SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
--- OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
OR
- - --- TRANSITION REPORT PURSUANT TO SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
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Commission File No. 0-21511
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V-ONE Corporation
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(Exact name of registrant as specified in its charter)
Delaware 52-1953278
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
20250 Century Boulevard - Suite 300, Germantown, Maryland 20874
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (301) 515-5200
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Former address: 1803 Research Boulevard - Suite 305, Rockville, Maryland 20850
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(Former name, former address and former fiscal year if changed since
last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
--- ---
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date.
Class Outstanding at August 12, 1997
----- --------------------------------
Common Stock, $0.001 par value 12,976,367 shares
<PAGE>
V-ONE Corporation
Quarterly Report on Form 10-Q
INDEX
PAGE NO.
PART I. FINANCIAL INFORMATION 3
Item 1. Financial Statements 3
Balance Sheets as of December 31, 1996 and June 30,
1997 (unaudited) 3
Statements of Operations for the three months ended
June 30, 1996 (unaudited) and 1997 (unaudited) and six
months ended June 30, 1996 and 1997 (unaudited) 4
Statements of Cash Flows for the six months ended June 5
30, 1996 and 1997 (unaudited)
Notes to the Financial Statements (unaudited) 6
Item 2 Management's Discussion and Analysis of Financial
Condition and Results of Operations 7
PART II. OTHER INFORMATION 11
Signatures 12
2
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
V-ONE CORPORATION
BALANCE SHEETS
<TABLE>
<CAPTION>
June 30,
December 31, 1997
1996 (unaudited)
----------------- -----------------
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 10,894,375 $ 6,379,520
Accounts receivable, net 2,647,195 3,676,550
Inventory, net 418,870 390,793
Prepaid expenses and other current assets 173,411 200,932
----------------- -----------------
Total current assets 14,133,851 10,647,795
----------------- -----------------
Property and equipment:
Office and computer equipment 790,373 1,282,673
Furniture and fixtures 98,579 118,458
----------------- -----------------
888,952 1,401,131
Less accumulated depreciation (132,365) (259,805)
----------------- -----------------
756,587 1,141,326
Licensing fee, net 778,409 636,881
Deposits and other assets 28,568 691,649
----------------- -----------------
Total assets $ 15,697,415 $ 13,117,651
================= =================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued expenses $ 1,311,044 $ 1,682,623
Deferred income 97,748 152,734
Notes payable - current 16,667 16,667
Capital lease obligations - current 65,232 97,565
----------------- -----------------
Total current liabilities 1,490,691 1,949,589
----------------- -----------------
Notes payable - noncurrent 22,222 13,894
Deferred rent 78,275 73,759
Capital lease obligations - noncurrent 112,482 312,339
----------------- -----------------
Total liabilities 1,703,670 2,349,581
----------------- -----------------
Commitments and contingencies
Shareholders' equity:
Common stock, $0.001 par value; 33,333,333 shares authorized;
12,658,347 and 12,884,040 shares issued and
outstanding,
as of December 31, 1996 and June 30, 1997, respectively 12,658 12,884
Additional paid-in capital 22,608,866 23,278,747
Notes receivable from sales of Common Stock (287,400) (162,471)
Accumulated deficit (8,340,379) (12,361,090)
----------------- -----------------
Total shareholders' equity 13,993,745 10,768,070
----------------- -----------------
Total liabilities and shareholders' equity $ 15,697,415 $ 13,117,651
================= =================
The accompanying notes are an integral part of these financial statements.
</TABLE>
3
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V-ONE CORPORATION
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
For the For the
three months three months For the six
ended ended For the six months ended
June 30, June 30, months ended June 30,
1996 1997 June 30, 1997
(unaudited) (unaudited) 1996 (unaudited)
----------------- ------------------ ----------------- -----------------
<S> <C> <C> <C> <C>
Revenues:
Products $ 1,302,402 $ 2,013,848 $ 2,284,044 $ 4,290,028
Consulting and services 52,174 120,733 92,343 258,568
----------------- ------------------ ----------------- -----------------
Total revenues 1,354,576 2,134,581 2,376,387 4,548,596
----------------- ------------------ ----------------- -----------------
Cost of revenues:
Products 462,636 307,899 773,329 847,859
Consulting and services 15,916 10,943 27,222 32,287
----------------- ------------------ ----------------- -----------------
Total cost of revenues 478,552 318,842 800,551 880,146
----------------- ------------------ ----------------- -----------------
Gross profit 876,024 1,815,739 1,575,836 3,668,450
----------------- ------------------ ----------------- -----------------
Operating expenses:
Sales and marketing 963,327 2,345,044 1,672,437 3,800,435
General and administrative 2,756,547 1,077,447 3,349,513 1,847,913
Research and development 393,357 840,625 704,309 1,453,948
Restructuring charge - 800,000 - 800,000
----------------- ------------------ ----------------- -----------------
Total operating expenses 4,113,231 5,063,116 5,726,259 7,902,296
----------------- ------------------ ----------------- -----------------
Operating loss (3,237,207) (3,247,377) (4,150,423) (4,233,846)
----------------- ------------------ ----------------- -----------------
Other (expense) income:
Interest expense (176,091) (3,714) (281,026) (4,506)
Interest income 19,896 101,599 43,388 217,641
----------------- ------------------ ----------------- -----------------
Total other (expense) income (156,195) 97,885 (237,638) 213,135
----------------- ------------------ ----------------- -----------------
Net loss $ (3,393,402) $ (3,149,492) $ (4,388,061) $ (4,020,711)
================= ================== ================= =================
Net loss per common share $ (0.34) $ (0.25) $ (0.44) $ (0.32)
================= ================== ================= =================
Weighted average shares outstanding 9,880,716 12,796,615 9,874,849 12,730,540
================= ================== ================= =================
The accompanying notes are an integral part of these financial statements.
</TABLE>
4
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V-ONE CORPORATION
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
For the Six
For the Six Months Ended
Months Ended June 30,
June 30, 1997
1996 (Unaudited)
------------------- ------------------
<S> <C> <C>
Cash flows from operating activities:
Net loss $ (4,388,061) $ (4,020,711)
Adjustments to reconcile net loss to net cash used in
operating activities:
Provision for doubtful accounts receivable 149,185 550,680
Provision for obsolete inventory - 12,700
Depreciation and amortization 37,931 268,968
Interest expense on accretion of note payable 109,837 -
Consulting expensed satisfied by issuance of
Common Stock 10,903 -
Compensation expense satisfied by issuance of
Common Stock 487,796 -
Compensation expense recognized for Common
Stock contributed to stock option plan 287,976 -
Compensation expense for issuance of Common
Stock related to 1996 Non-Statutory Stock 1,439,867 -
Option Plan
Accrued interest satisfied with Common Stock 65,090 -
Accrued interest satisfied with Preferred Stock 59,554 -
Changes in assets and liabilities:
Accounts receivable (1,462,240) (1,580,035)
Inventory (45,825) 15,377
Prepaid expenses, deposit and other assets (633,697) (437,601)
Accounts payable and accrued expenses 1,561,641 422,049
------------------- ------------------
Net cash used in operating activities (2,320,043) (4,768,573)
------------------- ------------------
Cash flows from investing activities:
Purchase of property and equipment (221,890) (242,625)
Investment - (250,000)
Collection of notes receivable relating to 1996
Non-Statutory Option Plan - 92,020
------------------- ------------------
Net cash used in investing activities (221,890) (400,605)
------------------- ------------------
Cash flows from financing activities:
Issuance of Common Stock - -
Issuance of Preferred Stock 1,000,000 -
Issuance of debt with detachable warrants 1,500,000 -
Exercise of options and warrants 1,576 700,015
Issuance of notes payable 1,250,000 -
Principal payments on capitalized lease obligations (29,181) (37,364)
Repayment of notes payable (1,689) (8,328)
Repayment of notes payable to related parties (5,839) -
------------------- ------------------
Net cash provided by financing activities 3,714,867 654,323
------------------- ------------------
Net increase (decrease) in cash and cash equivalents 1,172,934 (4,514,855)
Cash and cash equivalents at beginning of period 1,328,385 10,894,375
------------------- ------------------
Cash and cash equivalents at end of period $ 2,501,319 $ 6,379,520
=================== ==================
The accompanying notes are an integral part of these financial statements.
</TABLE>
5
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V-ONE CORPORATION
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
1. Basis of Presentation
The financial statements for the three and six months ended June 30, 1997 and
the three months ended June 30, 1996 are unaudited and reflect all adjustments,
consisting of normal recurring adjustments, which are, in the opinion of
management, necessary to fairly present the results for the interim periods. The
financial statements for the six months ended June 30, 1996 are audited. These
financial statements should be read in conjunction with the audited financial
statements and notes as of December 31, 1995 and 1996 and the three years ended
December 31, 1996, which are included in the Company's Annual Report on Form
10-K for the year ended December 31, 1996.
The preparation of financial statements to be in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets, liabilities and accrued litigation at the date
of the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates
and would impact future results of operations and cash flows.
The results of operations for the three and six month periods ended June 30,
1997 are not necessarily indicative of the results expected for the full year
ending December 31, 1997.
2. Computation of Net Loss Per Common and Common Equivalent Share
Net loss per share is computed based upon the weighted average number of shares
and common equivalent shares outstanding. Common equivalent shares are included
in the per share calculations where the effect of their inclusion would be
dilutive. In accordance with the Securities and Exchange Commission Staff
Accounting Bulletin No. 83 ("SAB No. 83"), all common and common equivalent
shares and other potentially dilutive instruments (including stock options,
warrants and redeemable convertible preferred stock) issued during the twelve
month period prior to the initial filing date on June 21, 1996 of the
Registration Statement on Form S-1 relating to the Company's initial public
offering ("IPO") have been included in the calculation as if they were
outstanding for all periods prior to the date of the IPO, even if the common
equivalent shares were anti-dilutive. The common equivalent shares for stock
options were determined using the treasury stock method at the IPO price of
$5.00 per share. The redeemable convertible preferred stock was included on an
as-if converted basis in accordance with SAB No. 83. Fully diluted net loss per
common share is the same as primary.
In February 1997, the Financial Accounting Standards Board adopted Statement of
Financial Accounting Standard No. 128, Earnings per Share ("FAS 128"). FAS 128
will have no impact on the financial statements when adopted.
3. Subsequent Events
In July 1997, the Company moved its principle office to Germantown, Maryland.
The six year operating lease agreement is for new office space of approximately
28,312 square feet. The Company was required to pay a security deposit of
$370,000, a portion of which will be returned to the Company at the end of each
lease year. The terms of the lease include escalating rent payments over the
life of the lease.
6
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Item 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Management's Discussion and Analysis of Financial Condition and Results of
Operations contains forward-looking statements within the meaning of Section 21E
of the Securities Exchange Act of 1934. These statements may differ in a
material way from actual future events. For instance, factors that could cause
results to differ from future events include rapid rates of technological change
and intense competition, among others. Readers are also referred to the
documents filed by V-ONE Corporation with the SEC, specifically the Company's
Registration Statement on Form S-1, as amended, and the Company's Form 10-K for
its most recently completed fiscal year, which identify important risk factors
for the Company.
RESULTS OF OPERATIONS
REVENUE
Total revenues increased by 57.6 percent to approximately $2,135,000 for the
second quarter of 1997 up from $1,355,000 in the same period of 1996. For the
six months ended June 30, 1997, total revenues increased 91.4 percent to
$4,549,000 from $2,376,000 in the same period of 1996. The increase resulted
from higher revenue in both products and consulting and services revenue.
Product revenues were $2,014,000 and $4,290,000 for the quarter and six months
ended June 30, 1997, respectively, an increase of 54.6 and 87.8 percent over the
same periods in 1996, and was principally attributable to increased sales of the
Company's SmartGate network security product. Consulting and services revenues
were $121,000 and $259,000 for the quarter and six months ended June 30, 1997,
respectively, an increase of 131.4 and 180.0 percent over the same periods in
1996, and reflects the increase for services complementary to the Company's
products, including consulting, maintenance and training.
For the second quarter of 1997, one international reseller accounted for
approximately 49 percent of the quarter's recognized revenue.
COST OF REVENUES
Total cost of revenues as a percentage of total revenues decreased from 35.3
percent for the second quarter of 1996 to 14.9 percent in the same period of
1997. Total cost of revenues as a percentage of total revenues also decreased in
the six months ended June 30, 1997 to 19.3 percent from 33.7 percent in the same
period of 1996. Total cost of revenues was approximately $479,000 for the second
quarter of 1996 compared with $319,000 in 1997. The dollar and percentage
decrease were primarily attributable to an increase in the proportion of sales
from software licenses as compared to turnkey hardware sales. Total cost of
revenues was approximately $801,000 for the six months ended June 30, 1996
compared with $880,000 for the same period in 1997. The dollar increase and
percentage decrease were primarily attributable to increased sales combined with
an increase in the proportion of sales from software licenses as compared to
turnkey hardware sales.
Cost of product revenues as a percentage of product revenues decreased from 35.5
percent for the second quarter of 1996 to 15.3 percent in the same period of
1997. Cost of product revenues as a percentage of product revenues also
decreased in the six months ended June 30, 1997 to 19.8 percent from 33.9
percent in the same period of 1996. Cost of product revenues was approximately
$463,000 for the second quarter of 1996 compared with $308,000 in same period of
1997. Total cost of product revenues was approximately $773,000 for the six
months ended June 30, 1996 compared with $848,000 for the same period in the
same period of 1997. The dollar and percentage decrease in the second quarter of
1997 were primarily attributable to an increase in the proportion of sales from
software licenses as compared to turnkey hardware sales. The dollar increase and
percentage decrease for the six month period ended June 30, 1997 were primarily
7
<PAGE>
attributable to increased sales combined with an increase in the proportion of
sales from software licenses as compared to turnkey hardware sales.
Cost of consulting and services revenues as a percentage of consulting and
services revenues decreased from 30.5 percent for the second quarter of 1996 to
9.1 percent in the same period of 1997. Cost of consulting and services revenues
as a percentage of consulting and services revenues also decreased in the six
months ended June 30, 1997 to 12.5 percent from 29.5 percent in the same period
of 1996. Cost of consulting and services revenues were approximately $16,000 for
the second quarter of 1996 compared with $11,000 in the same period of 1997.
Total cost of consulting and services revenues was approximately $27,000 for the
six months ended June 30, 1996 compared with $32,000 for the same period of
1997. The dollar and percentage decrease in the second quarter of 1996 were
primarily attributable to lower costs related to software maintenance. The
dollar increase and percentage decrease for the six months ended June 30, 1997
were primarily attributable to increased consulting and service revenues and
lower costs related to software maintenance.
OPERATING EXPENSES
Sales and Marketing -- Sales and marketing expenses consist principally of the
costs of sales and marketing personnel, advertising, promotions and trade shows.
Sales and marketing expenses increased by 143.4 percent to approximately
$2,345,000 in the second quarter of 1997 up from approximately $963,000 in the
same period of 1996. Sales and marketing expenses also increased in the six
month period ending June 30, 1997 to approximately $3,800,000 up from
approximately $1,672,000 in the same period of 1996. As a percentage of total
revenue, expenses were 109.9 and 83.6 percent, respectively, for the three month
and six month periods ended June 30, 1997 compared to 71.1 and 70.4 percent,
respectively, in the comparable periods of 1996. The dollar and percentage
increase in 1997 was principally due to increased personnel, higher levels of
sales and marketing efforts and a charge of approximately $551,000 for bad debt
expense. Sales and marketing expenses are expected to decrease over the next two
quarters as a result of reductions in the Company's workforce and the Company's
shift in its sales and marketing effort toward a channel distribution strategy.
This statement is based on current expectations. It is forward-looking, and the
actual results could differ materially. For information about factors that could
cause the actual results to differ materially, please refer to Item 1. "Business
- - - Risk Factors that may Affect Future Results and Market Price of Common Stock"
in the Company's Annual Report on Form 10-K for the year ended December 31,
1996.
General and Administrative -- General and administrative expenses consist
principally of the costs of finance, management and administrative personnel and
facilities expenses. General and administrative expenses decreased by 60.9
percent to approximately $1,077,000 in the second quarter of 1997 down from
approximately $2,757,000 in the same period of 1996. General and administrative
expenses also decreased in the six month period ending June 30, 1997 to
approximately $1,848,000 down from approximately $3,350,000 in the same period
of 1996. As a percentage of revenue, expenses were 50.5 and 40.6 percent for the
three and six month periods ended June 30, 1997 compared to 203.5 and 140.9
percent in the comparable periods of 1996. The dollar and percentage decrease in
1997 was principally due to the recording of approximately $2,515,000 of
non-cash compensation expense in the six month period ended June 30, 1996
relating to the grant of options to purchase 590,394 shares of Common Stock at
an exercise price of $3.75 per share and options to purchase 10,000 shares of
Common Stock at an exercise price of $4.50 per share, each granted pursuant to
the 1996 Incentive Stock Option Plan, and the grant of options to purchase
383,965 shares of Common Stock at an exercise price of $0.75 per share pursuant
to the 1996 Non-Statutory Stock Option Plan, the underlying shares of which were
funded by a contribution of 383,965 shares of Common Stock by James F. Chen, the
Company's founder, President and Chief Executive Officer, and warrants to
purchase 66,666 shares of Common Stock issued to JMI Equity Fund II, L.P.
("JMI") at an exercise price of $0.015 per share. Included in the expenses for
the second quarter of 1997 is approximately $250,000 of legal expenses related
to patent, trademark and intellectual property work. General and administrative
expenses are expected to decrease over the next two quarters as a result of
reductions in the Company's workforce and the Company's shift in its sales and
marketing effort toward a channel distribution strategy. This statement is
based on current expectations. It is forward-looking, and the actual results
could differ materially. For information about factors that could cause the
actual results to differ materially, please refer to Item 1. "Business - Risk
8
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Factors that may Affect Future Results and Market Price of Common Stock" in the
Company's Annual Report on Form 10-K for the year ended December 31, 1996.
Research and Development -- Research and development consists principally of the
costs of research and development personnel and other expenses associated with
the development of new products and enhancement of existing products. Research
and development increased by 113.7 percent to approximately $841,000 in the
second quarter of 1997 up from approximately $393,000 in the same period of
1996. Research and development also increased in the six month period ending
June 30, 1997 to approximately $1,454,000 up from approximately $704,000 in the
same period of 1996. As a percentage of total revenue, expenses were 39.4 and
32.0 percent for the three month and six month periods ended June 30, 1997
compared to 29.0 and 29.6 percent in 1996. The dollar and percentage increase
was primarily due to increases in the number of personnel associated with the
Company's product development efforts. The Company believes that a continuing
commitment to research and development is required to remain competitive.
Accordingly, the Company intends to allocate substantial resources to research
and development, but research and development may vary as a percentage of total
revenues.
Restructuring Charge -- Restructuring charge expense consist of the costs
associated with the Company's shift in its sales and marketing efforts toward a
channel distribution strategy. Accordingly, the Company recognized in the second
quarter of 1997 a restructuring charge of $800,000, comprised of $400,000
relating certain marketing expenses and $400,000 relating to the reductions in
the Company's workforce. The Company anticipates the restructuring to be
completed by the end of 1997. No restructuring charge was incurred for the
second quarter of 1996 or for the six months ended June 30, 1996.
Interest Income and Expense -- Interest income represents interest earned on
cash, cash equivalents and marketable securities. Interest income increased to
approximately $102,000 for the second quarter of 1997 from approximately $20,000
for the same period of 1996. The increase was attributable to interest earned on
cash and cash equivalents related to the investment of the net proceeds of the
IPO. Interest expense represents interest payable or accreted on promissory
notes and capitalized lease obligations. Interest expense decreased to
approximately $4,000 for the second quarter of 1997 from approximately $176,000
for the same period of 1996. The decrease was due to the repayment of debt with
a portion of the net proceeds from the IPO.
Income Taxes -- The Company did not incur income tax expenses for the three and
six month periods ended June 30, 1997 and 1996, respectively, and for the years
ended December 31, 1996, 1995 and 1994 as a result of the net losses incurred
during these periods.
LIQUIDITY AND CAPITAL RESOURCES
The Company's operating activities used cash of approximately $4,769,000 and
$2,320,000 for the six months ended June 30, 1997 and 1996, respectively. Cash
used in operating activities for the six months ended June 30, 1997 was
principally a result of net losses and increases in accounts receivable and
prepaid expenses, which were partially offset by depreciation and amortization,
an increase in accounts payable and accrued expenses and the provision for
doubtful accounts.
