the terms of this Lease.
3. RENT.
(A) Rent. Tenant shall pay for the use and occupancy of the Premises a
base rental ("Rent") as set forth in the following schedule:
Months Monthly Rent
------ -------------
May 1, 2000 to November 30, 2000 $11,298.00
December 1, 2000 to November 30, 2001 $20,295.25
December 1, 2001 to November 30, 2002 $20,904.11
December 1, 2002 to November 30, 2003 $21,534.38
December 1, 2003 to November 30, 2004 $22,178.92
December 1, 2004 to November 30, 2005 $22,844.88
Rent shall be paid on the first day of each month in advance without
demand, notice, deduction, offset, or counterclaim during the Lease Term.
Rent for any period during the Lease Term which is less than one month
shall be a pro rata portion of the monthly installment. Rent shall be
payable in lawful money of the United States to Landlord at the address
stated herein or to such other persons or at such other places as Landlord
may designate in writing.
(B) INTENTIONALLY DELETED.
(C) Place of Payment. Rent, Additional Rent and other sums owed by Tenant
shall be paid to Landlord at Reston Plaza I & II, L.L.C. c/o First
Tennessee Bank, PO Box 1000, Department 149, Memphis, TN 38148 or at
such place as Landlord may designate from time to time in writing.
(D) Late Charge. Tenant hereby acknowledges that late payment by Tenant of
Rent, Additional Rent or other sums due hereunder will cause Landlord
to incur costs not contemplated by this Lease. Therefore, if any
installments of Rent, Additional Rent or any other sum due from Tenant
shall not be received by Landlord within five (5) days of when such
amount is due. Tenant shall pay to Landlord a late charge of six
percent (6%) of such overdue amount for each and every month that said
amounts due hereunder are not paid or are late. Additionally, Tenant
shall pay to Landlord the Default Rate (as set forth in Section 29) on
all sums in default. Acceptance of such late charge and/or the Default
Rate by Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, or prevent Landlord from
exercising any other right or remedy available to Landlord.
(E) Receipt. Receipt is hereby acknowledged of the sum of $11,298.00 in
payment of the Rent for the first month of the Lease Term.
(F) Security Deposit. Tenant shall deposit with Landlord upon execution
hereof $40,590.50 as security for Tenant's faithful performance of
Tenant's obligations hereunder ("Security Deposit"). If Tenant fails
to pay Rent, Additional Rent or other charges due hereunder or
otherwise defaults with respect to any provision of the Lease after
any applicable notice and cure period. Landlord may use, apply or
retain all or any portion of the Security Deposit for the payment of
any Rent, Additional Rent or other charge in default or for the
payment of any other sum to which Landlord may become obligated, or
which Landlord may incur, by reason of Tenant's default, or to
compensate Landlord for any loss or damage which Landlord may suffer
thereby. If Landlord so uses or applies all or any portion of the
Security Deposit, Tenant shall within ten (10) days after written
demand therefore deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to the full amount herein above stated
and Tenant's failure to do so shall be a material breach of this
Lease. Landlord shall not be required to keep the Security Deposit
separate from its general accounts. If Tenant performs all of Tenant's
obligations hereunder, the Security Deposit, or so much thereof as has
not theretofore been applied by Landlord, shall be returned, without
payment of interest or other increment for its use, to Tenant (or at
Landlord's shall be returned, without payment of interest or other
increment for its use, to Tenant (or at Landlord's option, to the last
assignee, if any, of Tenant's interest hereunder) within sixty (60)
days of the later of (i) the last day of the Lease Term, (ii) the date
Tenant vacated the Premises, or (iii) the date Tenant has
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fulfilled all its obligations hereunder. No trust relationship is
created herein between Landlord and Tenant regarding the Security
Deposit.
Tenant hereby agrees not to look to any mortgagee as mortgagee,
mortgagee-in-possession or successor in title to the Premises for
accountability for the Security Deposit unless the Security Deposit
has actually been received by said mortgagee as security for Tenant's
performance of this Lease. Landlord may deliver the Security Deposit
to any purchaser of Landlord's interest in the Premises, and thereupon
Landlord shall be discharged from any further liability with respect
to the Security Deposit.
(G) Pro Rate Share. Tenant's pro rata share is 9.90% with respect to Suite
#210 and 7.62% with respect to Suite #250, for a collective pro rata
share of 17.52% ("Pro Rata Share").
4. PERMITTED USE.
Tenant covenants that the Premises will be used solely for general office
purposes ("Permitted Use"). Tenant further covenants that the Premises will
not be used or occupied for any unlawful purposes. Tenant agrees to and
shall use the Premises solely for the purpose of conducting the Permitted
Use and for no other business or purpose. Tenant acknowledges that the
Permitted Use is not a use granted exclusively to Tenant and that Landlord
reserves the right to lease premises in the Property to others for the same
or a similar permitted use. Tenant further acknowledges that it has
received no written or oral inducements from Landlord or any of Landlord's
representatives concerning this Lease (other than as specifically set forth
herein) or that Tenant will be granted any such exclusive rights. Tenant
shall not commit or allow to be committed any waste upon the Premises, or
any public or private nuisance or any other act or thing which disturbs the
quiet enjoyment of any other tenant in the Property.
5. EXPENSES.
(A) Taxes
(1) Landlord shall pay all taxes applicable to the Property which are
payable during the Lease Term.
(2) As used herein, the term "taxes" shall mean real estate taxes,
assessments (whether general or special), sewer rents, rates and
charges, transit and transit district taxes, taxes based upon the
receipt of Rent or other payments hereunder, and any other
federal, state or local governmental charge, general, special,
ordinary or extraordinary (but not including income or franchise
taxes or any other taxes imposed upon or measured by Landlord's
income or profits, except as provided herein, or transfer and
recordation taxes), which may now or hereafter be levied,
assessed or imposed against the Property or Premises ("Taxes").
Additionally, Landlord shall have no obligation to protest Taxes,
but if Landlord does protest Taxes, the reasonable cost of such
protest shall also be deemed Taxes.
(B) Landlord shall provide insurance for the Property as set forth in
Subsection 9(A) ("Insurance"). Should Landlord choose to self-insure,
the cost of maintaining such self insurance shall be considered a part
of Insurance. In no event will the cost exceed the cost of maintaining
first dollar coverage.
(C) Landlord shall provide for the following as they relate to the
Property and the Premises: (1) trash removal and janitorial services;
(2) landscaping; (3) property management; (4) all other labor costs,
supply costs and other costs or services of any kind or nature deemed
necessary or prudent by Landlord; and (5) the maintenance, repair
and/or replacement of the Property and improvements as follows: (a)
the roof; (b) all interior and exterior components of the Property and
improvements both structural or otherwise; (c) parking lot; (d)
sidewalks, alleys and any and all access drives, including the removal
of snow and ice therefrom; (e) heating and air conditioning equipment,
lines and fixtures; (f) plumbing equipment, lines and fixtures,
including but not limited to fire sprinkler and fire control systems
(if any); (g) electrical equipment, lines and fixtures; (h) all other
utility equipment, lines and fixtures; (i) all ingress-egress doors to
the Property; (j) exterior plate glass; (k) elevator equipment, lines
and fixtures (if any); and (l) any and all other maintenance, repairs
and/or replacements to the Property and improvements deemed necessary
or prudent by Landlord during the Lease Term.
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(D) Landlord shall pay all utility bills incurred including but not
limited to water, gas, electricity, fuel, light, heat and power bills.
In the event Tenant requests and Landlord provides any of the
foregoing services or any other services to Tenant at times outside
normal working hours (any time other than 8:00 a.m. to 6:00 p.m.
Monday through Friday and 9:00 a.m. to 1:00 p.m. Saturday,
specifically excluding Sundays and Holidays), then Landlord shall have
the right to bill Tenant and Tenant agrees to pay for such additional
services at Landlord's then current rate. For purposes of this
provision, "Holidays" shall include New Year's Day, Memorial Day, July
4th, Labor Day, Thanksgiving and Christmas. Landlord shall also have
the right to require a separate meter be installed at Landlord's sole
cost and expense to meter Tenant's utility usage within the Premises.
Following installation of said meter, Tenant shall pay for such
utility usage in a timely manner to either Landlord or directly to the
utility as determined by the Landlord and the amount of Additional
Rent in respect to the Operating Expenses shall be decreased
appropriately to reflect such separate matter. Landlord shall not be
liable for any failure to furnish, or for any loss, injury or damage
caused by or resulting from any variation, interruption or failure of
utility services.
(E) Tenant, at Tenant's sole expense, shall comply with all laws, rules,
orders, ordinances, directions, regulations and requirements of
federal, state, county, and municipal authorities now in force or
which may hereafter be in force, which shall impose any duty upon the
Landlord or Tenant with respect to the use, occupancy or alteration of
the Premises. Landlord shall be responsible for compliance of the
common areas of the Property with all applicable laws, rules, orders,
ordinances, directions, regulations and requirements of federal,
state, county, and municipal authorities now in force or which may
hereafter be in force, which shall impose any duty upon the Landlord
with respect to such common areas.
(F) Notwithstanding anything to the contrary contained herein, the Tenant
will keep, maintain and preserve the Premises in a first class
condition. The Landlord, at its sole cost and expense, will provide
window washing for the interior of the Premises. At the Tenant's sole
cost and expense, the Landlord will make all interior repairs and
replacements including but not limited to interior walls, doors and
windows, floors, floor coverings, light bulbs, plumbing fixtures, and
electrical fixtures. Tenant will also reimburse to Landlord, at
Tenant's sole cost and expense, costs to repair or replace any broken
windows and/or damage to the Property or Premises caused by the
negligence or willful misconduct of the Tenant or its employees,
agents, guests or invitees during the Lease Term. Tenant shall comply
with all laws, ordinances, rules or regulations of any governmental
authority required of either the Landlord or the Tenant relative to
the repair, maintenance and replacement in the Premises.
