LEASE between TMT RESTON I & II, INC., as Landlord, and TALK AMERICA INC., as Tenant
Exhibit
10.24
4.5 When
the above mentioned
actual determination of Tenant’s liability for Expenses, Insurance Costs and/or
Taxes is made for any calendar year and when Tenant is so notified in writing,
then:
5.2 As
additional security
for the faithful performance by Tenant of all covenants, conditions and
agreements of this Lease, Parent, (“Guarantor”)
has
executed and delivered to Landlord the Continuing Lease Guaranty (the
“Guaranty”),
in
the form attached hereto as Exhibit
E,
unconditionally guaranteeing to Landlord the due and punctual payment and
performance by Tenant of all of Tenant’s obligations hereunder for the time
period and as otherwise more particularly set forth in the Guaranty. No right
or
remedy available to Landlord under the Guaranty or this Lease shall extinguish
any other right to which Landlord may be entitled. In furtherance of the
foregoing, it is understood that in the event Tenant fails to perform any
of its
obligations hereunder, any amounts recovered by Landlord under the Guaranty
shall not be deemed liquidated damages. Landlord may apply such sums to reduce
Landlord’s damages and such application of funds shall not preclude Landlord
from recovering from Tenant or the Guarantor jointly and severally all
additional damages incurred by Landlord by reason of Tenant’s failure to perform
hereunder.
6.3 All
alterations,
additions or improvements proposed by Tenant shall be constructed in accordance
with all government laws, ordinances, rules and regulations, using Building
standard materials where applicable, and Tenant shall, prior to construction,
provide the additional insurance required under Article 11
in such
case, and also all such assurances to Landlord as Landlord shall reasonably
require to assure payment of the costs thereof, including but not limited
to,
notices of non-responsibility, waivers of lien, surety company performance
bonds
and funded construction escrows and to protect Landlord and the Building
and
appurtenant land against any loss from any mechanic’s, materialmen’s or other
liens. Tenant shall pay in addition to any sums due pursuant to Article
4,
any
increase in real estate taxes attributable to any such alteration, addition
or
improvement for so long, during the Term, as such increase is ascertainable;
at
Landlord’s election said sums shall be paid in the same way as sums due under
Article 4.
Landlord may, as a condition to its consent to any particular alterations
or
improvements, require Tenant to deposit with Landlord the amount reasonably
estimated by Landlord as sufficient to cover the cost of removing such
alterations or improvements and restoring the Premises, to the extent required
under Section 26.2.
9.8 Notwithstanding
the
foregoing provisions of this Article to the contrary, Tenant shall be permitted
to assign this Lease, or sublet all or a portion of the Premises, to a Qualified
Tenant Affiliate (as hereinafter defined) of Tenant without the prior consent
of
Landlord, if all of the following conditions are first
satisfied:
13.5 Tenant
will not, without
the written consent of Landlord, use any apparatus or device in the Premises,
including but not limited to, electronic data processing machines and machines
using current in excess of 2000 ▇▇▇▇▇ and/or 20 amps or 120 volts, which
will in
any way increase the amount of electricity or water usually furnished or
supplied for use of the Premises for normal office use, nor connect with
electric current, except through existing electrical outlets in the Premises,
or
water pipes, any apparatus or device for the purposes of using electrical
current or water. If Tenant shall require water or electric current in excess
of
that usually furnished or supplied for use of the Premises as normal office
use,
Tenant shall procure the prior written consent of Landlord for the use thereof,
which Landlord may refuse, and if Landlord does consent, Landlord may cause
a
water meter or electric current meter to be installed so as to measure the
amount of such excess water and electric current. The cost of any such meters
shall be paid for by Tenant. Tenant agrees to pay to Landlord within ten
(10)
days of Landlord’s demand , the cost of all such excess water and electric
current consumed (as shown by said meters, if any, or, if none, as reasonably
estimated by Landlord) at the rates charged for such services by the local
public utility or agency, as the case may be, furnishing the same, plus any
additional expense incurred in keeping account of the water and electric
current
so consumed.
18.1.5 A
court of competent jurisdiction
shall enter an order, judgment or decree adjudicating Tenant bankrupt, or
appointing a receiver of Tenant, or of the whole or any substantial part
of its
property, without the consent of Tenant, or approving a petition filed against
Tenant seeking reorganization or arrangement of Tenant under the bankruptcy
laws
of the United States, as now in effect or hereafter amended, or any state
thereof, and such order, judgment or decree shall not be vacated or set aside
or
stayed within sixty (60) days from the date of entry thereof.
19.1.4 Upon
any termination of Tenant’s
right to possession only without termination of the Lease:
19.2 Upon
the occurrence of an
Event of Default, Landlord may (but shall not be obligated to) cure such
default
at Tenant’s sole expense. Without limiting the generality of the foregoing,
Landlord may, at Landlord’s option, enter into and upon the Premises if Landlord
determines in its sole discretion that Tenant is not acting within a
commercially reasonable time to maintain, repair or replace anything for
which
Tenant is responsible under this Lease or to otherwise effect compliance
with
its obligations under this Lease and correct the same, without being deemed
in
any manner guilty of trespass, eviction or forcible entry and detainer and
without incurring any liability for any damage or interruption of Tenant’s
business resulting therefrom and Tenant agrees to reimburse Landlord within
five
(5) days of Landlord’s demand as additional rent, for any expenses which
Landlord may incur in thus effecting compliance with Tenant’s obligations under
this Lease, plus interest from the date of expenditure by Landlord at the
Wall
Street Journal prime rate.
19.6 No
act or thing done by
Landlord or its agents during the Term shall be deemed a termination of this
Lease or an acceptance of the surrender of the Premises, and no agreement
to
terminate this Lease or accept a surrender of said Premises shall be valid,
unless in writing signed by Landlord. No waiver by Landlord of any violation
or
breach of any of the terms, provisions and covenants contained in this Lease
shall be deemed or construed to constitute a waiver of any other violation
or
breach of any of the terms, provisions and covenants contained in this Lease.
Landlord’s acceptance of the payment of rental or other payments after the
occurrence of an Event of Default shall not be construed as a waiver of such
Default, unless Landlord so notifies Tenant in writing. Forbearance by Landlord
in enforcing one or more of the remedies provided in this Lease upon an Event
of
Default shall not be deemed or construed to constitute a waiver of such Default
or of Landlord’s right to enforce any such remedies with respect to such Default
or any subsequent Default.
LEASE
between
TMT
RESTON I & II, INC.,
as
Landlord,
and
TALK
AMERICA INC.,
as
Tenant
TABLE
OF CONTENTS
1. USE
AND
RESTRICTIONS ON USE.
2. TERM.
3. RENT.
4. RENT
ADJUSTMENTS.
5. SECURITY
DEPOSIT.
6. ALTERATIONS.
7. REPAIR.
8. LIENS.
9. ASSIGNMENT
AND SUBLETTING.
10. INDEMNIFICATION.
11. INSURANCE.
12. WAIVER
OF
SUBROGATION.
13. SERVICES
AND UTILITIES.
14. HOLDING
OVER.
15. SUBORDINATION.
16. RULES
AND
REGULATIONS.
17. REENTRY
BY LANDLORD.
18. DEFAULT.
19. REMEDIES.
20. TENANT’S
BANKRUPTCY OR INSOLVENCY.
21. QUIET
ENJOYMENT.
22. CASUALTY
23. EMINENT
DOMAIN.
24. SALE
BY
LANDLORD.
25. ESTOPPEL
CERTIFICATES.
26. SURRENDER
OF PREMISES.
27. NOTICES.
28. TAXES
PAYABLE BY TENANT.
29. INTENTIONALLY
OMITTED.
30. DEFINED
TERMS AND HEADINGS.
31. TENANT’S
AUTHORITY.
32. FINANCIAL
STATEMENTS AND CREDIT REPORTS.
33. COMMISSIONS.
34. TIME
AND
APPLICABLE LAW.
35. SUCCESSORS
AND ASSIGNS.
36. ENTIRE
AGREEMENT.
37. EXAMINATION
NOT OPTION.
38. RECORDATION.
39. PARKING.
40. LIMITATION
OF LANDLORD’S LIABILITY.
EXHIBIT
A
- FLOOR PLAN DEPICTING THE PREMISESA-1
EXHIBIT
A-1 - SITE PLANA-1-1
EXHIBIT
A-2 - EXPANSION SPACEA-1-2
EXHIBIT
B
- INITIAL ALTERATIONSB-
EXHIBIT
B-1 - PROJECT SCHEDULEB-1-1
EXHIBIT
C
- COMMENCEMENT DATE MEMORANDUMC-1
EXHIBIT
D
- RULES AND REGULATIONSD-1
EXHIBIT
E
- FORM OF GUARANTYE-
LEASE
REFERENCE
PAGES
|
BUILDING:
|
Reston
Plaza II
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
LANDLORD:
|
TMT
Reston I & II, Inc., a Delaware corporation
|
|
LANDLORD’S
ADDRESS:
|
c/o
RREEF
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President / Regional Director
with
a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
|
|
ADDRESS
FOR RENT PAYMENT:
|
TMT
Reston I & II, Inc.
▇.▇.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
LANDLORD’S
REGISTERED AGENT FOR SERVICE OF PROCESS:
|
Commonwealth
Legal Services Corporation
▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
LEASE
REFERENCE DATE:
|
February
28, 2006
|
|
TENANT:
|
Talk
America Inc., a Pennsylvania corporation
|
|
GUARANTOR
|
Talk
America Holdings, Inc., a Delaware corporation
|
|
TENANT’S
NOTICE ADDRESS:
|
|
|
(a)
As of beginning of Term:
|
Premises
with
a copy (which shall not constitute notice) to:
Talk
America Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Legal Department
|
|
(b)
Prior to beginning of Term (if different):
|
Premises
with
a copy (which shall not constitute notice) to:
Talk
America Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Legal Department
|
|
PREMISES
IDENTIFICATION:
|
Suite
Number 250 on the second (2nd) floor of the Building (for outline
of
Premises see Exhibit A)
|
|
PREMISES
RENTABLE AREA:
|
Approximately
10,019 sq. ft. (for outline of Premises see Exhibit
A)
|
|
COMMENCEMENT
DATE:
|
December
1, 2005
|
|
TERM
OF LEASE:
|
Approximately
four (4) years, zero (0) months and zero (0) days beginning on the
Commencement Date and ending on the Termination Date. The period
from the
Commencement Date to the last day of the same month is the “Commencement
Month.”
|
|
TERMINATION
DATE:
|
November
30, 2009
|
|
EXTENSION
OPTION
|
Subject
to the provisions set forth in Section 2.2,
Tenant shall receive an option to extend the Term of this Lease for
all or
a portion of the Premises for one (1) consecutive extension term
of five
(5) consecutive years
|
|
EXPANSION
SPACE OPTION
|
Subject
to the provisions set forth in Section 2.3,
Tenant shall receive an option to lease any remaining portion of
the
second (2nd) floor of the Building that shall become vacant and available
or is reasonably expected by Landlord to become vacant and available
during the first two (2) years of the initial Term of this
Lease
|
|
ANNUAL
RENT:
|
Twenty
six and 00/100 Dollars ($26.00) per rentable square foot per annum,
subject to an escalation of three percent (3%) per annum on each
anniversary of the Commencement Date, commencing with the first (1st)
anniversary of the Commencement Date.
|
|
RENT
ABATEMENT (Article 3):
|
Subject
to the provisions set forth in Articles 3 and 19 of this Lease, Tenant
shall receive an abatement during the first (1st) full calendar month
of
the Term of this Lease equal to one hundred percent (100.0%) of such
Monthly Installment of the initial Annual Rent.
|
MONTHLY
INSTALLMENT OF RENT:
|
Lease
Year
|
Rentable
Square Footage
|
Annual
Rent Per Square Foot
|
Annual
Rent
|
Monthly
Installment of Rent
|
|
1˚
|
10,019
|
$26.00
|
$260,494.00
|
$21,707.83
|
|
2
|
10,019
|
$26.78
|
$268,308.82
|
$22,359.07
|
|
3
|
10,019
|
$27.58
|
$276,324.02
|
$23,027.00
|
|
4
|
10,019
|
$28.41
|
$284,639.79
|
$23,719.98
|
˚
Subject
to an abatement as set forth in Section 3.1.1.
|
BASE
YEAR (EXPENSES):
|
January
1, 2006 to December 31, 2006
|
|
BASE
YEAR (INSURANCE):
|
January
1, 2006 to December 31, 2006
|
|
BASE
YEAR (TAXES):
|
January
1, 2006 to December 31, 2006
|
|
BUILDING
SIZE
|
approximately
48,886 sq. ft.
|
|
TENANT’S
PROPORTIONATE SHARE:
|
20.49%
|
|
SECURITY
DEPOSIT:
|
$21,707.83,
subject to the provisions set forth in Section 5
|
|
ASSIGNMENT/SUBLETTING
FEE:
|
$1,500.00
|
|
AFTER-HOURS
HVAC COST:
|
$40.00
per hour, subject to change at any time, from time to
time.
|
|
HOLIDAYS
|
New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day,
Christmas Day, subject to change at any time, from time to
time.
|
|
REAL
ESTATE BROKER DUE COMMISSION:
|
Studley
(Virginia), Inc.
|
|
TENANT’S
SIC CODE:
|
4812
|
|
BUILDING
BUSINESS HOURS:
|
Monday
- Friday, 8:00 a.m. - 6:00 p.m.
Saturday,
8:00 a.m. - 1:00 p.m.
|
|
AMORTIZATION
RATE:
|
10%
|
The
Reference Pages information is incorporated into and made a part of the Lease.
In the event of any conflict between any Reference Pages information and the
Lease, the Lease shall control. This Lease includes the Exhibits, all of which
are made a part of this Lease.
[SIGNATURES
CONTAINED ON NEXT PAGE]
|
WITNESS:
By:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Property Manager
|
LANDLORD:
TMT
RESTON I & II, INC.,
a
Delaware corporation
By: RREEF
Management Company,
a
Delaware corporation
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice President / Regional Director
Dated:
9-26-05
|
|
ATTEST:
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Associate General Counsel - Assistant Secretary
[Corporate
Seal]
|
TENANT:
TALK
AMERICA INC.
a
Pennsylvania corporation
By:
/s/ ▇▇▇▇▇▇▇▇ ▇. Lawn, IV
Name:
▇▇▇▇▇▇▇▇ ▇. Lawn IV
Title:
EVP- General Counsel
Dated:
9-19-05
|
LEASE
By
this Lease Landlord leases to
Tenant and Tenant leases from Landlord the Premises in the Building as set
forth
and described on the Reference Pages. The Premises are depicted on the floor
plan attached hereto as Exhibit
A,
and the
Building is depicted on the site plan attached hereto as Exhibit
A-1.
The
Reference Pages, including all terms defined thereon, are incorporated as part
of this Lease.
| 1. |
USE
AND
RESTRICTIONS ON USE.
|
1.1 The
Premises are to be used solely for general office purposes. Tenant shall not
do
or permit anything to be done in or about the Premises which will in any way
obstruct or interfere with the lease rights of other tenants or occupants of
the
Building, including, but not limited to, any exclusive lease rights of another
tenant or occupant of the Building, or injure, annoy, or disturb them, or allow
the Premises to be used for any improper, immoral, unlawful, or objectionable
purpose, or commit any waste. Tenant shall not do, permit or suffer in, on,
or
about the Premises the sale of any alcoholic liquor without the written consent
of Landlord first obtained. Tenant shall comply with all governmental laws,
ordinances and regulations applicable to the use of the Premises and its
occupancy and shall promptly comply with all governmental orders and directions
for the correction, prevention and abatement of any violations in the Building
or appurtenant land, caused or permitted by, or resulting from the specific
use
by, Tenant, or in or upon, or in connection with, the Premises, all at Tenant’s
sole expense. Tenant shall not do or permit anything to be done on or about
the
Premises or bring or keep anything into the Premises which will in any way
increase the rate of, invalidate or prevent the procuring of any insurance
protecting against loss or damage to the Building or any of its contents by
fire
or other casualty or against liability for damage to property or injury to
persons in or about the Building or any part thereof. Landlord represents that,
to the best of Landlord’s actual knowledge (defined as the personal knowledge of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President and Regional Director of RREEF Management
Company), as of the Commencement Date, the common areas of the Building and
appurtenant land are in compliance with all applicable laws.
1.2 Tenant
shall not, and
shall not direct, suffer or permit any of its agents, contractors, employees,
licensees or invitees (collectively, the “Tenant Entities”) to
at any time handle, use, manufacture, store or dispose of in or about the
Premises or the Building any (collectively “Hazardous
Materials”) flammables, explosives, radioactive materials, hazardous
wastes or materials, toxic wastes or materials, or other similar substances,
petroleum products or derivatives or any substance subject to regulation by
or
under any federal, state and local laws and ordinances relating to the
protection of the environment or the keeping, use or disposition of
environmentally hazardous materials, substances, or wastes, presently in effect
or hereafter adopted, all amendments to any of them, and all rules and
regulations issued pursuant to any of such laws or ordinances (collectively
“Environmental Laws”), nor shall Tenant suffer or permit any
Hazardous Materials to be used in any manner not fully in compliance with all
Environmental Laws, in the Premises or the Building and appurtenant land or
allow the environment to become contaminated with any Hazardous Materials.
Notwithstanding the foregoing, Tenant may handle, store, use or dispose of
products containing small quantities of Hazardous Materials (such as aerosol
cans containing insecticides, toner for copiers, paints, paint remover and
the
like) to the extent customary and necessary for the use of the Premises for
general office purposes; provided that Tenant shall always handle, store, use,
and dispose of any such Hazardous Materials in a safe and lawful manner and
never allow such Hazardous Materials to contaminate the Premises, Building
and
appurtenant land or the environment. Tenant shall protect, defend, indemnify
and
hold each and all of the Landlord Entities (as defined in Article 30) harmless
from and against any and all loss, claims, liability or costs (including court
costs and attorney’s fees) incurred by reason of any actual or asserted failure
of Tenant to fully comply with all applicable Environmental Laws, or the
presence, handling, use or disposition in or from the Premises of any Hazardous
Materials by Tenant or any Tenant Entity (even though permissible under all
applicable Environmental Laws or the provisions of this Lease), or by reason
of
any actual or asserted failure of Tenant to keep, observe, or perform any
provision of this Section 1.2.
| 2. |
TERM.
|
2.1 The
Term of this Lease
shall begin on the Commencement Date. The parties hereby acknowledge that Talk
America Holdings, Inc. (“Parent”),
a
Delaware corporation, is currently in possession of the Premises pursuant to
that certain lease agreement dated April 28, 2000 by and between Landlord,
as
successor-in-interest to Reston Plaza I & II, LLC, and Parent, as
successor-in-interest to ▇▇▇▇.▇▇▇, as amended by that certain First Amendment
to
Lease dated May 6, 2004 and that certain Second Amendment to Lease dated
,
2004
(as amended, the “Prior
Lease”)
and
that Tenant is the wholly-owned subsidiary of Parent. The parties also
acknowledge that Tenant is currently in possession of approximately 1,136
rentable square feet on the first (1st) floor of that certain building located
at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ pursuant to the terms of
that
certain lease agreement dated October 28, 2004, by and between Landlord and
Tenant (the “Reston
I Lease”).
Tenant
acknowledges that it enters into this Lease without any representations or
warranties by the Landlord, or anyone acting or purporting to act on behalf
of
Landlord, as to the present or future condition of the Premises or the
appurtenances thereto or any improvements therein or of the Building, except
as
specifically set forth in this Lease. It is further agreed that Tenant does
and
will accept the Premises “AS IS” in their present condition as of the date
hereof and the Landlord has no obligation to perform any work therein.