Capital expenditures for property and equipment were approximately $243,000 and
$222,000 for the six months ended June 30, 1997 and 1996, respectively. These
expenditures have generally been for computer workstations and personal
computers, office furniture and equipment, and leasehold additions and
improvements. The Company expects to purchase additional computer equipment and
office furniture and to make additional leasehold improvements in 1997. In the
six months ended June 30, 1997, the Company made an investment of $250,000 in
Network Flight Recorder, Inc. Network Flight Recorder, Inc. develops software to
provide network administrators with network audit capabilities and is headed by
Marcus J. Ranum, the Company's Chief Scientist.
Financing activities include cash received of approximately $690,000 from the
exercise of stock options during the second quarter of 1997. Also in the second
9
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quarter of 1997, the Company received 6,020 shares of Common Stock as payment
for stock options issued under the 1996 Non-Statutory Stock Option Plan. The
Company retired the 6,020 shares of Common Stock. During the first quarter of
1996, the Company raised $1.25 million from the sale of 7% unsecured promissory
notes. In April and May 1996, the Company exchanged all of the 7% unsecured
promissory notes for Series A Convertible Preferred Stock ("Series A Stock"). In
addition, in April 1996, the Company raised approximately $1,000,000 by selling
an additional 222,222 shares of Series A Stock at $4.50 per share. Upon
consummation of the IPO, each share of Series A Stock automatically converted
into 1.20 shares of Common Stock. In June 1996, the Company raised an additional
$1,500,000 by issuing to JMI an 8% unsecured senior subordinated note with
detachable warrants to purchase 386,665 shares of Common Stock. Of the 386,665
detachable warrants, 319,999 are exerciseable at $3.75 per share and 66,666 were
exercised at $0.015 per share on June 28, 1996.
As of June 30, 1997, the Company had an accumulated deficit of approximately
$12,361,000. The Company may incur net losses over the next several quarters
despite an anticipated reduction in operating expenses. To date, the Company has
expensed all development costs as incurred in compliance with Statement of
Financial Accounting Standards No. 86, "Accounting for the Costs of Computer
Software to Be Sold, Leased or Otherwise Marketed." The Company believes that it
will be able to continue to expense all development costs as incurred.
OUTLOOK
General and administrative costs have increased significantly since the
Company's date of inception and the Company expects such costs may increase in
the future. The Company intends, however, to adjust its level of expenditure for
sales and marketing, general and administrative and research and development
expenses so that the levels are consistent with the Company's revenue stream.
The Company believes that its current cash and cash equivalents and funds that
may be generated from on-going operations will be sufficient to finance the
Company's operations at least through June 30, 1998. The statements in this
paragraph are forward-looking statements. Actual results could differ
materially. For information about factors that could cause the actual results to
differ materially, please refer to Item 1. "Business - Risk Factors that may
Affect Future Results and Market Price of Common Stock" in the Company's Annual
Report on Form 10-K for the year ended December 31, 1996.
In July 1997, the Company entered into reseller agreements with a Japanese
reseller (ASCII Network Technology, Inc. ("ASCII")) and a European reseller
(Internet Solutions Limited ("ISL"), the parent company of SmartWare Ltd.). Each
of these agreements are multi-year distribution agreements and give the reseller
exclusive distribution rights for the Company's products in Japan and Western
Europe, respectively. The Company and ASCII project $10 million in SmartGate NT
sales in the next 24 months. In order to maintain its exclusive distribution
arrangement, ISL has agreed to purchase a total of $15 million in the Company's
products, $7 million in 1997 and 1998 ($1.6 million of which is included in
revenues as of June 30, 1997) and an additional $8 million in 1999. The
agreement with ACSII does not provide for minimum purchases of the Company's
products by such reseller. The reseller agreements are terminable by both
parties upon material breach of the other party's obligations under the reseller
agreement or upon thirty days' written notice to the other party. The projection
in this paragraph is based on current expectations and is a forward-looking
statement. Actual results could differ materially. For information about factors
that could cause the actual results to differ materially, please refer to Item
1. "Business - Risk Factors that may Affect Future Results and Market Price of
Common Stock" in the Company's Annual Report on Form 10-K for the year ended
December 31, 1996. In particular, please note the following risk factors in such
section: "Dependence on the Internet and Intranets," "Risks Associated with the
Emerging Network Security Market," "Dependence on Principal Products;
Uncertainty of Product Acceptance," "Risk of Errors or Failures; Product
Liability Risks," "Changes in Technology and Industry Standards; Risk of New
Product Introduction," "Evolving Distribution Channels," "Long Sales Cycle;
Seasonality" and "International Sales."
10
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Part II. OTHER INFORMATION
Item 1. Legal Proceedings
None
Item 2. Changes in Securities
None
Item 3. Defaults upon Senior Securities
None
Item 4. Submission of Matters to a Vote of Security-Holders
On May 15, 1997, the following items were voted on at the Annual Meeting of
stockholders:
PROPOSAL BROKER
FOR AGAINST ABSTAIN NON-VOTES
1. To elect Harry S. Gruner as a
director to serve for a
three-year term expiring at
the Annual Meeting held in
the year 2000 or until his
successor has been elected
and qualified 11,337,662 10,800 0 N/A
2. To ratify the appointment of
Coopers & Lybrand L.L.P.,
independent public
accountants, as the auditors
of the Company for the year
ending December 31, 1997 11,064,086 180,076 900 N/A
The Company's Restated Certificate of Incorporation provides for a classified
Board of Directors. The terms of the Board of Directors are: Class I (Harry S.
Gruner) will expire at the annual meeting of shareholders to be held in 2000,
Class II (Charles C. Chen and Hai Hua Cheng) will expire at the annual meeting
of shareholders to be held in 1998, and Class III (James F. Chen and William E.
Odom) will expire at the annual meeting of shareholders to be held in 1999.
Item 5. Other Information
None
Item 6. Exhibits and Reports on Form 8-K
(a) The following exhibits are filed as part of this Quarterly Report on Form
10-Q for the quarter period ended June 30, 1997
Exhibit 10.1 - Lease Agreement Dated March 24, 1997 Between Bellemead
Development Corporation and V-ONE Corporation
Exhibit 11 - Computation of Net Loss per Share
Exhibit 27 - Financial Data Schedule
(b) Reports on Form 8-K
None
11
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Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
V-ONE CORPORATION
Registrant
Date: August 14, 1997 By: /S/ CHARLES B. GRIFFIS
-------------------------------
Name: Charles B. Griffis
Title: Senior Vice President, Chief
Financial Officer and Treasurer
(Duly authorized officer and Principal
Financial and Accounting Officer)
12
LEASE AGREEMENT
BETWEEN
BELLEMEAD DEVELOPMENT CORPORATION
AND
V-ONE CORPORATION
<PAGE>
TABLE OF CONTENTS
20250 CENTURY BOULEVARD
GERMANTOWN, MARYLAND 20874
Paragraph Page
1 Basic Lease Provisions........................................ 1
2 Demised Premises.............................................. 3
3 Term.......................................................... 3
4 Use........................................................... 4
5 Minimum Rent.................................................. 4
6 Cost of Living Adjustments to Rent............................ 5
7 Adjustments to Rent........................................... 5
8 Deposits...................................................... 8
9 Assignment and Subletting..................................... 10
10 Landlord's Work............................................... 12
11 Maintenance by Tenant......................................... 12
12 Alteration.................................................... 12
13 Tenant's Agreement............................................ 13
14 Entry for Repairs and Inspection.............................. 14
15 Insurance Rating.............................................. 14
16 Tenant's Insurance............................................ 15
17 Tenant's Equipment............................................ 17
18 Utilities and Services........................................ 17
19 Indemnity..................................................... 18
20 Damage to Demised Premises.................................... 18
21 Damage to Personal Property and Person........................ 19
22 Destruction, Fire and Other Casualty.......................... 19
23 Bankruptcy or Insolvency...................................... 21
24 Default of Tenant............................................. 23
25 Waiver........................................................ 27
26 Subordination................................................. 27
27 Condemnation.................................................. 28
28 Rules and Regulations......................................... 29
29 Right of Landlord to Cure Tenant's Default;
Late Payments................................................ 29
30 Holding Over.................................................. 30
31 No Representations by Landlord................................ 30
32 Brokers....................................................... 31
33 Notices....................................................... 31
34 Estoppel Certificates......................................... 31
35 Financing Requirements........................................ 32
36 Covenants of Landlord......................................... 32
<PAGE>
37 Lien for Rent................................................. 32
38 Successors and Assigns........................................ 32
39 Entire Agreement.............................................. 32
40 Applicable Law................................................ 33
41 Limitation of Landlord's Liability............................ 33
42 Waiver of Redemption.......................................... 33
43 No Option..................................................... 33
44 Attorney's Fees............................................... 33
45 Partial Invalidity............................................ 34
46 Pronouns...................................................... 34
47 Parkin........................................................ 34
48 Costs Associated with Landlord's Approval..................... 35
Exhibits
- - --------
A Demised Premises [TO BE PROVIDED]
B Work Letter
C Rules and Regulations
D Sample Rent Letter
E Cleaning and Char Service Specifications
F Legal Holidays
(ii)
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LEASE AGREEMENT
---------------
THIS LEASE AGREEMENT ("Lease") is made as of the date set forth below, by
and between BELLEMEAD DEVELOPMENT CORPORATION ("Landlord") and V-ONE CORPORATION
("Tenant").
WITNESSETH
----------
In consideration of the mutual agreements hereinafter set forth, the
parties do hereby mutually agree as follows:
1. BASIC LEASE PROVISIONS. The following are certain lease
provisions which are part of, and, in certain instances, referred to in,
subsequent provisions of this Lease:
(a) Date of Lease: March 24, 1997
(b) Landlord: Bellemead Development Corporation, a Delaware
Corporation
(c) Tenant: V-One Corporation, a Delaware corporation
(d) Demised Premises:approximately 28,312 square feet of
rentable area consisting of 21,516 and
6,796 rentable square feet on the 3RD AND
4TH floor(s) respectively of the building
located in the 270 Corporate Center
("Center") at 20250 Century Boulevard,
Germantown, Maryland 20874 ("Building")
(e) Term: Six (6) Years
(f) Estimated Commencement Date: July 1, 1997
(g) Use: General Office and Administrative and assembling as
disassembling computer systems
(h) Minimum Rent: $ 516,977.12 per annum
------------
$ 43,081.43 per month
------------
Subject to adjustment as provided in Paragraph 2 of the Addendum.
(i) Tenant's Operating Expense Allowance: See Addendum,
Paragraph 3.
(j) Tenant's Real Estate Tax Allowance: See Addendum, Paragraph 3.
(k) Tenant's Pro Rata Share: 26.51%
<PAGE>
(1) Deposits: $ 370,000.00 security deposit - See Addendum,
------------
Paragraph 7.
$ 43,081.43 first month's Minimum Rent
------------
(m) Deadline for Delivery of Tenant's Plans and
Specifications: N/A
(n) Broker:
The Fred Ezra Company CB Commercial Real Estate Group
4520 East-West Highway 6550 Rock Spring Dr., Suite 200
Bethesda, MD 20814 Bethesda, MD 20817
Attn: Mike Jacoby Attn: Carl F. Pfeiffer
(o) Landlord's Address: Bellemead Development Corporation
20201 Century Boulevard
Germantown, MD 20874
with a copy to:
Bellemead Development
Corporation
Four Becker Farm Road
Roseland, NJ 07068
Attn: Legal Department
and an additional copy to Landlord's
Agent:
Bellemead Management Co., Inc.
20251 Century Boulevard
Germantown, MD 20874
(p) Tenant's Address: prior to Lease Commencement Date:
1803 Research Boulevard
Suite 305
Rockville, MD 20850
Attn: Chief Financial Officer
after Lease Commencement Date:
20250 Century Boulevard
Suite 300
Germantown, MD 20874
Attn: Chief Financial Officer
2
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with a copy to:
The Fred Ezra Company
4520 East-West Highway
Suite 650
Bethesda, MD 20814
Attn: Mike Jacoby
(q) Parking: Eighty-Eight (88) spaces
2. DEMISED PREMISES. Landlord does hereby lease to Tenant and Tenant
does hereby lease from Landlord, for the term and upon the conditions herein
provided the premises described in Paragraph l(d) above and shown on the plan
attached hereto as Exhibit A (the "Demised Premises").
3. TERM.
(a) This Lease shall be for the term ("Term") set forth in paragraph
l(e) above (or until such Term shall sooner cease and expire as hereinafter
provided) beginning on the Lease Commencement Date (hereinafter defined) and
ending at midnight on the last day of the Term; provided, however, if the Lease
Commencement Date is other than the first day of a calendar month, the period
between the Lease Commencement Date and the first day of the next calendar month
shall be added to the Term.
(b) The parties intend that the Lease Commencement Date be on or
about the date set forth in Paragraph l(f) hereof (the "Estimated Commencement
Date"), but the Lease Commencement Date shall be fixed and ascertained as
hereinafter set forth. The Lease Commencement Date shall be the earlier of: (i)
the date upon which the Demised Premises shall be "substantially completed," as
defined in the Work Letter (attached as Exhibit B) or (ii) the date upon which
the Tenant shall take possession of all or any part of the Demised Premises for
the conduct of its business.
(c) After the Lease Commencement Date, Landlord and Tenant, promptly
upon the request of either of them, will execute and deliver to each other an
agreement in recordable form setting forth the Lease Commencement and
Termination Dates.
(d) If prior to the Lease Commencement Date, Tenant shall enter the
Demised Premises to make any installations of its equipment, fixtures and
furnishings, Landlord shall have no liability or obligation for the care or
preservation of Tenant's property.
(e) Landlord agrees to provide access to the telephone company
during the course of construction, to permit Tenant's installations of
telephone. Notwithstanding, the parties agree that the failure of the telephone
company to complete the telephone installation and to provide service on the
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Lease Commencement Date shall not delay or defer the determination of the Lease
Commencement Date and the obligation of Tenant to pay rent therefrom.
(f) Anything contained in this paragraph to the contrary
notwithstanding, if for any reason the Demised Premises are not ready for
occupancy on the Estimated Commencement Date, this Lease shall nevertheless
continue in full force and effect; the Lease Commencement Date shall be advanced
until the Demised Premises are "substantially completed"; and the termination
date shall be adjusted to provide the full Term set forth above. The Landlord
agrees to use good faith efforts to complete the Demised Premises by the
Estimated Commencement Date.
(g) In the event the Lease Commencement Date is postponed due to any
reason set forth in Paragraph D of the Work Letter, or any other delay caused by
Tenant, Tenant shall pay to Landlord as Additional Rent, one day's rent computed
in accordance with this Lease for each calendar day of delay as liquidated
damages.
(h) In the event the Demised Premises are not substantially
completed by the Estimated Commencement Date, Landlord shall not be liable or
responsible for any claims, damages or liabilities by reason of such delay, nor
shall the obligations of Tenant hereunder be affected, except as specifically
set forth hereinafter.
4. USE. Tenant will use and occupy the Demised Premises solely for the
uses set forth in Paragraph l(g) above, in accordance with the certificate of
occupancy and the use permitted under applicable zoning regulations and for no
other purpose. Tenant will not use or occupy the Demised Premises for any
unlawful, disorderly, or hazardous purpose, and will not manufacture any
commodity or prepare or dispense any food or beverage therein, except for
Tenant's personal use in the Demised Premises. Tenant will comply, in its use of
the Demised Premises, with all present and future laws, regulations and
governmental requirements of any governmental or public authority having
jurisdiction over the Demised Premises.
5. MINIMUM RENT.
(a) Tenant covenants and agrees to pay to Landlord as rent for the
Demised Premises the amount set forth in Paragraph l(h) above ("Minimum Rent").
Minimum Rent shall be payable in advance on the first day of each calendar month
during the Term of this lease. Tenant shall also pay, as Additional Rent, all
such other sums of money as shall become due from and payable by Tenant to
Landlord under this Lease. Unless otherwise specified herein, Additional Rent
shall be paid by Tenant with the next installment of Minimum Rent falling due.
Landlord shall have the same remedies for default for the payment of Additional
Rent as are available to Landlord in the case of a default in the payment of
Minimum Rent.
(b) If the Lease Commencement Date occurs on a day other than on the
first day of a month, rent from the Lease Commencement Date until the first day
of the following month shall be prorated at the rate of one-thirtieth (1/30) of
the fixed monthly rental for each such day, payable in advance on the Lease
Commencement Date.
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(c) Tenant will pay said rent without demand, deduction, set-off or
counterclaim, by check to Landlord's Agent: Bellemead Management Co., at Four
Becker Farm Road, Roseland, NJ 07068 or to such other party or to such other
address as Landlord may designate from time to time by written notice to Tenant.
If Landlord shall at any time or times accept said rent after it shall become
due and payable, such acceptance shall not excuse delay upon subsequent
occasions, or constitute a waiver of any or all of Landlord's rights hereunder.
6. COST OF LIVING ADJUSTMENTS TO RENT. - DELETED
7. ADJUSTMENTS TO RENT.
(a) Commencing with the first day of the Second Lease Year and
continuing for each Lease year thereafter (or portion thereof) throughout the
Term, including the Lease year in which this Lease terminates, Tenant shall pay
to Landlord as Additional Rent Tenant's Pro Rata Share (as defined below) of the
excess, if any, of the sum of Operating Expenses (hereinafter defined) for the
Building and Real Estate Taxes (hereinafter defined) for such Lease year over
Tenant's specified allowance thereafter set forth in Paragraph 3 of the
Addendum. In the event that, for any calendar year, Tenant's liability for
increases in Operating Expenses and Real Estate Taxes does not encompass the
full calendar year, Tenant's share thereof for such calendar year shall be
determined by multiplying the amount of Tenant's share for the full calendar
year by a fraction, the numerator of which is the number of calendar days during
such calendar year for which Tenant is responsible and the denominator of which
is 365. Landlord and Tenant hereby agree that Tenant's Pro Rata Share shall be
the percentage set forth in Paragraph l(k) above ("Pro Rata Share"), which
represents the ratio that the area of the Demised Premises bears to the total
rentable area of office space contained in the Building. Notwithstanding the
foregoing, for purposes of calculating Tenant's Pro Rata Share of increases in
Operating Expenses and Real Estate Taxes such increases shall not exceed six
percent (6%) of the prior year's Operating Expenses and Real Estate Taxes.
(b) The term "Operating Expenses" shall mean all of the costs and
expenses incurred in operating and maintaining the Building in a first-class
manner, as reasonably determined by Landlord, including by way of illustration,
but not limitation: (iii) water and sewer charges, (iv) insurance premiums, (v)
utilities, (vi) management costs, fees and commissions, (vii) maintenance and
repair expenses, including salaries, wages and other personnel costs of
janitors, engineers, superintendents, watchmen and other Building employees,
(viii) supplies, (ix) costs and upkeep of all parking and common areas other
than retail areas, (x) the costs of any additional services not provided to the
Building at the Lease Commencement Date but thereafter provided by Landlord in
the prudent management of the Building. Operating Expenses shall not include:
(i) principal and interest payments on any mortgages, deeds of trust or other
financing encumbrances, (ii) leasing commissions or other costs related to the
leasing of space payable by Landlord, or (iii) deductions for depreciation of
the building. See Addendum, Paragraph 4 for additional exclusions from Operating
Expenses. Operating expenses shall include the yearly amortization of capital
costs incurred by Landlord (i) for improvements or structural repairs to the
Building required to comply with any changes in the laws, rules or regulations
of any governmental authority having jurisdiction or enacted after the date
5
<PAGE>
hereof, or (ii) for purposes of reducing operating expenses, which costs shall
be amortized over the useful life of such improvements or repairs as determined
in accordance with GAAP.
(c) The term "Real Estate Taxes" shall include all taxes, general
and special, or ordinary or extraordinary, foreseen or unforeseen, assessed,
levied or imposed upon the Building or the land (including W.S.S.C. connection
and usage fees to the extent attributable to the Tenant). Landlord shall have no
obligation to contest, object or litigate the levying or imposition of Real
Estate Taxes, and may settle, compromise, consent to, waive or otherwise
determine in its discretion any such taxes without consent of Tenant. Real
Estate Taxes which are being contested by Landlord shall be included for
purposes of computing Tenant's Pro Rata Share of increased Real Estate Taxes,
but if Tenant shall have paid any amount of Additional Rent pursuant to this
paragraph and Landlord shall thereafter receive a refund of any portion of any
Real Estate Taxes on which such payments shall have been based, Landlord shall
pay to Tenant its Pro Rata Share of such refund, less all costs involved in
obtaining said refund. Landlord's obligation to refund Tenant's Pro Rata Share
of any refund of Real Estate Taxes shall survive the expiration or other
termination of this Lease. If any taxes are separately assessed against Landlord
or the Building due to improvements, alterations, additions and substitutions
undertaken by or at the specific request of Tenant other than the original
Tenant improvements for the Demised Premises, Tenant shall be solely responsible
for the payment of such tax.