(G) All items in Subsections 5(B), 5(C) and 5(D) shall be referred to as
"Operating Expenses". Notwithstanding anything to the Contrary set
forth herein Operating Expenses shall not include: (i) financing or
mortgage costs, including the payment of principal or interest due
under any mortgage or deed of trusts encumbering the Property; (ii)
depreciation allowance of any type; (iii) capital improvement costs,
whether principal or interest, other than the amortized costs of
improvements reasonably expected by Landlord to result in decreased
Operating Expenses; (iv) compensation paid to officers of Landlord or
its management agent or any other person or entity, to the extent that
any of such parties are above the level of asset manager; (v) costs
for which Landlord is reimbursed by any insurance required to be
carried hereunder or actually carried by Landlord; (vi) leasing
commissions, legal fees and other expenses incurred by Landlord or its
agents in connection with negotiations or disputes with tenants or
prospective tenants for the Property; (vii) costs or expenses
associated with the enforcement of any leases by Landlord; (viii)
costs or fees relating to the defense of Landlord's title or interest
in the Land or any part thereof; (ix) costs or expenses relating to
Landlord's obligations under any work letter to construct tenant
improvements; (x) allowances, concessions, permits, licenses,
inspections and other costs and expenses incurred in completing,
fixturing, renovating or otherwise improving or decorating or
redecorating space occupied by tenants (including Tenant), prospective
tenants or other occupants or prospective occupants of the Property,
or vacant leasable space at the Property, or constructing or finishing
demising walls and public corridors with respect to any such space
whether such work or alteration is performed for the initial occupancy
by such tenant or occupant or thereafter except to the extent any such
items are offered to be obtained or performed for the benefit of all
tenants of the Property; (xi) any cash or other consideration paid by
Landlord on account of, with respect to or in lieu of the tenant work
or alterations described in clause (x) above; (xii) costs incurred
solely due to a default by Landlord or any tenant of the terms and
conditions of any lease; (xiii) any
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expense for Landlord's advertising and promotional program for the
Property; (xiv) renovation of the Property made necessary by the
exercise of eminent domain; (xv) any cost for the provision of good or
services by Landlord or an affiliate of Landlord, to the extent such
costs exceeds the cost than prevailing in transactions between
unrelated parties (excluding management fees); (xvi) ground rent;
(xvii) legal fees (except for contesting any Operating Expenses or
Real Estate Taxes, and/or personnel matters relating to employees of
Landlord providing services for the Property or that are directly
related to the maintenance, operation or management of the Property);
(xviii) moving expenses costs of tenants of the Property; (xix) costs
solely arising from the presence of hazardous materials or substances
in, about or below the Property or improvements thereon in violation
of applicable law, including, without limitation, hazardous
substances, in the groundwater or soil; (xx) costs incurred by any
items to the extent of Landlord's actual receipt of funds under a
manufacturer's, materialman's vendor's or contractor's warranty; (xxi)
wages, salaries or other compensation or benefits for off-site
employees applicable to the time spent working at other buildings,
other than the Property manager; provided that, with respect to each
employee that services the Property and other buildings owned by
Landlord, a pro rata portion of such employee's salary, wages,
compensation, benefits and other employment expenses may be included
in Operating Expenses (based upon time spent by such employee in
providing services for the Property); (xxii) cots of acquisition of
sculpture, paintings, or other objects or art; and (xxiii) the rent or
expenses in lieu of rent for any on-site leasing office of Landlord at
the Property (except the management office serving the Property).
6. ADDITIONAL RENT
(A) It is understood that Rent was negotiated in anticipation that Tenant
would not be required to pay increased Rent as a result of Taxes
imposed with respect to Calendar Year 2001 ("Tax Base") or Operating
Expenses applicable to Calendar Year 2001 (the "Opex Base").
Therefore, in order that Rent payable throughout the Lease Term and
any extension thereof shall reflect this understanding, Tenant shall
pay its Pro Rata Share of Taxes in excess of the Tax Base and
Operating Expenses in excess of the Opex Base ("Tenant's Share"). As
soon as practicable each year during the Lease Term, Landlord shall
furnish to Tenant an estimate of Tenant's Share for the timeframe in
question. Tenant shall pay to Landlord the estimate for Tenant's Share
in equal monthly installments at the same time and place as Rent is to
paid. Landlord will furnish a detailed, line-item statement of the
actual Tenant's Share no later than April 1 of each year during the
Lease Term, including the year following the year in which the Lease
expires or is otherwise terminated. In the event that Landlord is, for
any reason, unable to furnish the statement of the actual Tenant's
Share within the time specified above, Landlord will furnish such
statement as soon thereafter as practicable with the same force and
effect as the statement would have had if delivered within the time
specified above. Tenant will pay to Landlord any deficiency as shown
by such statement within thirty (30) days of receipt of such
statement. Provided Tenant is not in default of this Lease, Landlord
will refund to Tenant any excess as shown by such statement within
thirty (30) days of the date of the statement. Landlord will keep
books and records showing the Operating Expenses in accordance with
generally accepted accounting principles.
(B) In the event Landlord furnishes any utility or service which is
included in Operating Expenses to less than ninety-five percent (95%)
of the rentable area of the Property because (i) the average occupancy
of the Property for the year in question was not equal to or greater
than ninety-five percent (95%), (ii) such utility or service is not
required by or provided to one or more of the tenants of the Property,
or (iii) any tenant occupant is itself obtaining or providing any such
utility or services, then Operating Expenses for such year (including
the 2001 base year) shall be adjusted to include all additional costs,
expenses and disbursements that Landlord reasonably determines would
have been incurred if Landlord had provided such utilities and
services to all tenants of the Property, and shall be allocated among
the tenants by the Landlord to reflect those costs which would have
occurred had the Property been ninety-five percent (95%) occupied
during the year in question and such utilities and services provided
to all tenants. The intent of this section is to ensure that the
reimbursement of Operating Expenses is fairly and equitably allocated
among the tenants receiving the utilities and services in question.
(C) To the extent the Property is part of a larger project or development,
Landlord shall have the right (but not the obligation) to allocate to
the Property an appropriate portion of those Operating Expenses which
are incurred with respect to the project as a whole. By way of
example, landscaping costs for a multi-building project shall be
allocated on an appropriate basis between all buildings in the
project.
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(D) Any and all payments (other than Rent) required to be made by Tenant
pursuant to this Lease shall be deemed additional Rent ("Additional
Rent"). Landlord shall have the same rights and remedies for said
payments as for Rent.
(E) If Tenant disputes the amount of Operating Expenses as set forth in
the statement from Landlord within thirty days after receipt thereof,
and providing Tenant is not then in default under this Lease, Tenant
shall have the right after written notice to have the Landlord's books
and records relating to Operating Expenses audited by a qualified
professional selected by Tenant or by Tenant itself. If after such
audit Tenant still disputes the amount of Operating Expanses, a
certification as to the proper amount shall be made by Landlord's
independent certified public accountant in consultation with Tenant's
professional, which certification shall be final and conclusive. If
such audit reveals that Operating Expenses were overstated by five
percent (5%) or more in the calendar year audited Landlord shall
reimburse Tenant for its reasonable costs in doing the audit, and
Landlord shall within thirty days after the certification pay to
Tenant the amount of any overstatement which it had collected from
Tenant. However, if such certification does not show that Landlord had
made such an overstatement then Tenant shall pay both the costs of its
professional as well as the reasonable charges of Landlord's
independent certified public accountant engaged to determine the
correct amount of Operating Expenses. If the certification shows that
Landlord has undercharged Tenant then Tenant shall within thirty days
pay to Landlord the amount of any undercharge.
Books and records necessary to accomplish any audit permitted under
this Section shall be retained for twelve months after the end of each
calendar year, and on receipt of notice of Tenant's dispute of the
Operating Expenses shall be made available to Tenant to conduct the
audit, which may be either at the Property or the offices of
Landlord's property manager.
In the event that the Tenant elects to have a professional audit of
Landlord's Operating Expenses as provided in this lease, such audit
must be conducted by independent nationally or regionally recognized
accounting firm that is not being compensated by Tenant on a
contingency fee basis. All information obtained through such audit
shall be held in strict confidence by Tenant and its officers, agents
and employees and as a condition to such audit, the Tenant's auditor
shall execute a written agreement agreeing that the auditor is not
being compensated on a contingency fee basis and that all information
obtained through such audit as well as any compromise, settlement, or
adjustment reached as a result of such audit, shall be held in strict
confidence and shall not be revealed in any manner to any person
except upon the prior written consent of the Landlord, which consent
may be withheld in Landlord's sole discretion, or if required pursuant
to any litigation between Landlord and Tenant materially related to
the facts disclosed by such audit, or if required by law.
7. SORTING AND SEPARATION OF REFUSE AND TRASH.
(A) Tenant covenants and agrees, as its sole cost and expense, to comply
with all present and future laws, orders and regulations of all state,
federal, municipal and local governments, departments, commissions and
boards regarding the collection, sorting, separation and recycling of
waste products, garbage, refuse and trash. Tenant shall sort and
separate waste products, garbage, refuge and trash into such
categories as provided by law, provided Tenant is given reasonable
prior written notice of such requirements and any changes thereto.
Each separately sorted category of waste products, garbage, refuse and
trash shall be placed in separate receptacles reasonably approved by
the Landlord. Such separate receptacles shall be removed from the
Premises in accordance with a collection schedule prescribed by law or
by Landlord.
(B) Landlord reserves the right to refuse to collect or accept from Tenant
any waste products, garbage, refuse or 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. 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 7, and, at Tenant's sole cost and expense, shall indemnify,
defend and hold Landlord harmless (including legal fees and expenses)
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from and against any actions, claims and suits arising from such
noncompliance, utilizing counsel reasonably satisfactory to Landlord.
8. HAZARDOUS SUBSTANCES
The term "Hazardous Substances" shall mean pollutants, contaminants, toxic
or hazardous wastes, or any other substances, the use and/or the removal of
which is required or the use of which is restricted, prohibited or
penalized by any "Environmental Law", which term shall mean any federal,
state or local law, regulation, order ordinance or other statute of a
governmental or quasi-governmental authority relating to pollution or
protection of the environment. Tenant hereby agrees that (A) no activity
will be conducted on the Property or Premises that will produce any
Hazardous Substances, except for such activities that are part of the
ordinary course of Tenant's business activities (the "Permitted
Activities") provided said Permitted Activities are conducted in accordance
with all Environmental Laws and have been acknowledged and consented to in
advance in writing by Landlord; not to be unreasonably withheld,
conditioned or delayed; Tenant shall be responsible for obtaining any
required permits and paying any fees and providing any testing required by
any governmental agency; (B) the Property will not be used in any manner by
Tenant, its employees, contractors, agents, guests or invitees, and the
Premises will not be used in any manner for the storage of any Hazardous
Substances except for the temporary storage of such materials that are used
in the ordinary course of Tenant's business (the "Permitted Materials"),
provided such Permitted Materials are properly stored in a manner and
location meeting all Environmental Laws and acknowledged and consented to
in advance in writing by Landlord, not to unreasonably withheld,
conditioned or delayed; Tenant shall be responsible for obtaining any
required permits and paying any fees and providing any testing required by
any governmental agency in connection therewith; (C) no portion of the
Property will be used by Tenant, its employees, contractors, agents, guests
or invitees as a landfill or a dump and the Premises will not be used as a
landfill or a dump; (D) Tenant will not install any underground tanks of
any type; (E) Tenant will not allow any surface or subsurface conditions to
exist or come into existence that constitute, or with the passage of time
may constitute a public or private nuisance; (F) Tenant will not permit any
Hazardous Substances to be brought onto the Property or Premises, except
for the Permitted Materials described above, and if so brought or found
located thereon, the same shall be immediately removed, with proper
disposal, and all required cleanup procedures shall be diligently
undertaken pursuant to all Environmental Laws. Landlord or Landlord's
representative shall have the right but not the obligation to enter the
Premises for the purpose of inspecting the storage, use and disposal of
Permitted Materials to ensure compliance with all Environmental Laws.