Notwithstanding any provision in this Lease to the contrary, if the Term has
not
commenced within one (1) year after the date of this Lease, this Lease shall
automatically terminate on the first (1st) anniversary of the date hereof.
The
sole purpose of the preceding sentence is to avoid any possible interpretation
that this Lease violates the Rule Against Perpetuities
or
other
rule of law against restraints on alienation.
2.1.1 The
parties agree
that the Prior Lease shall terminate pursuant to a separate agreement by
and
between Landlord and Tenant (“Prior
Lease Termination Agreement”).
The
Prior Lease, the Prior Lease Termination Agreement and the Reston I Lease
shall
constitute the “Related
Agreements.”
Any
Event of Default as defined in the Related Agreements existing as of the
Commencement Date of this Lease shall constitute an immediate Event of Default
(as defined hereinafter), to which no notice by Landlord to Tenant shall
be
required.
Any
default under any of the Related Agreements shall constitute a default
hereunder, as further set forth in Section 18.1.2.
2.2 Provided
that: (i) Tenant is in physical possession and actual occupancy of the Premises
and no Event of Default exists at the time of the exercise of such option
or
arises subsequent thereto, and no event exists which by notice and/or the
passage of time would constitute an Event of Default if not cured within
the
applicable cure period provided under this Lease; and (ii) Tenant has not
sublet
or assigned any of its rights, title, and interest in and to this Lease,
Tenant
shall have the option to extend this Lease with respect to all or a portion
of
the Premises for one (1) consecutive extension term of five (5) consecutive
years, provided Tenant notifies Landlord in writing of its exercise of such
option not sooner than twelve (12) months nor later than nine (9) months
prior
to the Termination Date. Annual Rent during such extension term shall be
at one
hundred percent (100%) of the fair market rate, including market concessions,
as
determined by the mutual agreement of Landlord and Tenant, and provided that
Tenant shall post an increase in its Security Deposit which is commensurate
with
such new Annual Rent. Such Annual Rent for the extension term shall escalate
at
the fair market escalation rate as determined by the mutual agreement of
Landlord and Tenant, provided that in no event shall such Annual Rent escalate
at less than the escalation rate of three (3%) per annum. All other provisions
of this Lease shall remain the same during the extension term, except that
Tenant shall have no further extension option and the Base Year shall be
the
first (1st) full calendar year of the extension term. Should Landlord and
Tenant
be unable for any reason to agree upon a new Annual Rent and/or escalation
rate
within forty-five (45) days after Tenant’s exercise of this option, then the
Annual Rent and/or escalation rate, as applicable, shall, at Tenant’s sole
option and discretion, be determined by appraisal by a board of three (3)
real
estate brokers, one of whom shall be named by Landlord, one by Tenant, and
the
two so appointed shall select a third. Such brokers shall be members of the
Greater Washington Association of Commercial Realtors or any successor thereto,
licensed in the Commonwealth of Virginia, and each shall have not less than
ten
(10) years’ experience in the field of commercial office leasing in the
Washington, D.C. metropolitan area. Each shall be recognized as being ethical
and reputable within its field. Landlord and Tenant agree to make their
appointments promptly within ten (10) business days after the expiration
of the
forty-five (45) day period, and the two brokers shall promptly select a third
broker within fifteen (15) days thereafter. Each broker shall, within thirty
(30) days after selection of the third broker, submit its determination of
the
Annual Rent and/or escalation rate, as applicable, and the Annual Rent and/or
escalation rate, as applicable, shall be deemed to be the rent and/or escalation
rate, as applicable, determined by the third broker, unless it is higher
than
the higher of the two values determined by the first two brokers, in which
event
the higher of the first two appraisals shall be the Annual Rent and/or
escalation rate, as applicable, or unless it is lower than the lower of the
two
values determined by the first two brokers, in which event the lower of the
first two appraisals shall be the Annual Rent or escalation rate, as applicable.
In arriving at its rental rate determinations, each broker shall consider
and
analyze all material components of the Lease, and review terms being offered
to
prospective office tenants for comparable space in comparable office buildings
and locations in the northern Virginia metropolitan area for leases commencing
on or about the time of commencement of the extension period. In no event
shall
the escalation rate be less than three percent (3%) per annum. Landlord and
Tenant shall each pay the fee of the broker selected by it and they shall
share
equally the payment of the fee of the third broker.
2.3 Provided
that: (i) Tenant
is in physical possession and actual occupancy of the Premises and no Event
of
Default exists at the time of the exercise of such option or arises subsequent
thereto, and no event exists or arises subsequent thereto which by notice
and/or
the passage of time would constitute an Event of Default if not cured within
the
applicable cure period provided under this Lease; and (ii) Tenant has not
sublet
or assigned any of its rights, title, and interest in and to this Lease,
and
subject to any pre-existing rights granted to other tenants, if at any time
during the first two (2) years of the initial Term of this Lease any remaining
portion of the second (2nd) floor of the Building (each such portion, an
“Expansion
Space”),
as
shown on Exhibit
A-2,
attached hereto, shall become vacant and available or is reasonably expected
by
Landlord to become vacant and available, Landlord shall notify Tenant of
the
availability of such Expansion Space in writing and Landlord shall provide
Tenant with a copy of the proposed terms and conditions (“Proposed
Expansion Space Terms”)
under
which Landlord shall offer such Expansion Space, including the Annual Rent
and
the date of anticipated delivery of possession. Tenant shall have ten (10)
days
from the date of Landlord’s notice to Tenant to advise Landlord in writing that
Tenant accepts such Expansion Space (“Expansion
Space Election Period”)
on the
Proposed Expansion Space Terms, in its “AS IS” condition, with all Building
systems servicing such Expansion Space in working condition at Landlord’s
reasonable expense, and agrees that it shall become a part of the Premises.
Tenant shall be solely responsible for all repairs, improvements, alterations,
fixtures and furnishings to be made or installed in Expansion Space. Subject
to
the terms and conditions of Article 6
of this
Lease, Tenant shall obtain Landlord’s prior written approval of Tenant’s
drawings, plans and specifications before commencing construction of
improvements. Tenant’s obligation to commence payment of Annual Rent for such
Expansion Space shall occur on the day the Expansion Space is substantially
completed by Tenant, but in no case longer than the earlier to occur of (i)
sixty (60) days from the initiation of the construction of improvements or
(ii)
sixty (60) days from the date of delivery of possession by Landlord to Tenant.
If Tenant shall not so elect to lease Expansion Space within the Expansion
Space
Election Period, Landlord may lease such Expansion Space to a third party.
In
the event Landlord and Tenant agree on lease terms pursuant to this Section
2.3,
the
parties shall enter into an amendment modifying this Lease to set forth such
lease terms within thirty (30) days of the parties’ agreement; provided,
however, if either party shall fail to do so after Tenant shall have exercised
its option for the Expansion Space, they shall each be bound by their mutual
agreement as to the Annual Rent and additional rent.
Annual
Rent for such Expansion Space shall be at one hundred percent (100%) of the
fair
market rate, including market concessions provided to Tenant pursuant to
this
Lease, as determined by the mutual agreement of Landlord and Tenant, provided
that Tenant shall post an increase in its Security Deposit which is commensurate
with the additional Annual Rent of such Expansion Space. Such Annual Rent
for
the Expansion Space shall escalate at the fair market escalation rate as
determined by the mutual agreement of Landlord and Tenant, provided that
in no
event shall such Annual Rent escalate at less than the escalation rate of
three
(3%) per annum. All other provisions of this Lease shall remain the same
with
respect to the Expansion Space. Should Landlord and Tenant be unable for
any
reason to agree upon the Annual Rent and/or escalation rate within forty-five
(45) days after Tenant’s exercise of this option, then the Annual Rent and/or
escalation rate, as applicable, shall be determined by appraisal by a board
of
three (3) real estate brokers, one of whom shall be named by Landlord, one
by
Tenant, and the two so appointed shall select a third. Such brokers shall
be
members of the Greater Washington Association of Commercial Realtors or any
successor thereto, licensed in the Commonwealth of Virginia, and each shall
have
not less than ten (10) years’ experience in the field of commercial office
leasing in the Washington, D.C. metropolitan area. Each shall be recognized
as
being ethical and reputable within its field. Landlord and Tenant agree to
make
their appointments promptly within ten (10) business days after the expiration
of the forty-five (45) day period, and the two brokers shall promptly select
a
third broker within fifteen (15) days thereafter. Each broker shall, within
thirty (30) days after selection of the third broker, submit its determination
of the Annual Rent and/or escalation rate for such Expansion Space, as
applicable and the Annual Rent and/or escalation rate for such Expansion
Space,
as applicable, shall be deemed to be the rent and/or escalation rate, as
applicable, determined by the third broker, unless it is higher than the
higher
of the two values determined by the first two brokers, in which event the
higher
of the first two appraisals shall be the Annual Rent and/or escalation rate,
as
applicable, or unless it is lower than the lower of the two values determined
by
the first two brokers, in which event the lower of the first two appraisals
shall be the Annual Rent or escalation rate, as applicable. In arriving at
its
rental rate determinations, each broker shall consider and analyze all material
components of the Lease, and review terms being offered to prospective office
tenants for comparable space in comparable office buildings and locations
in the
northern Virginia metropolitan area for leases commencing on or about the
time
of commencement of the extension period. In no event shall the escalation
rate
be less than three percent (3%) per annum. Landlord and Tenant shall each
pay
the fee of the broker selected by it and they shall share equally the payment
of
the fee of the third broker. Notwithstanding anything contained herein to
the
contrary, Tenant
shall have no right to lease from Landlord and Landlord shall have no obligation
to lease to Tenant any such Expansion Space
which
shall become vacant and available or is reasonably expected by Landlord to
become vacant and available after the first two (2) years of the initial
Term of
this Lease.
| 3. |
RENT.
|
3.1 Tenant
agrees to pay to
Landlord the Annual Rent in effect from time to time by paying the Monthly
Installment of Rent then in effect on or before the first day of each full
calendar month during the Term, except that the first full month’s rent shall be
paid upon the execution of this Lease. The Monthly Installment of Rent in effect
at any time shall be one-twelfth (1/12) of the Annual Rent in effect at such
time. Rent for any period during the Term which is less than a full month shall
be a prorated portion of the Monthly Installment of Rent based upon the number
of days in such month. Said rent shall be paid to Landlord, without deduction
or
offset and without notice or demand, at the Rent Payment Address, as set forth
on the Reference Pages, or to such other person or at such other place as
Landlord may from time to time designate in writing. If an Event of Default
occurs, Landlord may require by notice to Tenant that all subsequent rent
payments be made by an automatic payment from Tenant’s bank account to
Landlord’s account, without cost to Landlord. Tenant must implement such
automatic payment system prior to the next scheduled rent payment or within
ten
(10) days after Landlord’s notice, whichever is later. Unless specified in this
Lease to the contrary, all amounts and sums payable by Tenant to Landlord
pursuant to this Lease shall be deemed “additional
rent”.
3.1.1 Notwithstanding
the foregoing,
provided that there shall not exist any Event of Default, and subject to the
provisions of Section 19.3
below,
the Monthly Installment of Annual Rent due for the first (1st) full calendar
month following the Commencement Date shall be abated. Nothing in this Section
3.1.1, however, shall be interpreted to except or excuse Tenant from any
additional rent or other amounts due under this Lease or the Prior Lease to
Landlord.
3.2 Tenant
recognizes that
late payment of any rent or other sum due under this Lease will result in
administrative expense to Landlord, the extent of which additional expense
is
extremely difficult and economically impractical to ascertain. Tenant therefore
agrees that if rent or any other sum is not paid when due and payable pursuant
to this Lease, a late charge shall be imposed in an amount equal to the greater
of: (a) Fifty Dollars ($50.00), or (b) six percent (6%) of the unpaid rent
or
other payment. The amount of the late charge to be paid by Tenant shall be
reassessed and added to Tenant’s obligation for each successive month until
paid. The provisions of this Section 3.2
in no
way relieve Tenant of the obligation to pay rent or other payments on or before
the date on which they are due, nor do the terms of this Section 3.2
in any
way affect Landlord’s remedies pursuant to Article 19
of this
Lease in the event said rent or other payment is unpaid after date
due.
3.3 Notwithstanding
anything
to the contrary contained herein, if the Commencement Month is not a full
calendar month, such Commencement Month shall be deemed for all purposes of
this
Lease to be part of the First Lease Year and Tenant shall pay additional Annual
Rent for such Commencement Month calculated on a per diem basis at the Annual
Rental Rate for the First Lease Year.
| 4. |
RENT
ADJUSTMENTS.
|
4.1 For
the purpose of this
Article 4,
the
following terms are defined as follows:
4.1.1 Lease
Year:
Each
consecutive twelve (12) month period falling partly or wholly within the Term;
provided, however, if the Commencement Month is not a full calendar month,
then
the first Lease Year shall consist of the Commencement Month and the subsequent
twelve (12) consecutive month period.
4.1.2 Expenses:
All
costs of operation, maintenance, repair, replacement and management of the
Building (including (A) the amount of any credits which Landlord may grant
to
particular tenants of the Building in lieu of providing any standard services
or
paying any standard costs described in this Section 4.1.1
for
similar tenants and (B) the portion of shared expenses allocable to the Building
as provided for in the final sentence of this Section 4.1.2),
as
determined in accordance with generally accepted accounting principles,
including the following costs by way of illustration, but not limitation: water
and sewer charges; utility costs, including, but not limited to, the cost of
heat, light, power, steam, gas; waste disposal; the cost of janitorial services;
the cost of access control and monitoring services (including any central
station signaling system); costs of cleaning, repairing, replacing and
maintaining the common areas, including parking and landscaping, window cleaning
costs; labor costs; costs and expenses of managing the Building including
management and/or administrative fees; air conditioning maintenance costs;
elevator maintenance fees and supplies; material costs; equipment costs
including the cost of maintenance, repair and service agreements and rental
and
leasing costs; purchase costs of equipment; current rental and leasing costs
of
items which would be capital items if purchased; tool costs; licenses, permits
and inspection fees; wages and salaries; employee benefits and payroll taxes;
accounting and legal fees; any sales, use or service taxes incurred in
connection therewith. In addition, Landlord shall be entitled to recover, as
additional rent (which, along with any other capital expenditures constituting
Expenses, Landlord may either include in Expenses or cause to be billed to
Tenant along with Expenses and Taxes but as a separate item), Tenant’s
Proportionate Share of: (i) an allocable portion of the cost of capital
improvement items which are reasonably calculated to reduce operating expenses;
(ii) the cost of fire sprinklers and suppression systems and other life safety
systems; and (iii) other capital expenses which are required under any
governmental laws, regulations or ordinances which were not applicable to the
Building at the time it was constructed; but the costs described in this
sentence shall be amortized over the reasonable life of such expenditures in
accordance with such reasonable life and amortization schedules as shall be
determined by Landlord in accordance with generally accepted accounting
principles, with interest on the unamortized amount at one percent (1%) in
excess of the Wall Street Journal prime lending rate announced from time to
time. Expenses shall not include Taxes, Insurance Costs, depreciation or
amortization of the Building or equipment in the Building except as provided
herein, loan principal payments, costs of alterations of tenants’ premises,
leasing commissions, interest expenses on long-term borrowings or advertising
costs.
If any
Expenses are shared jointly between or among the Building and another building,
such as, but not limited to, Reston Plaza I, such costs shall be allocated
proportionately between or among such buildings based upon the rentable square
footage of each building, or such other equitable manner as Landlord shall
deem
appropriate.
Notwithstanding
anything to the contrary, Expenses shall not include Taxes, Insurance Costs,
depreciation or amortization of the Building or equipment in the Building
except
as provided herein, loan principal payments, costs of alterations of tenants’
premises, leasing commissions; interest expenses on long-term borrowings;
advertising costs; wages and salaries for off-site employees and employees
at
the Building above the level of district manager; costs of repairs, restoration,
replacements or other work occasioned by (1) fire, windstorm or other casualty
of a customarily insurable nature (whether such destruction be total or partial)
and either (aa) payable (whether paid or not) by insurance required to be
carried by Landlord under this Lease, or (bb) otherwise payable (whether
paid or
not) by insurance then in effect obtained by Landlord, (2) the exercise by
governmental authorities of the right of eminent domain, whether such taking
be
total or partial; (3) the gross negligence or intentional tort of Landlord,
or
any subsidiary or affiliate of Landlord, or any representative, employee
or
agent of same, or (4) the act of any other tenant in the Building, or any
other
tenant’s agents, employees, licensees or invitees to the extent Landlord has the
right to recover and actually recovers the applicable cost from such person;
attorneys’ fees, costs, disbursements and other expenses incurred in connection
with negotiations for leases with tenants, other occupants, or prospective
tenants or other occupants of the Building, or similar costs incurred in
connection with disputes with tenants, other occupants, or prospective tenants;
allowances, concessions and other costs and expenses incurred in completing
fixturing, furnishing, renovating or otherwise improving, decorating or
redecorating space for tenants (including Tenant), prospective tenants or
other
occupants and prospective occupants of the Building or vacant, leasable space
in
the Building; costs of the initial construction of the Building; deductions
for
depreciation of the original Building when initially constructed; costs of
expenses relating to another tenant’s or occupant’s space which were in excess
of the Building standard services then being provided by Landlord to all
tenants
or other occupants in the Building, whether or not such other tenant or occupant
is actually charged therefor by Landlord; payments of rent made on any debt
payments made under any ground or underlying lease or leases, except to the
extent that a portion of such rental payments is reasonably allocable to
ad
valorem/real estate taxes and increased property values as a result of such
leases; except as real estate taxes may be increased due to a re-assessment
of
the Building upon any of such events, costs incurred in connection with the
sale, financing, refinancing, mortgaging, selling or change of ownership
of the
Building, including brokerage commissions, attorneys’ and accountants’ fees,
closing costs, title insurance premiums, transfer and recordation taxes as
a
result of such action, and interest charges; costs, fines, interest, penalties,
legal fees or costs of litigation incurred due to the late payments of taxes,
utility bills and other costs incurred by Landlord’s failure to make such
payments when due; costs incurred by Landlord for trustee’s fees, partnership
organizational expenses and accounting fees except accounting fees relating
solely to the ownership and operation of the Building (exclusive of the
incremental accounting fees to the extent incurred separately in reporting
operating results to the Building owners or lenders); any compensation paid
to
clerks, attendants or other persons in commercial concessions operated by
Landlord or in the parking garage of the Building; Landlord’s income and
franchise taxes (other than those business taxes which relate solely to the
operation of the Building); all amounts which would otherwise be included
in
operating expenses which are paid to any affiliate or subsidiaries of Landlord,
to the extent the costs of such services exceed the competitive rates for
similar services of comparable quality; costs or expenses of utilities directly
metered to tenants of the Building and payable separately by such tenants;
moving expense costs of tenants of the Building to the extent not provided
by
Landlord (i) to Tenant and (ii) generally to other initial tenants of the
Building; advertising and promotional costs associated with the leasing of
the
Building; costs incurred to correct violations by Landlord of any law, rule,
order or regulation which was in effect as of the Commencement Date; electric
power costs for which any tenant directly contracts with the local public
service company; and management fees in excess of fair market management
fees.