(d) After the end of each calendar year during the Term, Landlord
shall determine the amount, if any, by which the Operating Expenses for the
Building and the Real Estate Taxes during the preceding calendar year exceeded
the allowances set forth in Paragraph 3 of the Addendum. Within ninety (90) days
after the close of each calendar year, Landlord shall provide to Tenant a
detailed written statement of this determination of the preceding year's excess
Operating Expenses and Real Estate Taxes. The statement shall also include
Landlord's estimate of increases in Operating Expenses and Real Estate Taxes for
the ensuing year, which shall include Tenant's Pro Rata Share of increased
Operating Expenses and Real Estate Taxes for the ensuing calendar year ("Expense
Statement"). Failure by Landlord to give such Expense Statement by such date
shall not constitute a waiver by Landlord of its right to require an increase in
rent. Upon receipt of the Expense Statement for the preceding year, Tenant shall
pay in full with the next monthly rent falling due the total amount of increase
due for the preceding year and the amount of any such increase shall be used as
an estimate for the ensuing year. Said estimate shall be divided into twelve
(12) equal monthly installments and shall be payable by Tenant to Landlord
concurrently with the regular monthly rent payments for the balance of that
calendar year and shall continue until the next year's statement is rendered. If
the next or any succeeding year results in a greater increase in Operating
Expenses or Real Estate Taxes, then upon receipt of an Expense Statement from
Landlord, Tenant shall pay a lump sum equal to its Pro Rata Share of such total
increase in Operating Expenses and Real Estate Taxes over the base, less the
total of the monthly installments of estimated increases paid in the previous
lease year for which comparison is then being made to the base; and the
estimated monthly installments to be paid for the next year, following said
year, shall be adjusted to reflect such increase. If in any year Tenant's Pro
Rata Share of increased Operating Expenses and Real Estate Taxes be less than
the preceding year, then upon receipt of Landlord's Expense Statement, any other
payment made by Tenant on the monthly installment basis provided above shall be
6
<PAGE>
credited toward the next monthly rent falling due and the estimated monthly
installments of Operating Expenses and/or Real Estate Taxes, as applicable, to
be paid shall be adjusted to reflect such lower Operating Expenses or Real
Estate Taxes for the most recent comparison year.
(e) Even though the Term has expired and Tenant has vacated the
Demised Premises, when the final determination is made of Tenant's Pro Rata
Share of increased Operating Expenses and Real Estate Taxes for the year in
which the Lease terminates, Tenant shall immediately pay any increase due over
the estimated expenses paid and conversely any overpayment made in the event
said expenses decrease shall be immediately rebated by Landlord to Tenant.
(f) Each Expense Statement provided by Landlord pursuant to this
paragraph shall be conclusive and binding upon Tenant unless within ninety (90)
days after receipt of the Expense Statement, Tenant shall notify Landlord that
it disputes the correctness of the Expense Statement, specifying the respects in
which the Expense Statement is claimed to be incorrect. Tenant, at its expense,
shall then have the right to audit Landlord's books and records relating to the
Expense Statement and the base year. Pending determination of the dispute,
Tenant shall pay within thirty (30) days from notice any amounts due from Tenant
in accordance with the Expense Statement, but such payment shall be without
prejudice to Tenant's position. See Addendum, Paragraph 5.
(g) In the event that any statute, regulation, or proclamation
having the effect of law prevents an increase in the rent in accordance with any
term or provision of this Lease, the amount of the increase in the rent which
would have gone into effect but for the operation of such statute, regulation,
or proclamation will be accumulated. Said accumulated amount will be payable in
twelve equal monthly installments beginning immediately after such statute,
regulation, or proclamation ceases to prohibit such rental increases and will be
payable in addition to the then current Minimum Rent. If the Demised Premises
are still under Lease at the time that such statute, regulation or proclamation
ceases to prohibit such rental increases, then the current Rent shall be
immediately increased to the level where it would have been had no such statute,
regulation or proclamation ever been in effect.
(h) Notwithstanding anything contained in this article, in no event
shall Minimum Rent be less than the Minimum rent specified herein.
8. DEPOSITS. Upon execution of this Lease, Tenant shall deposit with
Landlord the sum set forth in Paragraph 1(1) above as a deposit to be applied
against the first month's Minimum Rent. In addition, Tenant shall pay to
Landlord as a security deposit the sum set forth in Paragraph l(1) above in cash
or in the form of a letter of credit. If the security deposit is in the form of
a letter of credit, the letter of credit shall be irrevocable and unconditional,
in standard form, and issued to Landlord for a term expiring no earlier than
thirty (30) days following the expiration of the term of this Lease. In the
event Tenant is unable to obtain a letter of credit for such term, it may
7
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substitute a series of letters of credit, each having a term of one year. Tenant
shall deliver each replacement letter of credit to Landlord not less than thirty
(30) days prior to the end of each lease year. Upon receipt of the replacement
letter of credit, Landlord shall return the previous letter of credit to Tenant
(or the proceeds of the letter of credit less draws permitted hereunder in the
event of Tenant's default). Time is of the essence as to this requirement and
Tenant's failure to deliver the replacement letter(s) of credit within the time
frame set forth herein shall be deemed a material Default. See Addendum,
Paragraph 7 for provisions regarding return of portions of the security deposit.
Such deposit (which, if in the form of cash, shall bear interest to Tenant)
shall be considered as security for the prompt payment and performance by Tenant
of all of Tenant's obligations under this Lease. Within thirty (30) days of the
expiration of the Term hereof (or any renewal or extension thereof in accordance
with this Lease), Landlord shall (provided that Tenant is not in default under
the terms hereof) return and pay back such security deposit to Tenant, less such
portion thereof as Landlord shall have appropriated to make good any default by
Tenant. In the event of any Default (as defined hereafter) by Tenant hereunder,
Landlord shall have the right, but shall not be obligated, to draw upon the
letter of credit and apply all or any portion of the security deposit to cure
such Default, in which event Tenant shall be obligated to promptly deposit with
Landlord the amount necessary to restore the security deposit to its original
amount. The use application or retention of the security deposit, or any portion
thereof, by Landlord shall not prevent Landlord from exercising any other right
or remedy provided by this Lease or by law and shall not operate as a limitation
on any recovery to which Landlord may otherwise be entitled. In the event of the
sale or transfer of Landlord's interest in the Building, Landlord shall have the
right to transfer the security deposit to such purchaser or transferee, in which
event Tenant shall be entitled to look to the new Landlord for the return of the
security deposit and, to the extent the Landlord has transferred the security
deposit, Landlord shall thereupon be released from all liability to Tenant for
the return of such security deposit. In the absence of evidence satisfactory to
Landlord of any permitted assignment of the right to receive the security
deposit, or the remaining balance thereof, Landlord may return the same to the
original Tenant, regardless of one or more assignments of Tenant's interest in
this Lease or the security deposit. In such event, upon the return of the
security deposit (or balance thereof) to the original Tenant, Landlord shall be
completely relieved of liability under this paragraph. The security deposit
shall not be mortgaged, assigned or encumbered in any manner whatsoever by
Tenant, and shall not be encumbered by Landlord except in connection with an
assignment of leases from Landlord to its lender.
9. ASSIGNMENT AND SUBLETTING.
(a) Except as otherwise expressly provided to the contrary herein,
Tenant covenants not to assign or transfer this Lease or hypothecate or mortgage
the same or sublet the Demised Premises or any part thereof without the prior
written consent of Landlord, which consent, subject to the provisions of this
Paragraph, shall not be unreasonably withheld. Sales aggregating fifty percent
(50%) or more of the capital or voting stock of Tenant (if Tenant is a nonpublic
corporation - transfer of stock in a public corporation shall not be considered
an assignment of this Lease) or transfers aggregating fifty percent (50%) or
more of Tenant's partnership interests (if Tenant is a partnership) shall be
deemed to be an assignment of this Lease, provided, however, that (i) the sale
of stock in connection with an initial public offering, or (ii) the merger or
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consolidation of Tenant with another entity whereby the surviving entity has a
net worth of at least equivalent to Tenant on the date hereof, shall not be
deemed to be an assignment of this Lease.
(b) If Tenant shall desire to sublet all or any portion of the
Demised Premises or assign this Lease, it shall first submit in writing to
Landlord:
(i) the name(s) and address(es) of the proposed
subtenant(s) or assignee(s);
(ii) the terms and conditions of the proposed subletting
or assignment.
(iii) the nature and character of the business of the
proposed subtenant or assignee; and
(iv) banking, financial and other credit information relating
to the proposed subtenant or assignee reasonably sufficient to
enable Landlord to determine the proposed subtenant's or assignee's
financial responsibility.
(c) Tenant shall, by notice in writing as described in subparagraph
(b) above, advise Landlord of its intention to sublease or assign from, on and
after a stated date (which shall not be less than forty-five (45) days after the
date of Tenant's notice) all or any part of the Demised Premises, in which event
Landlord shall have the right, to be exercised by giving written notice to
Tenant within fifteen (15) days after receipt of Tenant's notice, to recapture
the space described in Tenant's notice. Such recapture notice shall, if given,
cancel and terminate this Lease with respect to the space therein described as
of the date stated in Tenant's notice and Tenant thereafter shall be relieved
from all liability with respect thereto accruing after the date of such
termination. In the event less than all of the Demised Premises are recaptured,
Landlord, at its sole cost and expense, shall be obligated to construct and
erect such partitioning as may be required to sever the portion of the Demised
Premises retained by Tenant from the portion of the Demised Premises recaptured.
Notwithstanding the foregoing, Landlord's recapture right shall not apply to a
sublease of less than 10,000 rentable square feet for less than the remainder of
the Term.
If this Lease is cancelled pursuant to the foregoing provision with
respect to less than the entire Demised Premises, the rent, Tenant's Pro Rata
Share pursuant to Paragraph l(k) hereof and the parking spaces pursuant to
Paragraph l(q) hereof shall be adjusted on the basis of the number of square
feet retained by Tenant in proportion to the number of square feet originally
demised under this Lease and this Lease, as so amended, shall continue
thereafter in full force and effect.
In addition to the foregoing requirements, no sublease shall be made
if such sublease shall result in an occupancy of more than two (2) tenants in
the portion of the Demised Premises located on the fourth floor or six (6)
tenants in the portion the Demised Premises located on the fourth floor,
including Tenant hereunder, or if the sublease shall be for a term of less than
two (2) years, unless the unexpired term of this Lease shall be less than two
(2) years.
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If Landlord does not elect to recapture the Demised Premises, Tenant
shall be free for a period of one hundred twenty (120) days thereafter to sublet
such space or to assign this Lease to such proposed subtenant(s) or assignee(s)
if Landlord shall consent thereto, which consent shall not be unreasonably
withheld or delayed, provided that such sublease or assignment shall be on the
same terms and conditions set forth in Tenant's notice provided for in
subparagraph (b) above.
(d) In the event Landlord shall not elect to recapture the portion
of the Demised Premises which Tenant desires to sublet, or if Tenant shall
desire to assign this Lease and Landlord shall not elect to recapture the
Demised Premises, and Landlord shall consent to such subletting or assignment,
fifty percent (50%) of the net sums or other economic consideration received by
Tenant as a result of such subletting or assignment, whether denominated rental
or otherwise under the sublease or assignment, which exceed, in the aggregate,
the total sums which Tenant is obligated to pay Landlord under this Lease
(prorated to reflect obligations allocable to that portion of the Demised
Premises subject to such sublease) after deduction of all of Tenant's reasonable
costs of subletting and assignment, shall be payable to Landlord as Additional
Rent under this Lease without affecting or reducing other obligations of Tenant
hereunder.
(e) Any subletting or assignment hereunder shall not in any event
release or discharge Tenant hereunder of or from any liability, whether past,
present or future, under this Lease and Tenant shall continue fully liable
hereunder. The subtenant or assignee shall agree to assume, comply with and be
bound by all of the terms, covenants, conditions, provisions and agreements of
this Lease to the extent of the space sublet or assigned; and Tenant shall
deliver to Landlord promptly after execution, an executed copy of such sublease
or assignment and an agreement of assumption or compliance by such subtenant or
assignee.
(f) In the event that Landlord does not respond to Tenant's written
request to sublease or assign any portion of the Premises within fifteen (15)
days of Tenant's request, Landlord's approval shall be deemed given to the
proposed sublease or assignment specified in Tenant's notice.
10. LANDLORD'S WORK. Annexed hereto as Exhibit "B" and made a part
hereof is Landlord's Work Letter (the "Work Letter"). The parties acknowledge
that the plans and specifications required by Landlord in accordance with the
provisions of the Work Letter are attached hereto and Landlord agrees that it
shall construct the Demised Premises in accordance with the Work Letter and the
attached Plans.
11. MAINTENANCE BY TENANT. Tenant shall at its expense keep the Demised
Premises (including all improvements, fixtures and all other property contained
in the Demised Premises) in a neat and clean condition, and in good order and
repair, and will surrender the Demised Premises at the end of the Term in as
good order and condition as they were at the commencement of the Term, except
for reasonable wear and tear and casualties and damages for which Tenant is not
responsible hereunder. Tenant shall not commit or suffer to be committed any
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waste upon the Demised Premises or any nuisance or other act or thing which may
disturb the quiet enjoyment of any other tenant in the Building or any person
outside the Building in contravention of such person's legal rights.
12. ALTERATIONS. (a) The original improvement of the Demised Premises by
Landlord for Tenant shall be in accordance with Exhibit B attached hereto.
Tenant will not make or permit anyone to make any alterations, decorations,
additions or improvements, structural or otherwise, in or to the Demised
Premises or the Building, without the prior written consent of Landlord (which
consent shall not be unreasonably withheld, conditioned or delayed).
Notwithstanding the foregoing, Landlord's consent shall not be required for any
alterations within the Demised Premises which do not affect the Building's
structural components or systems. All alterations, decorations, additions or
improvements permitted herein or otherwise consented to by Landlord must conform
to all governmental and insurance rules and regulations established from time to
time. As a condition precedent to any such required written consent of Landlord,
Tenant agrees to obtain and deliver to Landlord written and unconditional
waivers of mechanics' and materialmens' liens upon the land and Building for all
work, labor and services to be performed, and material to be furnished, by them
in connection with such work, signed by all contractors, subcontractors,
materialmen and laborers to become involved in such work. If, notwithstanding
the foregoing, any mechanic's or materialmen's lien is filed against the Demised
Premises, the Building and/or the land, for work claimed to have been done for,
or materials claimed to have been furnished to, Tenant, such lien shall be
discharged by Tenant within ten (10) days thereafter, at Tenant's sole cost and
expense, by the payment thereof or by filing any bond required by law. If Tenant
shall fail to discharge any such mechanic's or materialmen's lien, Landlord may,
at its option, discharge the same and treat the cost thereof as Additional Rent
payable with the monthly installment of rent next becoming due; it being hereby
expressly covenanted and agreed that such discharge by Landlord shall not be
deemed to waive, or release the default of Tenant in not discharging the same.
It is further understood and agreed that in the event Landlord shall give its
written consent to Tenant's making any such alterations, decorations, additions
or improvements, such written consent shall not be deemed to be an agreement or
consent by Landlord to subject Landlord's interest in the Demised Premises, the
Building or the land to any mechanic's or materialmen's liens which may be filed
in respect of any such alterations, decorations, additions or improvements made
by or in behalf of Tenant.
(b) Landlord reserves the right to (i) construct additional
improvements to the Building beyond those shown on the preliminary floor plans
and (ii) install and maintain pipes, ducts, conduits, wires and structural
elements located in the Demised Premises which serve other parts or other
tenants of the Building, provided that no such installation shall materially
impair Tenant's use of the Demised Premises.
13. TENANT'S AGREEMENT. Tenant further agrees that no sign, advertisement
or notice shall be inscribed, painted or affixed on any part of the outside or
inside of the Demised Premises or Building, except on the directories and doors
of offices, and then only in such size, color and style as the Landlord shall
reasonably approve; that the Landlord shall have the right to prohibit any
advertisement of any Tenant which in the Landlord's opinion tends to impair the
reputation of the Building or its desirability as a building for offices or for
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financial, insurance or other institutions and businesses of like nature, and
upon written notice from the Landlord, Tenant shall refrain from and discontinue
such advertisement; that the Landlord shall have the right to prescribe the
weight, and method of installation and position of safes or other heavy fixtures
or equipment and Tenant shall not install in the Demised Premises any fixtures,
equipment or machinery that will place a load upon any floor exceeding the floor
load per square foot area which such floor was designed to carry; that all
damage done to the Building by taking in or removing a safe or any other article
of Tenant's office equipment, or due to its being in the Demised Premises, shall
be repaired at the expense of Tenant. No freight, furniture or other bulky
matter of any description shall be received into the Building or carried in the
elevators other than in the freight elevator, except as approved by the
Landlord. All moving of furniture, material and equipment shall be under the
direct control and supervision of the Landlord, who shall, however, not be
responsible for any damage to or charges for moving same. Tenant agrees promptly
to remove from the public area adjacent to said Building any of Tenant's
merchandise there delivered or deposited.
14. ENTRY FOR REPAIRS AND INSPECTION. Tenant shall permit Landlord, or its
representative(s), to enter the Demised Premises at all reasonable times,
following twenty-four hour's prior notice, unless shorter notice is necessitated
under the circumstances, to examine, inspect and protect the same, and to make
such alterations and/or repairs as in the judgment of Landlord may be deemed
necessary provided that Landlord shall use good faith efforts to minimize
interruptions to Tenant's business operations, or to exhibit the same to
prospective tenants during the last six (6) months of the Term of this Lease.
If, in an emergency, it shall become necessary to make promptly any repairs or
replacements required to be made by Tenant, then Landlord may, at its option,
proceed forthwith to have such repairs or replacements made and to pay the cost
thereof for Tenant's account. Tenant shall reimburse Landlord for the cost of
such repairs or replacements on demand. There shall be no abatement of rent and
no liability 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 Demised Premises, the Building or in or to fixtures.
15. INSURANCE RATING. Tenant will not conduct or permit to be conducted
any activity or place any equipment in or about the Demised Premises, which
will, in any way, increase the rate of insurance premiums on the Building; and
if any increase in the rate of insurance is stated by any insurance company or
by the applicable Insurance Rating Bureau to be due to any activity or equipment
in or about the Demised Premises, such statement shall be conclusive evidence
that the increase in such rate is due to such activity or equipment and, as a
result thereof, Tenant shall be liable for such increase and shall reimburse
Landlord therefor, within ten (10) days of receipt of written notice, and said
sum shall be deemed to be Additional Rent.
16. TENANT'S INSURANCE.
(a) Coverage. Tenant shall obtain the issuance of, pay the premiums
therefor, and maintain in full force and effect during the Lease term the
following types of insurance:
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(1) Comprehensive Liability. A general comprehensive liability
insurance policy or policies naming Landlord and any mortgagee or ground lessor
of the Building as additional insureds, protecting the Landlord in the amount of
Five Hundred Thousand and No/100 Dollars ($500,000.00) for injuries to or death
of one person, and in the amount of One Million and No/100 Dollars
($1,000,000.00) for injuries or deaths arising out of one accident, and in the
amount of Five Hundred Thousand and No/100 Dollars ($500,000.00) for property
damage, which amounts may be increased from time to time by the Landlord in its
reasonable determination based upon insurance generally required for similar
buildings in the area.
(2) All-Risk Property. All-risk property insurance, naming
Landlord and any mortgagee of the Building as additional insureds and loss
payees, written at replacement cost value and with replacement cost endorsement,
covering all of Tenant's personal property in the Demised Premises (including,
without limitation, inventory, trade fixtures, floor coverings, furniture and
other property removable by Tenant under the provisions of this Lease) and all
leasehold improvements installed in the Demised Premises. Any and all proceeds
of such insurance, so long as this Lease shall remain in effect, shall be used
only to repair or replace the items so insured.