Should it be determined, in Landlord's reasonable opinion, that said
Permitted Materials are being improperly stored, used, or disposed of, then
Tenant shall immediately take such corrective action as required by
Landlord. Should Tenant fail to take such corrective action within 48
hours, Landlord shall have the right to perform such work and Tenant shall
promptly reimburse Landlord for any and all costs associated with said
work. If at any time during or after the Lease Term, the Property or the
Premises are found to be so contaminated or subject to said conditions,
Tenant shall diligently institute proper and thorough cleanup procedures at
Tenant's sole cost, and Tenant agrees to indemnify, defend and hold
harmless Landlord, its lenders, any managing agents and leasing agents of
the Property, and their respective agents, partners, officers, directors
and employees, from all claims, demands, actions, liabilities, costs,
expenses, penalties (whether civil or criminal), damages (actual or
punitive) and obligations of any nature arising from or as a result of the
use of the Property or the Premises by Tenant. The foregoing
indemnification and the responsibilities of Tenant shall survive the
termination or expiration of this Lease.
During and after the Lease Term, Tenant shall promptly provide Landlord
with copies of all summons, citations, directives, information inquiries or
requests, notices of potential responsibility, notices of violation or
deficiency, orders or decrees, claims, complaints, investigations,
judgments, letters, notice of environmental liens, and other
communications, written or oral, actual or threatened, from the United
States Environmental Protection Agency, Occupational Safety and Health
Administration, the Commonwealth of Virginia Department of Environmental
Quality, or other federal, state or local agency or authority, or any other
entity or individual, concerning (i) any Hazardous Substance regarding the
Property or the Premises; (ii) the imposition of any lien on the Property
or the Premises; or (iii) any alleged violation of or responsibility under
any Environmental Law.
9. INSURANCE.
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(A) INSURANCE BY LANDLORD.
Landlord shall, during the Lease Term, procure and keep in force the
following insurance, the cost of which (including, but not limited to
premiums, deductibles, and co-payments) will be deemed Additional Rent
payable by Tenant pursuant to Section 5 and Section 6.
(1) Property insurance insuring the Property and improvements and
rental income insurance (i.e.: loss of rents insurance) for
perils covered by the causes of loss - special form (all risk)
and in addition coverage for flood, earthquake and boiler and
machinery (if applicable). Such coverage (except for flood and
earthquake) shall be written on a replacement cost basis equal to
ninety percent (90%) of the full insurable replacement value of
the foregoing and shall not cover Tenant's equipment, trade
fixtures, inventory, fixtures or personal property located on or
in the Premises.
(2) Commercial general liability insurance against any and all claims
for bodily injury and property damage occurring in or about the
Property or the land. Such insurance shall have the combined
single limit of not less than One Million Dollars ($1,000,000)
per occurrence per location with a Two Million Dollars
($2,000,000) aggregate limit.
(3) Such other insurance as Landlord deems necessary and prudent, or
as required by Landlord's beneficiaries or mortgages of any deed
of trust or mortgage encumbering the Property.
(B) INSURANCE BY TENANT.
Tenant shall, during the Lease Term, procure and keep in force the
following insurance:
(1) Commercial general liability insurance naming Landlord and
Landlord's managing agent for the Property as additional insureds
against any and all claims for bodily injury and property damage
occurring in, or about the Premises arising out of Tenant's use
and occupancy of the Premises. Such insurance shall have a
combined single limit of not less than One Million Dollars
($1,000,000) per occurrence with Two Million Dollars ($2,000,000)
aggregate limit and excess umbrella liability insurance in the
amount of Two Million Dollars ($2,000,000). If Tenant has other
locations that it owns or leases the policy shall include an
aggregate limit per location endorsement. Such liability
insurance shall be primary and not contributing to any insurance
available to Landlord and Landlord's insurance shall be in excess
thereto. In no event shall the limits of such insurance be
considered as limiting the liability of Tenant under this lease.
(2) Personal property insurance insuring all equipment, trade
fixtures, inventory, fixtures and personal property located on or
in the Premises for perils covered by the cause of loss - special
form (all risk) and in addition, coverage for flood, earthquake
and boiler and machinery (if applicable). Such insurance shall be
written on a replacement cost basis in an amount equal to one
hundred percent (100%) of the full replacement value of the
aggregate of the foregoing.
(3) Worker's compensation insurance in accordance with statutory law
and employers' liability insurance with a limit of not less than
$100,000 per accident, $500,000 for a disease policy limit, and
$100,000 for disease limit for each employee.
(4) Business income (and extra expense) coverage (i.e.: business
interruption insurance) insuring perils covered by the causes of
loss-special form (all risk) and in addition, flood, earthquake
and boiler and machinery (if applicable) for one hundred percent
(100%) of the total of the budgeted net income of Tenant for
twelve (12) months plus all extra expenses projected to be
incurred by Tenant during the period of restoration of the
Property or Premises.
(5) Such other insurance as Landlord deems necessary and prudent, or
as required by Landlord's beneficiaries or mortgages of any deed
of trust or mortgage encumbering the Property.
The policies required to be maintained by Tenant shall be issued by
companies rated AX or better in the most current issue of Best's
Insurance Reports. Insurers shall be licensed to do business in the
state in
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which the Property is located and domiciled in the USA. Any deductible
amounts under any insurance policies required hereunder shall not
exceed $1,000. Certificates of insurance (certified copies of the
policies may be required) shall be delivered to Landlord prior to the
Commencement Date an annually thereafter at least thirty (30) days
prior to the expiration date of the old policy. Tenant shall have the
right to provide insurance coverage which it is obligated to carry
pursuant to the terms hereof in a blanket policy, provided such
blanket policy expressly affords coverage to the Property, the
Premises, and to Landlord as required by this Lease. Each policy of
insurance shall provide notification to Landlord at least thirty (30)
days prior to any cancellation or modification to reduce the insurance
coverage. An amount equal to five percent (5%) of the monthly Rent
shall be charged as Additional Rent for each month in which Tenant
fails to deliver to Landlord a current certificate(s) evidencing that
the insurance required pursuant to this section is being maintained.
In the event Tenant does not purchase the insurance required by this
Lease or keep the same in full force and effect, Landlord may, but
shall not be obligated to purchase the required insurance and pay the
premium. The Tenant shall repay to Landlord, as Additional Rent the
amount so paid promptly upon demand. In addition, Landlord may recover
from Tenant and Tenant agrees to pay, as Additional Rent, any and all
reasonable expenses (including attorney's fee) and damages which
Landlord may sustain by reason of the failure of Tenant to obtain and
maintain such insurance.
(C) SUBROGATION.
Landlord and Tenant mutually waive their respective rights of recovery
against each other for any loss of, or damage to, either parties'
property, to the extent that such loss or damage is insured by an
insurance policy required to be in effect at the time of such loss or
damage. Each party shall obtain any special endorsements, if required
by its insurer whereby the insurer waives its rights of subrogation
against the other party. This clause shall not apply in those cases
where waiver of subrogation would cause either parties' insurance to
be voided or otherwise made uncollectible.
10. DAMAGES OR DESTRUCTIONl.
If, prior to or during the Lease Term, or any extension thereof, the
Property or the Premises shall be so damaged or destroyed by fire or other
casualty so as to render them untenantable, or if the Property or Premises
is materially destroyed or damaged to the extent that the restoration of
such, in Landlord's sole opinion, is not economical or feasible, then
Landlord, at its sole option, shall have the right to cancel and terminate
this Lease. If not terminated, then Landlord shall repair and restore the
Premises with all reasonable speed to substantially the same condition as
immediately prior to such damage or destruction, and the Rent or a just and
proportionate part thereof according to Tenant's ability to utilize the
Premises in its damaged condition, shall be abated until the Premises shall
have been repaired and restored by Landlord. "Untenantable" Premises shall
be such as to not allow Tenant to transact and effectuate its operations in
the ordinary course of business. In the event of such repair or restoration
is not completed by Landlord within 270 days of such damage or destruction,
Tenant shall have the right to terminate this Lease by written notice to
Landlord to be given within 300 days of such damage or destruction.
11. INDENIFICATION.
Tenant shall indemnify, hold harmless, and defend Landlord (except for
Landlord's gross negligence or willful misconduct) against all claims,
losses or liabilities for injury or death to any person or for damage to or
loss of use of any property arising out of any occurrence in, on or about
the Property, if caused or contributed to by Tenant or Tenant's agents or
invitees, or arising out of any occurrence in, upon or at the property or
Premises, or on account of the use, condition, occupational safety or
occupancy of the Property or Premises. It is the intent of the parties
hereto that the indemnity contained in this section shall not be limited or
barred by reason of any negligence on the part of Landlord or Landlord's
agents, except as expressly provided herein. Such indemnification shall
include and apply to attorney's fees, investigation costs, and other costs
actually incurred by Landlord. Tenant shall further indemnify, defend and
hold harmless Landlord from and against any and all claims arising from any
breach or default in the performance of any obligation on Tenant's part to
be performed under the terms of this Lease. The provisions of this section
shall survive the expiration or termination of this Lease with respect to
any damage, injury, death, breach or default occurring prior to such
expiration or termination. This Lease is made on the express conditions
that Landlord
9
shall not be liable for, or suffer loss by reason of, injury to person or
property, from whatever cause, in any way connected with the condition,
use, occupational safety or occupancy of the Property or Premises
specifically including, without limitation, any liability for injury to the
person or property of Tenant or Tenant's agents, except as specifically
provided in the following paragraph.