4.1.3 Taxes:
Real
estate taxes and any other taxes, charges and assessments which are levied
with
respect to the Building or the land appurtenant to the Building, or with respect
to any improvements, fixtures and equipment or other property of Landlord,
real
or personal, located in the Building and used in connection with the operation
of the Building and said land, any payments to any ground lessor in
reimbursement of tax payments made by such lessor; and all fees, expenses and
costs incurred by Landlord in investigating, protesting, contesting or in any
way seeking to reduce or avoid increase in any assessments, levies or the tax
rate pertaining to any Taxes to be paid by Landlord in any calendar year. Taxes
shall not include any corporate franchise, or estate, inheritance or net income
tax, or tax imposed upon any transfer by Landlord of its interest in this Lease
or the Building or any taxes to be paid by Tenant pursuant to Article
28.
If any
Taxes are shared jointly between or among the Building and another building,
such as, but not limited to, Reston Plaza I, such costs shall be allocated
proportionately between or among such buildings based upon the rentable square
footage of each building, or such other equitable manner as Landlord shall
deem
appropriate.
4.1.4 Insurance
Costs:
Any and
all insurance charges of or relating to all insurance policies and endorsements
deemed by Landlord to be reasonably necessary or desirable and relating in
any
manner to the protection, preservation, or operation of the Building or any
part
thereof. If any Insurance Costs are shared jointly between or among the Building
and another building, such as, but not limited to, Reston Plaza I, such costs
shall be allocated proportionately between or among such buildings based
upon
the rentable square footage of each building, or such other equitable manner
as
Landlord shall deem appropriate.
4.2 If
in any calendar year,
(i) Expenses paid or incurred shall exceed Expenses paid or incurred in the
Base
Year (Expenses) and/or (ii) Taxes paid or incurred by Landlord shall exceed
the
amount of such Taxes which became due and payable in the Base Year (Taxes),
and/or (iii) Insurance Costs paid or incurred by Landlord shall exceed the
amount of such Insurance Costs which became due and payable in the Base Year
(Insurance Costs), Tenant shall pay as additional rent for such calendar year
Tenant’s Proportionate Share of each such excess amount.
4.3 The
annual determination of Expenses and Insurance Costs shall be made by Landlord
and shall be binding upon Landlord and Tenant, subject to the provisions of
this
Section 4.3.
During
the Term, Tenant may review, at Tenant’s sole cost and expense, the books and
records supporting such determination in an office of Landlord, or Landlord’s
agent, during normal business hours, upon giving Landlord five (5) days advance
written notice within sixty (60) days after receipt of such determination,
but
in no event more often than once in any one (1) year period, subject to
execution of a confidentiality agreement acceptable to Landlord, and provided
that if Tenant utilizes an independent accountant to perform such review it
shall be one of national standing which is reasonably acceptable to Landlord,
is
not compensated on a contingency basis and is also subject to such
confidentiality agreement. If Tenant fails to object to Landlord’s determination
of Expenses and Insurance Costs within ninety (90) days after receipt, or if
any
such objection fails to state with specificity the reason for the objection,
Tenant shall be deemed to have approved such determination and shall have no
further right to object to or contest such determination. In the event that
during all or any portion of any calendar year or Base Year, the Building is
not
fully rented and occupied Landlord shall make an appropriate adjustment in
occupancy-related Expenses for such year for the purpose of avoiding distortion
of the amount of such Expenses to be attributed to Tenant by reason of variation
in total occupancy of the Building, by employing consistent and sound accounting
and management principles to determine Expenses that would have been paid or
incurred by Landlord had the Building been at least ninety-five percent (95%)
rented and occupied, and the amount so determined shall be deemed to have been
Expenses for such calendar year.
4.4 Prior
to the actual
determination thereof for a calendar year, Landlord may from time to time
reasonably estimate Tenant’s liability for Expenses, Insurance Costs and/or
Taxes under Sections 4.1,
Section
6.3
and
Article 28
for the
calendar year or portion thereof. Landlord will give Tenant written notification
of the amount of such estimate and Tenant agrees that it will pay, by increase
of its Monthly Installments of Rent due in such calendar year, additional rent
in the amount of such estimate. Any such increased rate of Monthly Installments
of Rent pursuant to this Section 4.4
shall
remain in effect until further written notification to Tenant pursuant
hereto.
4.5.1 If
the total additional rent
Tenant actually paid pursuant to Section 4.3
on
account of Expenses, Insurance Costs and/or Taxes for the calendar year is
less
than Tenant’s liability for Expenses, Insurance Costs and/or Taxes, then Tenant
shall pay such deficiency to Landlord as additional rent in one lump sum within
thirty (30) days of receipt of Landlord’s ▇▇▇▇ therefor; and
4.5.2 If
the total additional rent
Tenant actually paid pursuant to Section 4.3
on
account of Expenses, Insurance Costs and/or Taxes for the calendar year is
more
than Tenant’s liability for Expenses, Insurance Costs and/or Taxes, then
Landlord shall credit the difference against the then next due payments to
be
made by Tenant under this Article 4,
or, if
the Lease has terminated, refund the difference in cash. Tenant shall not be
entitled to a credit by reason of actual Expenses and/or Taxes and/or Insurance
Costs in any calendar year being less than Expenses and/or Taxes and/or
Insurance Costs in the Base Year (Expenses and/or Taxes and/or
Insurance).
4.6 If
the Commencement Date
is other than January 1 or if the Termination Date is other than December 31,
Tenant’s liability for Expenses, Insurance Costs and Taxes for the calendar year
in which said Date occurs shall be prorated based upon a three hundred
sixty-five (365) day year. Tenant’s obligation to pay Tenant’s Proportionate
Share of any unpaid Expenses, Insurance Costs, and Taxes which are otherwise
due
and payable under this Lease shall survive the expiration or earlier termination
of the Term.
| 5 |
SECURITY
DEPOSIT.
|
5.1 Tenant
shall deposit the
Security Deposit with Landlord upon the execution of this Lease. Notwithstanding
the foregoing, Landlord and Tenant acknowledge and agree that Parent previously
has deposited a security deposit with respect to the Premises under the Prior
Lease in the amount of Forty Thousand Nine Hundred Fifty and 50/100 Dollars
($40,950.50) (the “Prior
Lease Security Deposit”).
Landlord and Tenant acknowledge and agree that, in accordance with the terms
and
conditions of the Prior Lease Termination Agreement, Landlord shall continue
to
hold a portion of such Prior Lease Security Deposit equal to the Security
Deposit hereunder and that, subject to Landlord’s right to apply any or all of
such Prior Lease Security Deposit pursuant to the terms of the Prior Lease,
Landlord shall refund the remaining balance, if any, of the Prior Lease Security
Deposit to Parent on or before December 31, 2005. The Security Deposit shall
be
held by Landlord as security for the faithful performance by Tenant of all
the
terms, covenants and conditions of this Lease to be kept and performed by Tenant
and not as an advance rental deposit or as a measure of Landlord’s damage in
case of Tenant’s default. If Tenant defaults with respect to any provision of
this Lease, Landlord may, after the applicable cure period, use any part of
the
Security Deposit for the payment of any rent or any other sum in default, or
for
the payment of any amount which Landlord may spend or become obligated to spend
by reason of Tenant’s default, or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant’s default. If any portion
is so used, Tenant shall within ten (10) days after written demand therefor,
deposit with Landlord an amount sufficient to restore the Security Deposit
to
its original amount and Tenant’s failure to do so shall be a material breach of
this Lease. Except to such extent, if any, as shall be required by law, Landlord
shall not be required to keep the Security Deposit separate from its general
funds, and Tenant shall not be entitled to interest on such deposit. Provided
that Tenant shall fully and faithfully perform every provision of this Lease
to
be performed by it, the Security Deposit or any balance thereof shall be
returned to Tenant at such time after termination of this Lease when Landlord
shall have determined that all of Tenant’s obligations under this Lease have
been fulfilled, but in any event no later than sixty (60) days after the
expiration of this Lease.
| 6 |
ALTERATIONS.
|
6.1 Except
for those, if any,
specifically provided for in Exhibit
B
to this
Lease, Tenant shall not make or suffer to be made any alterations, additions,
or
improvements, including, but not limited to, the attachment of any fixtures
or
equipment in, on, or to the Premises or any part thereof or the making of any
improvements as required by Article 7,
without
the prior written consent of Landlord. When applying for such consent, Tenant
shall, if requested by Landlord, furnish complete plans and specifications
for
such alterations, additions and improvements. Landlord’s consent shall not be
unreasonably withheld, conditioned or delayed with respect to alterations which
(i) are not structural in nature, (ii) are not visible from the exterior of
the
Building, (iii) do not materially affect or require modification of the
Building’s electrical, mechanical, plumbing, HVAC or other systems, (iv) will
not interfere with the use and occupancy of any other portion of the Building
by
any other tenant or their invitees; (v) do not and will not, whether alone
or
taken together with other improvements, require the construction of any other
improvements or alterations in other tenant’s space or the Common Areas; and
(vi) in aggregate do not cost more than $2.50 per rentable square foot of that
portion of the Premises affected by the alterations in question.
6.2 In
the event Landlord
consents to the making of any such alteration, addition or improvement by
Tenant, the same shall be made by using a contractor reasonably approved by
Landlord, at Tenant’s sole cost and expense. If Tenant shall employ any
contractor and such contractor or any subcontractor of such contractor shall
employ any non-union labor or supplier, Tenant shall be responsible for and
hold
Landlord harmless from any and all delays, damages and extra costs suffered
by
Landlord as a result of any dispute with any labor unions concerning the wage,
hours, terms or conditions of the employment of any such labor. In the event
that Tenant requests and Landlord provides supervisory services to Tenant in
connection with such work, Landlord may charge Tenant an administrative fee
not
to exceed five percent (5%) of the cost of such work to cover its overhead
as it
relates to such proposed work. Furthermore, Tenant shall reimburse to Landlord
any third-party costs actually incurred by Landlord in connection with the
proposed work and the design thereof (including review of such proposed work
and
design), with all such amounts being due ten (10) days after Landlord’s demand,
which will be submitted with reasonable supporting information.
| 7 |
REPAIR.
|
7.1 Landlord
shall have no
obligation to alter, remodel, improve, repair, decorate or paint the Premises,
except as specified in Exhibit
B
if
attached to this Lease and except that Landlord shall repair and maintain the
structural portions of the Building, including the basic plumbing, air
conditioning, heating and electrical systems installed or furnished by Landlord.
By taking possession of the Premises, Tenant accepts them as being in good
order, condition and repair and in the condition in which Landlord is obligated
to deliver them. It is hereby understood and agreed that no representations
respecting the condition of the Premises or the Building have been made by
Landlord to Tenant, except as specifically set forth in this Lease.
7.2 Tenant
shall, at all
times during the Term, keep the Premises in good condition and repair excepting
damage by fire, or other casualty, and in compliance with all applicable
governmental laws, ordinances and regulations, promptly complying with all
governmental orders and directives for the correction, prevention and abatement
of any violations or nuisances in or upon, or connected with, the Premises,
all
at Tenant’s sole expense.
7.3 Landlord
shall not be
liable for any failure to make any repairs or to perform any maintenance unless
such failure shall persist for an unreasonable time after written notice of
the
need of such repairs or maintenance is given to Landlord by Tenant.
7.4 Except
as provided in
Article 22,
there
shall be no abatement of rent and no liability of Landlord by reason of any
injury to or interference with Tenant’s business arising from the making of any
repairs, alterations or improvements in or to any portion of the Building or
the
Premises or to fixtures, appurtenances and equipment in the Building. Except
to
the extent, if any, prohibited by law, Tenant waives the right to make repairs
at Landlord’s expense under any law, statute or ordinance now or hereafter in
effect.
| 8 |
LIENS.
|
8.1 Tenant
shall keep the
Premises, the Building and appurtenant land and Tenant’s leasehold interest in
the Premises free from any liens arising out of any services, work or materials
performed, furnished, or contracted for by Tenant, or obligations incurred
by
Tenant. In the event that Tenant fails, within ten (10) days following the
imposition of any such lien, to either cause the same to be released of record
or provide Landlord with insurance against the same issued by a major title
insurance company or such other protection against the same as Landlord shall
accept (such failure to constitute an Event of Default), Landlord shall have
the
right to cause the same to be released by such means as it shall deem proper,
including payment of the claim giving rise to such lien. All such sums paid
by
Landlord and all expenses incurred by it in connection therewith shall be
payable to it by Tenant within five (5) days Landlord’s demand .
| 9 |
ASSIGNMENT
AND
SUBLETTING.
|
9.1 Tenant
shall not have the
right to assign or pledge this Lease or to sublet the whole or any part of
the
Premises whether voluntarily or by operation of law, or permit the use or
occupancy of the Premises by anyone other than Tenant, and shall not make,
suffer or permit such assignment, subleasing or occupancy without the prior
written consent of Landlord, such consent not to be unreasonably withheld,
conditioned or delayed, and said restrictions shall be binding upon any and
all
assignees of the Lease and subtenants of the Premises. In the event Tenant
desires to sublet, or permit such occupancy of, the Premises, or any portion
thereof, or assign this Lease, Tenant shall give written notice thereof to
Landlord at least sixty (60) days but no more than one hundred twenty (120)
days
prior to the proposed commencement date of such subletting or assignment, which
notice shall set forth the name of the proposed subtenant or assignee, the
relevant terms of any sublease or assignment and copies of financial reports
and
other relevant financial information of the proposed subtenant or
assignee.
9.2 Notwithstanding
any
assignment or subletting, permitted or otherwise, Tenant shall at all times
remain directly, primarily and fully responsible and liable for the payment
of
the rent specified in this Lease and for compliance with all of its other
obligations under the terms, provisions and covenants of this Lease. Upon the
occurrence of an Event of Default, if the Premises or any part of them are
then
assigned or sublet, Landlord, in addition to any other remedies provided in
this
Lease or provided by law, may, at its option, collect directly from such
assignee or subtenant all rents due and becoming due to Tenant under such
assignment or sublease and apply such rent against any sums due to Landlord
from
Tenant under this Lease, and no such collection shall be construed to constitute
a novation or release of Tenant from the further performance of Tenant’s
obligations under this Lease.
9.3 In
addition to Landlord’s
right to approve of any subtenant or assignee, Landlord shall have the option,
in its sole discretion, in the event of any proposed subletting or assignment,
to terminate this Lease, or in the case of one or more proposed sublettings
(together with any prior sublettings) of twenty percent (20%) or more of the
Premises in the aggregate for a period constituting the all or substantially
all
of the remainder of the Term (exclusive of any extension term), to recapture
the
portion of the Premises to be sublet, as of the date the subletting or
assignment is to be effective. The option shall be exercised, if at all, by
Landlord giving Tenant written notice given by Landlord to Tenant within thirty
(30) days following Landlord’s receipt of Tenant’s written notice as required
above. However, if Tenant notifies Landlord, within five (5) days after receipt
of Landlord’s termination notice, that Tenant is rescinding its proposed
assignment or sublease, the termination notice shall be void and the Lease
shall
continue in full force and effect; provided, however, Tenant’s failure to
rescind its proposed assignment or sublease shall be deemed a waiver of such
rescission right by Tenant. If this Lease shall be terminated with respect
to
the entire Premises pursuant to this Section, the Term of this Lease shall
end
on the date stated in Tenant’s notice as the effective date of the sublease or
assignment as if that date had been originally fixed in this Lease for the
expiration of the Term. If Landlord recaptures under this Section only a portion
of the Premises, the rent to be paid from time to time during the unexpired
Term
shall ▇▇▇▇▇ proportionately based on the proportion by which the approximate
square footage of the remaining portion of the Premises shall be less than
that
of the Premises as of the date immediately prior to such recapture. Tenant
shall, at Tenant’s own cost and expense, discharge in full any outstanding
commission obligation which may be due and owing as a result of any proposed
assignment or subletting, whether or not the Premises are recaptured pursuant
to
this Section 9.3
and
rented by Landlord to the proposed tenant or any other tenant.
9.4 In
the event that Tenant
sells, sublets, assigns or transfers this Lease (excluding an assignment,
sublease or other transaction as permitted by Section 9.8),
Tenant
shall pay to Landlord as additional rent an amount equal to seventy five percent
(75%) of any Increased Rent (as defined below), less the Costs Component (as
defined below), when and as such Increased Rent is received by Tenant. As used
in this Section, “Increased
Rent”
shall
mean the excess of (i) all rent and other consideration which Tenant is entitled
to receive by reason of any sale, sublease, assignment or other transfer of
this
Lease, over (ii) the rent otherwise payable by Tenant under this Lease at such
time. For purposes of the foregoing, any consideration received by Tenant in
form other than cash shall be valued at its fair market value as determined
by
Landlord in good faith. The “Costs
Component”
is
that
amount which, if paid monthly, would fully amortize on a straight-line basis,
over the entire period for which Tenant is to receive Increased Rent, the
reasonable costs incurred by Tenant for leasing commissions and tenant
improvements in connection with such sublease, assignment or other transfer
(excluding therefrom, however, any costs or expenses attributable to any vacancy
factor).
9.5 Notwithstanding
any other
provision hereof, it shall be considered reasonable for Landlord to withhold
its
consent to any assignment of this Lease or sublease of any portion of the
Premises if at the time of either Tenant’s notice of the proposed assignment or
sublease or the proposed commencement date thereof, there shall exist any
uncured default of Tenant or matter which will become a default of Tenant with
passage of time unless cured, or if the proposed assignee or sublessee is an
entity: (a) with which Landlord is already in negotiation; (b) is already an
occupant of the Building unless Landlord is unable to provide the amount of
space required by such occupant; (c) is a governmental agency; (d) is
incompatible with the character of occupancy of the Building; (e) with which
the
payment for the sublease or assignment is determined in whole or in part based
upon its net income or profits; or (f) would subject the Premises to a use
which
would: (i) involve increased personnel or wear upon the Building; (ii) violate
any exclusive right granted to another tenant of the Building; (iii) require
any
addition to or modification of the Premises or the Building in order to comply
with building code or other governmental requirements; or, (iv) involve a
violation of Section 1.2.
Tenant
expressly agrees that for the purposes of any statutory or other requirement
of
reasonableness on the part of Landlord, Landlord’s refusal to consent to any
assignment or sublease for any of the reasons described in this Section
9.5,
shall
be conclusively deemed to be reasonable.
9.6 Upon
any request to
assign or sublet, Tenant will pay to Landlord the Assignment/Subletting Fee
plus, on demand, a sum equal to all of Landlord’s reasonable costs, including
reasonable attorney’s fees, incurred in investigating and considering any
proposed or purported assignment or pledge of this Lease or sublease of any
of
the Premises, regardless of whether Landlord shall consent to, refuse consent,
or determine that Landlord’s consent is not required for, such assignment,
pledge or sublease. Any purported sale, assignment, mortgage, transfer of this
Lease or subletting which does not comply with the provisions of this Article
9
shall be
void.
9.7 If
Tenant is a
corporation, limited liability company, partnership or trust, any transfer
or
transfers of or change or changes within any twelve (12) month period in the
number of the outstanding voting shares of the corporation or limited liability
company, the general partnership interests in the partnership or the identity
of
the persons or entities controlling the activities of such partnership or trust
resulting in the persons or entities owning or controlling a majority of such
shares, partnership interests or activities of such partnership or trust at
the
beginning of such period no longer having such ownership or control shall be
regarded as equivalent to an assignment of this Lease to the persons or entities
acquiring such ownership or control and shall be subject to all the provisions
of this Article 9
to the
same extent and for all intents and purposes as though such an assignment.
The
foregoing limitation shall not apply to the ordinary purchase and sale of shares
of Tenant if Tenant is a corporation,
the
voting stock of which is listed on a nationally-recognized securities exchange
as defined in the Securities Exchange Act of 1934, as amended or
superseded.