(3) Worker's Compensation. If and to the extent required
by law, worker's compensation or similar insurance in form and amounts
required by law.
(b) Policy Requirements. All insurance polices required to be
procured by Tenant under this Lease (1) shall be issued by responsible insurance
companies rated at least "A" by A.M. Best Company licensed to do business in the
jurisdiction in which the Building is located and shall have such form and
content as shall be approved by Landlord (which approval shall not be
unreasonably withheld); (ii) shall be written as primary policy coverage and not
contributing with or in excess of any coverage which Landlord may carry; and
(iii) shall contain an express waiver of any right of subrogation by the
insurance company against Landlord (See Addendum, Paragraph 11), its agents and
employees. With respect to each and every one of the insurance polices required
to be procured by Tenant under this paragraph, on or before the Lease
Commencement Date, and at least thirty (30) days before the expiration of the
expiring policies previously furnished, Tenant shall deliver to Landlord
certified copies of each such policy or renewal thereof, as the case may be,
together with evidence of payment of all applicable premiums. Any insurance
required to be carried hereunder may be carried under a blanket policy covering
the Demised Premises and other locations of Tenant, and if Tenant includes the
Demised Premises in such blanket coverage, Tenant shall deliver to Landlord a
duplicate original or certified copy of each such insurance policy or such other
evidence that may be satisfactory to Landlord and the holder of any first deed
of trust on the Building. Each and every insurance policy required to be carried
hereunder by or on behalf of Tenant shall provide that such insurance policy
shall not be cancelled unless Landlord shall have received fifteen (15) days'
prior written notice of cancellation.
(c) Landlord's Right to Maintain Coverage. In the event Tenant shall
fail to provide such insurance, or shall fail to pay the premiums when due,
Landlord shall have the right to cause such insurance to be issued and to pay
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the premiums therefor, or any premiums in default, and to collect same as
Additional Rent together with interest on the amount of such premiums from the
date of payment by Landlord until the date of repayment by Tenant at the rate of
twelve percent (12%) per annum or the highest legal rate, whichever is lower.
(d) No Limitation. Neither the issuance of any insurance policy
required under this Lease nor the minimum limits specified herein shall be
deemed to limit or restrict in any way Tenant's liability arising under or out
of this Lease.
(e) Compliance With Insurance Requirements. Tenant shall comply with
all requirements of Landlord's and Tenant's insurance carriers and shall not do
or permit to be done any act or thing upon the Demised Premises that will
invalidate or be in conflict with fire insurance policies covering the Building
or any part thereof, fixtures and property in the Building or the Demised
Premises or any other insurance policies or coverage referred to in this
paragraph, and shall comply with all rules, orders, regulations or requirements
of the Board of Fire Underwriters having jurisdiction, or any other similar body
in the case of such fire insurance policies, and the applicable insurance rating
bureau or similar body in the case of all other such insurance policies.
17. TENANT EQUIPMENT. Maintenance and repair of equipment such as kitchen
fixtures, separate air conditioning equipment, or any other type of special
equipment, whether installed by Tenant or by Landlord on behalf of Tenant, shall
be the sole responsibility of Tenant and Landlord shall have no obligation in
connection therewith.
18. UTILITIES AND SERVICES. The Landlord shall furnish electric current
required for lighting purposes and the operation of ordinary office equipment
typically found in modern office space ("Normal Office Use") by Tenant in
accordance with Paragraph B of the Work Letter, which usage shall be measured
and computed by Landlord's check meter, water, lavatory supplies, and
automatically operated elevator service during normal business hours (provided
normal electric service, excluding HVAC, water and elevator service shall be
available 24 hours a day, seven days a week), and normal and usual cleaning and
char service in accordance with the Cleaning and Char Specifications attached
hereto as Exhibit E after business hours; the Landlord further agrees to furnish
heat, ventilation and air-conditioning during the appropriate seasons of the
year, on Monday through Friday during the hours of 8:00 a.m. through 6:00 p.m.
and Saturday 9:00 a.m. to 1:00 p.m. (exclusive of legal holidays, as set forth
on Exhibit F attached hereto and incorporated herein by reference ("Legal
Holidays")), provided, however, that Landlord shall not be liable for failure to
furnish, or for suspension or delays in furnishing, any of such services caused
by breakdown, maintenance or repair work or strike, riot, civil commotion, or
any cause or reason whatever beyond the control of the Landlord. In the event
Tenant shall require electric current in excess of that required for Normal
Office, and Tenant's electrical usage exceeds an average of 4.5 watts per
rentable square foot for all purposes including lighting and power, exclusive of
HVAC and fire and life safety power (except specialty HVAC and fire and life
safety power installed in the Demised Premises for the benefit of Tenant) or the
cost of such electrical usage exceeds Tenant's electric allowance set forth in
Paragraph 3 of the Addendum, Tenant shall pay the cost thereof to Landlord on
demand. In the event Tenant shall require heat, ventilation and air-conditioning
("HVAC") in excess of that required for Normal Office Use or during hours when
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HVAC is not otherwise furnished by Landlord, Tenant shall pay the actual direct
cost thereof, including a reasonable factor for equipment depreciation which
cost currently is estimated to be $35.00 per hour per floor and all costs, if
any, associated with the installation of meters to measure cooling energy.
Tenant shall notify Landlord by 3:00 p.m. Monday - Thursday and by 1:00 p.m. on
Friday prior to the time it requires additional HVAC; provided Landlord agrees
to use reasonable efforts to accommodate Tenant's request for additional HVAC on
shorter notice. In the event Tenant shall require water in excess of that
usually furnished for the use of the Demised Premises as general office space
(due to the installation or use of private lavatory and/or shower facilities, or
otherwise), Tenant shall first procure the written consent of Landlord, which
Landlord may refuse. Landlord may condition its consent upon the installation of
a separate water meter to measure the amount of water consumed upon the Demised
Premises. The cost of any such meters and of installation, maintenance and
repair thereof shall be paid for by the Tenant. The Tenant shall execute any and
all applications for service or forms required by WSSC and shall pay Landlord
promptly upon demand therefor by Landlord for all water consumed as shown by
said meter, at the rates charged for such service by WSSC, plus any additional
charges imposed by WSSC. In the event a separate water meter is installed for
the Demised Premises, then only water for the common areas of the Building shall
be included in Operating Expenses. Landlord hereby represents that there is
currently a property manager located at the Center during normal business hours
and that if there is not a property manager located at the Center in the future,
there will be a local representative available by telephone.
19. INDEMNITY. Tenant shall indemnify Landlord and its agents and
employees and save it harmless from and against any and all claims, actions,
damages, liabilities and expense in connection with loss of life, personal
injury and/or damage to property arising from or out of any occurrence in, upon
or at the Demised Premises and/or the Building and grounds, or the occupancy or
use by Tenant of the Demised Premises or any part thereof, occasioned by any
negligent act or omission of the Tenant, its agents, contractors, employees,
servants, permitted subtenants, invitees or licensees, or resulting from any
Default, breach, violation or nonperformance of this Lease by Tenant. In the
event that Landlord or its agents and employees shall, without fault on its
part, be made a party to any litigation commenced by or against Tenant, then
Tenant shall protect and hold Landlord harmless and shall pay all costs,
expenses and reasonable attorney's fees incurred or paid in connection with such
litigation. Tenant shall pay, satisfy and discharge any and all judgments,
orders and decrees which may be recovered against Landlord in connection with
the foregoing.
20. DAMAGE TO DEMISED PREMISES. All injury to the Demised Premises or the
Building caused by moving the property of Tenant into, in or out of, the said
Building and all breakage done by Tenant or the agents, servants, employees and
visitors of Tenant, shall be repaired by Tenant at the expense of the Tenant. In
the event that the Tenant shall fail to do so, then the Landlord shall have the
right to make such necessary repairs, alterations and replacements (structural,
nonstructural or otherwise) and any reasonable charge or cost so incurred by the
Landlord shall be paid by Tenant with the right on the part of the Landlord to
elect in its discretion, to regard the same as Additional Rent in which event
such cost or charge shall become Additional Rent payable with the installment of
rent next becoming due or thereafter falling due under the terms of this Lease.
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This provision shall be construed as an additional remedy granted to the
Landlord and not in limitation of any other rights and remedies which the
Landlord has or may have in said circumstances.
21. DAMAGE TO PERSONAL PROPERTY AND PERSON. All property of Tenant, its
agents or invitees, or of any other person, in or on the Demised Premises or the
Building, shall be and remain at the sole risk of Tenant or such agent, invitee
or person. Landlord shall not be liable for any damage to or theft or loss of
such property, whether or not caused by the act or omission of any person, or by
the bursting, leaking or overflowing of water, sewer, steam or sprinkler pipes,
heating or plumbing fixtures, air conditioning or heating failure, gas, noxious
odors or noise, or any other act or thing except to the extent of the negligence
or willful misconduct of Landlord, its agents or employees. Landlord shall not
under any circumstances be liable for the interruption of or any loss to
Tenant's business that may result from any of the acts or causes described
above. Landlord shall not be liable for any personal injury to Tenant, its
agents or invitees, or to any other person, arising from the use or occupancy or
condition of the Demised Premises or the Building other than liability for
personal injuries resulting directly from the negligence or willful misconduct
of Landlord, its agents or employees.
22. DESTRUCTION, FIRE AND OTHER CASUALTY. (a) If the Demised Premises or
any part thereof shall be damaged by fire or other casualty, Tenant shall give
immediate notice thereof to Landlord and this Lease shall continue in full force
and effect except as hereinafter set forth. Landlord shall be obligated to
restore the Demised Premises or Building, except as described below.
(b) If the Demised Premises are partially damaged or rendered
partially unusable by fire or other casualty, the damages thereto shall be
repaired by and at the expense of Landlord and the rent, until such repair shall
be substantially completed, shall be apportioned from the day following the
casualty according to the part of the Demised Premises which is usable.
(c) If the Demised Premises are totally damaged or rendered wholly
unusable by fire or other casualty, then the rent shall be proportionately paid
up to the time of the casualty and thenceforth shall cease until the date when
the Demised Premises shall have been repaired and restored by Landlord, subject
to Landlord's right to elect not to restore the same as hereinafter provided.
(d) If the Demised Premises are rendered wholly un-usable or
(whether or not the Demised Premises are damaged in whole or in part) if the
Building shall be so damaged that Landlord shall decide to demolish it or to not
rebuild it, then, in any of such events, Landlord may elect to terminate this
Lease by written notice to Tenant given within ninety (90) days after such fire
or casualty in which event this Lease shall expire as of the date of casualty as
fully and completely as if such date were the date set forth above for the
termination of this Lease and Tenant shall forthwith quit, surrender and vacate
the premises without prejudice, however, to Landlord's rights and remedies
against Tenant under the Lease provisions in effect prior to such termination,
and any rent owing shall be paid up to such date and any payments of rent made
by Tenant which were on account of any period subsequent to such date shall be
returned to Tenant. Unless Landlord shall serve a termination notice as provided
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for herein, Landlord shall make the repairs and restorations under the
conditions of (b) and (c) hereof, with all reasonable expedition subject to
delays due to adjustment of insurance claims, labor troubles and causes beyond
Landlord's control. See Addendum, Paragraph 10.
(e) Nothing contained hereinabove shall relieve Tenant from
liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law,
Landlord and Tenant each hereby releases and waives all right to recovery
against the other or any one claiming through or under each of them by way of
subrogation or otherwise. The foregoing release and waiver shall be in force
only if both releasors' insurance policies contain a clause providing that such
a release or waiver shall not invalidate the insurance and also, provided that
such a policy can be obtained without additional premiums. Tenant acknowledges
that Landlord will not carry insurance on Tenant's furniture and/or furnishings
or any fixtures or equipment, improvements, or appurtenances removable by Tenant
and agrees that Landlord will not be obligated to repair any damage thereto or
replace the same. Any differences or disputes between Landlord and Tenant in
respect to any matters in this paragraph shall be summarily determined by
submitting the same to the American Arbitration Association in Washington, D.C.
Both parties shall cooperate in expediting the hearing.
23. BANKRUPTCY OR INSOLVENCY.
(a) Conditions to the Assumption and Assignment of the Lease under
Chapter 7 of the Bankruptcy Code. In the event that Tenant shall file a Petition
for Relief pursuant to Title 7 Sections 101 et seq., or an Order for Relief is
entered against Tenant, under Chapter 7 of the Bankruptcy Code, and the trustee
of Tenant shall elect to assume this Lease for the purpose of assigning the
same, such election and/or assignment may only be made if all of the terms and
conditions of subsections (b) and (d) hereof are satisfied. If such trustee
shall fail to elect to assume this Lease for the purpose of assigning the same
within sixty (60) days after such trustee shall have been appointed, this Lease
shall be deemed to have been rejected. Landlord shall be thereupon immediately
entitled to possession of the Demised Premises without further obligation to
Tenant or trustee, and this Lease shall be cancelled, but Landlord's right to be
compensated for damages in such bankruptcy proceeding shall survive.
(b) Conditions to the Assumption of the Lease in Bankruptcy
Proceedings. In the event that Tenant files a Petition for Reorganization under
Chapter 11 or 13 of the Bankruptcy Code or a proceeding filed by or against
Tenant under any other Chapter of the Bankruptcy Code is converted to a Chapter
11 or 13 proceeding and the trustee of Tenant, or Tenant as a
debtor-in-possession, fails to assume this Lease within sixty (60) days from the
date of filing of the Petition or such conversion, the trustee or
debtor-in-possession shall be deemed to have rejected this Lease. No election to
assume this Lease shall be effective unless in writing and addressed to Landlord
and unless, in Landlord's business judgment, all of the following conditions,
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which Landlord and Tenant acknowledge to be commercially reasonable, have been
satisfied:
(i) The trustee or debtor-in-possession has cured or has
provided Landlord adequate assurance (as defined hereunder) that (a) within ten
(10) days from the date of such assumption the trustee will cure all monetary
defaults under this Lease; and (b) within thirty (30) days from the date of such
assumption the trustee will cure all non-monetary defaults under this Lease.
(ii) The trustee or debtor-in-possession has compensated, or
has provided to Landlord adequate assurance (as defined hereunder) that within
ten (10) days from the date of assumption Landlord will be compensated for any
pecuniary loss incurred by Landlord arising from the default of Tenant, the
trustee, or the debtor-in-possession as recited in Landlord's written statement
of pecuniary loss sent to the trustee or debtor-in-possession.
(iii) The trustee or the debtor-in-possession has provided
Landlord with adequate assurance of the future performance of each of Tenant's
obligations under the Lease; provided, however, that:
(A) The trustee or debtor-in-possession shall also
deposit with Landlord, as security for the timely payment of rent, an amount
equal to three (3) months' rent and other monetary charges accruing under this
Lease; and
(B) The obligations imposed upon the trustee or
debtor-in-possession shall continue with respect to Tenant after the completion
of bankruptcy proceedings.
(iv) Landlord has determined that the assumption of the Lease
will not breach any provision in any other lease, mortgage, financing agreement
or other agreement by which Landlord is bound relating to the Demised Premises.
For purposes of this section, adequate assurance shall mean: (i) Landlord shall
determine that the trustee or debtor-in-possession has and will continue to have
sufficient unencumbered assets after the payment of all secured obligations and
administrative expenses to assure Landlord that the trustee or
debtor-in-possession will have sufficient funds to fulfill the obligations of
Tenant under this Lease; and (ii) an order shall have been entered segregating
sufficient cash payable to Landlord and/or there shall have been granted a valid
and perfected first lien and security interest in the property of Tenant,
trustee or debtor-in-possession, acceptable as to value and kind to Landlord, to
secure to Landlord the obligation of the trustee or debtor-in-possession to cure
the monetary and/or non-monetary defaults under this Lease within the time
periods set forth above.
(c) Landlord's Option to Terminate Upon Subsequent Bankruptcy of
Tenant. In the event that this Lease is assumed by a trustee appointed for
Tenant or by Tenant as debtor-in-possession under the provisions of subsection
(b) hereof and, thereafter, Tenant is either adjudicated a bankrupt or files a
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subsequent Petition for Reorganization under Chapter 11 of the Bankruptcy Code,
then in such event Landlord may, at its option, terminate this Lease and all
rights of Tenant hereunder, by giving written notice of its election to so
terminate.
(d) Conditions to the Assignment of the Lease in Bankruptcy
Proceedings. If the trustee or debtor-in-possession has assumed the Lease
pursuant to the terms and provisions of subsections (a) or (b) herein, for the
purpose of assigning (or elects to assign) Tenant's interest under this Lease or
the estate created thereby, to any other person, such interest or estate may be
so assigned only if Landlord shall acknowledge in writing that the intended
assignee has provided adequate assurance as defined in this subsection (d) of
future performance of all of the terms, covenants and conditions of this Lease
to be performed by Tenant. For purposes of this subsection, adequate assurance
of future performance shall mean that Landlord shall have ascertained that each
of the following conditions have been satisfied:
(i) The assignee has submitted a current financial statement
audited by a Certified Public Accountant which shows a net worth and working
capital in amounts determined to be sufficient by Landlord to assure the future
performance by such assignee of Tenant's obligations under this Lease;
(ii) If requested by Landlord, the assignee shall have
obtained guarantees in form and substance satisfactory to Landlord from one or
more persons who satisfy Landlord's standard of creditworthiness; and
(iii) Landlord has obtained all consents or waivers from any
third party required under any lease, mortgage, financing arrangement or other
agreement by which Landlord is bound to enable Landlord to permit such
assignment.
(e) Use and Occupancy Charges. When, pursuant to the Bankruptcy
Code, the trustee or debtor-in-possession shall be obligated to pay reasonable
use and occupancy charges for the use of the Demised Premises or any portion
thereof, such charges shall not be less than the Minimum Rent as defined in this
Lease and other monetary obligations of Tenant for the payment of operating
expenses, real estate taxes, insurance and similar charges.
24. DEFAULT OF TENANT.
(a) Default of Tenant. The following events shall be a default
("Default") of Tenant under this Lease:
(1) Failure of Tenant to make any payment of Minimum Rent or
Additional Rent when due and such failure shall continue for a period of five
(5) days following written notice thereof from Landlord to Tenant, provided
Landlord shall only be required to give written notice of such monetary default
twice in any twelve (12) month period, and thereafter it shall be a default
under this Lease if Tenant shall fail to make any payment of Minimum Rent or
Additional Rent within five (5) days of the due date.
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(2) Failure of Tenant to perform or comply with any provision
of this Lease to be performed or complied with by Tenant, other than provisions
for the payment of Minimum Rent or Additional Rent, where such failure shall
continue for a period of thirty (30) days after written notice thereof by
Landlord to Tenant; provided that in the event such default cannot be cured
within thirty (30) days and Tenant commences to cure the default within thirty
(30) days and diligently pursues such cure, then the 30-day period shall be
extended for up to an additional sixty (60) days as may be reasonably necessary
to cure such default.
(3) The taking of this Lease or the Demised Premises, or any
part thereof upon execution or by other process of law directed against Tenant,
or upon or subject to any attachment at the instance of any creditor of or
claimant against Tenant, which execution or attachment shall not be discharged
or disposed of within thirty (30) days after the levy thereof.
(4) If Tenant fails to take possession of at least fifty
percent (50%) of the Demised Premises within three (3) months after the Lease
Commencement Date or vacates or abandons the Demised Premises prior to the
normal expiration of the term; provided Landlord's only remedy in the event of a
default solely under this subparagraph (4) shall be, at Landlord's option, to
take back the Demised Premises and terminate this Lease.
(5) The taking by Tenant, or any guarantor of Tenant's
obligations hereunder, of any of the following actions: (a) its admitting in
writing its inability to pay its debts generally as they become due, or (b) its
filing a petition in bankruptcy or for reorganization or for the adoption of an
arrangement under the Bankruptcy Code (as now existing or in the future
amended), or an answer or other pleading admitting the material allegations of
such a petition or seeking, consenting to or acquiescing in the relief provided
for under such Code, or (c) its making an assignment of all or a substantial
part of its property for the benefit of its creditors, or (d) its seeking or
consenting to or acquiescing in the appointment of a receiver or trustee for all
or a substantial part of its property or of the Demised Premises, or (e) its
being adjudicated a bankrupt or insolvent, or (f) the entry of a court order
without its consent, which order shall not be vacated, set aside or stayed
within sixty (60) days from the date of entry, appointing a receiver or trustee
for all or a substantial part of its property or approving a petition filed
against it for the effecting of an arrangement in bankruptcy or for a
reorganization pursuant to the Bankruptcy Code or for any other judicial
modification or alteration of the rights of creditors. The provisions of this
paragraph shall apply notwithstanding the payment by Tenant of a security
deposit under paragraph 7 and/or the continued willingness and ability of Tenant
to pay rent and otherwise perform hereunder. The receipt by Landlord of payments
of rent, as such, accruing subsequent to the time of Tenant's Default under this
paragraph and before Landlord has actual notice of the occurrence of an event of
Default under this paragraph shall not be deemed a waiver by Landlord of the
provisions of this paragraph.