Landlord shall indemnify, hold harmless, and defend tenant (except for
Tenant's gross negligence willful misconduct) against all claims, losses or
liabilities for injury or death to any person or for damages to or loss of
use of any property arising out of (i) any accidents, damages or injuries
to persons or property occurring in and about the common area of the
Property exclusive of the Premises which result solely from the gross
negligence or willful misconduct of Landlord; (ii) any accidents, damages
or injuries to persons on property occurring in or about the Premises due
to any gross negligence or willful misconduct of Landlord except to the
extent such losses are covered and paid for by an insurance policy carried
by Tenant. It is the intent of the parties hereto that the indemnity
contained in this section shall not be limited or barred by reason of any
negligence on the part of the Tenant, except as expressly provided herein.
Such indemnification shall include and apply to reasonable attorney's fees,
investigation costs, and other costs actually incurred by the Tenant. The
provisions of this section shall survive the expiration or termination of
this Lease with respect to any damage, injury, death, breach of default
occurring prior to such expiration or termination.
12. ASSIGNMENT AND SUBLETTING.
(A) Tenant shall not assign, encumber, mortgage, pledge, license,
hypothecate or otherwise transfer the Premises or this Lease, or
sublease all or any part of the Premises, or permit the use or
occupancy of the Premises by any party other than Tenant, without the
prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. Notwithstanding the
foregoing, Tenant shall be permitted to assign or sublet all or part
of the Premises to a parent company, wholly owned subsidiary, or
affiliated corporate entity which is wholly owned by the parent
company which wholly owns Tenant, including subleases and assignments
occurring due to a merger, without the prior consent of Landlord,
provided Tenant gives Landlord at least thirty (30) days prior written
notice of such assignment of subletting. As used herein, an
"affiliate" of Tenant is an entity that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or
is under common control with Tenant. The term "control" (including the
terms "controlling", "controlled by" and "under common control with")
means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of an entity,
whether through the ownership of voting securities, by contract, or
otherwise.
(B) Tenant must request Landlord's consent to an assignment or sublease in
writing at least forty five (45) days prior to the commencement date
of the proposed sublease or assignment, which request must include (a)
the name and address of the proposed assignee or subtenant, (b) the
nature and character of the business of the proposed assignee or
subtenant, (c) financial information (including financial statements)
of the proposed assignee or subtenant, and (d) a copy of the proposed
sublet or assignment agreement, which must be in substance and form
acceptable to Landlord. Tenant shall also provide any additional
information Landlord reasonably requests regarding such proposed
assignment or subletting. Within thirty (30) days after Landlord
receives Tenant's request (with all required information included),
Landlord shall have the option, in its reasonable discretion: (i) to
grant its consent to such proposed assignment or subletting, or (ii)
to deny its consent to such proposed assignment or subletting, or
(iii) to terminate this Lease effective as of the commencement date of
such proposed assignment, or, if a sublease, to terminate this Lease
solely as to the portion proposed to be subleased.
(C) Any subleases and/or assignments are also subject to all of the
following terms and conditions:
(1) If Landlord approves an assignment or sublease as herein
provided, Tenant shall pay to Landlord as Additional Rent
one-half (1/2) of the amount, if any, by which the rent, any
additional rent and any other sums payable by the assignee or
subtenant to Tenant under such assignment or sublease exceeds the
total of the Rent plus any Additional Rent payable by Tenant
hereunder which is allocable to the portion of the Premises which
is the subject of such assignment or sublease. The foregoing
payments shall be make on not less than a monthly bases by Tenant
and shall be net of all reasonable expenses incurred by Tenant
and approved by Landlord in its reasonable discretion.
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(2) No consent to any assignment or sublease shall constitute a
further waiver of the provisions of this section, and all
subsequent assignments or subleases may be made only with the
prior written consent of Landlord which shall not be unreasonably
withheld, conditioned or delayed. In no event shall any consent
by Landlord be construed to permit reassignment or resubletting
by a permitted assignee or sublessee.
(3) Tenant shall remain liable for all Lease obligations, and,
without limitation, the Guaranty to Lease (if any) shall be
unaffected by such sublessee and assignment, and shall remain in
full force and effect for all purposes. An assignee of Tenant, at
the option of Landlord, shall become directly liable to Landlord
for all obligations of Tenant hereunder, but no sublease or
assignment by Tenant shall relieve Tenant of any liability
hereunder.
(4) Any assignment or sublease without Landlord's prior written
consent in accordance with this Paragraph 12 shall be void, and
shall, at the option of the Landlord, constitute a default under
this Lease.
(5) The term of any such assignment or sublease shall not extend
beyond the Lease Term.
(6) Tenant shall pay to Landlord a Five Hundred and no/100 Dollars
($500.00) processing fee, which shall accompany any proposed
assignment or sublease delivered by Tenant to Landlord, and which
processing fee shall be in addition to Landlord's reasonable
attorneys fees and out-of-pocket expenses incurred in connection
with Landlord's review of such sublease or assignment (if any),
which shall also be reimbursed by Tenant.
(D) The following events shall constitute an "Assignment" which is subject
to the terms of this section and for which Landlord's prior written
consent is required: (i) if Tenant is a corporation and any part or
all of Tenant's shares of stock, or the shares of stock or other
ownership interests of any corporation or other entity owning shares
of Tenant's stock, shall in any one or more instances be issued, or
transferred by sale, assignment, conveyance, operation of law
(including, but not limited to, transfer as a result of or in
conjunction with any merger, reorganization or recapitalization) or
other disposition, or otherwise changed, so as to result in less than
eighty percent (80%) of such shares, or other ownership interests, or
less than eighty percent (80%) of any class of such shares or other
ownership interests, being owned by the present (i.e., as of the date
hereof) owners thereof; (ii) if Tenant is a partnership and any
general partnership interest(s), or the stock or other ownership
interests of any corporation or other entity owning any such general
partnership interests(s), in the partnership shall in any one or more
instances be issued, or transferred by sale, assignment, conveyance,
operation of law (including, but not limited to, transfer as a result
of or in conjunction with any merger, reorganization or
recapitalization) or other disposition, or otherwise changed, so as to
result in less than eight percent (80%) of such general partnership
interests(s), stock (or any class of such stock) or other ownership
interests being owned by the present (i.e., as of the date hereof)
owners thereof; and (iii) if Tenant is a limited liability company or
any other type of entity, and any interests(s) of any member or other
equity owner, or the ownership interests of any entity owning any
membership interest(s) or other equity interest in the Tenant, shall
in any one or more instances be issued, or transferred by sale,
assignment, conveyance, operation of law (including, but not limited
to, transfer as a result of or in conjunction with any merger,
reorganization or recapitalization) or other disposition, or otherwise
changed, so as to result in less than eighty percent (80%) of such
membership interests or other such equity and/or ownership interests
being owned by the present (i.e., as of the date hereof) owners
thereof. Notwithstanding the foregoing, however, it shall not
constitute and assignment hereunder if Tenant's shares of stock are
publicly tradef on a nationally recognized stock exchange.
13. CARE OF PREMISES.
Tenant covenants and agrees that during the Lease Term it will keep the
Premises and every part thereof in good order, condition and repair and
that it will in all respects and at all times duly comply with all
applicable laws, and all covenants, conditions and restrictions applicable
to the Premises.
14. ALTERATION BY TENANT.
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(A) Tenant is hereby given the right, at its sole cost and expense, at any
time during the Lease Term, to make non-structural alterations or
improvements to the interior of the Premises which Tenant deems
necessary or desirable for its purposes; provided, however, that no
alterations or improvements costing more than $10,000 shall be made
without the prior written approval of Landlord (at no cost to Tenant),
which written approval shall not be unreasonably withheld, conditioned
or delayed. Landlord's approval of any plans, specifications or work
drawings shall create no responsibility or liability on the part of
the Landlord for their completeness, design sufficiency or compliance
with any laws, rules and regulations of governmental agencies or
authorities.
(B) All work herein permitted shall be done and completed by the Tenant in
a good and workmanlike manner and in compliance with all requirements
of law and of governmental rules and regulations. Tenant agrees to
indemnify the Landlord against all mechanics' or other liens arising
out of any of such work, and also against any and all claims for
damages or injury which may occur during the course of any such work.
The Landlord agrees to join with the Tenant in applying for all
permits necessary to be secured from governmental authorities and to
promptly execute such consents as such authorities may require in
connection with any of the foregoing work.
(C) Upon written notice to Tenant within ninety (90) days after expiration
of the Lease Term, Landlord may require that Tenant remove, at
Tenant's sole cost and expense, any or all alterations, improvements
or additions to the Premises as to which Landlord did not consent in
writing or to which Landlord consented conditional upon removal at the
end of the Lease Term, and restore the Premises to the condition in
which they exited on the Suite #210 Commencement Date or the Suite
#250 Commencement Date, as the case may be. Unless Landlord requires
their removal, all alterations, additions and improvements which may
be made on the Premises shall become the property of Landlord and
remain upon and be surrendered with the Premises. Tenant shall also
repair any damage to the Premises caused by the installation or
removal of Tenant's trade fixtures, furnishings and equipment, or any
alterations or other improvements made to the Premises by Tenant.
15. CONDEMNATION.
(A) If the Premises shall be wholly taken by exercise of right of eminent
domain, then this Lease shall terminate from the day the possession of
the whole of the Premises shall be required under the exercise of such
power of eminent domain. Any award for the taking of all or part of
the Premises under the power of eminent domain or any payment made
under threat of the exercise of such power shall be the property of
the Landlord. Tenant reserves such separate rights as it may have
against the condemning authority to claim damages for loss of its
trade fixtures and the cost of removal and relocation expense,
provided such Tenant rights do not, in any way, diminish the award to
which Landlord would otherwise be entitled or reduce the amounts
payable to Landlord pursuant to this subsection.
(B) If such part of the Property in which the Premises is located shall be
condemned so as to substantially and materially hamper the operation
of Tenant's business in Landlord's reasonable discretion, then the
Rent payable hereunder shall be reduced in the proportion that the
remaining area of the Premises bears to the original area of the
Premises.
16. SUBORDINATION.
This Lease is and shall at all times be and remain subject and subordinate
to the lien of any present or future mortgage (and to any and all advances
made thereunder) upon the Property or Premises, unless Landlord requires
this Lease to be superior to any such mortgage. Tenant shall execute and
return to Landlord any and all documentation required by Landlord to
evidence the subordination (or superiority) of this Lease to any such
mortgage. If Tenant does not provide Landlord with such documentation
within five (5) days after Landlord's written request. Tenant hereby grants
unto Landlord its power-of-attorney to execute such subordination documents
as Tenant's duly authorized and empowered attorney-in-fact. In the event of
subordination of this Lease. Landlord will use commercially reasonable
efforts to attempt to obtain from the holder of any such mortgage, a
written nondisturbance agreement to the effect that (A) in the event of a
foreclosure or other action taken under the mortgage by the holder thereof,
this Lease and the rights of Tenant hereunder shall not be disturbed but
shall continue in full force and effect so long as Tenant shall not be in
default hereunder, and (B) such holder will agree that in event it shall be
in possession of the Premises.