9.8.1 No
Event of Default by Tenant
shall have occurred and no event exists which by notice and/or the passage
of
time would constitute an Event of Default if not cured within the applicable
cure period provided under the Lease, if any;
9.8.2 a
fully
executed copy of such assignment or sublease, the assumption of this Lease
by
the assignee or acceptance of the sublease by the sublessee, and such other
information regarding the assignment or sublease as Landlord may reasonably
request, shall have been delivered to Landlord;
9.8.3 the
Premises shall continue to be
operated solely for general office purposes or other use acceptable to Landlord
in its sole discretion;
9.8.4 Tenant
shall pay all third party
costs reasonably incurred by Landlord in connection with such assignment or
subletting, including without limitation attorneys’ fees (such third party costs
not to exceed $1,500.00 per such assignment or subletting) and the
Assignment/Subletting Fee set forth on the Reference Page of the Lease;
and
9.8.5 such
Qualified Tenant Affiliate shall possess a creditworthiness and financial net
worth acceptable to Landlord in its reasonable discretion (as evidenced by
a
copy of such entity’s financial statements covering its most recent fiscal year,
audited by an independent certified public accounting firm (if available),
or if
not available, certified by such entity’s chief financial
officer).
Tenant
acknowledges
(and, at Landlord’s request, at the time of such assignment or subletting shall
confirm) that in each instance Tenant shall remain liable for performance of
the
terms and conditions of the Lease despite such assignment or subletting. If
such
sublease is for less than all of the Premises, tenant and such sublessee agree
to construct at their expense a Building standard multi-tenant corridor on
the
applicable floor, if required by, and in accordance with applicable laws. Such
Qualified Tenant Affiliate’s use of the Premises, in whole or in part, shall not
violate any exclusive right granted to another tenant in the Building. As used
herein, the term “Qualified
Tenant Affiliate”
shall
mean an entity which (i) directly or indirectly controls Tenant; or (ii) is
under the direct or indirect control of Tenant; or (iii) is under common direct
or indirect control with Tenant; or (iv) is the successor-in-interest to Tenant
after a merger, sale of substantially all of the assets of Tenant or public
offering of Tenant’s stock. As used in this Article 9, the term “control” shall
mean ownership of fifty-one percent (51%) or more of the voting securities
or
rights of the controlled entity.
| 10 |
INDEMNIFICATION.
|
10.1 None
of the Landlord
Entities shall be liable and Tenant hereby waives all claims against them for
any damage to any property or any injury to any person in or about the Premises
or the Building by or from any cause whatsoever (including without limiting
the
foregoing, rain or water leakage of any character from the roof, windows, walls,
basement, pipes, plumbing works or appliances, the Building not being in good
condition or repair, gas, fire, oil, electricity or theft), except to the extent
caused by or arising from the gross negligence or willful misconduct of Landlord
or its agents, employees or contractors. Tenant shall protect, indemnify and
hold the Landlord Entities harmless from and against any and all loss, claims,
liability or costs (including court costs and attorney’s fees) incurred by
reason of (a) any damage to any property (including but not limited to property
of any Landlord Entity) or any injury (including but not limited to death)
to
any person occurring in, on or about the Premises or the Building to the extent
that such injury or damage shall be caused by or arise from any actual or
alleged act, neglect, fault, or omission by or of Tenant or any Tenant Entity
to
meet any standards imposed by any duty with respect to the injury or damage;
(b)
the conduct or management of any work or thing whatsoever done by the Tenant
in
or about the Premises or from transactions of the Tenant concerning the
Premises; (c) Tenant’s failure to comply with any and all governmental laws,
ordinances and regulations applicable to the condition or use of the Premises
or
its occupancy; or (d) any breach or default on the part of Tenant in the
performance of any covenant or agreement on the part of the Tenant to be
performed pursuant to this Lease. The provisions of this Article shall survive
the termination of this Lease with respect to any claims or liability accruing
prior to such termination.
| 11 |
INSURANCE.
|
11.1 Tenant
shall keep in
force throughout the Term: (a) a Commercial General Liability insurance policy
or policies to protect the Landlord Entities against any liability to the public
or to any invitee of Tenant or a Landlord Entity incidental to the use of or
resulting from any accident occurring in or upon the Premises with a limit
of
not less than $1,000,000.00 per occurrence and not less than $2,000,000.00
in
the annual aggregate, or such larger amount as Landlord may prudently require
from time to time, covering bodily injury and property damage liability and
$1,000,000 products/completed operations aggregate; (b) Business Auto Liability
covering owned, non-owned and hired vehicles with a limit of not less than
$1,000,000 per accident; (c) insurance protecting against liability under
Worker’s Compensation Laws with limits at least as required by statute with
Employers Liability with limits of $500,000 each accident, $500,000 disease
policy limit, $500,000 disease--each employee; (d) All Risk or Special Form
coverage protecting Tenant against loss of or damage to Tenant’s alterations,
additions, improvements, carpeting, floor coverings, panelings, decorations,
fixtures, inventory and other business personal property situated in or about
the Premises to the full replacement value of the property so insured; and,
(e)
Business Interruption Insurance with limit of liability representing loss of
at
least approximately six (6) months of income.
11.2 The
aforesaid policies
shall (a) be provided at Tenant’s expense; (b) name the Landlord Entities as
additional insureds (General Liability) and loss payee (Property—Special Form);
(c) be issued by an insurance company with a minimum Best’s rating of
“A:VII”
during
the Term; and (d) provide that said insurance shall be written on an occurrence
basis and shall not be canceled unless thirty (30) days prior written notice
(ten days for non-payment of premium) shall have been given to Landlord; a
certificate of Liability insurance on ▇▇▇▇▇ Form 25 and a certificate of
Property insurance on ▇▇▇▇▇ Form 27 shall be delivered to Landlord by Tenant
upon the Commencement Date and at least thirty (30) days prior to each renewal
of said insurance.
11.3 Whenever
Tenant shall
undertake any alterations, additions or improvements in, to or about the
Premises (“Work”)
the
aforesaid insurance protection must extend to and include injuries to persons
and damage to property arising in connection with such Work, without limitation
including liability under any applicable structural work act, and such other
insurance as Landlord shall require; and the policies of or certificates
evidencing such insurance must be delivered to Landlord prior to the
commencement of any such Work.
| 12 |
WAIVER
OF SUBROGATION.
|
12.1 So
long as their
respective insurers so permit, Tenant and Landlord hereby mutually waive their
respective rights of recovery against each other for any property loss insured
by fire, extended coverage, All Risks or other insurance now or hereafter
existing for the benefit of the respective party but only to the extent of
the
net insurance proceeds payable under such policies. Each party shall obtain
any
special endorsements required by their insurer to evidence compliance with
the
aforementioned waiver.
| 13 |
SERVICES
AND
UTILITIES.
|
13.1 Provided
Tenant shall not
be in default under this Lease, and subject to the other provisions of this
Lease, Landlord agrees to furnish to the Premises during Building Business
Hours
(specified on the Reference Pages) on generally recognized business days (but
exclusive in any event of Sundays and Holidays), the following services and
utilities subject to the rules and regulations of the Building prescribed from
time to time, such services to be reasonably commensurate with industry standard
for suburban commercial office buildings in the Reston, Virginia submarket,
of a
similar age, size and quality to the Building: (a) water suitable for normal
office use of the Premises; (b) heat and air conditioning required in Landlord’s
judgment for the use and occupation of the Premises during Building Business
Hours; (c) cleaning and janitorial service; (d) elevator service by nonattended
automatic elevators, if applicable; (e) snow removal and pest control; and,
(f)
equipment to bring to the Premises electricity for lighting, convenience outlets
and other normal office use. Landlord shall include electricity costs in
Expenses. In the absence of Landlord’s gross negligence or willful misconduct,
Landlord shall not be liable for, and Tenant shall not be entitled to, any
abatement or reduction of rental by reason of Landlord’s failure to furnish any
of the foregoing, unless such failure shall persist for an unreasonable time
after written notice of such failure is given to Landlord by Tenant and provided
further that Landlord shall not be liable when such failure is caused by
accident, breakage, repairs, labor disputes of any character, energy usage
restrictions or by any other cause, similar or dissimilar, beyond the reasonable
control of Landlord. Landlord shall use reasonable efforts to remedy any
interruption in the furnishing of services and utilities.
13.2 Should
Tenant require any
additional work or service, as described above, including services furnished
outside ordinary business hours specified above, Landlord may, on terms to
be
agreed, upon reasonable advance notice by Tenant, furnish such additional
service and Tenant agrees to pay Landlord such charges as may be agreed upon,
including any tax imposed thereon, but in no event at a charge less than
Landlord’s actual cost plus overhead for such additional service and, where
appropriate, a reasonable allowance for depreciation of any systems being used
to provide such service. The current charge for after-hours HVAC service, which
is subject to change at any time, is specified on the Reference
Pages.
13.3 Wherever
heat-generating
machines or equipment are used by Tenant in the Premises which affect the
temperature otherwise maintained by the air conditioning system or Tenant allows
occupancy of the Premises by more persons than the heating and air conditioning
system is designed to accommodate, in either event whether with or without
Landlord’s approval, Landlord reserves the right, upon providing Tenant with ten
(10) days advanced written notice, to install supplementary heating and/or
air
conditioning units in or for the benefit of the Premises and the cost thereof,
including the cost of installation and the cost of operations and maintenance,
shall be paid by Tenant to Landlord within ten (10) days of Landlord’s
demand.
13.4 Provided
that Landlord’s
engineer has concluded in writing that any walls or structural Building elements
being used for the installation and existence of such equipment have the
capacity to hold such equipment, Tenant may, at its sole expense and subject
to
Landlord’s prior reasonable approval, including determination that sufficient
capacity exists in the base Building systems to support the Tenant’s
Supplemental HVAC (as defined hereinafter), install, in accordance with the
provisions of Article 6 above, Tenant’s own supplemental heating and cooling
equipment (“Tenant’s
Supplementary HVAC”)
in and
for the benefit of the Premises. Tenant shall provide Landlord with complete
information concerning Tenant’s Supplementary HVAC, including drawings, plans
and specifications and upon request shall furnish additional information with
respect thereto. If Landlord should retain design professionals to assist
Landlord in evaluating Tenant's Supplementary HVAC drawings, plans or
specifications for the Premises pursuant to this Section, such services and
related fees and expenses shall be at Tenant's expense. All such work shall
be
conducted in accordance with Article 6
of this
Lease. If Tenant’s Supplementary HVAC shall require electric current in excess
of the electric current normally supplied to the Premises or if there are other
costs or expenses arising from such installation, use, maintenance, and/or
removal of such Supplementary HVAC, Tenant shall pay such additional costs
as
provided in Section 13.5
below
and as may otherwise be incurred. If Tenant is unable to install such
Supplementary HVAC for any reason, there shall be no abatement of rent, no
constructive eviction, and no liability of Landlord by reason of any injury
to
or interference with Tenant’s business caused by the absence of such
Supplementary HVAC.
13.6 Tenant
will not, without
the written consent of Landlord, contract with a utility provider to service
the
Premises with any utility, including, but not limited to, telecommunications,
electricity, water, sewer or gas, which is not previously providing such service
to other tenants in the Building. Subject to Landlord’s reasonable rules and
regulations and the provisions of Articles 6
and
26,
Tenant
shall be entitled to the use of wiring (“Communications
Wiring”)
from
the existing telecommunications nexus in the Building to the Premises,
sufficient for normal general office use of the Premises. Tenant shall not
install any additional Communications Wiring, nor remove any Communications
Wiring, without in each instance obtaining the prior written consent of
Landlord, which consent may be withheld in Landlord’s sole and absolute
discretion. Landlord’s shall in no event be liable for disruption in any service
obtained by Tenant pursuant to this paragraph.
13.7 Without
Landlord's prior
written permission, to be granted or withheld in Landlord’s sole and absolute
discretion, Tenant will not attach any sign on any part of the outside of the
Premises or the Building, or on any part of the inside of the Premises that
is
visible outside the Premises, or in the halls, lobbies, windows, or elevator
banks of the Building. Regarding the Permitted Sign (defined hereinafter) and
any other approved sign: (i) Tenant will comply with and be subject to the
requirements of any and all governmental authorities having jurisdiction over
the Building, (ii) Tenant shall maintain at its expense the Permitted Sign
and
any other approved sign, (iii) such Permitted Sign and any other approved sign
shall not violate any other tenant’s signage rights; and (iv) Tenant shall,
prior to the end of the Term of this Lease, and at its expense, remove the
Permitted Sign and any other approved sign and restore any affected portion
of
the Building to a condition similar to that which existed prior to the
installation of the sign at the time of such removal. If Tenant fails to do
so,
Landlord may remove all such signs without notice to Tenant and at Tenant's
expense. Tenant will not use the name of the Building for any purpose other
than
the address of the Building. Subject to the foregoing and provided that there
shall not exist any Event of Default, and no event exists which by notice and/or
the passage of time would constitute an Event of Default if not cured within
the
applicable cure period provided under this Lease, Tenant may maintain a sign
on
the outside of the Building at a location to be determined by Landlord in its
sole and absolute discretion, the design of which shall be subject to Landlord’s
prior written approval, to be granted or withheld in Landlord’s sole and
absolute discretion (the “Permitted
Sign”).
| 14 |
HOLDING
OVER.
|
14.1 Tenant
shall pay Landlord
for each day Tenant retains possession of the Premises or part of them after
termination of this Lease by lapse of time or otherwise at the rate
(“Holdover
Rate”)
which
shall be One Hundred Fifty Percent (150%) of the greater of (a) the amount
of
the Annual Rent for the last period prior to the date of such termination plus
all Rent Adjustments under Article 4;
and (b)
the then market rental value of the Premises as determined by Landlord assuming
a new lease of the Premises of the then usual duration and other terms, in
either case, prorated on a daily basis, and also pay all damages sustained
by
Landlord by reason of such retention. If Landlord gives notice to Tenant of
Landlord’s election to such effect, such holding over shall constitute renewal
of this Lease for a period from month to month at the Holdover Rate, but if
the
Landlord does not so elect, no such renewal shall result notwithstanding
acceptance by Landlord of any sums due hereunder after such termination; and
instead, a tenancy at sufferance at the Holdover Rate shall be deemed to have
been created. In any event, no provision of this Article 14
shall be
deemed to waive Landlord’s right of reentry or any other right under this Lease
or at law.
| 15 |
SUBORDINATION.
|
15.1 Without
the necessity of
any additional document being executed by Tenant for the purpose of effecting
a
subordination, this Lease shall be subject and subordinate at all times to
ground or underlying leases and to the lien of any mortgages or deeds of trust
now or hereafter placed on, against or affecting the Building, Landlord’s
interest or estate in the Building, or any ground or underlying lease; provided,
however, that if the lessor, mortgagee, trustee, or holder of any such mortgage
or deed of trust elects to have Tenant’s interest in this Lease be superior to
any such instrument, then, by notice to Tenant, this Lease shall be deemed
superior, whether this Lease was executed before or after said instrument.
Notwithstanding the foregoing, Tenant covenants and agrees to execute and
deliver within ten (10) days of Landlord’s request such further instruments
evidencing such subordination or superiority of this Lease as may be required
by
Landlord.
15.2 Provided
that no Event of
Default shall have occurred hereunder during the Term, Landlord shall request
and obtain a non-recordable subordination, non-disturbance, and attornment
agreement for Tenant from any current and future holder of any mortgage and
from
the future lessor under any ground lease affecting the Building on such
mortgagee’s and/or ground lessor’s standard forms (collectively, “SNDA”);
provided, however, in no event shall: (i) Landlord’s failure to obtain an SNDA
be a breach of the Lease, provided that Landlord shall have used its reasonable
efforts as required of it in this paragraph to obtain an SNDA; provided,
however, if Landlord fails to obtain, at a minimum, an SNDA for Tenant on such
mortgagee’s and/or ground lessor’s standard forms as described in this
paragraph, the sole remedy for such failure shall be that Tenant’s automatic
subordination (as may have been evidenced in writing in Section 15.1)
as
provided in this Article shall be deemed null and void; and (ii) any such SNDA
be recorded or prepared in recordable form unless Landlord and such mortgagee
or
ground lessor shall expressly so authorize it in writing in advance. If any
such
SNDA shall be recorded in the land records of the Commonwealth of Virginia
without the prior written consent of Landlord and any such mortgagee or ground
lessor, Tenant shall cause the same to be discharged of record within two (2)
business days after the later to occur of the date of recordation or notice
from
Landlord or any such mortgagee or ground lessor to so discharge such SNDA.
If
Tenant shall fail to cause such SNDA to be so discharged timely, such failure
shall constitute an immediate Event of Default hereunder for which Tenant shall
be afforded no further time for cure as may otherwise be provided elsewhere
in
this Lease. Tenant’s obligation shall survive the expiration or earlier
termination of this Lease. In addition, Tenant hereby appoints Landlord as
Tenant’s attorney-in-fact (which appointment is coupled with an interest and is
irrevocable) for the sole and express purpose of removing any such improperly
recorded SNDA from such land records at any time and from time to time. In
connection with the exercise of such power, Landlord shall be entitled to
execute any and all documents which may be required in connection with the
removal of the SNDA from record.
| 16 |
RULES
AND REGULATIONS.
|
16.1 Tenant
shall faithfully
observe and comply with all the rules and regulations as set forth in
Exhibit
D
to this
Lease and all reasonable and non-discriminatory modifications of and additions
to them from time to time put into effect by Landlord. Landlord shall not be
responsible to Tenant for the non-performance by any other tenant or occupant
of
the Building of any such rules and regulations. Following actual notice to
Landlord from Tenant of conduct of another tenant or occupant of the Building,
Landlord shall use reasonable efforts to investigate the same and, if such
conduct is determined by Landlord in its sole and absolute discretion to be
in
violation of such tenant’s lease or other Building rule or regulation, then
Landlord shall use reasonable efforts have such tenant cease such conduct;
provided, however, that Landlord shall be deemed to have made reasonable efforts
to have such tenant cease such conduct if Landlord has taken one or more of
the
following actions in a reasonably timely manner: (i) placed a telephone call
to
such tenant’s premises or (ii) caused Landlord’s personnel or another
representative to visit such tenant’s premises. Tenant acknowledges and agrees
that (A) Landlord’s undertaking of either of the identified actions identified
in items (i) or (ii) of the preceding sentence shall be deemed reasonable
notwithstanding the efficacy of such action by the Landlord; and (B) Landlord
shall not be required by the terms of this Lease at any time to undertake or
prosecute any legal action with respect to such tenant or its
conduct.
| 17 |
REENTRY
BY LANDLORD.
|
17.1 With
reasonable notice to
Tenant (which may be verbal), except in the case of emergency in which case
no
notice shall be required, Landlord reserves and shall at all times have the
right to re-enter the Premises to inspect the same, to supply janitor service
and any other service to be provided by Landlord to Tenant under this Lease,
to
show said Premises to prospective purchasers, mortgagees or tenants, and to
alter, improve or repair the Premises and any portion of the Building, without
abatement of rent, and may for that purpose erect, use and maintain scaffolding,
pipes, conduits and other necessary structures and open any wall, ceiling or
floor in and through the Building and Premises where reasonably required by
the
character of the work to be performed, provided entrance to the Premises shall
not be blocked thereby, and further provided that the business of Tenant shall
not be interfered with unreasonably. Landlord shall have the right at any time
to change the arrangement and/or locations of entrances, or passageways, doors
and doorways, and corridors, windows, elevators, stairs, toilets or other public
parts of the Building and to change the name, number or designation by which
the
Building is commonly known. In the event that Landlord damages any portion
of
any wall or wall covering, ceiling, or floor or floor covering within the
Premises, Landlord shall repair or replace the damaged portion to match the
original as nearly as commercially reasonable but shall not be required to
repair or replace more than the portion actually damaged. Tenant hereby waives
any claim for damages for any injury or inconvenience to or interference with
Tenant’s business, any loss of occupancy or quiet enjoyment of the Premises, and
any other loss occasioned by any action of Landlord authorized by this Article
17,
excluding any claims for personal injury or physical damage to Tenant’s property
as a result of Landlord’s gross negligence or willful misconduct.