(b) Remedies Upon Default. Upon the occurrence of a Default,
Landlord shall have the right, at its election, then or at any time
thereafter either:
(1) To give Tenant written notice of Landlord's intent to
terminate this Lease on the date of the notice or on any later date specified in
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the notice, and on such date Tenant's right to possession of the Demised
Premises shall cease and this Lease shall thereupon be terminated; or
(2) Without demand or notice, to reenter and take possession
of all or any part of the Demised Premises, and expel Tenant and those claiming
through Tenant, and remove the property of Tenant and any other person, either
by summary proceedings or by action at law or in equity or otherwise, without
being deemed guilty of trespass and without prejudice to any remedies for
nonpayment or late payment of rent or breach of covenant. If Landlord elects to
reenter under this subsection, Landlord may terminate this Lease, or, from time
to time, without terminating this Lease, may relet all or any part of the
Demised Premises as agent for Tenant for such term or terms and at such rental
and upon such other terms and conditions as Landlord may deem advisable, with
the right to make alterations and repairs to the Demised Premises. No such
reentry or taking of possession of the Demised Premises by Landlord shall be
construed as an election on Landlord's part to terminate this Lease unless a
written notice of such intention is given to Tenant under subparagraph (b)(1)
above, or unless the termination be decreed by a court of competent jurisdiction
at the instance of Landlord.
(c) Liability of Tenant. If Landlord terminates this Lease pursuant
to subparagraph (b) above, Tenant shall remain liable (in addition to accrued
liabilities) for (l) adjusted Minimum Rent, Additional Rent and any other sums
provided for in this Lease until the date this Lease would have expired had such
termination not occurred, and any and all expenses (including attorney's fees,
disbursements and brokerage fees) incurred by Landlord in reentering and
repossessing the Demised Premises, in making good any Default of Tenant, in
painting, altering, repairing or dividing the Demised Premises, in protecting
and preserving the Demised Premises by use of watchmen and caretakers, and in
reletting the Demised Premises for the balance of the Term, and any and all
expenses which Landlord may incur during the occupancy of any new tenant for the
balance of the Term; less (2) the net proceeds of any reletting prior to the
date this Lease would have expired if it had not been terminated. Tenant agrees
to pay to Landlord the difference between items (1) and (2) above for each month
during the term, at the end of each such month. Any suit brought by Landlord to
enforce collection of such difference for any one month shall not prejudice
Landlord's right to enforce the collection of any difference for any subsequent
month. In addition to the foregoing, and without regard to whether this Lease
has been terminated, Tenant shall pay to Landlord all costs incurred by
Landlord, including reasonable attorney's fees, with respect to any successful
lawsuit or action instituted or taken by Landlord to enforce the provisions of
this Lease. Tenant's liability shall survive the institution of summary
proceedings and the issuance of any writ of restitution thereunder.
(d) Liquidated Damages. If Landlord terminates this Lease pursuant
to this Paragraph 24, Landlord shall have the right, at any time, at its option,
to require Tenant to pay to Landlord, on demand, as liquidated and agreed final
damages in lieu of Tenant's liability under Paragraph 24(c) the rent and all
other charges which would have been payable from the date of such demand to the
date when this Lease would have expired if it had not been terminated, minus the
fair rental value negotiated in good faith and at arm's length, of the Demised
Premises for the same period, which amount shall be discounted at 8% per annum.
If the Demised Premises shall have been relet for all or part of the remaining
balance of the Term by Landlord after a Default but before presentation of proof
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of such liquidated damages, the amount of rent reserved upon such reletting
shall be deemed the fair rental value of the Demised Premises for purposes of
the foregoing determination of liquidated damages. Upon payment of such
liquidated and agreed final damages, Tenant shall be released from all further
liability under this Lease with respect to the period after the date of demand.
(e) Waiver. Tenant, on its own behalf and on behalf of all persons
claiming through Tenant, including all creditors, does hereby waive any and all
rights and privileges, so far as is permitted by law, which Tenant and all such
persons might otherwise have under any present or future law (1) to redeem the
Demised Premises, (2) to reenter or repossess the Demised Premises, or (3) to
restore the operation of this Lease, with respect to any dispossession of Tenant
by judgment or warrant of any court, whether such dispossession, reentry,
expiration or termination be by operation of law or pursuant to the provisions
of this Lease.
(f) Right to Enjoin, Etc. In the event of any breach or threatened
breach by Tenant or any person(s) claiming through Tenant of any of the
provisions contained in this Lease, Landlord shall be entitled to enjoin such
breach or threatened breach and shall have the right to invoke any right or
remedy allowed at law or otherwise as if reentry, summary proceedings or other
specific remedies were not provided for in this Lease.
(g) Right of Distress. Landlord shall have (in addition to all other
rights) all statutory rights of distress for rent and a lien on all Tenant's
tangible personal property other than business records or other property of a
confidential or proprietary nature as security for all adjusted Minimum Rent,
Additional Rent and any other sums payable under this Lease.
(h) Remedies Cumulative. All rights and remedies of Landlord and/or
Tenant under this Lease or otherwise available shall be cumulative and shall not
be exclusive of any other rights and remedies provided to Landlord and/or Tenant
now or hereafter existing under law. Landlord agrees to use good faith efforts
to mitigate its damages under this section 24, provided Landlord shall not be
required to relet the Demised Premises prior to leasing any other available
space in the Center.
25. WAIVER. If under the provisions hereof Landlord or Tenant shall
institute proceedings and a compromise or settlement thereof shall be made, the
same shall not constitute a waiver of any covenant herein contained nor of any
of such party's rights hereunder. No waiver by Landlord or Tenant of any breach
of any covenant, condition or agreement herein contained shall operate as a
waiver of such covenant, condition or agreement itself, or of any subsequent
breach thereof. No payment by Tenant or receipt by Landlord of a lesser amount
than the monthly installments of rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement on any check or letter accompanying a check for payment of rent be
deemed an accord and satisfaction and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or to
pursue any other remedy provided in this Lease. No reentry by Landlord, and no
acceptance by Landlord of keys from Tenant, shall be considered an acceptance of
a surrender of the Lease.
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26. SUBORDINATION. (See Addendum, Paragraph 12.) This Lease is subject and
subordinate to all ground or underlying leases and to all mortgages and/or deeds
of trust which may now or hereafter affect such leases or the real property of
which the Demised Premises are a part, and to all renewals, modifications,
consolidations, replacements and extensions thereof. This clause shall be
self-operative and no further instrument of subordination shall be required by
any mortgagee or trustee. In confirmation of such subordination, Tenant shall
execute promptly any certificate that the Landlord or the party secured by any
deed of trust, or any successor in interest may request. Provided, however, that
notwithstanding the foregoing, the party secured by any such deed of trust shall
have the right to recognize this Lease and, in the event of any foreclosure sale
under such deed of trust, this Lease shall continue in full force and effect at
the option of the party secured by such deed of trust or the purchaser under any
such foreclosure sale so long as the purchaser or other transferee recognizes
Tenant's interest hereunder and agrees to perform the Landlord's obligations
from and after the date of such transfer; and the Tenant covenants and agrees
that it will, at the written request of the party secured by any such deed of
trust, execute, acknowledge and deliver any instrument that has for its purpose
and effect the subordination of said deed of trust to the lien of this Lease;
provided, however, that the party secured by such deed of trust and any
successor in interest shall not be bound by any payment in rent in advance for
more than thirty (30) days or by any amendment or modification of this Lease
made subsequent to the date of recordation of such deed of trust without the
consent of the party secured by such deed of trust or such successor in
interest. At the option of any landlord under any ground or underlying lease to
which the Lease is now or may hereafter become subject or subordinate, Tenant
agrees that neither the cancellation nor termination of such ground or
underlying lease shall by operation of law or otherwise, result in cancellation
or termination of this Lease or the obligations of the Tenant hereunder, and
Tenant covenants and agrees to attorn to such Landlord or to any successor to
Landlord's interest in such ground or underlying lease, and in that event, this
Lease shall continue as a direct lease between the Tenant herein and such
Landlord or its successor; and, in any case, such Landlord or successor under
such ground or underlying lease shall not be bound by any prepayment on the part
of Tenant of any rent for more than one month in advance, so that rent shall be
payable under this Lease in accordance with its terms, from the date of the
termination of the ground or underlying lease, as if such prepayment had not
been made; and provided, further such landlord or successor under such ground or
underlying lease shall not be bound by this Lease or any amendment or
modification of this Lease unless, prior to the termination of such ground or
underlying lease, a copy of this Lease or amendment or modification thereof, as
the case may be, shall have been delivered to such landlord or successor.
27. CONDEMNATION. If the whole or a substantial part of the Demised
Premises shall be taken or condemned by any governmental authority for any
public or quasi-public use or purpose, then the Term of this Lease shall cease
and terminate as of the date when title vests in such governmental authority,
and Tenant shall have no claim against Landlord (or otherwise) for any portion
of the amount that may be awarded as damages as a result of such taking or
condemnation or for the value of any unexpired Term of the Lease; provided,
however, that Tenant may assert any claim that it may have against the
condemning authority for compensation for any fixtures owned by Tenant and for
any relocation expenses compensable by statute. The rent, however, shall be
abated on the date when such title vests in such governmental authority. If less
than a substantial part of the Demised Premises is taken or condemned by any
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governmental authority for any public or quasi-public use or purpose, the rent
shall be adjusted on a square footage basis on the date when title vests in such
governmental authority and the Lease shall otherwise continue in full force and
effect. For purposes hereof, a substantial part of the Demised Premises shall be
considered to have been taken if more than fifty percent (50%) of the Demised
Premises are unusable by Tenant.
28. RULES AND REGULATIONS. Tenant, its agents and employees shall abide by
and observe the rules and regulations attached hereto as Exhibit C and such
other rules or regulations as may be promulgated from time to time by Landlord
for the operation and maintenance of the Building, provided that the same are in
conformity with common practice and usage in similar buildings and are not
inconsistent with the provisions of this Lease and a copy thereof is sent to
Tenant. Nothing contained in this Lease shall be construed to impose upon
Landlord any duty or obligation to enforce such rules and regulations, of the
terms, conditions or covenants contained in any other lease, as against any
other tenant, and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its employees, agents, or invitees, provided that
Landlord shall enforce any such rules and regulations in a fair and
non-discriminatory manner.
29. RIGHT OF LANDLORD TO CURE TENANT'S DEFAULT; LATE PAYMENTS. If Tenant
defaults in the making of any payment or in the doings of any act herein
required to be made or done by Tenant, which default is not cured within any
applicable notice and cure period, then after ten (10) days prior written notice
from Landlord, Landlord may, but shall not be required to, make such payments or
do such act, and the amount of the reasonable and appropriate expense thereof,
if made or done by Landlord, with interest thereon at the then prime rate
charged by Riggs National Bank, from the date paid by Landlord, shall be paid by
Tenant to Landlord and shall constitute Additional Rent hereunder due and
payable with the next monthly installment of rent; but the making of such
payment or the doing of such act by Landlord shall not operate to cure such
Default or to estop Landlord from the pursuit of any remedy to which Landlord
would otherwise be entitled. If Tenant fails to pay any installment of rent on
or before the first day of the calendar month when such installment is due and
payable and such failure is not cured within the applicable notice and/or cure
period, such unpaid installment shall bear interest at the then prime rate
charged by Riggs National Bank, from the date such installment became due and
payable to the date of payment thereof by Tenant. If Riggs National Bank ceases
to publish a prime rate, interest shall be at the prime rate charged by
Citibank, F.S.B. Such interest shall constitute Additional Rent hereunder due
and payable with the next monthly installment of rent. In addition, Tenant shall
pay to Landlord, as a "late charge" five percent (5%) of any payment herein
required to be made by Tenant which is more than ten (10) days late to cover the
costs of collecting accounts past due.
30. HOLDING OVER. If the Tenant shall, with the knowledge and consent of
the Landlord, continue to remain in the Demised Premises after the expiration of
the Term of this Lease, then and in that event, Tenant shall, by virtue of this
Agreement become a tenant by the month at a monthly rental equal to one hundred
fifty percent (150%) of the monthly installment of rent agreed by the said
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Tenant to be paid as aforesaid for the first two months of such holdover, and
thereafter at twice the monthly rental previously payable hereunder, commencing
said monthly tenancy with the first day next after the end of the Term above
described; in addition, Tenant shall pay to Landlord all costs and damages
incurred by Landlord as a result of Tenant's holding over, which sums shall be
deemed Additional Rent; and said Tenant shall give to the Landlord at least
thirty (30) days' written notice of any intention to quit the Demised Premises,
and Tenant shall be entitled to thirty (30) days' written notice to quit the
Demised Premises, except in the event of non-payment of rent in advance or of
the breach of any other covenant by said Tenant, in which event the said Tenant
shall not be entitled to any notice to quit, the usual thirty (30) days' notice
to quit being hereby expressly waived; provided, however, that in the event that
the Tenant shall hold over after the expiration of the Term hereby created, and
if the Landlord shall desire to regain possession of the Demised Premises
promptly at the expiration of the Term aforesaid, then at any time prior to
Landlord's acceptance of rent from the Tenant as a monthly tenant hereunder, the
Landlord, at its option, may forthwith re-enter and take possession of the
Demised Premises without process, or by any legal process in force.
31. NO REPRESENTATIONS BY LANDLORD. Neither Landlord nor any agent or
employee of Landlord has made any representations or promises with respect to
the Demised Premises or the Building except as herein expressly set forth, and
no rights, privileges, easements or licenses are granted to Tenant except as
herein set forth. Tenant, by taking possession of the Demised Premises, shall
accept the same "as is", and such taking of possession shall be conclusive
evidence that the Demised Premises and the Building are in good and satisfactory
condition at the time of such taking of possession; subject to the completion of
"punch list" items and to latent defects in the construction of tenant
improvements by Landlord.
32. BROKERS. Tenant represents and warrants that Tenant has dealt only
with the broker identified in Paragraph l(n) above in connection with this Lease
and that insofar as Tenant knows, no other broker participated in or negotiated
this Lease or is entitled to any commission in connection therewith and Landlord
and Tenant each agrees to defend, indemnify, and hold the other party harmless
from any claims by any other broker alleging to have acted on their behalf. The
execution and delivery of this Lease by Landlord shall be conclusive evidence
that Landlord has relied upon the foregoing representation and warranty in
making this Lease.
33. NOTICES. All notices or other communications hereunder shall be in
writing and shall be deemed duly given if delivered in person or sent by
certified or registered mail, return receipt requested, first class, postage
prepaid, (i) if to Landlord, to the address set forth in Paragraph l(o) above,
and (ii) if to Tenant, at the address set forth in Paragraph l(p) above prior to
the Lease Commencement Date and at the Demised Premises after the Lease
Commencement Date, unless notice of a change of address is given pursuant to the
provisions of this paragraph.
34. ESTOPPEL CERTIFICATES. Tenant agrees, at any time and from time to
time, upon not less than five (5) days prior written notice by Landlord, to
execute, acknowledge and deliver to Landlord a statement in writing (i)
certifying to the extent accurate that this Lease has been unmodified since its
execution and is in full force and effect (or if there have been modifications,
that the Lease is in full force and effect, as modified, and stating the
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modifications), (ii) stating the dates, if any, to which the rent and sums
hereunder have been paid by Tenant, (iii) stating whether or not to the
knowledge of Tenant, there are then existing any Defaults under this Lease (and,
if so, specifying the same), and (iv) stating the address to which notices to
Tenant should be sent. Any such statement delivered pursuant hereto shall
provide that such statement may be relied upon by Landlord or any prospective
purchaser or mortgagee of the land and Building or any part therein. Tenant's
failure to execute and deliver such statement within the time specified shall be
deemed the equivalent of the delivery of a statement to the effect that Landlord
is in full compliance with the terms of this Lease. Furthermore, in the event
Tenant fails or refuses to execute and deliver such statement, Landlord shall
send Tenant an additional notice. In the event Tenant does not hereafter execute
the Certificate within ten (10) days, or provide Landlord with a satisfactory
reason for Tenant's failure to do so, Landlord may, as the attorney and agent of
the Tenant, execute such statement and in such event the Tenant hereby confirms
and ratifies any such statement so executed.
35. FINANCING REQUIREMENTS. In the event that any bank, insurance company,
university, pension or welfare fund, savings and loan association, real estate
investment trust, business trust, or other financial institution providing the
first mortgage interim construction financing for the Building and/or the first
mortgage permanent financing for the Building requires, as a condition of such
financing, that modification to this Lease be obtained, and provided that such
modifications (a) are reasonable, (b) do not adversely affect Tenant's use of
the Demised Premises as herein permitted or any other material rights of Tenant
created hereby, (c) do not materially alter the approved architectural plans and
specifications, and (d) do not increase the rentals and other sums required to
be paid by Tenant hereunder, Landlord shall submit such required modifications
to Tenant, and Tenant shall enter into and execute a written amendment hereto
incorporating such required modifications within fifteen (15) days after the
same has been submitted to Tenant by Landlord. If Tenant shall fail to so enter
into and execute such a written amendment, then Landlord shall thereafter have
the right, at its sole option, to execute such amendment as Tenant's
attorney-in-fact.
36. COVENANTS OF LANDLORD. Landlord covenants that it has the right to
make this Lease, and that if Tenant shall pay the rental and perform all of
Tenant's obligations under this Lease, Tenant shall, during the term hereof,
freely, peaceably and quietly occupy and enjoy the full possession of the
Demised Premises without molestation or hindrance by Landlord or any party
claiming through or under Landlord. The term "Landlord" as used herein shall
mean solely the owner of Landlord's interest in the property, whomever that may
be at the relevant time, so that in the event of any sale or transfer of
Landlord's interest in the property any prior Landlord shall be freed and
relieved of all covenants and obligations of Lessor hereunder.
37. LIEN FOR RENT - DELETED
38. SUCCESSORS AND ASSIGNS. The terms, covenants and conditions
hereof shall be binding upon and inure to the successors in interest and
assigns of the parties hereto. Landlord may freely and fully assign its
interest hereunder.
39. ENTIRE AGREEMENT. This Lease, together with the Exhibits and any
Addenda attached hereto, contain and embody the entire agreement of the parties
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hereto, and no representations, inducements, or agreements, oral or otherwise,
between the parties not contained in this Lease and Exhibits, shall be of any
force or effect. This Lease may not be modified, changed or terminated in whole
or in part in any manner other than by an agreement in writing duly signed by
both parties hereto.
40. APPLICABLE LAWS. It is the agreement of the parties that this
Lease is to be construed under the laws of the jurisdiction in which the
Building is located.
41. LIMITATION OF LANDLORD'S LIABILITY.
(a) The obligations of Landlord under this Lease do not constitute
personal obligations of the individual partners, directors, officers, or
shareholders of Landlord, and Tenant shall look solely to the real estate
that is the subject of this Lease and to no other assets of the Landlord
for satisfaction of any liability in respect of this Lease and will not
seek recourse against the individual partners, directors, officers or
shareholders of Landlord or any of their personal assets for such
satisfaction.
(b) Neither Tenant nor Landlord shall be required to perform any of
its obligations under this Lease (other than the obligations to make
payments hereunder), nor be liable for loss or damage for failure to do
so, nor shall Tenant or Landlord, as the case may be, thereby be released
from any of its obligations under this Lease, where such failure arises
from or through acts of God, strikes, lockouts, labor difficulties,
explosions, sabotage, accidents, riots, civil commotions, acts of any
foreign country, fire and casualty, legal requirements, energy shortage,
or causes beyond the reasonable control of such party, unless such loss or
damage results from willful misconduct or negligence by such party or its
employees.
42. WAIVER OF REDEMPTION. Tenant hereby expressly waives, for itself and
all persons claiming by, through, or under it, any right of redemption or for
the restoration of the operation of this Lease under any present or future law
in case Tenant shall be dispossessed for any cause, or in case Landlord shall
obtain possession of the Demised Premises as herein provided.