12
that so long as Tenant shall observe and perform all of the obligations of
Tenant to be performed pursuant to this Lease, such Mortgagee will perform
all obligations of Landlord required to be performed under this Lease. In
the event any proceedings are brought for foreclosure, or in the event of
the exercise of the power of sale under any mortgage made by the Landlord
covering the Premises, Tenant shall attorn to the purchaser at any such
foreclosure, or to the grantee of a deed in lieu of foreclosure, and
recognize such purchaser or grantee as the Landlord under this Lease.
Tenant hereby agrees that no mortgagee or its successor shall be (i) bound
by any payment of Rent or Additional Rent for more than one (1) month in
advance, (ii) bound by any amendment or modification of this Lease made
without the consent of Landlord's mortgagee or its successor, (iii) liable
for damages for any breach, act or omission of any prior landlord, (iv)
bound to effect or pay for any construction for Tenant's occupancy, or (v)
subject to any claim of offset or defenses that Tenant may have against any
prior landlord. The word "mortgage" as used herein includes mortgages,
deeds of trust and any sale-leaseback transactions, or other similar
instruments, and modifications, extensions, renewals, and replacements
thereof, and any and all advances thereunder.
17. ACCESS TO PREMISES.
Landlord and its authorized agents shall have free access to the Premises
upon reasonable prior notice (except in the event of an emergency) at any
and all reasonable times to inspect the same, to make any repair or
alteration to the Premises, to place and maintain a "For Rent" sign thereon
at any time within three (3) months prior to expiration of the Lease Term
and/or termination of this Lease and to exhibit and show the Premises to
prospective tenants during such time period, and for other purposes
pertaining to the rights of the Landlord.
18. RULES AND REGULATIONS.
Tenant agrees to comply with all current and future rules and regulations
promulgated by Landlord concerning the Property and the Premises, which
Landlord shall enforce in a uniform manner. The existing rules and
regulations, which may be amended or changed by Landlord in its sole
discretion, are set forth in Exhibit D attached hereto and made a part
hereof by reference. Landlord shall provide Tenant with copies of all
amendments to the rules and regulations, which shall be enforced in a
uniform manner.
19. COVENANTS OF RIGHTS TO LEASE.
Landlord covenants that it has good and sufficient authority to enter into
this Lease and that Landlord alone has the right to lease the Premises for
the Lease Term. Landlord further covenants that upon Tenant performing the
terms and obligations of Tenant under this Lease. Tenant will have quiet
enjoyment of the Premises throughout the Lease Term and any renewal or
extension thereof, subject to the terms of this lease.
20. MECHANICS LIENS.
Neither Tenant nor anyone claiming by, through, or under Tenant or this
Lease, shall have the right to file or place any mechanics lien or other
lien of any kind or character whatsoever upon the Property or Premises or
upon any improvement thereon, or upon the leasehold interest of Tenant
therein. Notice is hereby given that no contractor, subcontractor, or
anyone else who may furnish any material, service or labor for any Property
improvements, alteration, repairs or any part thereof, shall at any time be
or become entitled to any lien thereon. For the further security of
Landlord, Tenant covenants and agrees to give actual notice thereof in
advance to any and all contractors and subcontractors who may furnish or
agree to furnish any such material, service or labor. Tenant shall cause
any such lien imposed to be released of record by payment or posting of the
proper bond reasonably acceptable to Landlord within forty five (45) days
after earlier of imposition of the lien or written request by Landlord. If
Tenant fails to remove any lien within the forty five (45) day period, then
Landlord may do so at Tenant's expense and Tenant's reimbursement to
Landlord for such amount, including attorney fees and costs, shall be
deemed Additional Rent.
21. EXPIRATION OF LEASE AND SURRENDER OF POSSESSION.
(A) Holding Over. Tenant will, at the expiration or termination of this
Lease by lapse of time or otherwise, yield up immediate possession of
the Premises to Landlord in the condition required under this Lease.
If Tenant retains possession of the Premises or any part thereof after
such expiration or termination, then Landlord may, at its option,
serve written notice upon Tenant that such holding over constitutes
any one
13
of (i) renewal of this Lease for one year, and from year to year
thereafter, or (ii) creation of a month-to-month tenancy, upon the
terms and conditions set forth in this Lease, or (iii) creation of a
tenancy at sufferance, in any case upon the terms and conditions set
forth in this Lease; provided, however, that the monthly Rent (or
daily Rent under (iii)) shall, in addition to all other sums which are
to be paid by Tenant hereunder, whether or not as Additional Rent, be
equal to 150% the sum of Rent plus Additional Rent owed monthly to
Landlord under this Lease immediately prior to such expiration or
termination (prorated in the case of (iii) on the basis of a 365 day
year for each day Tenant remains in possession). If no such notice is
served, then a tenancy at sufferance shall be deemed to be created at
the Rent in the preceding sentence. Tenant shall also pay to Landlord
as Additional Rent all damages sustained by Landlord resulting from
retention of possession by Tenant, including the loss of any proposed
subsequent tenant for any portion of the Premises. The provisions of
this section shall not constitute a waiver by Landlord of any right of
re-entry as herein set forth; nor shall receipt of any Rent or any
other act in apparent affirmance of the tenancy operate as a waiver of
Landlord's right to terminate this Lease for a breach of any of the
terms, covenants, or obligations herein on Tenant's part to be
performed.
(B) Subject to Section 14, upon the expiration of this Lease, by lapse of
time or otherwise, any and all buildings, improvements or additions
erected on the Property or Premises by Tenant shall, at the option of
Landlord, be and become the property of the Landlord without any
payment therefor and Tenant shall, at the option of Landlord,
surrender said Premises, together with all buildings, improvements or
additions thereon, whether erected by Tenant or Landlord, ordinary
wear and tear excepted, in the same condition as on the Suite #210
Commencement Date of the Suite #250 Commencement Date, as the case may
be.
(C) Tenant may install adequate equipment, fixtures and machinery for the
operation of its business and upon the expiration or termination of
this Lease by lapse of time or otherwise, provided all Rents and other
amounts that may be due and owing to Landlord have been paid and the
provisions of this Lease complied with, Tenant shall remove such
equipment, fixtures and machinery installed by it at Tenant's sole
cost. Upon removal of such equipment, fixtures and machinery, Tenant
shall repair any damage to the Property or Premises caused by such
removal or installation at Tenant's sole cost, to the same condition
as on the Suite #210 Commencement Date or the Suite #250 Commencement
Date as the case may be.
22. DEFAULT-REMEDIES.
(A) The occurrence of one or more of the following events shall constitute
a material default and breach of this Lease by Tenant ("Event of
Default"):
(1) Failure by Tenant to make payment of any Rent, Additional Rent,
or any other payment required to be made by Tenant hereunder, as
and when due, and such a failure shall continue for a period of
five (5) days after written notice from Landlord (which notice
shall not be required to be given more than two (2) times in a
calendar year);
(2) The making by Tenant (or any guarantor) of any assignment or
arrangement for the benefit of creditors;
(3) The filing by Tenant (or any guarantor) of a petition in
bankruptcy or for any other relief under Title 11 of the United
States Code ("Bankruptcy Code"), or the insolvency laws of any
state, or any other applicable statute ("Insolvency Laws");
(4) The levying of an attachment, execution of other judicial seizure
upon the Tenant's property in or interest under this Lease, which
is not satisfied or released or the enforcement thereof
superseded by an appropriate proceeding within sixty (60) days
thereafter;
(5) The filing of an involuntary petition in bankruptcy or for
reorganization or arrangement under the Bankruptcy Code or
Insolvency Laws against Tenant (or any guarantor) and such
involuntary petition is not withdrawn, dismissed, or discharged
within sixty (60) days from the filing thereof.
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(6) The appointment of a receiver or trustee to take possession of
the property of Tenant (or any guarantor) or of Tenant's (or any
guarantor's) business or assets and the order or decree
appointing such receiver or trustee shall have remained in force
undischarged for thirty (30) days after the entry of such order
or decree;
(7) The vacating or abandonment of the Premises, provided a vacation
of the Premises shall not constitute an Event of Default so long
as Landlord receives thirty (30) days prior written notice of
such vacation, Tenant continues to keep the Premises safe and
secure, to pay all Rent and other amounts due under this Lease
and to maintain the Premises as required hereunder;
(8) The failure by Tenant to furnish to Landlord any statement
required herein within ten (10) days after its due date;
(9) The failure by Tenant to maintain any insurance required herein;
(10) An assignment, subletting, pledge mortgage, or other transfer of
this Lease or the Premises by Tenant, or any transfer of any
interest in the Tenant in violation of Section 12 of this Lease;
(11) The failure by Tenant to perform or observe any other term,
covenant, agreement or condition to be performed or kept by the
Tenant under the terms, conditions, or provisions of this Lease
within ten (10) days of written notice from Landlord of Tenant's
failure to perform or observe such obligation; provided that, for
any failure which is not willful and which cannot reasonably be
cured within said ten (10) day period, the cure period therefore
shall be extended for such time as is reasonably necessary to
effect a cure of such failure (but in no event beyond sixty (60)
days after delivery of notice of such failure), on the conditions
that Tenant immediately commences and diligently pursues such
cure to completion, and that, promptly upon determining that the
aforesaid ten (10) day cure period is inadequate, Tenant shall
deliver notice to Landlord of the steps being taken to cure such
default and the amount of time reasonably estimated by Tenant to
effect such cure; and provided further that no notice under this
Section 22 shall be required to be given for any default set
forth elsewhere in this Lease pursuant to which no notice or a
different form or time for notice is provided. Notwithstanding
anything herein contained, the occurrence of any violation of the
conditions, covenants, duties and/or obligations of Tenant herein
contained, or any failure or neglect by Tenant to observe or
perform any of said conditions, covenants duties or obligations,
which (A) by its nature cannot be cured (or cannot be cured
within the aforesaid sixty (60) day period), (B) constitutes a
hazard to the health and/or safety of any occupant of or visitor
to the Property (C) has caused the insurer of any policy of
insurance on the Property to issue a notice of cancellation of
such policy or (D) subjects Landlord to the risk of civil or
criminal liability, fine, penalty or prosecution, as reasonably
determined by Landlord, then the occurrence of such violation,
failure or neglect shall, without demand or notice or cure
period, be deemed an Event of Default; and
(12) An occurrence of any of the foregoing Events of Default with
respect to any guarantor of this Lease, or if any guarantor fails
to perform or observe any term, covenant or condition of its
guaranty of this Lease.