17.2 For
each of the aforesaid
purposes, Landlord shall at all times have and retain a key with which to unlock
all of the doors in the Premises, excluding Tenant’s vaults and safes or special
security areas (designated in advance), and Landlord shall have the right to
use
any and all means which Landlord may deem proper to open said doors in an
emergency to obtain entry to any portion of the Premises. As to any portion
to
which access cannot be had by means of a key or keys in Landlord’s possession,
Landlord is authorized to gain access by such means as Landlord shall elect
and
the cost of repairing any damage occurring in doing so shall be borne by Tenant
and paid to Landlord within ten (10) days of Landlord’s demand, provided that
Landlord’s inability to gain access is due to the actions or omissions of Tenant
or its representatives.
| 18 |
DEFAULT.
|
18.1 Except
as otherwise
provided in Article 20,
the
following events shall be deemed to be Events of Default under this
Lease:
18.1.1 Tenant
shall fail to pay when due any sum of money becoming due to be paid to Landlord
under this Lease, whether such sum be any installment of the rent reserved
by
this Lease, any other amount treated as additional rent under this Lease, or
any
other payment or reimbursement to Landlord required by this Lease, whether
or
not treated as additional rent under this Lease, and such failure shall continue
for a period of five (5) days after written notice that such payment was not
made when due, but if any two (2) such notices shall be given in a twelve (12)
month period, for the twelve (12) month period commencing with the date of
the
second such notice, the failure to pay within five (5) days after due any
additional sum of money becoming due to be paid to Landlord under this Lease
during such period shall be an Event of Default, without
notice.
18.1.2 Tenant
shall fail to comply with
any term, provision or covenant of this Lease and/or the Related Agreements
which is not provided for in another Section of this Article and shall not
cure
such failure within twenty (20) days (forthwith, if the failure involves a
hazardous condition, or such time period as may be provided in the Related
Agreements) after written notice of such failure to Tenant provided, however,
that such failure shall not be an event of default if such failure could not
reasonably be cured during such twenty (20) day period, Tenant has commenced
the
cure within such twenty (20) day period and thereafter is diligently pursuing
such cure to completion, but the total aggregate cure period shall not exceed
ninety (90) days.
18.1.3 Tenant
shall fail to vacate the
Premises immediately upon termination of this Lease, by lapse of time or
otherwise, or upon termination of Tenant’s right to possession
only.
18.1.4 Tenant
shall become insolvent,
admit in writing its inability to pay its debts generally as they become due,
file a petition in bankruptcy or a petition to take advantage of any insolvency
statute, make an assignment for the benefit of creditors, make a transfer in
fraud of creditors, apply for or consent to the appointment of a receiver of
itself or of the whole or any substantial part of its property, or file a
petition or answer seeking reorganization or arrangement under the federal
bankruptcy laws, as now in effect or hereafter amended, or any other applicable
law or statute of the United States or any state thereof.
18.1.6 Any
Event of Default as defined
in the Prior Lease, the Prior Lease Termination Agreement and/or the Reston
I
Lease shall be an Event of Default hereunder without any notice or opportunity
for cure.
| 19 |
REMEDIES.
|
19.1 Except
as otherwise
provided in Article 20,
upon
the occurrence of any of the Events of Default described or referred to in
Article 18,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever, concurrently or consecutively
and not alternatively:
19.1.1 Landlord
may, at its election,
terminate this Lease or terminate Tenant’s right to possession only, without
terminating the Lease.
19.1.2 Upon
any termination of this
Lease, whether by lapse of time or otherwise, or upon any termination of
Tenant’s right to possession without termination of the Lease, Tenant shall
surrender possession and vacate the Premises immediately, and deliver possession
thereof to Landlord, and Tenant hereby grants to Landlord full and free license
to enter into and upon the Premises in such event and to repossess Landlord
of
the Premises as of Landlord’s former estate and to expel or remove Tenant and
any others who may be occupying or be within the Premises and to remove Tenant’s
signs and other evidence of tenancy and all other property of Tenant therefrom
without being deemed in any manner guilty of trespass, eviction or forcible
entry or detainer, and without incurring any liability for any damage resulting
therefrom, Tenant waiving any right to claim damages for such re-entry and
expulsion, and without relinquishing Landlord’s right to rent or any other right
given to Landlord under this Lease or by operation of law.
19.1.3 Upon
any termination of this
Lease, whether by lapse of time or otherwise, Landlord shall be entitled to
recover as damages, all rent, including any amounts treated as additional rent
under this Lease, and other sums due and payable by Tenant on the date of
termination, plus as liquidated damages and not as a penalty, an amount equal
to
the sum of: (a) in the event of termination for any reason other than by lapse
of time, an amount equal to the then present value of the rent reserved in
this
Lease for the residue of the stated Term of this Lease including any amounts
treated as additional rent under this Lease and all other sums provided in
this
Lease to be paid by Tenant, minus the fair rental value of the Premises for
such
residue; (b) in the event of termination for any reason other than by lapse
of
time, the value of the time and expense necessary to obtain a replacement tenant
or tenants, and the estimated expenses described in Section 19.1.4 relating
to
recovery of the Premises, preparation for reletting and for reletting itself;
and (c) the cost of performing any other covenants which would have otherwise
been performed by Tenant.
19.1.4.1 Neither
such termination of
Tenant’s right to possession nor Landlord’s taking and holding possession
thereof as provided in Section 19.1.2
shall
terminate the Lease or release Tenant, in whole or in part, from any obligation,
including Tenant’s obligation to pay the rent, including any amounts treated as
additional rent, under this Lease for the full Term, and if Landlord so elects
Tenant shall continue to pay to Landlord the entire amount of the rent as and
when it becomes due, including any amounts treated as additional rent under
this
Lease, for the remainder of the Term plus any other sums provided in this Lease
to be paid by Tenant for the remainder of the Term.
19.1.4.2 Landlord
shall use commercially
reasonable efforts to relet the Premises or portions thereof to the extent
required by applicable law. Landlord and Tenant agree that nevertheless Landlord
shall at most be required to use only the same efforts Landlord then uses to
lease premises in the Building generally and that in any case that Landlord
shall not be required to give any preference or priority to the showing or
leasing of the Premises or portions thereof over any other space that Landlord
may be leasing or have available and may place a suitable prospective tenant
in
any such other space regardless of when such other space becomes available
and
that Landlord shall have the right to relet the Premises for a greater or lesser
term than that remaining under this Lease, the right to relet only a portion
of
the Premises, or a portion of the Premises or the entire Premises as a part
of a
larger area, and the right to change the character or use of the Premises.
In
connection with or in preparation for any reletting, Landlord may, but shall
not
be required to, make repairs, alterations and additions in or to the Premises
and redecorate the same to the extent Landlord deems necessary or desirable,
and
Tenant shall pay the cost thereof, together with Landlord’s expenses of
reletting, including, without limitation, any commission incurred by Landlord,
within ten (10) days of Landlord’s demand. Landlord shall not be required to
observe any instruction given by Tenant about any reletting or accept any tenant
offered by Tenant unless such offered tenant has a credit-worthiness acceptable
to Landlord and leases the entire Premises upon terms and conditions including
a
rate of rent (after giving effect to all expenditures by Landlord for tenant
improvements, broker’s commissions and other leasing costs) all no less
favorable to Landlord than as called for in this Lease, nor shall Landlord
be
required to make or permit any assignment or sublease for more than the current
term or which Landlord would not be required to permit under the provisions
of
Article 9.
19.1.4.3 Until
such time as Landlord shall
elect to terminate the Lease and shall thereupon be entitled to recover the
amounts specified in such case in Section 19.1.3,
Tenant
shall pay to Landlord upon demand the full amount of all rent, including any
amounts treated as additional rent under this Lease and other sums reserved
in
this Lease for the remaining Term, together with the costs of repairs,
alterations, additions, redecorating and Landlord’s expenses of reletting and
the collection of the rent accruing therefrom (including reasonable attorney’s
fees and broker’s commissions), as the same shall then be due or become due from
time to time, less only such consideration as Landlord may have received from
any reletting of the Premises; and Tenant agrees that Landlord may file suits
from time to time to recover any sums falling due under this Article
19
as they
become due. Any proceeds of reletting by Landlord in excess of the amount then
owed by Tenant to Landlord from time to time shall be credited against Tenant’s
future obligations under this Lease but shall not otherwise be refunded to
Tenant or inure to Tenant’s benefit.
19.3 Tenant
understands and
agrees that in entering into this Lease, Landlord is relying upon receipt of
all
the Annual and Monthly Installments of Rent to become due with respect to all
the Premises originally leased hereunder over the full Initial Term of this
Lease for amortization, including interest at the Amortization Rate. For
purposes hereof, the “Concession
Amount”
shall
be defined as the aggregate of all amounts forgone or expended by Landlord
as
free rent under the lease, under Exhibit
B
hereof
for construction allowances (excluding therefrom any amounts expended by
Landlord for Landlord’s Work, as defined in Exhibit
B),
and
for brokers’ commissions payable by reason of this Lease. Accordingly, Tenant
agrees that if this Lease or Tenant’s right to possession of the Premises leased
hereunder shall be terminated as of any date (“Default
Termination Date”)
prior
to the expiration of the full Initial Term hereof by reason of a default of
Tenant, there shall be due and owing to Landlord as of the day prior to the
Default Termination Date, as rent in addition to all other amounts owed by
Tenant as of such Date, the amount (“Unamortized
Amount”)
of the
Concession Amount determined as set forth below; provided, however, that in
the
event that such amounts are recovered by Landlord pursuant to any other
provision of this Article 19,
Landlord agrees that it shall not attempt to recover such amounts pursuant
to
this Paragraph 19.3.
For the
purposes hereof, the Unamortized Amount shall be determined in the same manner
as the remaining principal balance of a mortgage with interest at the
Amortization Rate payable in level payments over the same length of time as
from
the effectuation of the Concession concerned to the end of the full Initial
Term
of this Lease would be determined. The foregoing provisions shall also apply
to
and upon any reduction of space in the Premises, as though such reduction were
a
termination for Tenant’s default, except that (i) the Unamortized Amount shall
be reduced by any amounts paid by Tenant to Landlord to effectuate such
reduction and (ii) the manner of application shall be that the Unamortized
Amount shall first be determined as though for a full termination as of the
Effective Date of the elimination of the portion, but then the amount so
determined shall be multiplied by the fraction of which the numerator is the
rentable square footage of the eliminated portion and the denominator is the
rentable square footage of the Premises originally leased hereunder; and the
amount thus obtained shall be the Unamortized Amount.
19.4 If,
on account of any
breach or default by Tenant in Tenant’s obligations under the terms and
conditions of this Lease, it shall become necessary or appropriate for Landlord
to employ or consult with an attorney or collection agency concerning or to
enforce or defend any of Landlord’s rights or remedies arising under this Lease
or to collect any sums due from Tenant, Tenant agrees to pay all costs and
fees
so incurred by Landlord, including, without limitation, reasonable attorneys’
fees and costs. TENANT EXPRESSLY WAIVES ANY RIGHT TO: (A) TRIAL BY JURY; AND
(B)
SERVICE OF ANY NOTICE REQUIRED BY ANY PRESENT OR FUTURE LAW OR ORDINANCE
APPLICABLE TO LANDLORDS OR TENANTS BUT NOT REQUIRED BY THE TERMS OF THIS
LEASE.
19.5 Pursuit
of any of the
foregoing remedies shall not preclude pursuit of any of the other remedies
provided in this Lease or any other remedies provided by law (all such remedies
being cumulative), nor shall pursuit of any remedy provided in this Lease
constitute a forfeiture or waiver of any rent due to Landlord under this Lease
or of any damages accruing to Landlord by reason of the violation of any of
the
terms, provisions and covenants contained in this Lease.
19.7 To
secure the payment of
all rentals and other sums of money becoming due from Tenant under this Lease,
Landlord shall have and Tenant grants to Landlord a first lien upon the
leasehold interest of Tenant under this Lease, which lien may be enforced in
equity, and a continuing security interest upon all goods, wares, equipment,
fixtures, furniture, inventory, and other personal property of Tenant situated
on the Premises. Such property shall not be removed therefrom without the
consent of Landlord until all arrearages in rent as well as any and all other
sums of money then due to Landlord under this Lease shall first have been paid
and discharged. Upon the occurrence of an Event of Default, Landlord shall
have,
in addition to any other remedies provided in this Lease or by law, all rights
and remedies under the Uniform Commercial Code, including without limitation
the
right to sell the property described in this Section 19.7
at
public or private sale upon five (5) days’ notice to Tenant. Tenant shall
execute all such financing statements and other instruments as shall be deemed
necessary or desirable in Landlord’s reasonable discretion to perfect the
security interest hereby created.
19.8 Any
and all property
which may be removed from the Premises by Landlord pursuant to the authority
of
this Lease or of law, to which Tenant is or may be entitled, may be handled,
removed and/or stored, as the case may be, by or at the direction of Landlord
but at the risk, cost and expense of Tenant, and Landlord shall in no event
be
responsible for the value, preservation or safekeeping thereof. Tenant shall
pay
to Landlord, upon demand, any and all expenses incurred in such removal and
all
storage charges against such property so long as the same shall be in Landlord’s
possession or under Landlord’s control. Any such property of Tenant not retaken
by Tenant from storage within thirty (30) days after removal from the Premises
shall, at Landlord’s option, be deemed conveyed by Tenant to Landlord under this
Lease as by a ▇▇▇▇ of sale without further payment or credit by Landlord to
Tenant.
19.9 If
more than two (2)
Events of Default occur during the Term and/or any renewal thereof, Tenant’s
renewal options, expansion options, purchase options and rights of first offer
and/or refusal, if any are provided for in this Lease, shall be null and void.
| 20 |
TENANT’S
BANKRUPTCY OR INSOLVENCY.
|
20.1 If
at any time and for so
long as Tenant shall be subjected to the provisions of the United States
Bankruptcy Code or other law of the United States or any state thereof for
the
protection of debtors as in effect at such time (each a “Debtor’s
Law”):
20.1.1 Tenant,
Tenant as
debtor-in-possession, and any trustee or receiver of Tenant’s assets (each a
“Tenant’s
Representative”)
shall
have no greater right to assume or assign this Lease or any interest in this
Lease, or to sublease any of the Premises than accorded to Tenant in Article
9,
except
to the extent Landlord shall be required to permit such assumption, assignment
or sublease by the provisions of such Debtor’s Law. Without limitation of the
generality of the foregoing, any right of any Tenant’s Representative to assume
or assign this Lease or to sublease any of the Premises shall be subject to
the
conditions that:
20.1.1.1 Such
Debtor’s Law shall provide
to Tenant’s Representative a right of assumption of this Lease which Tenant’s
Representative shall have timely exercised and Tenant’s Representative shall
have fully cured any default of Tenant under this Lease.
20.1.1.2 Tenant’s
Representative or the
proposed assignee, as the case shall be, shall have deposited with Landlord
as
security for the timely payment of rent an amount equal to the larger of: (a)
three (3) months’ rent and other monetary charges accruing under this Lease; and
(b) any sum specified in Article 4;
and
shall have provided Landlord with adequate other assurance of the future
performance of the obligations of the Tenant under this Lease. Without
limitation, such assurances shall include, at least, in the case of assumption
of this Lease, demonstration to the satisfaction of the Landlord that Tenant’s
Representative has and will continue to have sufficient unencumbered assets
after the payment of all secured obligations and administrative expenses to
assure Landlord that Tenant’s Representative will have sufficient funds to
fulfill the obligations of Tenant under this Lease; and, in the case of
assignment, submission of current financial statements of the proposed assignee,
audited by an independent certified public accountant reasonably acceptable
to
Landlord and showing a net worth and working capital in amounts determined
by
Landlord to be sufficient to assure the future performance by such assignee
of
all of the Tenant’s obligations under this Lease.
20.1.1.3 The
assumption or any
contemplated assignment of this Lease or subleasing any part of the Premises,
as
shall be the case, will not breach any provision in any other lease, mortgage,
financing agreement or other agreement by which Landlord is bound.
20.1.1.4 Landlord
shall have, or would
have had absent the Debtor’s Law, no right under Article 9
to
refuse consent to the proposed assignment or sublease by reason of the identity
or nature of the proposed assignee or sublessee or the proposed use of the
Premises concerned.
| 21 |
QUIET
ENJOYMENT.
|
21.1 Landlord
represents and
warrants that it has full right and authority to enter into this Lease and
that
Tenant, while paying the rental and performing its other covenants and
agreements contained in this Lease, shall peaceably and quietly have, hold
and
enjoy the Premises for the Term without hindrance or molestation from Landlord
subject to the terms and provisions of this Lease. Landlord shall not be liable
for any interference or disturbance by other tenants or third persons, nor
shall
Tenant be released from any of the obligations of this Lease because of such
interference or disturbance.
| 22 |
CASUALTY
|
22.1 In
the event the Premises
or the Building are damaged by fire or other cause and in Landlord’s reasonable
estimation such damage can be materially restored within one hundred eighty
(180) days, Landlord shall forthwith repair the same and this Lease shall remain
in full force and effect, except that Tenant shall be entitled to a
proportionate abatement in rent from the date of such damage. Such abatement
of
rent shall be made pro rata in accordance with the extent to which the damage
and the making of such repairs shall interfere with the use and occupancy by
Tenant of the Premises from time to time. Within forty-five (45) days from
the
date of such damage, Landlord shall notify Tenant, in writing, of Landlord’s
reasonable estimation of the length of time within which material restoration
can be made, and Landlord’s determination shall be binding on Tenant. For
purposes of this Lease, the Building or Premises shall be deemed “materially
restored”
if
they
are in such condition as would not prevent or materially interfere with Tenant’s
use of the Premises for the purpose for which it was being used immediately
before such damage.
22.2 If
such repairs cannot,
in Landlord’s reasonable estimation, be made within one hundred eighty (180)
days, Landlord and Tenant shall each have the option of giving the other, at
any
time within ninety (90) days after such damage, notice terminating this Lease
as
of the date of such damage. In the event of the giving of such notice, this
Lease shall expire and all interest of the Tenant in the Premises shall
terminate as of the date of such damage as if such date had been originally
fixed in this Lease for the expiration of the Term. In the event that neither
Landlord nor Tenant exercises its option to terminate this Lease, then Landlord
shall repair or restore such damage, this Lease continuing in full force and
effect, and the rent hereunder shall be proportionately abated as provided
in
Section 22.1.
22.3 Landlord
shall not be
required to repair or replace any damage or loss by or from fire or other cause
to any panelings, decorations, partitions, additions, railings, ceilings, floor
coverings, office fixtures or any other property or improvements installed
on
the Premises by, or belonging to, Tenant. Any insurance which may be carried
by
Landlord or Tenant against loss or damage to the Building or Premises shall
be
for the sole benefit of the party carrying such insurance and under its sole
control.