43. NO OPTION. The submission of this Lease for examination by Tenant does
not constitute a reservation of or option for the Demised Premises, and this
Lease shall become effective as a lease only upon execution and delivery thereof
by Landlord and Tenant.
44. ATTORNEY'S FEES. In the event Tenant or Landlord defaults in the
performance of any of the terms, covenants, agreements or conditions contained
in this Lease and the non-defaulting party places the enforcement of this Lease,
or any part thereof, or the collection of any rent due, or to become due
hereunder, or recovery of the possession of the Demised Premises in the hands of
an attorney, or files suit upon the same, the prevailing party in such action
shall be entitled to recover reasonable attorney's fees.
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45. PARTIAL INVALIDITY. If any provision of this Lease or the application
thereof to any person or circumstance shall to any extent be held void,
unenforceable or invalid, then the remainder of this Lease or the application of
such provision to persons or circumstances other than those as to which it is
held void, unenforceable or invalid shall not be effected thereby, and each
provision of this Lease shall be valid end enforced to the fullest extent
permitted by law.
46. PRONOUNS. Feminine or neuter pronouns shall be substituted for
those of the masculine form, and the plural shall be substituted for the
singular number, in any place or places herein in which the context may
require such substitution or substitutions. The Landlord has been referred
to in neuter form, for convenience.
47. PARKING.
(a) So long as Tenant is not in default under this Lease, Landlord
hereby grants to Tenant a non-exclusive license (the "License"') to park the
number of cars set forth in Paragraph l (q) above ("Parking"), for use solely by
Tenant and Tenant's employees, guests and invitees in the parking area or areas
serving the Building (the "Designated Parking Area"). The use of any more than
the allotted Parking after thirty (30) days notice by Landlord, by Tenant, its
employees, guests or invitees ("Over-use") shall be deemed an event of default
under this Lease and Landlord may exercise such remedies as are provided
pursuant to Paragraph 24 of this Lease. Landlord shall not be responsible to
Tenant for enforcing the License or violation of the provisions of this
paragraph by co-tenants of the Building, by third parties, or guests or visitors
to the Building.
(b) Landlord shall have the right to revoke the License in the event
of any occurrence not caused by Landlord which reduces the number of parking
spaces in the Designated Parking Area to the extent of Tenant's Pro Rata Share
of the number of parking spaces by which the Designated Parking Area is so
reduced, other than the event of any condemnation or taking by any lawful
authority of any portion of the Designated Parking Area which reduction is
covered by Paragraph 27.
(c) Six (6) of the parking spaces allotted to Tenant shall be
designated and striped (at Landlord's expense) as reserved for the exclusive use
of Tenant, its employees, agents, contractors, servants, permitted subtenants,
licensees and invitees. The reserved spaces shall be located in the parking lot
in a specific location to be mutually agreed upon by Landlord and Tenant. Tenant
shall be solely responsible for assigning the reserved parking spaces to its
employees and invitees and supervising the use of the reserved parking spaces by
its employees and invitees. All parking spaces, whether reserved or not, shall
be provided to tenant free of charge during the Term (including any renewals
thereof). If Tenant leases and occupies additional space in the Building, it
shall be entitled to additional parking spaces on-site at a ratio of 3.1 spaces
per 1,000 rentable square feet.
48. COSTS ASSOCIATED WITH LANDLORD'S APPROVAL. In any and all cases where
Landlord's consent or approval is required under this Lease, Tenant shall, upon
Landlord's demand, reimburse Landlord, as Additional Rent, for all reasonable
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out-of-pocket costs and expenses, including but not limited to architectural,
engineering and legal fees, which Landlord incurs in determining whether to
grant its consent or approval.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under
seal the day and year first hereinbefore written.
LANDLORD:
Attest: BELLEMEAD DEVELOPMENT
CORPORATION
/s/ Cathy Krostek By: /s/ Samuel Ketive
- - ----------------- -----------------
Sr. Vice President
TENANT:
Attest/Witness: V-ONE CORPORATION
/s/ Lisa M. Albrecht By: /s/ Charles B. Griffis
- - -------------------- ----------------------
Charles B. Griffis,
Sr. Vice-President and
Chief Financial Officer
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ADDENDUM TO LEASE
-----------------
THIS ADDENDUM is made this 24th day of March, 1997, by and between
BELLEMEAD DEVELOPMENT CORPORATION ("Landlord") and V-ONE CORPORATION ("Tenant")
as an Addendum to the Lease Agreement of even date herewith for space in the
building located at 20250 Century Boulevard, Germantown, Maryland 20874
("Lease"). Unless otherwise defined herein, all capitalized terms herein shall
have the same meanings given to them in the Lease.
1. CONDITION OF DEMISED PREMISES. The Demised Premises consist of
approximately 28,312 rentable square feet, measured in accordance with BOMA
standards, and including a core factor of 14%. Notwithstanding anything
contained in the Lease or the Work Letter to the contrary, Landlord shall alter
the Demised Premises, utilizing building standard materials, in accordance with
the notes set forth on Exhibit A and A-1, and in accordance with all applicable
laws. To the extent Exhibits A and A-1 conflict with the Work Letter, the terms
of Exhibits A and A-1 shall control. Landlord shall use good faith efforts to
provide Tenant with at least fourteen (14) days prior written notice of the date
of the anticipated substantial completion of the Demised Premises. If the
Demised Premises are not substantially complete within nine (9) months from the
date of Tenant's execution of this Lease, and the delay is not caused by Tenant
or by force majeure events as described in paragraph 41(b) of the Lease, then
Tenant may terminate this Lease by providing Landlord with written notice of its
intent to terminate within thirty (3) days of the expiration of such nine (9)
month period.
2. RENTAL ABATEMENT; ANNUAL INCREASES TO RENT.
(a) Landlord shall waive the payment of one half of the Minimum Rent for
the first six (6) months of the Lease, commencing on the Lease Commencement
Date.
(b) On the first day of the second Lease Year, as hereinafter defined, and
on the first day of each subsequent Lease Year, Annual Rent then in effect shall
be increased by two and one-half percent (2.5%). "Lease Year" shall mean each
twelve month period running from the Lease Commencement Date, or the first day
of the first month following the Lease Commencement Date if the Lease
Commencement Date is other than the first day of a month.
3. OPERATING EXPENSE AND REAL ESTATE TAX ALLOWANCE. (a) Paragraphs
l(i) and (j) of the Lease is hereby modified to read as follows:
Tenant's general operating expense and real estate tax allowance per
rentable square foot shall equal (i) the sum of actual Operating Expenses
and Real Estate Taxes incurred by Landlord during the first Lease Year,
adjusted if necessary to reflect (A) such Operating Expenses as would be
incurred if the Building were at least ninety-five percent (95%) occupied,
and (B) such Real Estate Taxes as would be incurred if the Building were
fully assessed, divided by 106,795. Tenant's per rentable square foot per
annum electrical expense allowance shall equal the actual expenses for
electric current in the Building incurred by Landlord during the first
<PAGE>
Lease Year, adjusted to reflect 95% occupancy of the Building, divided by
106,795. Landlord hereby represents and warrants to Tenant that 106,795 is
the total rentable square footage of the Building.
(b) Notwithstanding anything in the Lease to the contrary, when
determining the Operating Expenses for any Lease year, or portion thereof, for
the purpose of determining adjustments to rent, as provided in paragraph 7 of
the Lease, such Operating Expenses shall be adjusted, if necessary, to reflect
such Operating Expenses as if the Building were at least ninety-five percent
(95%) occupied.
4. EXCLUSIONS FROM OPERATING EXPENSES. The following shall be
additional exclusions from Operating Expenses under the Lease:
(a) reserves for repairs, maintenance and replacements;
(b) costs or expenses associated with leasing space in the building or the
sale of any interest in the building, including, without limitation, advertising
and marketing, commissions or any amounts paid for or on behalf of a Tenant such
as space planning, moving costs, rental and other tenant concessions;
(c) salaries, wages, or other compensation paid to employees of any
property management organization whose salaries are deemed covered by a
management fee (i.e., property manager, accounting or clerical personnel);
(d) costs of electricity outside normal business hours sold to other
tenants of the Building by Landlord or any other special service to other
tenants or service in excess of that furnished to Tenant or which are over and
above the rent and escalations payable under the lease agreement with that
tenant (including without limitation after hour HVAC costs) whether or not
Landlord receives reimbursement from such tenants as an additional charge;
(e) expenses for repairs, replacements or improvements arising from the
initial construction of the Building to the extent such expenses are either (i)
reimbursed to Landlord by virtue of warranties from contractors or suppliers or
(ii) result by reason of deficiencies in design or workmanship except conditions
resulting from ordinary wear and tear;
(f) any costs which are in excess of arms length competitive market prices
for goods or services including any amounts paid to any person, firm or
corporation related or otherwise affiliated with Landlord or any general
partner, officer or director of Landlord or any of its general partners;
(g) accounting or legal fees incurred in tenant disputes, or in procuring
tenants, or for fees not related to the operation and maintenance of the
Building but personal to Landlord;
(h) all costs shall be "net" only and shall be reduced by the amount of
insurance (or the amount of reimbursement if Landlord would have maintained
insurance per Landlord's requirements in the Lease), condemnation awards or
other reimbursement, recoupment, payment, discount, warrantee, guarantee or
allowance received by Landlord;
2
<PAGE>
(i) cost of renovating or otherwise improving space for new tenants or in
renovating space vacated by any tenant or any other work which Landlord performs
for any tenant;
(j) costs relating to maintaining Landlord's existence, either as a
corporation, partnership, or other entity, such as trustee's fees, annual fees,
partnership organization or administration expenses, deed recordation expenses,
legal and accounting fees (other than with respect to Building operations);
(k) interest or penalties arising by reason of Landlord's failure to
timely pay any Operating Expenses or Real Estate Taxes;
(l) compensation paid to clerks, attendants, sales persons or other
persons on or in commercial concessions operated in the building;
(m) costs incurred to contain, encapsulate, remove, or remedy any
hazardous or toxic wastes, materials or substances from either the Building or
Land or any tests or surveys obtained in connection with the above;
(n) costs incurred due to Landlord's violation of any term or condition of
this Lease or any other lease relating to the Building or any law, ordinance or
governmental rule or regulation affecting the Building;
(o) rental and other expenses incurred in leasing air condition systems,
elevators or other equipment considered to be of a capital nature under
generally accepted accounting principles, except equipment used in providing
janitorial services when such equipment is not affixed to the Building;
(p) the cost of correcting any code violations in the Building which
were violations prior to the commencement date of this Lease;
(q) costs for acquisitions of sculpture, paintings or other objects
of art;
(r) title insurance, automobile insurance, key man and other life
insurance, long-term disability insurance and health, accident and sickness
insurance, excepting only group plans providing reasonable benefits to persons
of the grade of building manager and below employed in the operation and
management of the Building (provided that the cost of insurance with respect to
any such employee dividing his or her time between the Building and any other
buildings shall be apportioned pro rata among all such buildings);
(s) the cost of removal of radon or CFC's from the Building;
(t) any expense that under generally accepted accounting principles
would not be considered a normal maintenance or operating expense;
(u) any inheritance, estate, succession, transfer, gift tax, or capital
levy shall not be included in real estate taxes and further, no franchise,
corporation, income or profit tax calculated upon the Landlord's net income be
3
<PAGE>
passed through to the Tenant, except to the extent that if at any time during
the Term of this Lease the methods of taxation prevailing at the commencement of
the term of this Lease shall be altered so that in lieu of, or as a substitute
for, the whole or any part of the taxes, assessments, levies, impositions or
charges now levied, assessed or imposed on real estate and the improvements
thereon, there shall be levied, assessed or imposed a tax, assessment, levy fee
or other charge: (i) on or measured by the rents received therefrom; (ii)
measured by or based in whole or in part upon the Building and imposed upon
Landlord; or (iii) measured by the rent payable by Tenant under this Lease, then
all such taxes, assessments, levies, impositions, charges or fees or the part
thereof so measured or based, shall be deemed to be included within the term
"real estate taxes".
5. AUDIT OF OPERATING EXPENSES. In addition to any rights tenant may have
at law, Tenant shall have the right to audit Landlord's Operating Expenses and
Real Estate Taxes in any Lease Year in order to verify the accuracy of
Landlord's Expense Statement for such Lease Year. Tenant shall notify Landlord
in writing of its intent to perform such audit within ninety (90) days of
Tenant's receipt of Landlord's Expense Statement for that Lease Year. Such audit
shall be performed at Tenant's expense, during regular business hours, at least
fourteen (14) days after Tenant's notice, but sooner if possible, at the office
where Landlord maintains its Operating Expense records (which shall be in the
continental United States), or, at Tenant's request, Landlord will provide
Tenant with copies of such records. Landlord agrees to maintain all Operating
Expense records for the Building for a minimum of three (3) years. Any audit
shall be conducted by Tenant or by an independent accounting firm.
Notwithstanding anything to the contrary provided herein, in the event the audit
reveals a discrepancy of more than five and one-half percent (5.5%), Landlord
shall reimburse Tenant for the reasonable costs of the audit, not to exceed
costs reasonably incurred for an audit on a non-contingent fee basis. In the
event the audit discloses any overpayment by Tenant, Landlord shall refund such
overpayment to Tenant within thirty (30) days of demand.
6. ENTRY PRIOR TO COMMENCEMENT DATE. Tenant shall be allowed to enter the
Demised Premises prior to the Lease Commencement Date for the purpose of
installing trade fixtures, personal property, equipments and fixtures. Such
entry into the Demised Premises shall be subject to the terms and conditions of
Paragraph G of the Work letter. Tenant shall indemnify Landlord and its agents
and employees and save it harmless from and against any and all claims, actions,
damages, liabilities and expense in connection with loss of life, personal
injury and/or damage to property arising from or out of the occupancy or use by
Tenant of the Demised Premises or any part thereof, occasioned by any negligent
act or omission of the Tenant, its agents, contractors, employees, servants,
permitted subtenants, invitees or licensees.
7. SECURITY DEPOSIT. If the security deposit is in the form of cash, the
deposit will be held in an interest bearing money market fund account in Summit
Bank or such other similar account at another bank where Landlord may maintain
its security deposits in the future. This account will be utilized solely for
security deposits held by the Landlord and be separate from any other accounts
maintained by the Landlord for the operation of the Building. Tenant's security
deposit will not be used for any other purpose other than that provided in
Section 8 of the Lease. Provided there has not been a Default under the Lease,
then Landlord shall refund to Tenant portions of the security in accordance with
the following schedule:
4
<PAGE>
(a) At the beginning of the second Lease Year, Landlord shall refund to
Tenant $90,000 of the security deposit plus all accrued interest.
(b) At the beginning of the third Lease Year, Landlord shall refund to
Tenant $40,000 of the security deposit plus all accrued interest.
(c) At the beginning of the fourth Lease Year, Landlord shall refund to
Tenant $80,000 of the security deposit plus all accrued interest.
(d) At the beginning of the fifth Lease Year, Landlord shall refund to
Tenant $80,000.00 of the security deposit plus all accrued interest.
(e) At the beginning of the sixth Lease Year, Landlord shall refund to
Tenant $40,000 of the security deposit plus all accrued interest.
Landlord's failure to return the Security Deposit in accordance with this
paragraph shall not constitute a default by Landlord under the Lease unless
Tenant notifies Landlord in writing that Tenant is entitled to a partial refund
of the security deposit, and Landlord fails to refund such amount to Tenant
within fifteen (15) days of the date of Tenant's notice.
8. INTERRUPTION IN SERVICES. Notwithstanding anything contained in the
Lease to the contrary, in the event Tenant is unable to operate from any portion
of the Demised Premises for a period in excess of four (4) consecutive business
days as a result of electricity, heating or air conditioning not being furnished
to the Demised Premises resulting from Landlord's negligence or wrongful acts or
as a result of burst, stopped or leaking water, gas, sewer or steam pipes
resulting from Landlord's negligence or wrongful acts and Tenant shall vacate
such portion of the Demised Premises as a result thereof, then the rental and
all other additional charges provided for herein shall abate with respect to
such portion of the Demised Premises (on a pro rata basis) from which Tenant
cannot reasonably operate and vacates from the expiration of such four (4)
consecutive business day period until Tenant can reasonably operate from such
portion of the Demised Premises. Tenant shall only be entitled to such abatement
during such period the Tenant does in fact vacate such portions of the Demised
Premises. Tenant shall be deemed to have vacated the Demised if it has no
personnel operating from the Demised Premises, but Tenant's agent's or employees
may enter the Demised Premises for the purpose of obtaining records, supplies or
equipment. The abatement of rental shall be Tenant's exclusive remedy for such
negligence or wrongful acts of Landlord.
9. INDEMNIFICATION. Landlord shall indemnify Tenant and its agents and
employees and save Tenant harmless from and against any and all claims, actions,
damages, liabilities and expenses in connection with loss of life, personal
injury and/or damage to property arising out of any occurrence in, upon or at
the common areas of the Building occasioned by any negligent act or omission of
Landlord, its agents, contractors, servants, invitees, licensees or employees,
or resulting from any breach, violation or nonperformance of this Lease by
Landlord.
10. DAMAGE OR DESTRUCTION. In the event the Demised Premises, a
substantial portion thereof, or the Building is damaged by fire and other
5
<PAGE>
casualty to the extent that Tenant's use of the Demised Premises is materially
interfered with, and such damage (a) is not due to the negligence or willful
misconduct of Tenant, its agents or employees; and (b) such damage is not
repaired within one hundred eighty (180) days of the date of the damage to the
Demised Premises or Building, then Tenant shall have the right to terminate the
Lease provided Tenant notifies Landlord of its intent to so terminate within
thirty (30) days of the expiration of said one hundred eighty (180) day period.
11. LANDLORD'S INSURANCE AND LIABILITY. Landlord shall maintain at its
sole cost, and maintain during the term of this Lease, fire, extended coverage,
malicious mischief and vandalism insurance on the Demised Premises, in an amount
not less than the full replacement value of the Building and improvements
therein and comprehensive general liability insurance in an amount not less than
$5 million combined single limit for bodily injury, property damage and personal
liability. Such policies shall contain an express waiver of any right of
subrogation by the insurance company against Tenant, its agents and employees.
12. NON-DISTURBANCE AGREEMENT. Landlord represents to Tenant that as of
the date of this Lease there are no ground leases, mortgages, deeds of trust,
assignments of rent or other security agreements affecting the Building or the
Demised Premises ("Security Agreements"). Upon Tenant's written request,
provided there is at least one (1) year left in the Term, or Tenant has
exercised its renewal option described in paragraph 15 of this Addendum,
Landlord agrees to use best efforts to obtain a non-disturbance agreement for
the benefit of Tenant from the beneficiary of any Security Agreements entered
into hereafter.
13. SIGNAGE. Subject to receipt of all applicable governmental permits and
approvals, Landlord agrees to provide Tenant with non-exclusive signage on the
Building monument sign located at the driveway entrance on Century Boulevard,
or, at Landlord's election, on another free-standing sign to be erected. In the
event Tenant leases more than 54,465 rentable square feet in the Building,
Landlord shall install, subject to receipt of all applicable governmental
permits and approvals, a nonexclusive sign for tenant on the exterior of the
Building. All costs for such signs, including the costs of obtaining all permits
and approvals, installation, maintenance and other related fees, shall be paid
by Tenant. The exact location and design of such signs shall be determined by
Landlord, subject to Tenant's reasonable approval. Tenant shall have the right
to at least six lines for listings on the building directory located in the
entrance lobby. In addition, Landlord, at its expense, shall supply two suite
entry signs.
14. NON-EXCLUSIVE LICENSE TO USE ROOF. Provided Tenant is not in default
under this Lease, Tenant shall have a nonexclusive license to use a portion of
the roof of the Building for the purposes of installing and maintaining Tenant's
communications equipment. The location of the equipment and such use of the roof
shall be subject to Landlord's approval, shall not interfere with any other
communications equipment now or hereafter installed on the roof, and shall
comply with all applicable laws, rules, regulations and ordinances. Such use of
the roof shall be at Tenant's sole risk and all property of Tenant, its agents
or invitees, on the roof of the Building shall be and remain at the sole risk of
Tenant or such agent, invitee or person. Landlord shall not be liable for any
damage to or theft or loss of such property. Tenant shall indemnify Landlord and
its agents and employees and save it harmless from and against any and all
claims, actions, damages, liabilities and expense in connection with loss of
6
<PAGE>
life, personal injury and/or damage to property arising from or out of the use
of the roof of the Building, or any part thereof, by Tenant, its agents,
contractors, employees, servants, permitted subtenants, invitees or licensees,
except to the extent any of the foregoing are occasioned by the negligence or
willful misconduct of Landlord, its agents or employees.