(B) If an Event of Default shall have occurred, Landlord shall have (in
addition to all other rights and remedies provided by law or otherwise
provided by this Lease) the right, at the option of the Landlord, then
or at any time thereafter while such Event of Default shall continue,
to elect any one or more of the following:
(1) To continue this Lease in full force and effect (so long as
Landlord does not terminate this Lease), and Landlord shall have
the right to collect Rent, Additional Rent and other charges when
due for the remainder of the Lease Term; and/or
(2) To cure such default or defaults at its own expense and without
prejudice to any other remedies which it might otherwise have;
and any payment made or expenses incurred by Landlord in curing
such default with interest thereon at the Default Rate (as
hereinafter defined) to be and become
15
Additional Rent to be paid by Tenant with the next installment of
Rent falling due thereafter; and/or
(3) To re-enter the Premises, without notice, and dispossess Tenant
and anyone claiming through or under Tenant by summary
proceedings or otherwise, and remove their effects, and take
complete possession of the Premises and either (a) declare this
Lease terminated and the Lease Term ended, or (b) elect to
continue this Lease in full force and effect, but with the right
at any time thereafter to declare this Lease terminated and the
Lease Term ended. In such re-entry, Landlord may, with or without
process of law, remove all persons from the Premises, and Tenant
hereby covenants in such event, for itself and all others
occupying the Premises under Tenant, to peacefully yield up and
surrender the Premises to Landlord. If Landlord elects to
terminate this Lease and/or elects to terminate Tenant's right of
possession, every obligation of Landlord contained in this Lease
shall cease without prejudice to Tenant's Liability for all Rent,
Additional Rent, and other sums owed by Tenant herein.
Should Landlord declare this Lease terminated and the Lease Term ended
(pursuant to Section 22(B)(3)(a) above), the Landlord shall be
entitled to recover from Tenant the Rent, Additional Rent, and all
other sums due and owing by Tenant to the date of termination, plus
the costs of curing all Tenant's defaults existing at or prior to the
date of termination, plus the costs of recovering possession of the
Premises, plus the costs of reletting the Premises including, but not
limited to repairs to the Premises, costs to prepare and refinish the
Premises for reletting, leasing commissions, rental concessions, and
legal fees and costs, plus other actual or consequential damages
suffered or incurred by Landlord due to all Events of Default
(including without limitation, late fees or other charges incurred by
Landlord under any mortgage), plus the deficiency, if any, between
Tenant's Rent and Additional Rent for the balance of the Lease Term
and the rent obtained by Landlord under another lease for the Premises
for the balance of the Lease Term remaining under this Lease on the
date of termination.
Should Landlord elect to continue this Lease (pursuant to Section
22(B)(3)(b) above), Landlord shall be entitled to recover from Tenant
the Rent, Additional Rent and all other sums due and owing by Tenant
up to the date of dispossession, plus the costs of curing all Events
of Default existing at or prior to the date of dispossession, plus the
Rent, Additional Rent and all other sums owed by Tenant on a
continuing basis as said amounts accrue to the end of the Lease Term,
less the rental which Landlord receives during such period, if any,
from others to whom the Premises may be relet, plus the cost of
recovering possession of the Premises, plus the costs of reletting
including, but not limited to repairs to the Premises, costs to
prepare and refinish the Premises for reletting, leasing commissions,
rental concessions, and legal fees and costs. Any suit brought by
Landlord to enforce collection of such deficiency for any one month
shall not prejudice Landlord's right to enforce the collection of any
deficiency for any subsequent month in subsequent separate actions, or
Landlord may defer initiating any such suit until after the expiration
of the Lease Term ( in which event such deferral shall not be
construed as a waiver of Landlord's rights as set forth herein and
Landlord's cause of action shall be deemed not to have accrued until
the expiration of the Lease Term), and it being further understood
that if Landlord elects to bring suits from time to time prior to
reletting the Premises, Landlord shall be entitled to its full damages
through the date of the award of damages without regard to any rent,
additional rent or other sums that are or may be projected to be
received by Landlord upon a subsequent reletting of the Premises. In
the event that Landlord relets the Premises together with other
premises or for a term extending beyond the scheduled expiration of
the Lease Term, it is understood that Tenant will not be entitled to
apply against Landlord's damages any rent, additional rent or other
sums generated or projected to be generated by either such other
premises or the period extending beyond the scheduled expiration of
the Lease Term. Landlord shall use commercially reasonable efforts to
relet and rent the Premises with or without advertising for the
remainder of the Lease Term, or for such longer or shorter period as
Landlord shall deem advisable.
In lieu of the amounts recoverable by Landlord pursuant to the two
immediately preceding paragraphs but in addition to other remedies and
amounts otherwise recoverable by Landlord in this Lease, Landlord may,
at its sole election, (i) terminate this Lease, (ii) collect all Rent,
Additional Rent, and other sums due and owing by Tenant up to the date
of termination, and (iii) accelerate and collect Rent, Additional Rent
and all other sums required to be paid by Tenant through the remainder
of the Lease Term ("Accelerate Rent"), which Accelerated Rent shall be
discounted to present value using an
16
interest rate equal to five percent (5.0%) per annum ("Present Value
Accelerated Rent"). Landlord shall use commercially reasonable efforts
to relet and rent the Premises with or without advertising for the
remainder of the Lease Term, or for such longer or shorter period as
Landlord shall deem advisable. In the event Landlord is successful in
reletting the Premises for any part of the remainder of the Lease
Term, and provided Tenant has paid to Landlord all sums required to be
paid by Tenant pursuant to this paragraph, Landlord shall forward to
Tenant the rent associated with such reletting ("Reletting Rent") as
and when the Reletting Rent is collected by Landlord. Notwithstanding
the previous sentence, Landlord shall forward to Tenant any Reletting
Rent only (i) after Landlord has first been reimbursed from the
Reletting Rent for any and all costs associated with such reletting
including, but not limited to repairs to the Premises, costs to
prepare and refinish the Premises for reletting, leasing commissions,
rental concessions, and legal fees; and (ii) until the earlier of (a)
the last day of the Lease Term, or (b) the point in time Tenant has
been reimbursed, in the aggregate, an amount equivalent to the Present
Value Accelerated Rent actually paid to Landlord pursuant to this
paragraph. In no event shall Landlord be liable for, nor shall
Tenant's obligations hereunder be diminished by reason of, any failure
by Landlord to relet all or any portion of the Premises or to collect
any rent due upon such reletting.
(C) Tenant, on its own behalf and on behalf of all persons claiming
through or under Tenant, including all creditors, does hereby
specifically waive and surrender any and all rights and privileges, so
far as is permitted by law, which Tenant and all such persons might
otherwise have under any present or future law (1) to the service of
any notice to quit or of Landlord's intention to re-enter or to
institute legal proceedings, which notice may otherwise be required to
be given, (2) to redeem the Premises, (3) to re-enter or repossess the
Premises, (4) to restore the operation of this Lease, with respect to
any dispossession of Tenant by judgment or warrant of any court or
judge, or any re-entry by Landlord, or any expiration or termination
shall be by operation of law or pursuant to the provisions of this
Lease, or (5) which exempts property from liability for debt or for
distress for rent. Tenant hereby consents to the exercise of personal
jurisdiction over it by any federal or local court in the jurisdiction
in which the Premises is located.
23. RE-ENTRY BY LANDLORD
No re-entry by Landlord or any action brought by Landlord to remove Tenant
from the Premises shall operate to terminate this Lease unless Landlord
shall have given written notice of termination to Tenant, in which event
Tenant's liability shall be as above provided. No right or remedy granted
to Landlord herein is intended to be exclusive of any other right or
remedy, and each and every right and remedy herein provided shall be
cumulative and in addition to any other right or remedy hereunder or now or
hereafter existing in law or equity or by statute. In the event of
termination of this Lease. Tenant waives any and all rights to redeem the
Premises either given by any statute now or herein enacted.
24. ADDITIONAL RIGHTS TO LANDLORD.
(A) In addition to any and all other remedies, Landlord may restrain any
threatened breach of any covenant, condition or agreement herein
contained, but the mention herein of any particular remedy or right
shall not preclude the Landlord from any other remedy or right it may
have either at law or equity, or by virtue of some other provision of
this Lease; nor shall the consent to one act, which would otherwise be
a violation or waiver of or redress for one violation either of
covenant, promise agreement undertaking or condition, prevent a
subsequent act which would originally have constituted a violation
from having all the force and effect of any original violation.
(B) Receipt by Landlord or Rent or other payments from the Tenant shall
not be deemed to operate as a waiver of any rights of the Landlord to
enforce payment of any Rent, Additional Rent, or other payments
previously due or which may thereafter become due, or of any rights of
the Landlord to terminate this Lease or to exercise any remedy or
right which otherwise might be available to the Landlord, the right of
Landlord to declare a forfeiture for each and every breach of this
Lease is a continuing one for the life of this Lease.
17
25. SUCCESSORS, ASSIGNS AND LIABILITY.
The terms, covenants, conditions and agreements herein contained and as the
same may from time to time hereafter be supplemented, modified or amended,
shall apply to, bind, and inure to the benefit of the parties hereto and
their legal representatives, successors and assigns, respectively, subject
to Section 12 hereof. In the event either party now or hereafter shall
consist of more than one person, firm or corporation, then and in such
event all such person, firms and/or corporations shall be jointly and
severally liable as parties hereunder.
26. NOTICES.
All notices and demands required to be given to either party hereunder
shall be in writing and shall be deemed to have been given when sent by
certified United States mail, postage prepaid, return receipt requested, or
by personal delivery, or by a nationally recognized overnight delivery
service, delivery prepaid, addressed to the party to whom directed at the
address set forth below or at such other address as may be from time to
time designated in writing by the party changing the address.
Landlord Tenant
-------- ------
Reston Plaza I & II, L.L.C. Talk.Com, Inc.