22.4 In
the event that
Landlord should fail to complete such repairs and material restoration within
sixty (60) days after the date estimated by Landlord therefor as extended by
this Section 22.4,
Tenant
may at its option and as its sole remedy terminate this Lease by delivering
written notice to Landlord, within fifteen (15) days after the expiration of
said period of time, whereupon the Lease shall end on the date of such notice
or
such later date fixed in such notice as if the date of such notice was the
date
originally fixed in this Lease for the expiration of the Term; provided,
however, that if construction is delayed because of changes, deletions or
additions in construction requested by Tenant, strikes, lockouts, casualties,
Acts of God, war, material or labor shortages, government regulation or control
or other causes beyond the reasonable control of Landlord, the period for
restoration, repair or rebuilding shall be extended for the amount of time
Landlord is so delayed.
22.5 Notwithstanding
anything
to the contrary contained in this Article: (a) Landlord shall not have any
obligation whatsoever to repair, reconstruct, or restore the Premises when
the
damages resulting from any casualty covered by the provisions of this Article
22
occur
during the last twelve (12) months of the Term or any extension thereof, but
if
Landlord determines not to repair such damages Landlord shall notify Tenant
and
if such damages shall render any material portion of the Premises untenantable
Tenant shall have the right to terminate this Lease by notice to Landlord within
fifteen (15) days after receipt of Landlord’s notice; and (b) in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering
the
Premises or Building requires that any insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such requirement is made by any such holder, whereupon this Lease shall
end on the date of such damage as if the date of such damage were the date
originally fixed in this Lease for the expiration of the Term.
22.6 In
the event of any
damage or destruction to the Building or Premises by any peril covered by the
provisions of this Article 22,
it
shall be Tenant’s responsibility to properly secure the Premises and upon notice
from Landlord to remove forthwith, at its sole cost and expense, such portion
of
all of the property belonging to Tenant or its licensees from such portion
or
all of the Building or Premises as Landlord shall request.
| 23 |
EMINENT
DOMAIN.
|
23.1 If
all or any substantial
part of the Premises shall be taken or appropriated by any public or
quasi-public authority under the power of eminent domain, or conveyance in
lieu
of such appropriation, either party to this Lease shall have the right, at
its
option, of giving the other, at any time within thirty (30) days after such
taking, notice terminating this Lease, except that Tenant may only terminate
this Lease by reason of taking or appropriation, if such taking or appropriation
shall be so substantial as to materially interfere with Tenant’s use and
occupancy of the Premises. If neither party to this Lease shall so elect to
terminate this Lease, the rental thereafter to be paid shall be adjusted on
a
fair and equitable basis under the circumstances. In addition to the rights
of
Landlord above, if any substantial part of the Building shall be taken or
appropriated by any public or quasi-public authority under the power of eminent
domain or conveyance in lieu thereof, and regardless of whether the Premises
or
any part thereof are so taken or appropriated, Landlord shall have the right,
at
its sole option, to terminate this Lease. Landlord shall be entitled to any
and
all income, rent, award, or any interest whatsoever in or upon any such sum,
which may be paid or made in connection with any such public or quasi-public
use
or purpose, and Tenant hereby assigns to Landlord any interest it may have
in or
claim to all or any part of such sums, other than any separate award which
may
be made with respect to Tenant’s trade fixtures and moving expenses; Tenant
shall make no claim for the value of any unexpired Term.
| 24 |
SALE
BY
LANDLORD.
|
24.1 In
event of a sale or
conveyance by Landlord of the Building, the same shall operate to release
Landlord from any future liability upon any of the covenants or conditions,
expressed or implied, contained in this Lease in favor of Tenant, and in such
event Tenant agrees to look solely to the responsibility of the successor in
interest of Landlord in and to this Lease. Except as set forth in this Article
24,
this
Lease shall not be affected by any such sale and Tenant agrees to attorn to
the
purchaser or assignee. If any security has been given by Tenant to secure the
faithful performance of any of the covenants of this Lease, Landlord may
transfer or deliver said security, as such, to Landlord’s successor in interest
and thereupon Landlord shall be discharged from any further liability with
regard to said security.
| 25 |
ESTOPPEL
CERTIFICATES.
|
25.1 Within
ten (10) days
following any written request which Landlord may make from time to time, Tenant
shall execute and deliver to Landlord or mortgagee or prospective mortgagee
a
sworn statement certifying: (a) the date of commencement of this Lease; (b)
the
fact that this Lease is unmodified and in full force and effect (or, if there
have been modifications to this Lease, that this lease is in full force and
effect, as modified, and stating the date and nature of such modifications);
(c)
the date to which the rent and other sums payable under this Lease have been
paid; (d) the fact that there are no current defaults under this Lease by either
Landlord or Tenant except as specified in Tenant’s statement; and (e) such other
matters as may be requested by Landlord. Landlord and Tenant intend that any
statement delivered pursuant to this Article 25
may be
relied upon by any mortgagee, beneficiary or purchaser, and Tenant shall be
liable for all loss, cost or expense resulting from the failure of any sale
or
funding of any loan caused by any material misstatement contained in such
estoppel certificate. Tenant irrevocably agrees that if Tenant fails to execute
and deliver such certificate within such ten (10) day period Landlord or
Landlord’s beneficiary or agent may execute and deliver such certificate on
Tenant’s behalf, and that such certificate shall be fully binding on
Tenant.
| 26 |
SURRENDER
OF
PREMISES.
|
26.1 Tenant
shall arrange to
meet Landlord for two (2) joint inspections of the Premises, the first to occur
at least thirty (30) days (but no more than sixty (60) days) before the last
day
of the Term, and the second to occur not later than forty-eight (48) hours
after
Tenant has vacated the Premises. In the event of Tenant’s failure to participate
in either such inspection, Landlord’s inspection at or after Tenant’s vacating
the Premises shall be conclusively deemed correct for purposes of determining
Tenant’s responsibility for repairs and restoration.
26.2 All
alterations,
additions, and improvements in, on, or to the Premises made or installed by
or
for Tenant, including carpeting (collectively, “Alterations”),
shall
be and remain the property of Tenant during the Term. Upon the expiration or
sooner termination of the Term, all Alterations shall become a part of the
realty and shall belong to Landlord without compensation, and title shall pass
to Landlord under this Lease as by a ▇▇▇▇ of sale. At the end of the Term or
any
renewal of the Term or other sooner termination of this Lease, Tenant will
peaceably deliver up to Landlord possession of the Premises, together with
all
Alterations by whomsoever made, in the same conditions received or first
installed, broom clean and free of all debris, excepting only ordinary wear
and
tear and damage by fire or other casualty. Notwithstanding the foregoing, if
Landlord elects by notice given to Tenant at least ten (10) days prior to
expiration of the Term, Tenant shall, at Tenant’s sole cost, remove any
Alterations, including carpeting, so designated by Landlord’s notice, and repair
any damage caused by such removal. Tenant must, at Tenant’s sole cost, remove
upon termination of this Lease, any and all of Tenant’s furniture, furnishings,
movable partitions of less than full height from floor to ceiling and other
trade fixtures and personal property (collectively, “Personalty”).
Personalty not so removed shall be deemed abandoned by the Tenant and title
to
the same shall thereupon pass to Landlord under this Lease as by a ▇▇▇▇ of
sale,
but Tenant shall remain responsible for the cost of removal and disposal of
such
Personalty, as well as any damage caused by such removal. If there has been
a
monetary default by Tenant during the six (6) months preceding the expiration
or
earlier termination of this Lease, then in lieu of requiring Tenant to remove
Alterations and Personalty and repair the Premises as aforesaid, Landlord may,
by written notice to Tenant delivered at least thirty (30) days before the
Termination Date, require Tenant to pay to Landlord, as additional rent
hereunder, the cost of such removal and repair in an amount reasonably estimated
by Landlord.
26.3 All
obligations of Tenant
under this Lease not fully performed as of the expiration or earlier termination
of the Term shall survive the expiration or earlier termination of the Term
Upon
the expiration or earlier termination of the Term, Tenant shall pay to Landlord
the amount, as reasonably estimated by Landlord, necessary to repair and restore
the Premises as provided in this Lease and/or to discharge Tenant’s obligation
for unpaid amounts due or to become due to Landlord. All such amounts shall
be
used and held by Landlord for payment of such obligations of Tenant, with Tenant
being liable for any additional costs upon demand by Landlord, or with any
excess to be returned to Tenant after all such obligations have been determined
and satisfied. Any otherwise unused Security Deposit shall be credited against
the amount payable by Tenant under this Lease.
| 27 |
NOTICES.
|
27.1 Any
notice or document
required or permitted to be delivered under this Lease shall be addressed to
the
intended recipient, by fully prepaid registered or certified United States
Mail
return receipt requested, or by reputable independent contract delivery service
furnishing a written record of attempted or actual delivery, and shall be deemed
to be delivered when tendered for delivery to the addressee at its address
set
forth on the Reference Pages, or at such other address as it has then last
specified by written notice delivered in accordance with this Article
27,
or if
to Tenant at either its aforesaid address or its last known registered office
or
home of a general partner or individual owner, whether or not actually accepted
or received by the addressee. Any such notice or document may also be personally
delivered if a receipt is signed by and received from, the individual, if any,
named in Tenant’s Notice Address. Service
of process upon Landlord shall be served upon Landlord’s Registered Agent for
Service of Process, as designated on the Reference Pages, with a copy (which
shall not constitute notice) to Landlord at Landlord’s Address as set forth on
the Reference Pages.
| 28 |
TAXES
PAYABLE BY TENANT.
|
28.1 In
addition to rent and
other charges to be paid by Tenant under this Lease, Tenant shall reimburse
to
Landlord, upon demand, any and all taxes payable by Landlord (other than net
income taxes, franchise taxes, recordation taxes or transfer taxes) whether
or
not now customary or within the contemplation of the parties to this Lease:
(a)
upon, allocable to, or measured by or on the gross or net rent payable under
this Lease, including without limitation any gross income tax or excise tax
levied by the State, any political subdivision thereof, or the Federal
Government with respect to the receipt of such rent; (b) upon or with respect
to
the possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy of the Premises or any portion thereof, including any sales,
use or service tax imposed as a result thereof; (c) upon or measured by the
Tenant’s gross receipts or payroll or the value of Tenant’s equipment,
furniture, fixtures and other personal property of Tenant or leasehold
improvements, alterations or additions located in the Premises; or (d) upon
this
transaction or any document to which Tenant is a party creating or transferring
any interest of Tenant in this Lease or the Premises. In addition to the
foregoing, Tenant agrees to pay, before delinquency, any and all taxes levied
or
assessed against Tenant by a taxing authority and which become payable by Tenant
during the term hereof upon Tenant’s equipment, furniture, fixtures and other
personal property of Tenant located in the Premises.
| 29 |
INTENTIONALLY
OMITTED.
|
| 30 |
DEFINED
TERMS AND HEADINGS.
|
30.1 The
Article headings
shown in this Lease are for convenience of reference and shall in no way define,
increase, limit or describe the scope or intent of any provision of this Lease.
Any indemnification or insurance of Landlord shall apply to and inure to the
benefit of all the following “Landlord
Entities”,
being
Landlord, Landlord’s investment manager, and the trustees, boards of directors,
officers, general partners, beneficiaries, stockholders, employees and agents
of
each of them. Any option granted to Landlord shall also include or be
exercisable by Landlord’s trustee, beneficiary, agents and employees, as the
case may be. In any case where this Lease is signed by more than one person,
the
obligations under this Lease shall be joint and several. The terms “Tenant”
and
“Landlord”
or
any
pronoun used in place thereof shall indicate and include the masculine or
feminine, the singular or plural number, individuals, firms or corporations,
and
their and each of their respective successors, executors, administrators and
permitted assigns, according to the context hereof. The term “rentable
area”
shall
mean the rentable area of the Premises or the Building as calculated by the
Landlord on the basis of the plans and specifications of the Building including
a proportionate share of any common areas. Tenant hereby accepts and agrees
to
be bound by the figures for the rentable square footage of the Premises and
Tenant’s Proportionate Share shown on the Reference Pages; however, Landlord may
adjust either or both figures if there is manifest error, addition or
subtraction to the Building or any business park or complex of which the
Building is a part, remeasurement or other circumstance reasonably justifying
adjustment. The term “Building”
refers
to the structure in which the Premises are located and the common areas (parking
lots, sidewalks, landscaping, etc.) appurtenant thereto. If the Building is
part
of a larger complex of structures, the term “Building”
may
include the entire complex, where appropriate (such as shared Expenses,
Insurance Costs or Taxes) and subject to Landlord’s reasonable
discretion.
| 31 |
TENANT’S
AUTHORITY.
|
31.1 If
Tenant signs as a
corporation, partnership, trust or other legal entity each of the persons
executing this Lease on behalf of Tenant represents and warrants that Tenant
has
been and is qualified to do business in the state in which the Building is
located, that the entity has full right and authority to enter into this Lease,
and that all persons signing on behalf of the entity were authorized to do
so by
appropriate actions. Tenant agrees to deliver to Landlord, simultaneously with
the delivery of this Lease, a corporate resolution, proof of due authorization
by partners, opinion of counsel or other appropriate documentation reasonably
acceptable to Landlord evidencing the due authorization of Tenant to enter
into
this Lease.
| 32 |
FINANCIAL
STATEMENTS AND CREDIT REPORTS.
|
32.1 At
Landlord’s request and
so long as the Tenant is not a corporation, the voting stock of which is listed
on a nationally-recognized securities exchange as defined in the Securities
Exchange Act of 1934, as amended or superseded, Tenant shall deliver to Landlord
a copy, certified by an officer of Tenant as being a true and correct copy,
of
Tenant’s most recent audited financial statement, or, if unaudited, certified by
Tenant’s chief financial officer as being true, complete and correct in all
material respects. Tenant hereby authorizes Landlord to obtain one or more
credit reports on Tenant at any time, and shall execute such further
authorizations as Landlord may reasonably require in order to obtain a credit
report.
| 33 |
COMMISSIONS.
|
33.1 Each
of the parties
represents and warrants to the other that it has not dealt with any broker
or
finder in connection with this Lease, except as described on the Reference
Pages. Each
party hereby agrees to indemnify, defend and hold the other party harmless
from
and against any claims by a broker or finder relating to such party’s breach or
alleged breach of the foregoing representation or warranty.
Landlord
agrees to pay the Broker identified on the Reference Pages of this Lease in
accordance with the terms of a separate agreement entered into with such
Broker.
| 34 |
TIME
AND APPLICABLE LAW.
|
34.1 Time
is of the essence of
this Lease and all of its provisions. This Lease shall in all respects be
governed by the laws of the state in which the Building is located.
| 35 |
SUCCESSORS
AND
ASSIGNS.
|
35.1 Subject
to the provisions
of Article 9,
the
terms, covenants and conditions contained in this Lease shall be binding upon
and inure to the benefit of the heirs, successors, executors, administrators
and
assigns of the parties to this Lease.
| 36 |
ENTIRE
AGREEMENT.
|
36.1 This
Lease, together with
its exhibits, contains all agreements of the parties to this Lease and
supersedes any previous negotiations. There have been no representations made
by
the Landlord or any of its representatives or understandings made between the
parties other than those set forth in this Lease and its exhibits. This Lease
may not be modified except by a written instrument duly executed by the parties
to this Lease.
| 37 |
EXAMINATION
NOT
OPTION.
|
37.1 Submission
of this Lease shall not be deemed to be a reservation of the Premises. Landlord
shall not be bound by this Lease until it has received a copy of this Lease
duly
executed by Tenant and has delivered to Tenant a copy of this Lease duly
executed by Landlord, and until such delivery Landlord reserves the right to
exhibit and lease the Premises to other prospective tenants. Notwithstanding
anything contained in this Lease to the contrary, Landlord may withhold delivery
of possession of the Premises from Tenant until such time as Tenant has paid
to
Landlord any security deposit required by Article 4, the first month’s rent as
set forth in Article 3 and any sum owed pursuant to this Lease and provided
to
Landlord such other items required under this Lease, including, but not limited
to evidence of adequate insurance and evidence of authority of Tenant to enter
into this transaction.
| 38 |
RECORDATION.
|
38.1 Tenant
shall not record
or register this Lease or a short form memorandum hereof without the prior
written consent of Landlord, and then shall pay all charges and taxes incident
such recording or registration.
| 39 |
PARKING.
|
39.1 During
the Term of this
Lease, provided that Tenant timely pays the fee therefor, Tenant shall have
the
privilege to use up to thirty-six (36) unreserved, surface parking spaces and
up
to sixteen (16) unreserved, covered parking spaces (collectively, the
“Parking
Spaces,”
singularly, a “Parking
Space”)
in the
parking facility for the Building at the prevailing market rate for such spaces
(the “Monthly
Parking Rate”).
Such
fee shall constitute additional rent under this Lease. The current rate for
a
Parking Space is Twenty and 00/100 Dollars ($20.00) per space per month, subject
to change at any time and from time to time.
39.1.1 Notwithstanding
the foregoing,
provided that there shall not exist any Event of Default, and no event exists
which by notice and/or the passage of time would constitute an Event of Default
if not cured within the applicable cure period provided under this Lease,
following the Commencement Date the Monthly Parking Rate shall be abated for
the
initial Term of this Lease. Nothing in this Section 39.1.1, however, shall
be
interpreted to except or excuse Tenant from any additional rent or other amounts
due under this Lease to Landlord.
39.2 As
used in this Article
39, “Landlord”
shall
be deemed to include an independent parking facility operator contracted by
Landlord to operate the Building’s parking facility, if any. Tenant acknowledges
that Landlord may at some time establish a standard license agreement (the
“Parking
License Agreement”)
with
respect to the use of parking spaces. Tenant, upon request of Landlord, shall
enter into such Parking License Agreements with Landlord provided that such
agreement does not materially alter the rights of Tenant hereunder with respect
to the parking spaces. No deductions or allowances shall be made for days when
Tenant or any of its employees does not utilize the parking facilities or for
Tenant utilizing less than all of the Parking Spaces. Tenant shall not assign
or
sublease any of the Parking Spaces without the consent of Landlord. Furthermore,
Tenant agrees that it and its employees shall observe reasonable safety
precautions in the use of the Building’s parking facility, and shall at all
times abide by all rules and regulations promulgated by Landlord governing
the
use of the Building’s parking facility. Except for claims due to Landlord’s
gross negligence or willful misconduct, it is understood and agreed that
Landlord does not assume any responsibility for, and Tenant hereby expressly
releases and discharges Landlord and Landlord Entity from any liability, and
hereby waives any claim against Landlord and Landlord Entity, for any damage
or
loss to any automobiles parked in the parking facility or to any personal
property located therein, or for any injury sustained by any person in or about
the parking facility. Landlord shall have the right to temporarily close the
Building parking facility or certain areas therein in order to perform necessary
repairs, maintenance and improvements to the Building parking facility or the
Building; provided, however, that (except in the case of emergency) Landlord
shall provide reasonable advance notice of such closure to Tenant. Tenant shall
not store any automobiles in the Building parking facility without the prior
written consent of Landlord. Except for emergency repairs, Tenant shall not
perform any work on any automobiles while located in the Building parking
facility.
| 40 |
LIMITATION
OF
LANDLORD’S LIABILITY.
|
40.1 Redress
for any claim
against Landlord under this Lease shall be limited to and enforceable only
against and to the extent of Landlord’s interest in the Building. The
obligations of Landlord under this Lease are not intended to be and shall not
be
personally binding on, nor shall any resort be had to the private properties
of,
any of its or its investment manager’s trustees, directors, officers, partners,
beneficiaries, members, stockholders, employees, or agents, and in no case
shall
Landlord be liable to Tenant hereunder for any lost profits, damage to business,
or any form of special, indirect or consequential damages.