15. RENEWAL OPTION. Provided that (a) the Lease is in full force and
effect, (b) Tenant is in possession of at least seventy percent (70%) the
Demised Premises, and (c) Tenant is not in default at the time it elects to
extend or at the commencement of any Renewal Term, as hereinafter defined
(provided, Landlord in its sole discretion shall be entitled to waive this
condition), Tenant shall have the option to extend the term of this Lease for
one (1) additional period of five (5) years ("Renewal Term"). The Renewal Term
shall be upon the same terms and conditions as set forth in this Lease, except
as set forth hereinafter:
(i) The Minimum Rent during each Renewal Term shall be equal to the
greater of ninety-five percent (95%) of the then Market Rent (as defined in
subparagraph (ii) below) or the Minimum Rent in effect immediately prior to the
commencement of the Renewal Term, as increased by two and one-half percent
(2.5%), and as adjusted to reflect the adjustments to rent as provided in
paragraph 7 of the Lease. Minimum Rent during the Renewal Term shall be
increased on the first day of each Lease Year during such Renewal Term,
commencing with the second Lease Year, by two and one-half percent (2.5%).
(ii) "Market Rent" shall mean the fair market rent, as of a date 180
days prior to the expiration of the Term for the Demised Premises based upon the
rents generally in effect for comparable office space in the area in which the
Building is located, taking into account all concessions and conditions
generally available in the marketplace. Market Rent shall be determined by
negotiation between Landlord and Tenant. In the event Landlord and Tenant cannot
agree on Market Rent within thirty (30) days of Tenant's exercise of its renewal
option, Tenant shall notify Landlord in writing of its election either to
rescind its renewal or to proceed with the determination of Market Rent by the
following appraiser procedure. In the event Tenant elects the appraiser
procedure, "Market Rent" shall be determined as follows: Landlord and Tenant
shall each select an M.A.I. appraiser familiar with commercial and business
property in the area within fourteen (14) days following Tenant's notification
to Landlord of Tenant's intent to invoke this procedure. The two appraisers so
selected shall have fourteen (14) days to mutually agree upon Market Rent. In
the event such appraisers cannot agree upon Market Rent within such fourteen
(14) day period, they shall select a third appraiser within the next ten (10)
days. Each appraiser shall then determine the fair market rental value for the
Demised Premises and provide a copy of their report to Landlord and Tenant
within thirty (30) days. The fair market rental value, for the purposes of
determining the Minimum Rent shall be equal to the average of the fair market
rental values as determined by the two (2) appraisers who are closest together
in their determination of Market Rent. In determining "Market Rent" it shall be
assumed that all real estate taxes and operating expenses are included in such
rent and are not passed through to the Tenant as separate additional charges.
Notwithstanding the foregoing, the rent for the Renewal Term shall be thereafter
increased from time to time in accordance with paragraph 2 of this Addendum, and
the operating expense allowances and real estate tax allowance set forth herein
shall be equal to the amount of real estate taxes and operating expenses so
included in the Market Rent. The determination of Market Rent pursuant to this
procedure shall be binding upon Landlord and Tenant. Tenant shall have ten (10)
7
<PAGE>
days following the final determination of Market Rent to either rescind its
renewal or proceed with renewal of the Lease.
(iii) Tenant's option to renew, as herein provided, shall be
conditioned upon and subject to each of the following:
A. Tenant shall notify Landlord in writing of its
exercise of its option to renew at least nine (9) months prior to the
expiration of the prior term.
B. Upon the expiration of the Renewal Term, Tenant shall
have no further right to extend the term of this Lease.
C. Tenant's option to renew is not assignable and may be
exercised only by Tenant.
D. Landlord shall have no obligation to do any work or perform
any services with respect to the Demised Premises (other than continuing
services provided pursuant to the terms of this Lease), which the Tenant shall
continue to occupy in its then "as is" condition during each Renewal Term.
16. ADDITIONAL PREMISES. Subject to (a) the rights of other existing
tenants as of the date of execution of this Lease in and to any unleased
premises in the Building, and (b) the conditions set forth in paragraph 17
below, Tenant shall have the right, during the first Lease Year, to lease any
unleased premises in the Building. Tenant shall exercise this right by notifying
the Landlord in writing, prior to the expiration of the first Lease Year, of
Tenant's intent to lease certain additional premises, as identified in such
notice ("Additional Premises"). The lease of the Additional Premises shall be on
the same terms and conditions as this Lease, except (i) the lease of the
Additional Premises shall be coterminous with this Lease, (ii) All adjustments
to rent for the Additional Premises shall be made as if the Additional Premises
had been leased as of the Lease Commencement Date of this Lease, (iii) there
shall be no rental abatement or moving allowance associated with the Additional
Premises, and (iv) all allowances and concessions, including but not limited to
any allowance for tenant improvements, shall be based upon such allowances
contained in this Lease, but shall be pro-rated based upon the number of months
remaining in the term. Tenant shall provide Landlord with plans and
specifications, approved by Landlord, for the improvement of the Additional
Premises and shall execute an amendment to this Lease, reflecting the addition
of the Additional Premises and all appropriate adjustments, within thirty (30)
days (time being of the essence) of Tenant's notice to Landlord of its intention
to lease the Additional Premises. For each day of Tenant's delay in providing
approved plans and specifications or executing a lease amendment (providing
Landlord does not contribute to such delay), or each day of delay caused by
Tenant in the construction of the improvements to the Additional Premises
(provided landlord does not contribute to such delay), Tenant shall pay to
Landlord 1/30 of the monthly Minimum Rent for the Additional Premises.
17. EXPANSION CONDITIONS. In addition to the conditions enumerated in
Paragraph 16, Tenant's right to lease the Additional Premises shall also be
8
<PAGE>
strictly conditioned upon and subject to each of the following (provided,
Landlord in its sole discretion shall be entitled to waive any or all of these
conditions):
(a) As of the date of Tenant's notice of election to lease the
Additional Premises, (i) Tenant shall not be in default under the terms or
provisions of this Lease, and (ii) Tenant shall be in occupancy of the entire
Demised Premises.
(b) The right to lease the Additional Premises shall be deemed
personal to the Tenant named on the first and last page of this Lease, or an
affiliate of such Tenant, and may not be assigned or transferred.
18. LANDLORD WARRANTIES. Landlord warrants that the Building complies with
all codes and ordinances applicable to the ownership of the Building, including
the Americans with Disabilities Act. Landlord agrees to maintain the Building
and its structural components in accordance with all applicable laws and
regulations. Landlord shall maintain the Building and all Building systems in
first-class order and repair throughout the Term of the Lease.
19. ACCESS. Tenant shall have access to the Building and the Demised
Premises twenty-four (24) hours per day each day of the year. At least one
elevator will be in service at all times after normal operating hours. The
Landlord shall restrict such access outside of normal business hours by use of a
key pad access system to the Building, the Demised Premises and the elevators.
20. ADDENDUM CONTROLS. In case of a conflict between the terms of
the Lease and this Addendum, the terms of this Addendum shall prevail.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Addendum to Lease as of the date first above written.
LANDLORD:
Attest: BELLEMEAD DEVELOPMENT
CORPORATION
/s/ Cathy Krostek By: /s/ Samuel Ketive
- - ----------------- -----------------
Sr. Vice President
TENANT:
Attest/Witness: V-ONE CORPORATION
/s/ Lisa M. Albrecht By: /s/ Charles B. Griffis
- - -------------------- ----------------------
Charles B. Griffis,
Sr. Vice-President and
Chief Financial Officer
9
<PAGE>
EXHIBIT A
To be attached to and made a part of the Lease Agreement between Bellemead
Development Corporation and V-One Corporation covering space on the 3rd and 4th
Floors of the building located at 20250 Century Boulevard, Germantown, Maryland
NOT TO SCALE
(L) INDICATES LOCK SET
[GRAPHIC DEPICTING FLOOR PLAN OF THIRD FLOOR OF DEMISED PREMISES]
<PAGE>
EXHIBIT A
To be attached to and made a part of the Lease Agreement between Bellemead
Development Corporation and V-One Corporation covering space on the 3rd and 4th
Floors of the building located at 20250 Century Boulevard, Germantown, Maryland
NOT TO SCALE
[GRAPHIC DEPICTING FLOOR PLAN OF THIRD FLOOR OF DEMISED PREMISES]
<PAGE>
(L) INDICATES LOCK SET
[GRAPHIC DEPICTING FLOOR PLAN OF FOURTH FLOOR OF DEMISED PREMISES]
<PAGE>
[GRAPHIC DEPICTING FLOOR PLAN OF FOURTH FLOOR OF DEMISED PREMISES]
<PAGE>
Exhibit A-1
Tenant's non-standard or above-standard work to be provided by Landlord.
1. Carpet included is 30 oz. Nylon Patcraft Scholastic or equal.
2. Armstrong Excelon VCT is included where called for, and Armstrong
SDT Low Static Tile is included at Computer Room & Telephone Server
Room.
3. One pair 6x8 glass suite entry door is included.
4. Ceiling grid is 2x2 x 15/16, an upgrade from standard, which is
2x4.
5. Ceiling tile is 2x2 USG 523 regular edge non-directional, an
upgrade from standard.
6. Reception area, Main Conference, CEO Conference and five (1)
Executive Office, will have an allowance for wall covering.
7. Low partitions have a plastic laminate cap.
8. There are dimmers and incandescent down lights included as shown on
plan.
9. Receptacles shown by data ring are figured as PC duplex with two
(2) offices or (2) cubicles per circuit. There are allowances for
dedicated receptacles for printers and copiers; and for the
Telephone Server Room & Computer Room, since these requirements are
not known to us at this time.
10. No data or phone wiring is included. Device rings with pull strings
are provided where data/phone outlet is indicated.
11. One (1) 1.5 ton supplemental 24 hour split system cooling unit is
included (no reheat or humidification) in the Computer Room
ceiling. Exhaust fans to the plenum are included at the Kitchens
and Electrical Rooms.
12. There is one (1) folding partition included as shown at the
Training Rooms; Modern Fold or equal with STC 40 rating.
13. There is an allowance included for the custom plastic laminate
Reception Desk.
<PAGE>
EXHIBIT B
---------
WORK LETTER
-----------
The provisions of this Exhibit B and the Approved Plans shall govern the
construction of the Demised Premises pursuant to the Lease.
A. PREPARATION OF PLANS AND SPECIFICATIONS
---------------------------------------
1. Tenant shall promptly submit and furnish to Landlord, as
hereinafter set forth, all information necessary for Landlord's
space planner to prepare preliminary plans, working drawings,
design drawings and specifications ("Tenant's Plans and
Specifications", collectively) for all tenant improvements which
Tenant desires to be installed in the Demised Premises. The
information to be given by Tenant shall be of such form and
content as will not require Landlord or Landlord's space planner
or engineers to prepare the Tenant's Plans and Specifications or
the Construction Documents (as hereinafter defined in Paragraph
"A" (2) in any manner which would violate any applicable building
codes. Landlord shall cause such space planner to prepare the
Tenant's Plans and Specifications for Tenant and Tenant shall
furnish the same to Landlord as set forth in paragraph E below.
All Plans and Specifications shall be subject to Landlord's
approval, which approval shall not be unreasonably withheld.
2. Landlord, at Landlord's sole cost and expense, shall cause all
necessary engineering drawings (the "Construction Documents") to be
prepared based upon Tenant's Plans and Specifications.
B. STANDARDS OF CONSTRUCTION
-------------------------
Landlord shall install at no cost to Tenant the following items (the
"Standards of Construction"), and all other items and quantities as set forth on
Exhibit A and Exhibit A-1:
GENERAL CONSTRUCTION
--------------------
1. FLOORS
------
Floors will be finished in vinyl composition tile, or in building
standard yarn dyed 22-ounce carpet. Wall base will be 4" high vinyl
in the building standard color.
2. CEILINGS
--------
Ceilings will be 2'0" x 4'0" acoustic tile installed with exposed
splines. Ceiling heights to be minimum of 8'10".
MD-OB-3-7/16/91
<PAGE>
2
3. PARTITIONS
----------
a. Interior partitions will extend from floor to hung ceiling
and will be studded with 1/2" thick gypsum wall board on
both sides (without insulation). Said partitioning shall be
finished with two (2) coats of building standard paint as
selected from Landlord's color chart. The selection of
more than one color per room or colors or paints other than
Landlord's standards shall be deemed non-standard work (as
hereinafter defined in Paragraph "C") and, subject to
Paragraph "C" below, shall be paid for by Tenant.
b. Any jogs, curves or angles in any partition shall be deemed
non-standard work (as hereinafter defined in Paragraph "C")
and, subject to Paragraph "C" below, shall be paid for by
Tenant.
c. Interior partitions shall be provided as required, not to
exceed one (1) lineal foot of partitioning for each twelve
(12) square feet of rentable space leased.
d. Demising partitions will be provided as required.
4. DOORS AND FRAMES
----------------
Building standard entrance doors shall be provided as required by
code. Building standard interior doors shall be 3'0" x 8'0" x 1-3/4"
solid core rotary cut oak wood doors with hollow metal frames and
shall be provided as required, not to exceed one door per two
hundred fifty (250) square feet of rentable space leased.
5. HARDWARE
--------
Locksets with one key and exposed closer will be provided on the
allowed tenant entrance door or doors, if more than one is required
by code. Building standard latchsets and door stops will be provided
for all interior doors.
6. BLINDS
------
Windows shall be furnished with building standard interior
adjustable blinds. Tenant may add decorative draperies to be
provided and installed at its own cost.
ELECTRICAL CONSTRUCTION
-----------------------
1. WIRING
------
Landlord shall provide facilities sufficient for 2 watts per square
foot of net usable space leased connected load at 110-120V for
general use and facilities sufficient for 2.5 watts per square foot
of net usable space leased connected load at 277-480V 3-phase for
fluorescent lighting.
MD-OB-3-7/16/91
<PAGE>
3
2. LIGHTING
--------
Landlord shall furnish and install 2'0" x 4'0" recessed fluorescent
units containing three (3) 40 watt rapid start lamps with a three
inch deep, 18 cell parabolic louver and a return air frame as
required, not to exceed one (1) fixture for every eighty (80) square
feet of net usable space leased. The cost of lamps and ballasts
beyond the initial installation is not included.
3. ELECTRICAL OUTLETS
------------------
Landlord shall furnish and install duplex electrical wall receptacle
outlets as required, not to exceed one outlet for every one hundred
fifty (150) square feet of rentable space leased, to be located on
interior partitions at a height of 18" above finished floor.
4. TELEPHONE OUTLETS
-----------------
Tenant shall make arrangements and pay for the installation of its
required telephone and data communications installation within the
Demised Premises and will cause the installation to be performed at
a time compatible with Landlord's Work. All communications
installation shall be in compliance with the National Electrical
Code and all other code requirements. Tenant shall be responsible
for damage caused to the Premises by Tenant's installation of
telephone and data communications equipment.
5. SWITCHES
--------
Landlord shall furnish and install single-pole single-throw toggle
switches as required, to control Tenant area lighting, not to exceed
one per room.
MECHANICAL CONSTRUCTION
-----------------------
1. Subject to any applicable governmental rules, laws, regulations,
etc., Landlord shall furnish and install a complete year-round
heating, ventilating, and air-conditioning system to provide
interior conditions to 78 degrees F. dry bulb and 50% relative
humidity when outside conditions are 95 degrees F. dry bulb and
75 degrees wet bulb, and 70 degrees F. inside when outside
temperatures are 0 degrees F. The Building and the Demised
Premises shall be in compliance with current ASHRAE standards.
2. Where required by code, Landlord has furnished and installed full
floor sprinkler systems. Landlord shall, at its expense, alter
existing systems to maintain code, to the extent required.
MD-OB-3-7/16/91
<PAGE>
4
C. TENANT'S ABOVE STANDARD AND NON-STANDARD WORK
---------------------------------------------
1. Other than as shown in the Approved Plans, Landlord, at Tenant's
sole cost and expense, further agrees to perform all work which
may consist of either (a) the installation of quantities of
Standards of Construction materials which are in excess of the
quantities specified in Paragraph "B" above (the "above standard
work") and/or (b) the performance of work other than the
installation of the Standards of Construction materials (the
"non-standard work"). Other than as shown on the Approved Plans,
prior to commencing any such non-standard work, Landlord will
notify Tenant of (i) any long lead time materials required in
such non-standard work and (ii) any nonstandard work which
Landlord may require Tenant, at Tenant's expense, to remove from
the Demised Premises upon the expiration or termination of this
Lease, and shall submit to Tenant a written statement (the
"Statement") of the cost (which shall include Landlord's normal
overhead and profit of 7% and 5% respectively) of any such above
standard and non-standard work as set forth above. If Tenant
shall fail to approve in writing any such Statement within five
(5) days, the nonstandard work shall be deemed disapproved in all
respects by Tenant and Landlord shall not be obligated to proceed
thereon. In such event, Landlord may proceed to complete the
Standards of Construction and any above standard work but
Landlord shall not be obligated to perform any non-standard work
shown on Tenant's Plans and Specifications. Tenant agrees to pay
Landlord promptly upon being billed therefore for all costs of
the work to be paid for by Tenant as follows: (a) Fifty percent
(50%) upon approval of the Statement; and, (b) the balance
(including the cost of any additional items requested to be
installed by Landlord) upon the date the Premises have been
substantially completed by Landlord. Failure to pay Landlord as
required herein shall constitute default under the Lease in
payment of Additional Rent and Landlord shall be entitled to all
rights and remedies therefor as provided in the Lease.
2. Tenant may, at its option, employ its own subcontractors for
finishing trades work, such as carpentry, millwork, cabinet work,
carpeting and draperies as may be initially furnished and
installed by Tenant in the Demised Premises, provided such
subcontractors' work is in harmony with and does not interfere
with the labor employed by Landlord, its contractors, and
otherwise complies with the provisions of the Lease, and provided
Tenant's subcontractors accept the administrative supervision of
Landlord's representatives.
3. Workmen's Compensation, public liability insurance and property
damage insurance, with a hold harmless provision, all in amounts and
with companies reasonably satisfactory to Landlord, shall be
maintained by such finish trades subcontractors; certificates of
such insurance shall be furnished to Landlord, prior to commencement
of work, for review and approval.
4. No credit is intended nor shall be allowed for any unused portion
of work allowed by Landlord.
MD-OB-3-7/16/91
<PAGE>
5
D. COMPLETION
----------
Landlord agrees to use reasonable efforts to cause the Standards of
Construction and all above standard work and non-standard work to be
performed in a good and workmanlike manner so as to be
"substantially completed" (as hereinafter defined) on or before the
Estimated Commencement Date, subject to delays of the nature
described in items 1 through 5 below and delays of the nature
described in Paragraph 41(b) of the Lease. It is agreed that
notwithstanding the Estimated Commencement Date provided in the
Lease for commencement of the Term, the Lease shall not commence
until Landlord shall have substantially completed all work to be
performed by Landlord as hereinbefore set forth in Paragraphs "B"
and "C", and said Estimated Commencement Date of the Term and
expiration date of the Term shall be extended by an equal number of
days of Landlord's delay; provided, however, there shall be no
extension of the Estimated Commencement Date or the expiration date
of the Term if Landlord shall be delayed in substantially completing
the work to be performed by Landlord as a result of:
1. Tenant's failure to timely furnish the information necessary for
Landlord to prepare Tenant's Plans and Specifications in accordance
with Paragraph "E" below or Tenant's failure to approve the cost
Statement referred to in Paragraph "C" above; or
2. INTENTIONALLY DELETED
3. Changes requested by Tenant in Tenant's Plans and Specifications
or the Construction Documents; or
4. The performance by a person, firm or corporation employed by Tenant
to perform work in the Demised Premises, or the completion of the
said work by the said person, firm or corporation which work is not
in compliance with Section G of this Work Letter; or
5. Tenant's failure to execute and deliver this Lease to Landlord on or
before MARCH 17, 1997 or approve changes and/or plans in a timely
manner.