801 Grand Avenue 12020 Sunrise Valley Drive
Des Moines, Iowa 50392-1360 Reston, Virginia 20191
Attn: Commercial Real Estate Equities Attn: Bill McGrath,
Senior VP
With a copy to:
Reston Plaza I & II, L.L.C. Talk.Com, Inc.
c/o Trammell Crow Company 6805 Route 202
14595 Avion Parkway, Suite 100 New Hope, Pennsylvania
Chantilly, Virginia 22021 Attn: Legal Department
Attn: Property Manager
And
Arnold & Porter
555 12th Street, NW
Washington, D.C. 20004
Attn: Jennifer S. Perkins,
Esquire
27. MORTGAGEE'S APPROVAL.
If Landlord's mortgagee shall require modifications of the terms and
provisions of this Lease, Tenant agrees to execute and deliver to Landlord
the agreements reasonably required to effect such Lease modification within
thirty (30) days after Landlord's request therefor. In no event, however,
shall Tenant be required to agree to materially modify any provision of
this Lease relating to the amount of Rent, Additional Rent or other charges
reserved herein, the size and/or general location of the Premises, or the
Lease Term.
28. ESTOPPEL CERTIFICATES.
At any time following ten (10) days written notice from Landlord, Tenant
agrees to execute, acknowledge and deliver to Landlord or any proposed
mortgagee or purchaser a statement in writing, in form satisfactory to
Landlord, certifying whether this Lease is in full force and effect and, if
it is in full force and effect, what modifications have been made to this
Lease to the date of the certification and whether or not any defaults or
offsets exist with respect to this Lease and, if there are, what they are
claimed to be and setting forth dates to which Rent or other charges have
been paid in advance, if any, and stating whether or not Landlord is in
default and, if so, specifying what the default may be. The failure of
Tenant to execute, acknowledge, and deliver to Landlord a statement as
above shall constitute an acknowledgment by Tenant that this Lease is
unmodified and in full force and effect and that the Rent and other charges
have been duly and fully paid to and including the respective due dates
immediately preceding the date of Landlord's notice to Tenant and shall
constitute as to any person, a waiver of any defaults which may exist prior
to such notice.
18
29. DEFAULT RATE OF INTEREST.
All amounts owed by Tenant to Landlord pursuant to any provision of this
Lease shall bear interest from the date due until paid at eighteen percent
(18%) per annum, unless a lesser rate shall then be the maximum rate
permissible by law, in which event said lesser rate shall be charged
("Default Rate").
30. EXCULPATORY PROVISIONS.
It is expressly understood and agreed by and between the parties hereto,
anything herein to the contrary notwithstanding, that each and all of the
representations, warranties, covenants, undertakings, indemnities and
agreements herein made on the part of Landlord while in form purporting to
be the representations, warranties, covenants, undertakings, indemnities
and agreements of Landlord are nevertheless each and every one of them made
and intended, not as personal representations, warranties, covenants,
undertakings, indemnities and agreements by Landlord or for the purpose or
with the intention of binding Landlord personally, but are made and
intended for the purpose only of subjecting Landlord's (and its successors
in interest) interest in the Premises to the terms of this Lease and for no
other purpose whatsoever, and in case of default hereunder by Landlord,
Tenant shall look solely to the interests of Landlord in the Premises.
Landlord shall not have any personal liability to pay any indebtedness
accruing hereunder or to perform any covenant, either express or implied,
herein contained. All such personal liability of Landlord, if any, is
expressly waived and released by Tenant and by all persons claiming by,
through or under Tenant.
31. MORTGAGE PROTECTION.
Tenant agrees to give any holder of any first mortgage or first trust deed
in the nature of a mortgage (both hereinafter referred to as a "First
Mortgage") against the Property, or any interest therein, by registered or
certified mail, a copy of any notice or claim of default served upon
Landlord by Tenant, provided that prior to such notice, Tenant has been
notified in writing of the address of such First Mortgage holder. Tenant
further agrees that if Landlord shall have failed to cure any such default
within twenty (20) days after such notice to Landlord (or if such default
cannot be cured or corrected within that time, then such additional time as
may be necessary if Landlord has commenced within such twenty (20) days and
is diligently pursuing the remedies or steps necessary to cure or correct
such default), then the holder of the First Mortgage shall have an
additional thirty (30) days within which to cure or correct such default
(or if such default cannot be cured or corrected within that time, then
such additional time as may be necessary if such holder of the First
Mortgage has commenced with such thirty (30) days and is diligently
pursuing the remedies or steps necessary to cure or correct such default,
including the time necessary to obtain possession if possession is
necessary to cure or correct such default.
32. RECIPROCAL COVENANT ON NOTIFICATION OF ADA VIOLATIONS.
Within ten (10) days after receipt, Landlord and Tenant shall advise the
other party in writing, and provide the other with copies of (as
applicable), any notices alleging violation of the Americans with
Disabilities Act of 1990 ("ADA") relating to any portion of the Property or
the Premises; any claims made or threatened in writing regarding
noncompliance with the ADA and relating to any portion of the Property or
the Premises; or any governmental or regulatory actions or investigations
instituted or threatened regarding noncompliance with the ADA and relating
to any portion of the Property or the Premises.
33. LAWS THAT GOVERN.
The terms and conditions of this Lease shall be governed by the laws of the
Commonwealth of Virginia.
34. FINANCIAL STATEMENTS.
Within ten (10) business days of Landlord's request, Tenant shall deliver
to Landlord the current financial statements of Tenant, and financial
statements for the two (2) years prior to the current year (which request
shall not be made more than two times per calendar year provided no Event
of Default has occurred hereunder). The financial statements shall include
a balance sheet, profit and loss statement, and statement of cash flows for
each year, accompanied by an opinion from a certified public accountant
certifying that the
19
financial statements are prepared in accordance with generally accepted
accounting principles consistently applied.
35. PARKING.
Tenant shall have the right, throughout the Lease Term, to use free of
charge 3.6 non-reserved parking spaces per 1,000 rentable square feet of
the Premises in the surface parking lot comprising part of the Property, in
common with other tenants of the Property, upon such terms and conditions
as established by Landlord. Tenant shall also have the right to use a total
of four (4) additional non-reserved spaces in the surface parking lot
comprising part of the Property in common with other tenants of the
Property, upon such terms and conditions as established by Landlord, at no
additional charge to Tenant. Tenant agrees to cooperate with Landlord and
other tenants in use of the parking facilities. Landlord reserves the right
in its absolute and sole discretion to determine whether the parking
facilities are properly used or are becoming overburdened and to allocate
and assign parking spaces among Tenant and other tenants, and to
reconfigure the parking area and modify the existing ingress and egress
from the parking area as Landlord shall deem appropriate.
36. SIGNAGE.
Tenant shall not place any sign on the Property or the Premises without
Landlord's prior written consent. Landlord agrees to provide Tenant with
building standard signage on the directory board in the lobby of the
building on the Property and at the entrance to the Premises.
37. RECORDATION.
Except to the extent required by law, Tenant shall not record this Lease
among or in any public records.
38. FORCE MAJEURE.
This Lease and the obligations of a party hereunder shall not be affected
or impaired because such party is unable to fulfill any of its obligations
hereunder or is delayed in doing so, to the extent such inability or delay
is caused by reason of war, civil unrest, strike, labor troubles, unusually
inclement weather, governmental delays, inability to procure services or
materials despite reasonable efforts, third party delays, acts of God, or
any other causes(s) beyond the reasonable control of the landlord (which
causes are referred to collectively herein as "Force Majeure"). Any time
specified obligation of a party in this Lease shall be extended one day for
each day of delay suffered by Landlord as a result of the occurrence of any
Force Majeure.
39. [INTENTIALLY OMITTED.]
40. BROKERS.
Tenant represents and warrants to Landlord that neither it nor its officers
or agents nor anyone acting on its behalf has dealt with any real estate
broker other than Julien J. Studley, Inc. and Trammell Crow Real Estate
Services, Inc. in the negotiating or making of this Lease, and Tenant
agrees to indemnify and hold Landlord, its agents, employees, partners,
directors, shareholders and independent contractors harmless from all
liabilities, costs, demands, judgments, settlements, claims and losses,
including reasonable attorneys fees and costs, incurred by Landlord in
conjunction with any such claim or claims of any other broker or brokers
claiming to have interested Tenanat in the Property or Premises or claiming
to have caused Tenant to enter into this Lease.
41. CONFIDENTIALITY.
Tenant agrees that this Lease is confidential and Tenant shall not, without
Landlord's prior written consent, disclose the contents of this Lease to any
third party, except Tenant's brokers, lawyers, architects, engineers,
20
and other consultants engaged in connection with this Lease transaction.
Except in the normal course of business, Landlord shall not disclose the
contents of this Lease to the general public without Tenant's prior written
consent, which shall not be unreasonable withheld, conditioned or delayed.
42. LEASE/DEED OF LEASE.
To the extent required under applicable law to make this Lease legally
effective, this Lease shall constitute a deed of lease executed under seal.
43. MISCELLANEOUS
(A) In the event that Tenant desires to store or maintain the type or
character of goods or materials in the Premises which cause an
increase in insurance premiums, Tenant shall first obtain the written
consent of Landlord and Tenant shall reimburse Landlord for any
increase in premiums caused thereby.
(B) Unless the context clearly denotes the contrary, the words "Rent" and
"Additional Rent" as used in this Lease not only includes cash rental
for the Premises, but also all other payments and obligations to pay
assumed by the Tenant, whether such obligations to pay run to the
Landlord or to other parties.
(C) In any litigation between the parties arising out of this Lease, or in
connection with any consultations with counsel and other actions taken
or notices delivered in relation to a default by any party to this
Lease, the non-prevailing party shall pay to the prevailing party all
reasonable expenses and costs including attorneys' fees incurred by
the prevailing party in connection with the default and/or
litigations, as the case may be (including fees and costs in
preparation for and at trial, and on appeal, if applicable) ("Legal
Costs"). The Legal Costs shall be payable on demand, and, if the
prevailing party is Landlord, the Legal Costs shall be deemed
Additional Rent, subject to all of Landlord's rights and remedies
provided herein.
(D) It is mutually agreed by and between Landlord and Tenant that the
respective parties hereto shall, and they hereby do, waive trial by
jury in any action, proceeding or counterclaim brought by either of
the parties hereto against the other on any matter whatsoever arising
out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use of or occupancy of the Premises or
any claim of injury or damage and any emergency statutory or any other
statutory remedy. If Landlord commences any summary proceeding for
nonpayment of Rent or Additional Rent, Tenant will not interpose any
counterclaim of whatever nature or description in any such proceeding.
(E) If any term or provision of this Lease is declared invalid or
unenforceable, the remainder of this Lease shall not be affected by
such determination and shall continue to be valid and enforceable.