[SIGNATURES
CONTAINED ON NEXT PAGE]
|
WITNESS:
By:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Property Manager
|
LANDLORD:
TMT
RESTON I & II, INC.,
a
Delaware corporation
By: RREEF
Management Company,
a
Delaware corporation
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice President / Regional Director
Dated:
9-26-05
|
|
ATTEST:
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Associste General Counsel - Assistant Secretary
[Corporate
Seal]
|
TENANT:
TALK
AMERICA INC.
a
Pennsylvania corporation
By:
▇▇▇▇▇▇▇▇ ▇. Lawn IV
Name:
▇▇▇▇▇▇▇▇ ▇. Lawn IV
Title:
Executive Vice-President - General Counsel
Dated:
9-19-05
|
EXHIBIT
A - FLOOR PLAN DEPICTING THE PREMISES
attached
to and made a part of Lease bearing the
Lease
Reference Date of 2/28/2006
between
TMT
Reston I & II, Inc., as Landlord and
Talk
America Inc., as Tenant
Exhibits
A, A-1 and A-2 are intended only to show the general layout of the Premises
as
of the beginning of the Term of this Lease. They do not in any way supersede
any
of Landlord’s rights set forth in Article 17
with
respect to arrangements and/or locations of public parts of the Building and
changes in such arrangements and/or locations. They are not to be scaled; any
measurements or distances shown should be taken as approximate.
[Missing
Graphic Reference]
EXHIBIT
A-1 - SITE PLAN
attached
to and made a part of Lease bearing the
Lease
Reference Date of 2/28/2006
between
TMT
Reston I & II, Inc., as Landlord and
Talk
America Inc., as Tenant
EXHIBIT
A-2 - EXPANSION SPACE
attached
to and made a part of Lease bearing the
Lease
Reference Date of 2/28/2006
between
TMT
Reston I & II, Inc., as Landlord and
Talk
America Inc., as Tenant
EXHIBIT
B - INITIAL ALTERATIONS
attached
to and made a part of Lease bearing the
Lease
Reference Date of 2/28/2006
between
TMT
Reston I & II, Inc., as Landlord and
Talk
America Holdings, Inc., as Tenant
1. Landlord
and Tenant hereby approve the Project Schedule attached as Exhibit
B-1.
2. Tenant
shall cause its architect and engineer, at its sole expense, to complete all
drawings, plans and specifications necessary for the construction of Tenant’s
leasehold improvements to be located in the Premises (“Tenant’s
Improvements”),
including but not limited to, MEP working drawings as required for the
permitting and construction of the Premises. Tenant’s architect and engineer
shall be subject to Landlord’s reasonable approval; provided, however, Landlord
hereby approves KTA Group, Inc. as Tenant’s architect and engineer. Landlord
shall provide Tenant with all existing architectural, mechanical, electrical
and
plumbing plans for the Premises, including any plans in Landlord’s possession
that were completed on behalf of prior tenants. All of Tenant’s Improvements and
the related drawings, plans and specifications shall comply with applicable
laws, shall be suitable for obtaining all necessary construction permits and
shall be submitted to Landlord for Landlord’s approval (upon approval by
Landlord, the “Final
Plans”).
Such
approval of Landlord shall not be unreasonably withheld, conditioned or delayed
(except with respect to matters affecting the base Building structure or
systems, for which Landlord’s approval may be granted in Landlord’s sole and
absolute discretion). Landlord shall approve or disapprove the drawings, plans
and specifications for Tenant’s Improvements in accordance with the Project
Schedule and Tenant shall cause any required revisions to be made. Any revisions
to drawings, plans and specifications made pursuant to this paragraph shall
be
made at Tenant’s expense. If Landlord shall retain design professionals to
assist Landlord in evaluating Tenant’s drawings, plans or specifications for the
Premises pursuant to this Paragraph 2, such services and related reasonable
fees
and expenses shall be at Tenant’s expense.
3. Tenant
shall cause its own contractor to construct Tenant’s Improvements. Tenant’s
contractor shall be approved by Landlord, such approval not to be unreasonably
withheld, conditioned or delayed subject to the following
conditions:
(a) Tenant
shall indemnify, defend (with counsel reasonably acceptable to Landlord), and
hold harmless Landlord, Landlord’s managing agent, Landlord’s affiliates, and
Landlord’s invitees from and against any all losses, damages, costs (including
costs of suits and attorneys’ fees), liabilities or causes of action arising out
of or relating to Tenant’s Improvements, including but not limited to
mechanic’s, materialman’s or other liens or claims (and all costs or expenses
associated therewith) asserted, filed or arising out of any such work. Without
limiting the generality of the foregoing, Tenant shall repair or cause to be
repaired at its expense all damage caused by its contractor and Tenant shall
reimburse Landlord for all reasonable costs incurred by Landlord to repair
any
damage caused by Tenant’s contractor. All parties contracting with Tenant to
furnish labor, services, materials, suppliers or equipment with respect to
the
Premises shall look solely to Tenant for payment of same and Tenant’s purchase
orders and contracts shall state this requirement.
(b) Tenant's
contract with any contractor with whom Tenant contracts with respect to Tenant's
Improvements shall include (i) a provision requiring such contractor to keep
the
Premises, the Building and appurtenant land and Tenant's leasehold interest
in
the Premises free from any liens arising out of any work performed with respect
to Tenant's Improvements; (ii) an express waiver of any rights the contractor,
any subcontractor or any materials supplier may have to claim a mechanic's,
materialman's or other lien or claim arising out of any work performed with
respect to Tenant's Improvements; and (iii) a provision requiring such
contractor to indemnify, defend (with counsel reasonably acceptable to Landlord)
and hold harmless Landlord, Landlord’s managing agent, Landlord’s affiliates,
and Landlord’s invitees from and against any and all losses, damages, costs
(including costs of suits and attorneys' fees), liabilities or causes of action
arising out of or relating to Tenant's Improvements, including but not limited
to mechanic's, materialman's or other liens or claims (and all costs or expenses
associated therewith) asserted, filed or arising out of any work performed
with
respect to Tenant's Improvements. Tenant shall provide Landlord with final
unconditional lien waivers from each contractor with whom Tenant has contracted
with respect to Tenant’s Improvements upon final completion of Tenant’s
Improvements.
(c) Tenant’s
contractor shall conduct its work in such a manner so as not to unreasonably
interfere with any construction occurring in the Building, or to disrupt any
tenant’s business in the Building and shall comply with Landlord’s rules and
regulations applicable to all work being performed in the Building. Landlord
shall use commercially reasonable efforts to provide access to the Building
and
necessary Building systems in order for Tenant to perform its work; provided,
however, Landlord need not open the Building outside of normal Business Hours
and Landlord shall not incur any third party costs related thereto.
(d) Tenant’s
contractor shall maintain such insurance, including but not limited to Builder’s
all-risk insurance, and bonds in full force and effect as may be reasonably
requested by Landlord or as required by applicable law, and all such insurance
shall be with a carrier and in a form acceptable to Landlord. Landlord shall
not
be responsible for the storage of Tenant’s materials or Tenant’s
Improvements.
4. Provided
that no uncured default exists under the Lease, and no event exists which,
with
the giving of notice and passage of time or both would constitute a default,
Landlord covenants and agrees that Landlord will contribute to Tenant an amount
of $12.00 per rentable square foot of the Premises (“Landlord’s
Allowance”)
to be
applied solely toward: (i) any required construction, demolition, architectural,
wiring, engineering, and design costs and (ii) costs of obtaining required
permits or other governmental approvals necessary for Tenant’s Improvements;
provided, however, up to twenty percent (20%) of Landlord’s Allowance shall, at
Tenant’s election, be applied toward the costs of purchasing and installing
supplemental HVAC equipment, furniture and fixtures in the Premises or credited
against Annual Rent. Landlord shall disburse Landlord’s Allowance directly to
Tenant to be applied towards the cost of constructing Tenant’s Improvements,
upon satisfaction of the following payment conditions: (a) as to construction,
design and engineering costs, Landlord receives evidence of payment by Tenant
of
invoices approved by Tenant and Tenant’s architect or engineer and which are
reasonably acceptable to Landlord; (b) as to permits or other governmental
approvals necessary for Tenant’s Improvements, Landlord receives paid receipts
and evidence that such permits or other governmental approvals have been issued
by the applicable governmental authority (collectively, the foregoing constitute
the “Payment Conditions”); and (c) as to supplemental HVAC equipment, furniture
and fixtures, Landlord receives paid receipts and evidence that such items
have
been installed within the Premises and/or Building. Moreover, prior to each
such
payment by Landlord, the following conditions also shall be satisfied: (i)
receipt by Landlord of invoices and/or applications for payment recovering
all
labor and materials expended and used and subject to a ten percent (10%)
retainage until completion of all Tenant’s Improvements, (ii) architect’s and
general contractor’s percentage of completion affidavits certifying that the
work covered by such invoice and/or application for payment is complete and
in
place, in form acceptable to Landlord in its sole discretion, (iii) partial
lien
waivers covering work with respect to which any materialman or contractor was
previously paid pursuant to an earlier payment by Landlord (and final
unconditional lien waivers with respect to final contract payments upon final
completion of Tenant’s Improvements) in form acceptable to Landlord in its sole
discretion; (iv) as-built plans (upon final completion) covering all
architectural work and mechanical, electrical, plumbing and structural
engineering, (v) certification at Tenant’s expense of Tenant’s architect (or
Landlord’s architect if Tenant has not retained an architect) that the portion
of the Tenant’s Improvements for which payment is being sought has been
installed in a good and workmanlike manner in accordance with approved plans
and
applicable codes and ordinances, and (vi) with respect to final payment and
release of retainage, any licenses or permits required by any applicable
governmental authority for Tenant’s legal occupancy of the Premises and use of
the equipment installed therein. Landlord need not pay Tenant for such charges
more frequently than one (1) time per month. In no event shall any portion
of
Landlord’s Allowance be disbursed if Tenant is in default (or will be in default
upon notice and/or lapse of time) under the Lease. Tenant shall cause all costs
with respect to Tenant’s Improvements to be timely paid by Tenant, subject to
reimbursement by Landlord of the Landlord’s Allowance. Payments to Tenant’s
contractor are to be made in full within thirty (30) days of substantial
completion of Tenant’s Improvements, subject to Tenant’s withholding ten percent
(10%) retainage until completion of all Tenant’s Improvements as provided above.
Tenant shall use Landlord’s Allowance within twelve (12) months following the
full execution of the Lease or the commencement of construction, whichever
is
earlier. The costs of any improvements above the foregoing Landlord’s Allowance
remaining after payment of (x) the construction costs related to the Tenant’s
Improvements and (y) such other costs as described above, shall be paid for
solely by Tenant.
5. All
payments to Landlord pursuant to this Work Agreement shall constitute additional
rent under the Lease, and in the event of nonpayment thereof by Tenant, Landlord
shall have all of the rights and remedies set forth in the Lease.
6. Any
delay
in Tenant’s contractor’s completion of Tenant’s Improvements caused by Landlord
Delay (as hereinafter defined) shall result in a day-for day extension of the
Commencement Date, except to the extent attributable to Tenant. As used herein,
the term “Landlord
Delay”
shall
mean any actual, incremental delays to the extent resulting from (i) Landlord’s
failure to make decisions or take actions in accordance with the Project
Schedule or (ii) performance or completion by a party employed by Landlord.
Notwithstanding anything to the contrary contained herein, Tenant shall notify
Landlord within five (5) days after discovering any act or failure to act by
Landlord that could cause a Landlord Delay, or Tenant shall waive any
right
to claim Landlord Delay for such act or failure to act.
EXHIBIT
B-1 - PROJECT SCHEDULE
attached
to and made a part of Lease bearing the
Lease
Reference Date of 2/28/2006between
TMT
Reston I & II, Inc., as Landlord and
Talk
America Holdings, Inc., as Tenant
Landlord
and Tenant agree to the following schedule of obligations with respect to
Tenant’s Improvements.
|
Timing
|
|
|
(a)
On or before [INSERT DATE]
|
Tenant
to submit its space plan for the Premises to Landlord for Landlord's
review and approval, not to be unreasonably withheld, conditioned
or
delayed.
|
|
(b)
On or before 5 business days after Landlord's receipt of the space
plan
|
Landlord
to approve or disapprove the space plan.
|
|
(c)
On or before 5 business days after Landlord's receipt of Tenant's
plans
and, if applicable, the MEP plans.
|
Landlord
to approve or disapprove the proposed plans and, if applicable, MEP
plans
(upon such approval, the “Final Plans”).
|
|
(d)
On or before 5 business days after Landlord's approval of the revised
Final Plans.
|
Landlord
and Tenant to agree upon general contractors to submit bids.
|
|
(e)
On or before 5 business days from receipt of contractor's pricing.
|
Tenant
to review, negotiate (with Landlord's assistance), and approve all
pricing, as the same may be adjusted, and Landlord to approve or
disapprove any changes to the Final Plans.
|
|
(f)
Upon Landlord's approval of Tenant’s contractor and any changes to the
Final Plans, and, if applicable, Tenant's delivery to Landlord of
the T.I.
Shortfall.
|
Tenant
to engage Tenant's contractor to commence construction of the Tenant's
Improvements.
|
EXHIBIT
C - COMMENCEMENT DATE MEMORANDUM
attached
to and made a part of Lease bearing the
Lease
Reference Date of 2/28/2006
between
TMT
Reston I & II, Inc., as Landlord and
Talk
America Inc., as Tenant
COMMENCEMENT
DATE MEMORANDUM
THIS
MEMORANDUM, made as of __________, 20__, by and between TMT Reston I & II,
Inc., a Delaware corporation (“Landlord”)
and
Talk America Inc., a Pennsylvania corporation (“Tenant”).
Recitals:
A. Landlord
and Tenant are parties to that certain Lease, dated for reference _________,
20__ (the “Lease”)
for
certain premises (the “Premises”)
consisting of approximately ________ square feet at the building commonly known
as Reston Plaza II located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
B. Tenant
is
in possession of the Premises and the Term of the Lease has
commenced.
C. Landlord
and Tenant desire to enter into this Memorandum confirming the Commencement
Date, the Termination Date and other matters under the Lease.
NOW,
THEREFORE, Landlord and Tenant agree as follows:
1. The
actual Commencement Date is ________________.
2. The
actual Termination Date is ____________________.
3. The
schedule of the Annual Rent and the Monthly Installment of Rent set forth on
the
Reference Pages is deleted in its entirety, and the following is substituted
therefor:
[insert
rent schedule]
4. Capitalized
terms not defined herein shall have the same meaning as set forth in the
Lease.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the date and year first above written.
|
WITNESS:
By:____________________________
Name:
Title:
|
LANDLORD:
TMT
RESTON I & II, INC.,
a
Delaware corporation
By: RREEF
Management Company,
a
Delaware corporation
By:___________________________
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice President / Regional Director
Dated:________________________
|
|
ATTEST:
By:_____________________________
Name:
Title:
[Corporate
Seal]
|
TENANT:
TALK
AMERICA INC.,
a
Pennsylvania corporation
By:______________________________
Name:
Title:
Dated:________________________
|
EXHIBIT
D - RULES AND REGULATIONS
attached
to and made a part of Lease bearing the
Lease
Reference Date of 2/28/2006
between
TMT
Reston I & II, Inc., as Landlord and
Talk
America Holdings, Inc., as Tenant
| 1. |
No
sign, placard, picture, advertisement, name or notice shall be installed
or displayed on any part of the outside or inside of the Building
without
the prior written consent of the Landlord. Landlord shall have the
right
to remove, at Tenant’s expense and without notice, any sign installed or
displayed in violation of this rule. All approved signs or lettering
on
doors and walls shall be printed, painted, affixed or inscribed at
Tenant’s expense by a vendor designated or approved by Landlord. In
addition, Landlord reserves the right to change from time to time
the
format of the signs or lettering and to require previously approved
signs
or lettering to be appropriately
altered.
|
2. If
Landlord objects in writing to any curtains, blinds, shades or screens attached
to or hung in or used in connection with any window or door of the Premises,
Tenant shall immediately discontinue such use. No awning shall be permitted
on
any part of the Premises. Tenant shall not place anything or allow anything
to
be placed against or near any glass partitions or doors or windows which may
appear unsightly, in the opinion of Landlord, from outside the
Premises.
3. Tenant
shall not obstruct any sidewalks, halls, passages, exits, entrances, elevators,
or stairways of the Building. No tenant and no employee or invitee of any tenant
shall go upon the roof of the Building.
4. Any
directory of the Building, if provided, will be exclusively for the display
of
the name and location of tenants only and Landlord reserves the right to exclude
any other names. Landlord reserves the right to charge for Tenant’s directory
listing.
5. All
cleaning and janitorial services for the Building and the Premises shall be
provided exclusively through Landlord. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of
the
Premises. Landlord shall not in any way be responsible to any Tenant for any
loss of property on the Premises, however occurring, or for any damage to any
Tenant’s property by the janitor or any other employee or any other
person.
6. The
toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be
used
for any purpose other than that for which they were constructed. No foreign
substance of any kind whatsoever shall be thrown into any of them, and the
expense of any breakage, stoppage or damage resulting from the violation of
this
rule shall be borne by the Tenant who, or whose employees or invitees, shall
have caused it.
7. Tenant
shall store all its trash and garbage within its Premises. Tenant shall not
place in any trash box or receptacle any material which cannot be disposed
of in
the ordinary and customary manner of trash and garbage disposal. All garbage
and
refuse disposal shall be made in accordance with directions issued from time
to
time by Landlord. Tenant will comply with any and all recycling procedures
designated by Landlord.
8. Landlord
will furnish Tenant two (2) keys free of charge to each door in the Premises
that has a passage way lock. Landlord may charge Tenant a reasonable amount
for
any additional keys, and Tenant shall not make or have made additional keys
on
its own. Tenant shall not alter any lock or install a new or additional lock
or
bolt on any door of its Premises. Tenant, upon the termination of its tenancy,
shall deliver to Landlord the keys of all doors which have been furnished to
Tenant, and in the event of loss of any keys so furnished, shall pay Landlord
therefor.
9. If
Tenant
requires telephone, data, burglar alarm or similar service, the cost of
purchasing, installing and maintaining such service shall be borne solely by
Tenant. No boring or cutting for wires will be allowed without the prior written
consent of Landlord, not to be unreasonably withheld, conditioned or
delayed.
10. No
equipment, materials, furniture, packages, bulk supplies, merchandise or other
property will be received in the Building or carried in the elevators except
between such hours and in such elevators as may be designated by Landlord.
The
persons employed to move such equipment or materials in or out of the Building
must be acceptable to Landlord.
11. Tenant
shall not place a load upon any floor which exceeds the load per square foot
which such floor was designed to carry and which is allowed by law. Heavy
objects shall stand on such platforms as determined by Landlord to be necessary
to properly distribute the weight. Business machines and mechanical equipment
belonging to Tenant which cause noise or vibration that may be transmitted
to
the structure of the Building or to any space in the Building to such a degree
as to be objectionable to Landlord or to any tenants shall be placed and
maintained by Tenant, at Tenant’s expense, on vibration eliminators or other
devices sufficient to eliminate the noise or vibration. Landlord will not be
responsible for loss of or damage to any such equipment or other property from
any cause, and all damage done to the Building by maintaining or moving such
equipment or other property shall be repaired at the expense of
Tenant.