The work to be performed by Landlord shall be considered
"substantially completed" for all purposes under this Work Letter
and the Lease when such work has been completed in substantial
compliance with the Tenant plans and specifications and the
Construction Documents, except for "punch list" items and either a
temporary or permanent Certificate of Occupancy has been obtained
for the Demised Premises. When Landlord is of the reasonable opinion
that such work is substantially completed, then Landlord shall so
notify Tenant. Tenant agrees that upon such notification, Tenant
will promptly (and not later than three (3) days after the day of
Landlord's notice and in any event prior to Tenant moving its
equipment and property into the Demised Premises) inspect the
Demised Premises and execute Landlord's standard punch list ("Punch
List") which shall identify any uncompleted portions of such work.
Tenant agrees that at the request of Landlord from time to time
thereafter, Tenant shall promptly furnish to Landlord a revised
Punch List reflecting the completion of any prior Punch List items.
It is mutually agreed that if the Punch List or any revised Punch
List consists only of items the non-completion of which would not
MD-OB-3-7/16/91
<PAGE>
6
materially impair Tenant's use or occupancy of the Demised Premises
or such work is otherwise substantially completed, then, in such
event, the Demised Premises shall be deemed to be complete and
Tenant will acknowledge in writing that the Demised Premises are
complete and accept possession of the Demised Premises with the
understanding that Landlord shall diligently complete the mutually
agreed upon Punch List items. If Tenant fails to conduct such
inspection or execute the Punch List, Landlord is authorized to
complete and sign the Punch List on behalf of Tenant, which as so
completed shall be binding upon Tenant.
E. SUBSTITUTIONS
-------------
All work shall require the installation of new materials at least
comparable to the quality installed in the Building. Tenant may
substitute materials, equipment, and fixtures for those specified as
Standards of Construction with written consent of Landlord, which
consent shall not be unreasonably withheld. Tenant shall pay
Landlord promptly upon being billed therefor for Landlord's cost for
such substitute items which are in excess of such substituted items
plus additional mark up for Landlord's expenses and profit (7% and
5%, respectively) in handling the substitution. Tenant may also
request Landlord to omit the installation of any item not already
installed, and, provided such omission shall not delay Landlord's
work, Landlord shall not be obligated to install the same.
F. SCHEDULE OF DELIVERY OF TENANT'S PLANS AND SPECIFICATIONS
---------------------------------------------------------
Substitutions or changes shall include the following information, to
the extent applicable:
1. The location and extent of floor loading and floor openings in
excess of building standard.
2. The special air-conditioning needs by location and general
description of need.
3. Location and description of plumbing requirements, including plans,
sections and equipment data.
4. Estimated total electrical load including lighting for entire
space.
5. Location and description of special floor loading areas such as
libraries, computer rooms, and file rooms.
6. Partition locations and type.
MD-OB-3-7/16/91
<PAGE>
7
7. Door locations, size and type.
8. Reflected ceiling plans, including any non-standard lighting and/or
switching details.
9. Location of telephone outlets and electrical outlets, including
specifications regarding electric load, socket, grounding, clean
power or dedicated circuit information.
10. Any structural architectural installations.
11. Air-conditioning loads.
12. Specific plumbing required, including plans and sections.
13. Cabinetwork and any other information affecting other trades.
14. Non-building standard ceiling heights and/or materials, and any
other information that is appropriate but not delineated herein.
15. Tenant's electrical requirements and distribution, as well as the
location of electrical and telephone rooms.
16. Decorative plans including paint schedule, floor covering,
draperies and wall coverings.
17. Non-structural architectural detailing.
G. PERFORMANCE OF WORK BY TENANT
-----------------------------
If Tenant desires to install Tenant's trade fixtures, personal
property, equipment fixtures in the Demised Premises, Tenant and its
agents and contractors may enter into the Demised Premises prior to
the date specified in the Lease for the commencement of the term in
order that Tenant may perform such work. The foregoing right of
entry prior to commencement of the term, however, is conditioned
upon Tenant's workmen and contractors working in harmony and not
interfering with the labor employed by Landlord, Landlord's workmen
or contractors or by any other tenant or their contractors and
compliance with the terms of the Lease. If at any time such entry
shall cause disharmony or interference therewith, this license may
be withdrawn by Landlord upon forty-eight (48) hours' written notice
to Tenant. In addition, Workmen's Compensation and public liability
insurance, with hold harmless provisions, all in an amount and with
companies and on forms satisfactory to Landlord, shall be provided
and at all times maintained by Tenant's outside contractors engaged
in the performance of the work, and before proceeding with the work,
certificates of such insurance shall be furnished to Landlord. Such
entry shall be deemed to be under all of the terms, covenants,
provisions and conditions of the Lease except as to the covenant to
MD-OB-3-7/16/91
<PAGE>
8
pay rent, and Tenant and its contractors shall have use of available
building services and facilities, free of charge. Landlord shall not
be liable in any way for any injury, loss or damage which may occur
to any of Tenant's decorations or installations so made prior to the
commencement of the term of the Lease, and same being solely at
Tenant's risk. The provisions of the Work Letter are specifically
subject to the provisions of the Lease.
H. Tenant, upon reasonable notice to Landlord, and accompanied by an
agent or representative of the Landlord if so required by
Landlord, shall have reasonable access to the Demised Premises to
inspect the progress of construction, provided Tenant does not
interfere with the construction of the improvements to the
Demised Premises.
MD-OB-3-7/16/91
<PAGE>
BELLEMEAD DEVELOPMENT CORPORATION
---------------------------------
EXHIBIT "C"
-----------
RULES AND REGULATIONS
---------------------
The following rules and regulations have been formulated for the safety
and well-being of all the tenants of the Building. Strict adherence to these
rules and regulations is necessary to guarantee that each and every tenant will
enjoy a safe and unannoyed occupancy in the Building. Any violation of these
rules and regulations by Tenant which continues after notice from Landlord,
shall be considered a default under the Lease, following all applicable notice
and cure periods.
The Landlord may, upon request by any tenant, waive the compliance by such
tenant of any of the following rules and regulations, provided that (i) no
waiver shall be effective unless signed by Landlord or Landlord's authorized
agent, (ii) any such waiver shall not relieve such tenant from the obligation to
comply with such rule or regulation in the future unless expressly consented to
by Landlord, and (iii) no waiver granted to any tenant shall relieve any other
tenant from the obligation of complying with the foregoing rules and regulations
unless such other tenant has received a similar waiver in writing from Landlord.
To the extent any provisions contained herein are inconsistent with the
provisions of the Tenant's Lease (including any addendum thereto), the terms of
such Lease (including any addendum thereto) shall control.
Landlord shall have the continuing right to amend or eliminate any of
these rules and regulations, and also to adopt additional reasonable rules and
regulations of like force and effect. Any change of whatsoever nature shall be
effective five (5) days after delivery of written notice thereof to the Demised
Premises, subject to the requirements of Tenant's Lease.
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls or other parts of the Building not occupied by any
tenant shall not be obstructed or encumbered by any tenant or used for any
purpose other than ingress and egress. Landlord shall have the right to control
and operate the public portions of the Building and the facilities furnished for
the common use of the tenants in such manner as Landlord deems best for the
benefit of the tenants generally. No tenant shall permit the visit to its
demised premises of persons in such numbers or under such conditions as to
interfere with the use and enjoyment by other tenants of the entrances,
corridors, elevators and other public portions of facilities of the Building.
2. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of Landlord. No drapes,
blinds, shades, or screens visible from the exterior of the Demised Premises
shall be attached to or hung in, or used in connection with, any window or door
of any tenant's demised premises without the prior written consent of Landlord
(not to be unreasonably withheld, conditioned or delayed). Such awnings,
projections, curtains, blinds, screens or other fixtures must be of a quality,
type, design and color, and attached in the manner approved by Landlord.
<PAGE>
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any tenant on any part of the outside or inside
of its demised premises or Building without the prior written consent of
Landlord. In the event of the violation of the foregoing by any tenant, Landlord
may remove same without any liability, and may charge the expense incurred by
such removal to the tenant or tenants violating this rule. Interior signs on
doors and directory tablet shall be inscribed, painted or affixed for each
tenant by Landlord at the expense of such tenant, and shall be of a size, color
and style acceptable to Landlord.
4. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules without the prior written consent of Landlord.
5. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose servants, employees, agents, visitors or licensees shall have,
caused the same.
6. There shall be no marking, painting, drilling into or other form of
defacing or damage of any part of the Building and no drilling into or other
form of defacing or damage to any part of the Demised Premises. No boring,
cutting or stringing of wires in a manner which creates a safety hazard or is in
violation of applicable codes shall be permitted. No tenant shall construct,
maintain use or operate within its demised premises or elsewhere within or on
the outside of the Building, any electrical device, wiring or apparatus in
connection with a loud speaker system or other sound system audible outside the
Demised Premises.
7. No bicycles, vehicles, or animals, birds or pets of any kind shall be
brought into or kept in or about any tenant's demised premises. No cooking
(other than microwave cooking) shall be done or permitted by any tenant on its
demised premises, except that, with Landlord's prior approval, a tenant may
install and operate for the convenience of its employees, a lounge or coffee
room with stove, sink and refrigerator. No tenant shall cause or permit any
unusual or objectionable odors to permeate from its demised premises.
8. No space in the Building shall be used for manufacturing, for the
storage of merchandise, or for the retail or wholesale sale of merchandise,
goods or property of any kind to the general public.
9. No tenant shall make, or permit to be made, any unseeming or disturbing
noises or disturb or interfere with occupants of the Building or neighboring
buildings or premises of those having business with them, whether by the use of
any musical instrument, radio, tape recorder, whistling, singing, or in any
other way. No tenant shall throw anything out of the doors or windows or down
the corridors or stairs.
10. No inflammable, combustible or explosive fluid, chemical or substance
shall be brought or kept upon the Building, except ordinary cleaning products
2
<PAGE>
normally found in offices, provided such products are used properly and in
accordance with all applicable rules and regulations.
11. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in existing
locks or the mechanism thereof. The doors leading to the corridors or main halls
shall be kept closed during business hours except as they may be used for
ingress or egress. Each tenant shall, upon the termination of its tenancy,
restore to Landlord all keys of stores, offices, storage, and toilet rooms,
whether or not such keys were furnished by Landlord or procured by tenant, and
only in the event of the loss of any such keys to locks for which the Landlord
has no copies, such tenant shall pay to the Landlord the cost thereof.
12. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description, must take place in such manner and
during such hours as Landlord or its a managing agent may reasonably determine
from time to time. Landlord reserves the right to inspect all freight to be
brought into the Building and to exclude from the Building all freight which
violates any of these rules and regulations or the Lease.
13. Any person employed by any tenant to do janitor work within its
demised premises must obtain Landlord's consent prior to commencing such work,
and such person shall, while in the Building, comply with all instructions
issued by the managing agent of the Building. No tenant shall engage or pay any
employees on its demised premises, except those actually working for such tenant
on its demised premises.
14. Landlord shall have the right to prohibit any advertising by any
tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon written notice
from Landlord, the tenant shall refrain from or discontinue such advertising.
15. The Landlord reserves the right to exclude from the Building at all
times any person who is not known or does not properly identify himself to the
building management or watchman on duty. Landlord may, at its option, require
all persons admitted to or leaving the Building between the hours of 6:00 p.m.
and 8:00 a.m. Monday thru Saturday, Sundays and legal holidays to register. Each
tenant shall be responsible for all persons for whom it authorizes entry into or
exit out of the Building, and shall be liable to the Landlord for all acts of
such persons.
16. The Building shall not be used for lodging or sleeping or for any
immoral or illegal purposes.
17. Each tenant shall cooperate with Landlord and Landlord's designated
transportation coordinator in complying with (and to the extent feasible,
participating with Landlord in) traffic mitigation programs, ridesharing
programs, surveys, reports and transit related programs intended to promote the
use of public transportation, ridesharing and non-peak hour traffic in the
Germantown, Maryland area.
3
<PAGE>
18. Each tenant, before closing and leaving its demised premises at any
time, shall make reasonable efforts to see that all lights, electrical
appliances and mechanical equipment are turned off.
19. The requirements of tenants will be attended to only upon application
at the office of the Building. Employees shall not perform any work or do
anything outside of their regular duties, unless under special instruction from
the management of the Building.
20. Canvassing, soliciting and peddling in the Building is prohibited
and each tenant shall cooperate to prevent the same.
21. No water cooler affixed to Tenant's demised premises, plumbing or
electrical fixtures shall be installed by any tenant without Landlord's prior
consent.
22. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
23. Access plates to underfloor conduits shall be left exposed. Where
carpet is installed, carpet shall be cut around access plates. In the event any
tenant fails to cut around access plates, repairs to such tenant's carpet shall
be the expense of the tenant. Each tenant agrees to give access to Landlord at
any time to access plates to underfloor conduits whether work to be done by
Landlord is for tenant's space or for some other tenant within the Building.
24. Mats, trash or other objects shall not be placed in the public
corridors.
25. Landlord does not maintain suite finishes which are non-standard such
as kitchens, bathrooms, wallpaper, special lights, etc. However, should the need
for repairs arise, Landlord will arrange for the work to be done at the tenant's
expense.
26. No tenant shall use, without Landlord's consent, an average of more
than 4.5 watts of electricity per rentable square foot for all purposes
including lighting and power, exclusive of HVAC and fire a life safety power,
except specialty HVAC and fire and life safety power installed in the Demised
Premises for the benefit of the Tenant. Landlord's consent to the installation
of electrical equipment shall not relieve any tenant from the obligation not to
use more electricity than such capacity.
27. Smoking shall not be permitted by Tenant and/or Tenant's employees,
customers, invitees and guests in the common areas of the Building, including,
without limitation, elevators, restrooms, lobbies and hallways.
4
<PAGE>
EXHIBIT D
---------
SAMPLE RENT LETTER
------------------
In accordance with the terms of our lease and by our mutual consent, our lease
will commence (commenced) _____________________ and (will) terminate
________________ (_____) years thereafter on _________________________.
The basic annual rent is $___________, payable in equal monthly installments of
$__________. Since we do not invoice the monthly rent, please advise your
Accounts Payable department to forward the rent, due the first of each month,
direct to _________________________________, 4 Becker Farm Road, Roseland, New
Jersey 07068.
We acknowledge receipt of rent for the month of _________________, therefore,
your next rental payment will be due ______________.
If you are in agreement with the above, please sign and return to me the
enclosed copy of this letter. The original should be attached to and made part
of your lease.
Very truly yours,
Eric H. Grosseibl
Vice President & Treasurer
Encl.
AGREED TO AND ACCEPTED: ___________________________________________________
BY: ____________________________________ DATE: __________________________
<PAGE>
EXHIBIT E
CLEANING AND CHAR SERVICE SPECIFICATIONS
----------------------------------------
General Office Cleaning
- - -----------------------
Cleaning Services shall be provided Monday through Friday (excluding Legal
Holidays) after 5:30 p.m. and before 8:00 a.m. of the next business day.
Furniture will be dusted and desk tops will be wiped clean. Desks with loose
papers on the top will not be cleaned.
Window sills and baseboards shall be dusted and washed when necessary.
Office wastepaper baskets shall be emptied. Cartons or refuse in excess of that
which can be placed in wastepaper baskets will not be removed. Tenants are
required to place and mark such unusual refuse in trash cans or a spot
designated by the Landlord.
Cleaning service personnel shall not remove nor clean tea or coffee cups or
similar containers; also, if such liquids are spilled in wastebaskets, the
wastebaskets shall be emptied but not otherwise cleaned.
Vinyl composition floor tiles shall be swept daily. Carpets shall be swept daily
and vacuumed weekly.
All closet shelving, coat racks, etc., shall be dusted weekly.
Lavatories
- - ----------
All lavatory floors to be swept and washed with disinfectant nightly.
Tile walls and dividing partitions to be washed and disinfected weekly.
Basins, bowls, and urinals to be washed and disinfected nightly.
Mirrors, shelves, plumbing work, bright work, and enamel surfaces cleaned
nightly.
Waste receptacles and wash dispensaries shall be filled with appropriate
tissues, towels, and soap supplied by Tenant.
Main Lobby Elevators, Building Exterior and Corridors
- - -----------------------------------------------------
All floors in Main Lobby shall be wiped and washed nightly.
Elevator cabs shall be wiped clean nightly and thoroughly cleaned and polished
weekly.
Lobby walls, glass, etc., shall be wiped clean nightly and thoroughly cleaned
and polished weekly.
<PAGE>
Lobby entrance doors and window shall be washed weekly.
Windows shall be cleaned when necessary but not more than once a quarter, inside
and outside.
Miscellaneous Services
- - ----------------------
Sidewalks in front of building entrances shall be swept nightly.
Remove snow and ice from sidewalks and parking areas when accumulation reaches
3" or more.
Stairways shall be cleaned as required.
Custodian's rooms and mechanical rooms shall be kept clean.
Work Excluded
- - -------------
Cleaning services do not include the washing or polishing, nor waxing of
furniture, files, cabinets, wastebaskets, or other personal property of Tenant.
Should Tenant desire such work to be performed, Tenant may make arrangements for
same directly with Landlord's cleaning service personnel.
2
<PAGE>
EXHIBIT F
LEGAL HOLIDAYS
--------------
The day(s) officially celebrated in the State of Maryland for the following
holidays:
New Year's Day
Washington's Birthday
Memorial Day
Independence Day
Labor Day
Thanksgiving
Christmas
EXHIBIT 11
V-ONE CORPORATION
COMPUTATION OF NET LOSS PER SHARE
<TABLE>
<CAPTION>
For the three For the three For the six For the six
months ended months ended months ended months ended
June 30, June 30, June 30, June 30,
1996 1997 1996 1997
(unaudited) (unaudited) (unaudited)
---------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Net loss $ (3,393,402) $ (3,149,492) $ (4,388,061) $ (4,020,711)
================ =============== =============== ===============
Weighted average common shares
outstanding 8,503,241 12,796,615 8,497,374 12,730,540
Series A Convertible
Preferred Stock 949,209 - 949,209 -
Stock options issued within one year of
initial filing of Registration Statement
on Form S-1 relating to the initial public
offering (using the treasury stock
method and the initial public offering
price of $5.00 per share) 428,266 - 428,266 -
---------------- --------------- --------------- ---------------
Weighted average number of common shares
outstanding 9,880,716 12,796,615 9,874,849 12,730,540
================ =============== =============== ===============
Net loss per common share and common
share equivalent $ (0.34) $ (0.25) $ (0.44) $ (0.32)
================ =============== =============== ===============
</TABLE>
1. All common share amounts have been restated to reflect a 2 for 3 reverse
stock split effected on July 3, 1996.
2. In accordance with the Securities and Exchange Commission Staff Accounting
Bulletin No. 83 ("SAB No. 83"), all common and common equivalent shares and
other potentially dilutive instruments (including stock options and the
redeemable convertible preferred stock) issued during the twelve month
period prior to the initial filing date in June 1996 of the Registration
Statement on Form S-1 relating to the Company's initial public offering
("IPO") have been included in the calculation as if they were outstanding
for all periods presented prior to the IPO, even if the common equivalent
shares were anti-dilutive. The common equivalent shares for stock options
were determined using the treasury stock method at the offering price of
$5.00 per share. The redeemable convertible preferred stock was included on
an as-if converted basis in accordance with SAB No. 83.
3. Fully diluted net loss per share is the same as primary net loss per share.
4. Common stock equivalents have only been included when the effect of their
inclusion would be dilutive in all other periods not applicable to SAB No.
83.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S QUARTERLY REPORT ON FORM 10-Q FOR THE THREE MONTHS ENDED JUNE 30, 1997
AND IS QUALIFIED IN ITE ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1997
<CASH> 6,380
<SECURITIES> 0
<RECEIVABLES> 3,907
<ALLOWANCES> (252)
<INVENTORY> 391
<CURRENT-ASSETS> 10,648
<PP&E> 1,401
<DEPRECIATION> (260)
<TOTAL-ASSETS> 13,118
<CURRENT-LIABILITIES> 1,950
<BONDS> 0
0
0
<COMMON> 13
<OTHER-SE> 10,755
<TOTAL-LIABILITY-AND-EQUITY> 13,118
<SALES> 4,549
<TOTAL-REVENUES> 4,549
<CGS> 880
<TOTAL-COSTS> 7,102
<OTHER-EXPENSES> 800
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (5)
<INCOME-PRETAX> (4,021)
<INCOME-TAX> 0
<INCOME-CONTINUING> (4,021)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4,021)
<EPS-PRIMARY> (0.32)
<EPS-DILUTED> (0.32)
</TABLE>