(F) The parties executing this Lease warrant that this agreement is being
executed with full corporate authority and that the officers whose
signatures appear hereon are duly authorized and empowered to make and
execute this Lease in the name of the corporation by appropriate and
legal resolution of its Board of Directors.
(G) This Lease contains the entire agreement between the parties hereto.
No representations, inducements, promises or agreements, oral or
otherwise, between the parties not embodied herein shall be of any
force or effect, and all reliance by Tenant with respect to any
representations, inducements, promises or agreements is based solely
on those contained in this Lease. Any modification to this Lease must
be in writing and duly executed by the parties hereto.
21
IN WITNESS WHEREOF, Landlord and Tenant have executed this Deed of Lease under
seal on this 28th day of April, 2000.
LANDLORD:
RESTON PLAZA 1 & 11, LLC, a Delaware
limited liability company, its
authorized member
By: Principal Office Investors, LLC, a
Delaware limited liability company,
By: PRINCPAL REAL ESTATE
INVESTORS, LLC, a Delaware
limited liability company,
it's authorized signatory
By: /s/ L.S. Valentine
Its: Counsel
By: /s/ John H. Bunz
Its: Counsel
TENANT:
TALK.COM, INC. a Delaware corporation
By: /s/ William McGrath
Its: SVP HR and Administration
22
EXHIBIT A
PREMISES
<PAGE>
EXHIBIT B
TO LEASE BETWEEN
RESTON PLAZA I&II, LLC ("LANDLORD")
AND
TALK.COM, INC. ("TENANT")
TENANT IMPROVEMENTS
-------------------
1. Landlord shall deliver, and Tenant shall accept, the Premises in "as is"
condition.
2. Tenant shall be solely responsible for the purchase, construction and
installation of any and all leasehold improvements to the Premises
(hereinafter, "Tenant's Work"), in accordance with this Exhibit B. Subject
to payment of the Tenant Improvement Allowance (as defined below), Tenant's
Work shall be performed at Tenant's sole expense. Tenant shall use
reasonable efforts to complete Tenant's Work promptly and without
unnecessary delay.
3. As of the date of this Lease, Tenant plans only to paint and carpet the
Premises. Tenant shall not make any improvements to the Premises other than
paint and carpet unless Landlord has received and reviewed plans for such
additional improvements, which approval shall not be unreasonably withheld,
conditioned or delayed. If requested by Landlord in connection with such
additional improvements. Landlord and Tenant shall enter into a work letter
agreement in form and substance acceptable to both parties.
4. Landlord shall pay to Tenant an allowance (the "Tenant Improvement
Allowance") equal to Thirty One Thousand Two Hundred Sixty Two and 25/100
Dollars ($31,262.25) (which is calculated as Three and 65/100 Dollars
($3.65) per rentable square foot of the Premises), and Tenant agrees that
the Tenant Improvement Allowance shall be applied solely to pay costs of
Tenant's Work in the Premises and permitted tenant improvement costs under
the Lease. Such allowance shall be paid to Tenant upon receipt and approval
by Landlord of invoices for labor and materials evidencing the Tenant Work.
Notwithstanding anything to the contrary in this Lease. Tenant agrees that
at least $1.00 of each $3.65 of the Tenant Improvement Allowance shall be
spent on "direct" tenant improvements (i.e. paint and carpeting of the
Premises) and that not more than $2.65 of each $3.65 of the Tenant
Improvement Allowance shall be spent on "indirect" tenant improvements
costs (i.e. furniture, fixtures and equipment for the Premises).
5. Tenant agrees that all Tenant's Work will be performed in a good and
workmanlike manner, and that Tenant shall cause its contractors to use
reasonable and diligent efforts not to interfere with ongoing operations in
the Premises and building. Tenant's contractor(s) shall be adequately
insured. Without limiting the foregoing, Tenant agrees to cause its
contractor to use reasonable and diligent efforts to minimize excess noise
and to keep all work areas reasonably clean and free of trash and debris.
<PAGE>
EXHIBIT C
DECLARATION OF LEASE COMMENCEMENT
THIS DECLARATION is attached to and made a part of that sertain Lease dated
the ___ day of ________, 2000 ("Lease") by and between RESTON PLAZA I & II, LLC
("Landlord") and TALK.COM, INC. ("Tenant").
Landlord and Tenant are parties to the Lease. All capitalized terms used
herein shall have the same meaning as was ascribed to such terms in the Lease,
unless otherwise indicated.
Landlord and Tenant do hereby declare that (a) the Suite #210 Commencement
Date is hereby established to be ____, ___; (b) the Suite #250 Commencement Date
is hereby established to be ____, ___ and (c) the Lease Term shall expire on
______, ____ unless the Lease is earlier terminated as may be provided therein.
The Lease is in full force and effect as of the date hereof, and Landlord had
fulfilled all of its obligations under the Lease required to be fulfilled by
Landlord on or prior ro such date.
IN WITNESS WHEREOF Landlord and Tenant have excuted this Declaration under
seal on this ____day of ______, 2000.
LANDLORD:
RESTON PLAZA 1 & 11, LLC, a Delaware
limited liability company, its
authorized member
By: Principal Office Investors, LLC, a
Delaware limited liability company,
By: Principal Life Insurance
Company, an Iowa corporation,
its authorized member
By:-------------------
Its:------------------
By:-------------------
Its:------------------
TENANT:
TALK.COM, INC. a Delaware corporation
By: /s/ William McGrath (seal)
Its: SVP HR and Administration
<PAGE>
EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, lobbies, halls and passages shall not be obstructed by
any of the tenants nor used by them for any other purpose than for ingress and
egress to and from their respective offices, nor shall they be used as a waiting
or lounging place for tenants' employees or those having business with tenants.
The halls, passages and roof are not for the use of the general public, and
Landlord retains in all cases the right to control and prevent access to any
part of the Building of all persons whose presence, in the judgement of Landlord
or Landlord's employees or propert manager, may be prejudicial to the safety,
character, reputation or interests of the Building and it tenants. In case of
invasion, mob, riot, public excitements or other commotion, Landlord reserves
the right to prevent access to the Building during the continuance of same by
closing the door or otherwise, for the safety of tenants and the protection of
property in the Building. During other than business hours, access to the
Building may also be refused, unless the person seeking admission is identified,
and the production of a key to the Premises may in addition be required.
Landlord shall in no case be liable in damages for the admission or exclusion of
any person from the Building. No Tenant or its employees or invitees shall go
upon the roof of the Building without the express consent of Landlord.
2. The floors, walls, partitions, skylights, windows, doors, and transoms
that reflect or admit light into passageways or into any place in the Building
shall not be covered or obstructed by any of the tenants except as provided for
herein; provided, however, that tenants may install curtains or draperies on the
windows. The toilet rooms, sinks and other water apparatus shall not be used for
any purpose other than those for which they were constructed, and no sweepings,
rubbish, rags, ashes, chemicals or refuse shall be thrown or placed therein. The
cost of any damage resulting from such misuse or abuse shall be borne and
immediately paid by tenant by whom or by whose employees it shall have been
caused.
3. Except as provided in Tenant's lease, nothing shall be places by tenants
or their employees on the outside of the Building with the exception of one sign
which shall conform with existing tenant signs and be subject to Landlord
approval.
4. No tenant sign and/or building standard sign,advertisement or notice
shall be inscribed, painted or affixed on any part of the outside or inside of
the Building, unless of such character, color, size and material and in such
places as shall be first designated by Landlord in writing. A sign painter
authorized by Landlord will do such work at Tenant's expense. Nowithstanding the
foregoing, Tenant at its own cost and expense, shall have the right to install a
sign on the exterior similar to the existing signs on the Building and subject
to Landlord's approval.
5. Tenants will see that the windows are closed and the doors to the
Premises are securely locked each day before leaving the Building.
6. Tenants, their employees or other shall not make or commit any improper
noises or disturbances of any kind in the Building, nor smoke in the elevators,
mark or defile the elevators, bathrooms or the walls, windows, doors, or any
other part of the Building, nor interfere in any way with the other tenants or
those having business in the Building. Tenants shall be liable for all damage to
the Building done by their employees or agents.
7. No tenant shall sweep or throw or permit to be swept or thrown from the
Premises any dirt or other substances into any of the corridors or halls,
elevators or stairways of the Building, or into any of the lightshafts or
venilators thereof.
8. No animals shall be kept in or about the Premises except those used for
laboratory purposes.
9. If the tenants desire to introduce signaling, telegraphic, telephonic,
or other wires and instruments. Landlord will direct the electricians as to
where and how the same are to be placed: and without such direction, no placing,
boring or cutting for wires will be permitted. Landlord retains in all cases the
right to require the placing and using of such electrical protecting devices to
prevent the transmission of excessive currents of electricity into or through
the Building, to require the changing of wires and of their placing and
arrangements underground or otherwise as Landlord may direct, and further
require compliance by tenants or by those furnishing service by or using such
wires or by others with directions, requirements or rules. Landlord shall have
the right to immediately using such wires or by others with the directions,
requirements or rules. Landlord shall have the right to immediately cut,
displace and prevent the use of such wires. Notice requiring such changing of
wires and their replacing and
<PAGE>
Rearrangement given by Landlord to any company or individual furnishing service
by means such wires to any tenant shall be regarded as notice to such tenants
and shall take effect immediately. All wires used by tenants must be clearly
tagged at the distributing boards and junction boxes and elsewhere in the
Building with the number of the office to which said wires lead and the purpose
for which said wires respectively are used, together with the names of the
company operating same.
10. No Varnish, stain, paint, linoleum, oil-cloth, rubber or other
air-tight covering shall be laid or put upon the floors, nor shall articles be
fastened to or holes drilled or nails or screws driven into walls, doors or
partitions; or shall the walls, doors, or partitions be painted, papered, or
otherwise covered or in any way marked or broken; nor shall machinery of any
kind be operated on the Premises; nor shall any tenant use any other method of
heating than that provided by Landlord, without the written consent of the
Landlord.
11. The delivery of materials and other supplies to tenants in the Building
will be permitted only under the direction, control, and supervision of the
Landlord. Delivery of cash is specifically exempted from the Landlord's control.
12. The use of the Premises as sleeping apartments is prohibited.
13. The above rules and regulations or any further rules and regulations
are for the exclusive benefit of and enforceable only by Landlord herein, and
they shall not inure to the benefit of Tenant herein as against other tenants or
in favor of other tenants against Tenant herein; nor does Landlord warrant to
enforce them against other tenants; provided, however , that Landlord, in any
enforcement of the said rules and regulations