12. Landlord
shall in all cases retain the right to control and prevent access to the
Building of all persons whose presence in the judgment of Landlord would be
prejudicial to the safety, character, reputation or interests of the Building
and its tenants, provided that nothing contained in this rule shall be construed
to prevent such access to persons with whom any tenant normally deals in the
ordinary course of its business, unless such persons are engaged in illegal
activities. Landlord reserves the right to exclude from the Building between
the
hours of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal holidays,
any person unless that person is known to the person or employee in charge
of
the Building and has a pass or is properly identified. Tenant shall be
responsible for all persons for whom it requests passes and shall be liable
to
Landlord for all acts of such persons. Landlord shall not be liable for damages
for any error with regard to the admission to or exclusion from the Building
of
any person.
13. Tenant
shall not use any method of heating or air conditioning other than that supplied
or approved in writing by Landlord, such approval not to be unreasonably
withheld, conditioned or delayed. Any such existing equipment which was
previously approved by Landlord under the Prior Lease is automatically approved
under this Lease.
14. Tenant
shall not waste electricity, water or air conditioning. Tenant shall keep
corridor doors closed. Tenant shall close and lock the doors of its Premises
and
entirely shut off all water faucets or other water apparatus and electricity,
gas or air outlets before Tenant and its employees leave the Premises. Tenant
shall be responsible for any damage or injuries sustained by other tenants
or
occupants of the Building or by Landlord for noncompliance with this
rule.
15. Tenant
shall not install any radio or television antenna, satellite dish, loudspeaker
or other device on the roof or exterior walls of the Building without Landlord’s
prior written consent, which consent may be withheld in Landlord’s sole
discretion, and which consent may in any event be conditioned upon Tenant’s
execution of Landlord’s standard form of license agreement. Tenant shall be
responsible for any interference caused by such installation. Any such existing
equipment which was previously approved by Landlord under the Prior Lease is
automatically approved under this Lease.
16. Tenant
shall not ▇▇▇▇, drive nails, screw or drill into the partitions, woodwork,
plaster, or drywall (except for pictures, tackboards and similar office uses)
or
in any way deface the Premises. Tenant shall not cut or bore holes for wires.
Tenant shall not affix any floor covering to the floor of the Premises in any
manner except as approved by Landlord, such consent not to be unreasonably
withheld, conditioned or delayed. Tenant shall repair any damage resulting
from
noncompliance with this rule.
17. Tenant
shall not install, maintain or operate upon the Premises any vending machine
without Landlord’s prior written consent, except that Tenant may install food
and drink vending machines solely for the convenience of its employees. Any
existing machines previously approved by Landlord under the Prior Lease are
automatically approved under this Lease.
18. No
cooking shall be done or permitted by Tenant on the Premises, except that
Underwriters’ Laboratory approved microwave ovens or equipment for brewing
coffee, tea, hot chocolate and similar beverages shall be permitted provided
that such equipment and use is in accordance with all applicable federal, state
and city laws, codes, ordinances, rules and regulations.
19. Tenant
shall not use in any space or in the public halls of the Building any hand
trucks except those equipped with the rubber tires and side guards or such
other
material-handling equipment as Landlord may approve. Tenant shall not bring
any
other vehicles of any kind into the Building.
20. Tenant
shall not permit any motor vehicles to be washed or mechanical work or
maintenance of motor vehicles to be performed in any parking lot.
21. Tenant
shall not use the name of the Building or any photograph or likeness of the
Building in connection with or in promoting or advertising Tenant’s business,
except that Tenant may include the Building name in Tenant’s address. Landlord
shall have the right, exercisable with notice and without liability to any
tenant, to change the name and address of the Building.
22. Tenant
requests for services must be submitted to the Building office by an authorized
individual. Employees of Landlord shall not perform any work or do anything
outside of their regular duties unless under special instruction from Landlord,
and no employee of Landlord will admit any person (Tenant or otherwise) to
any
office without specific instructions from Landlord.
23. Tenant
shall not permit smoking or carrying of lighted cigarettes or cigars other
than
in areas designated by Landlord as smoking areas.
24. Canvassing,
soliciting, distribution of handbills or any other written material in the
Building is prohibited and each tenant shall cooperate to prevent the same.
No
tenant shall solicit business from other tenants or permit the sale of any
good
or merchandise in the Building without the written consent of
Landlord.
25. Tenant
shall not permit any animals other than service animals, e.g. seeing-eye dogs,
to be brought or kept in or about the Premises or any common area of the
Building.
26. These
Rules and Regulations are in addition to, and shall not be construed to in
any
way modify or amend, in whole or in part, the terms, covenants, agreements
and
conditions of any lease of any premises in the Building. Landlord may waive
any
one or more of these Rules and Regulations for the benefit of any particular
tenant or tenants, but no such waiver by Landlord shall be construed as a waiver
of such Rules and Regulations in favor of any other tenant or tenants, nor
prevent Landlord from thereafter enforcing any such Rules and Regulations
against any or all of the tenants of the Building.
27. Landlord
reserves the right to make, with notice to Tenant, such other and reasonable
rules and regulations as in its judgment may from time to time be needed for
safety and security, for care and cleanliness of the Building, and for the
preservation of good order in and about the Building. Tenant agrees to abide
by
all such rules and regulations herein stated and any additional rules and
regulations which are adopted. Tenant shall be responsible for the observance
of
all of the foregoing rules by Tenant’s employees, agents, clients, customers,
invitees and guests.
EXHIBIT
E - FORM OF GUARANTY
attached
to and made a part of Lease bearing the
Lease
Reference Date of 2/28/2006
between
TMT
Reston I & II, Inc., as Landlord and
Talk
America Inc., as Tenant
CONTINUING
GUARANTY OF LEASE
THIS
CONTINUING GUARANTY OF LEASE (the
“Guaranty”)
is made
and executed this __ day of ___________, 2004 from (i) TALK
AMERICA HOLDINGS, INC.,
a
Delaware corporation (hereinafter referred to as “Guarantor”)
to
(ii) TMT
RESTON I & II, INC.,
a
Delaware corporation, its successor and assigns (hereinafter referred to as
“Landlord”).
W
I T N E S S E T H :
WHEREAS,
Landlord has entered into that certain Lease Agreement with a Lease Reference
date of ______________________, 2005, (the “Lease”),
whereby Landlord has agreed to lease to Talk America Inc., a Pennsylvania
corporation (hereinafter referred to as “Tenant”)
certain premises (hereinafter referred to as the “Premises”)
comprising approximately 10,019 rentable square feet of the office building
commonly known as Reston Plaza II and located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, as described in the Lease; and
WHEREAS,
Tenant
is wholly owned by Guarantor; and
WHEREAS,
by
reason of the foregoing relationship, it is in Guarantor’s direct interest and
advantage to assist Tenant in securing Landlord’s agreement to execute the
Lease; and
WHEREAS,
Landlord is willing to execute and deliver the Lease to Tenant only if Guarantor
guarantees to Landlord the prompt performance by Tenant of all the covenants,
terms, conditions and obligations to be performed by Tenant under the
Lease.
NOW,
THEREFORE, in
consideration of the foregoing, and for the purposes of inducing Landlord to
execute the Lease, Guarantor agrees as follows:
| 28. |
Guarantor
warrants and represents to Landlord that: (a) the making and performance
of this Guaranty by Guarantor will not result in the breach of any
term,
condition or provision of, or constitute a default under, any contract,
agreement or other instrument to which Guarantor is a party or by
which
Guarantor may be bound, or result in a breach of any regulation,
order,
writ, injunction or decree of any court or any commission, board
or other
administrative agency entered in any proceeding to which Guarantor
is a
party or by which it may be bound; (b) Guarantor’s representation
contained in the Recitals set forth hereinabove (all of which are
incorporated herein by this reference and made a part hereof) are
true,
accurate and complete; and (c) under penalty of perjury, the written
financial statements and other written information presented to Landlord
by Guarantor in connection with the Lease are true, accurate and
complete,
and do not omit any material fact or amount necessary to avoid making
such
statements and information
misleading.
|
| 29. |
Guarantor
hereby absolutely, unconditionally, irrevocably, jointly and severally,
guarantees to Landlord (i) the prompt and complete payment by Tenant
to
Landlord of the fixed minimum rental payable by Tenant to Landlord
under
the Lease, (ii) the prompt and complete payment by Tenant to Landlord
of
all other sums of money payable by Tenant to Landlord under the Lease,
(iii) the prompt and complete performance by Tenant of all covenants,
conditions, terms and obligations to be performed by Tenant under
the
Lease, and (iv) the prompt and complete payment by Tenant to Landlord
of
all damages, costs and expenses that, by reason of the Lease, may
become
payable by Tenant to Landlord. Guarantor hereby agrees to fully defend
upon request (with counsel approved by Landlord), indemnify, and
hold
Landlord harmless from any cost, claim, liability, damage or expense
(including, but not limited to attorneys’ fees and expenses and court
costs) which Landlord incurs in the event Tenant, as tenant, does
not
punctually pay, perform, or fulfill all of its obligations under
the
Lease.
|
| 30. |
At
Landlord’s request, Guarantor shall deliver to Landlord a copy, certified
by an officer of Guarantor as being a true and correct copy, of
Guarantor’s most recent audited financial statement, or, if unaudited,
certified by Guarantor’s chief financial officer as being true, complete
and correct in all material respects. Guarantor hereby authorizes
Landlord
to obtain one or more credit reports on Guarantor at any time, and
shall
execute such further authorizations as Landlord may reasonably require
in
order to obtain a credit report.
|
| 31. |
Guarantor’s
liability hereunder shall in no way be affected by any indulgence,
extension, or forbearance which Landlord may grant to Tenant with
respect
to the payment or performance of any obligation of Tenant, or any
waiver,
on the part of Landlord of any breach of the Lease by Tenant; and
Guarantor waives any requirement that Guarantor be notified of any
such
indulgence, extension, forbearance or waiver, and Guarantor waives
notice
of such matters and of any default by Tenant under the
Lease.
|
| 32. |
In
the event of the default by Tenant in the performance of any of its
covenants or obligations under the Lease, Guarantor covenants and
agrees
to perform such obligations forthwith upon demand (in the same manner
as
if the same constituted the direct primary obligation and liability
of
Guarantor), including, without limitation, payments of all sums owing
to
Landlord by reason of such default.
|
| 33. |
Landlord
shall have the right, at any time and from time to time, to enforce
all
rights and remedies available to Landlord under the Lease, including,
without limitation, agreements with Tenant modifying or changing
any of
the terms of provisions of the Lease, extending or renewing the time
of
payment of any such payable under the Lease, compromising or making
settlement of any obligation of Tenant under the Lease, terminating
the
Lease or resuming possession of the Premises, making demand upon
or
instituting legal proceedings against Tenant, granting any indulgence,
extension or forbearance to Tenant with respect to the performance
of any
obligation of Tenant, or waiving any breach of the Lease by Tenant,
all
without notice to, or consent of, Guarantor and without affecting
the
continuing validity and enforceability of this
Guaranty.
|
| 34. |
Provided
Landlord gives Tenant proper notice as may be set forth in the Lease,
Landlord may make demand and/or institute legal proceedings against
Guarantor for the performance of any obligation of Tenant under the
Lease
without first proceeding in any way against Tenant and without enforcing
any rights or remedies under the
Lease.
|
| 35. |
No
reasonable delay of the Landlord in exercising any rights and/or
powers
hereunder or in taking any action to enforce the performance of Tenant’s
obligations under the Lease shall operate as a waiver as to such
rights or
powers or in any manner prejudice any or all of Landlord’s rights and
powers hereunder against Guarantor.
|
| 36. |
All
claims which Guarantor may have against Tenant by reason of this
Guaranty,
whether by way of subrogation to any position of Landlord or for
contribution or reimbursement, shall be subordinate to any outstanding
claims which Landlord then has against Tenant. Guarantor hereby releases
Landlord from all liability to Guarantor or Tenant for failing to
recognize or observe or protect any legal or equitable rights of
Guarantor
with respect to Tenant or the Premises or the
Lease.
|
| 37. |
This
Guaranty may not be modified, altered or terminated except pursuant
to an
instrument in writing executed by Guarantor and Landlord. No waiver
of any
provision of this Guaranty shall be valid unless in writing and signed
by
Landlord. A failure of Landlord to insist upon strict performance
of any
obligation or covenant of Guarantor under this Guaranty in any one
or more
instances shall not be construed as a waiver or relinquishment of
the
right to insist upon strict performance of such obligation or covenant
in
the future.
|
| 38. |
This
Guaranty shall be construed and enforced in accordance with the laws
of
the Commonwealth of Virginia. Guarantor hereby waives notice of
nonpayment, nonperformance, or nonobservance or any notice of acceptance
of this Guaranty and any other notice to or demand upon Guarantor
which
Landlord might otherwise be required to give or make in connection
with
any matter relating to this Guaranty. Guarantor waives any legal
obligation, duty or necessity for Landlord to proceed first against
Tenant, as tenant, or to exhaust any remedy Landlord may have against
Tenant, as tenant, it being agreed that in the event of a default
or
failure in performance in any respect by Tenant, as tenant under
the
Lease, Landlord may proceed and have the right of action solely against
Guarantor and/or any other guarantor of the Lease or Tenant, as tenant
or
jointly against Guarantor and/or any other guarantor of the Lease
and
Tenant, as tenant. Furthermore, to the extent applicable, Guarantor
hereby
waives the benefit of Sections 49-25 and 49-26 of the Code of Virginia
(2001) as amended. Guarantor hereby expressly, knowingly and irrevocably
consents and waives any objection to the jurisdiction of any state
or
federal court situated within the Commonwealth of Virginia over any
suit,
action or proceeding whether for damages or for injunction, specific
performance or for any other prohibitory or mandatory relief arising
out
of or relating to this Lease. Guarantor hereby expressly, knowingly
and
irrevocably agrees that all claims in respect of such suit, action
or
proceeding may be heard and determined in such state or federal court
situated within the Commonwealth of Virginia. Having received the
advice
of competent legal counsel, Guarantor hereby expressly, knowingly,
and
irrevocably waives, to the fullest extent it may effectively do so,
objection to defending any such suit, action or proceedings in such
state
or federal court, based on the defense of forum
non conveniens (inconvenient
forum) for the maintenance of such suit, action or proceeding. Guarantor
appoints hereby ▇▇▇▇▇▇▇▇
▇. Lawn
as
agent for the purpose of accepting service of process (“Guarantor’s
Agent”).
Should Guarantor’s Agent be unavailable, disabled, or otherwise unable or
unwilling to accept service of process, Guarantor appoints the Clerk
of
the Virginia State Corporation Commission, or such other official
provided
for under the laws of the Commonwealth of Virginia, as agent for
the
service of process. Guarantor hereby expressly, knowingly, and irrevocably
consents to service of all writs, processes and summons in any such
suit,
action or proceeding by mailing thereof to either (a) Guarantor at
Guarantor’s Notice Address (defined herein) or (b) Guarantor’s Agent’s
Notice Address (or the Secretary of the Commonwealth), by United
States
certified mail, postage prepaid, return receipt requested or by Federal
Express overnight delivery, courier charges prepaid, signature of
recipient required. Guarantor also hereby expressly, knowingly and
irrevocably consents and waives any objection to the enforcement
by
execution against property or otherwise of any relief ordered in
such
suit, action or proceeding in any federal or state court of the United
States or any court of any foreign state. The consent and waiver
under
this paragraph shall not limit the rights of Landlord to bring any
suit,
action or proceeding against Guarantor in any other jurisdiction
for such
relief, or of any party to serve process in any other manner permitted
by
law, or to obtain execution of judgment in any
jurisdiction.
|
| 39. |
All
notices required or desired to be given by either party to the other
under
this Guaranty shall be in writing and shall be personally delivered
or
sent by nationally available overnight courier or by certified mail,
return receipt requested, postage prepaid, and shall be effective
upon
actual receipt as verified by written acknowledgement of delivery
(or upon
the date such delivery is refused) in the case of personal or overnight
delivery and by the return receipt (or upon the date such delivery
is
refused) in the case of certified mail. A party shall designate a
change
of address or agent by notice to the other party at least ten (10)
days
before such change is to become effective. All notices to the respective
parties shall be addressed and sent as follows (the “Notice
Address”):
|
Landlord: TMT
Reston I & II, Inc.
c/o
RREEF
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Vice President / Regional Director
with
a
copy, said copy not constituting notice, to:
▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Guarantor: Talk
America Holdings, Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇, Senior VP
with
a
copy, said copy also constituting notice, to Guarantor’s
Agent :
▇▇▇▇▇▇▇▇
▇. Lawn, General Counsel
Talk
America Holdings, Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
| 40. |
This
Guaranty shall be binding upon Guarantor, its successor or assigns,
and
shall inure to the benefit of, and be enforceable by Landlord, its
successors or assigns, and by any successor to the interest of landlord
under the Lease.
|
| 41. |
Guarantor
shall pay to Landlord all costs, including without limitation attorneys’
fees and expenses, court costs, expert witness fees, and other
disbursements and costs of collection, incurred by Landlord in connection
with enforcing any provision of this Guaranty, whether or not any
action
or lawsuit is actually instituted by
Landlord.
|
| 42. |
This
Guaranty is absolute and is not conditioned in any way upon the
genuineness, validity, regularity or enforceability of the Lease,
provided
that the Lease was signed by
Tenant.
|
| 43. |
Guarantor’s
obligations under this Guaranty shall be unaffected by any discharge
or
release of the Tenant, its successors or assigns, or any of their
debts,
in connection with any bankruptcy, reorganization, or other insolvency
proceeding or assignment for the benefit of creditors; any rejection
or
disaffirmation of the Lease in any bankruptcy, reorganization, or
other
insolvency proceeding or assignment for the benefit of creditors;
or any
reduction, modification, impairment or limitation of the liability
of the
Tenant, its successors or assigns, or of Landlord’s remedies under the
Lease, in connection with any bankruptcy, reorganization or other
insolvency proceeding or any assignment for the benefit of creditors.
In
addition, if Landlord is required to disgorge or pay back to the
Tenant’s
estate any payments made by the Tenant under the Lease in connection
with
any bankruptcy, reorganization or insolvency proceeding, Guarantor’s
obligations as to such payments shall be
reinstated.
|
| 44. |
In
the event that any covenant, condition or other provision herein
contained
is held to be invalid, void or illegal by any court of competent
jurisdiction, the same shall be deemed severable from the remainder
of
this agreement and shall in no way affect, impair or invalidate any
other
covenant, condition or other provision herein contained.
|
[SIGNATURES
ON NEXT PAGE]
IN
WITNESS WHEREOF,
the
undersigned have executed this Guaranty on the day and year first above
written
|
ATTEST:
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Associate General Counsel
Date:
9-19-05
|
GUARANTOR:
Talk
America Holdings, Inc.,
a
Delaware corporation
By:
/s/ ▇▇▇▇▇▇▇▇ ▇. Lawn IV
Name:
▇▇▇▇▇▇▇▇ ▇. Lawn IV
Title:
EVP - General Counsel
Date:
9-19-05
|
[corporate
seal]
CITY ) ss:
STATE )
BEFORE
ME, a
Notary
Public in and for the jurisdiction aforesaid, personally appeared this date
_______________________________, personally well known (or satisfactorily
proven) to me to be the person whose name is subscribed to the foregoing and
annexed Guaranty bearing date as of ________________ ___, 2004, who, being
by me
first duly sworn, did depose and state that he/she is the
_______________________________ of Talk
America Holdings, Inc.,
a
Delaware corporation, which entity is a party of the foregoing and annexed
Guaranty, and that he/she, being duly authorized so to do, executed said
Guaranty on behalf of said entity and acknowledge the same as its free act
and
deed for the uses and purposes herein contained.
SUBSCRIBED
AND SWORN TO
before
me this ___ day of _____________, 2005.
[notary
seal] _____________________________________
Notary
Public
My
Commission expires:
________________________