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Exhibit 10.14
FUISZ TECHNOLOGIES LTD.
1/16/97
21373701
LEASE
BY AND BETWEEN
AVION (FAIRFAX) ASSOCIATES, L.P.
("Landlord")
AND
FUISZ TECHNOLOGIES LTD.
("Tenant")
Multi-tenant Flex Lease
for Virginia
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TABLE OF CONTENTS
1. TERMS................................................................ 1
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2. DELIVERY OF POSSESSION............................................... 3
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3. PAYMENT OF RENT...................................................... 3
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4. SECURITY DEPOSIT..................................................... 3
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5. USES................................................................. 4
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6. LATE CHARGES......................................................... 5
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7. REPAIRS AND MAINTENANCE.............................................. 6
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8. UTILITIES AND SERVICES............................................... 7
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9. COST OF SERVICES AND UTILITIES....................................... 8
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10. PROPERTY TAXES....................................................... 11
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11. TENANT'S INSURANCE................................................... 13
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12. LANDLORD'S INSURANCE................................................. 14
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13. DAMAGE OR DESTRUCTION................................................ 15
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14. MACHINES AND EQUIPMENT; REMOVAL OF PERSONAL PROPERTY................. 16
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15. ACCEPTANCE OF PREMISES............................................... 16
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16. TENANT IMPROVEMENTS AND ALTERATIONS.................................. 17
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17. ACCESS............................................................... 17
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18. WAIVER OF SUBROGATION................................................ 18
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19. INDEMNIFICATION...................................................... 18
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20. ASSIGNMENT AND SUBLETTING............................................ 19
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21. ADVERTISING/SIGNS.................................................... 20
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22. LIENS................................................................ 21
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23. DEFAULT.............................................................. 21
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24. SUBORDINATION AND ATTORNMENT......................................... 25
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25. SURRENDER OF POSSESSION.............................................. 26
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26. NON-WAIVER........................................................... 26
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27. HOLDOVER............................................................. 26
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28. CONDEMNATION......................................................... 27
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29. NOTICES.............................................................. 27
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30. MORTGAGEE PROTECTION................................................. 27
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31. COSTS AND ATTORNEYS' FEES............................................ 28
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32. BROKERS.............................................................. 28
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33. LANDLORD'S LIABILITY AND DEFAULT..................................... 28
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34. ESTOPPEL CERTIFICATES................................................ 29
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35. FINANCIAL STATEMENTS................................................. 30
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36. TRANSFER OF LANDLORD'S INTEREST...................................... 30
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37. RIGHT TO PERFORM..................................................... 30
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38. SUBSTITUTED PREMISES................................................. 31
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39. SALES AND AUCTIONS................................................... 31
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40. ACCESS TO ROOF....................................................... 31
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41. SECURITY............................................................. 32
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42. AUTHORITY OF TENANT.................................................. 32
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43. NO ACCORD OR SATISFACTION............................................ 32
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44. MODIFICATION FOR LENDER.............................................. 33
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45. PARKING.............................................................. 33
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46. GENERAL PROVISIONS................................................... 33
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47. RULES AND REGULATIONS................................................ 35
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48. LANDLORD'S LIEN...................................................... 36
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49. WAIVER OF JURY TRIAL................................................. 36
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EXHIBIT A - LOCATION AND DIMENSIONS OF PREMISES
EXHIBIT B - SPECIAL STIPULATIONS
EXHIBIT C - WORK LETTER - INTENTIONALLY OMITTED
EXHIBIT D - RULES AND REGULATIONS
EXHIBIT E - FORM OF ESTOPPEL CERTIFICATE
EXHIBIT F - FORM OF SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
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THIS LEASE is made this 17th day of January, 1997, by and between AVION
(FAIRFAX) ASSOCIATES, L.P. ("Landlord"), c/o ▇▇▇▇▇▇▇▇ ▇▇▇▇ Real Estate Services,
Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, D. C. 20007, and FUISZ TECHNOLOGIES
LTD., a Delaware corporation ("Tenant"), with a mailing address of ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
R E C I T A L S:
Landlord, for and in consideration of the rents and all other charges and
payments hereunder and of the covenants, agreements, terms, provisions and
conditions to be kept and performed hereunder by Tenant, demises and leases to
Tenant, and Tenant hereby hires and takes from Landlord, the premises described
below (the "Premises"), subject to all matters hereinafter set forth and upon
and subject to the covenants, agreements, terms, provisions and conditions of
this Lease for the term hereinafter stated.
NOW THEREFORE Landlord and Tenant agree to the following, unless otherwise
specifically modified by provisions of this Lease:
1. TERMS.
1.1 Premises. The Premises demised by this Lease are 32,493 rentable
square feet located in the Flex I Building (the "Building") located at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ together with a nonexclusive right
to use parking and other common areas. The location and dimensions of the
Premises are shown on Exhibit A attached hereto and incorporated herein by
reference. Landlord and Tenant acknowledge and agree that the rentable square
footage set forth above has been determined, and the rentable square footage of
any additional space added to the Premises shall be determined, in accordance
with "Standard Method of Measuring Floor Area in Office Buildings", provided by
the Secretariat, Buildings Owners and Managers Association International (ANSI
Z65.1-1980), approved July 31, 1980. No easement for light or air is
incorporated in the Premises.
1.2 Agreed Areas. The parties agree that the total rentable area of the
Building, the area of the Premises, and the Tenant's percentage of the Building
are as follows:
Total rentable area of the building: 49,068 sq. ft.;
Area of Premises: 32,493 sq. ft.; and
Tenant's percentage of the Building: 66.22%
1.3 Lease Term. The parties agree that the term of this Lease (the "Term"
or the "Lease Term") shall be for approximately one hundred and two (102)
months.
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The Lease Commencement Date shall be the later of (i) February 1,
1997 or (ii) the execution of this Lease and the Lease Expiration Date shall be
July 31, 2005.
1.4 Rent. The basic rent (the "Base Rent") shall be as set forth in
Exhibit B attached hereto and incorporated herein by reference. In addition to
the Base Rent, Tenant shall pay all amounts designated as additional rent
("Additional Rent") under this Lease including, without limitation, Tenant's pro
rata share of Operating Costs as described in Section 9, and Tenant's pro rata
share of Property Taxes as described in Section 10, all of which along with Base
Rent shall be deemed rent ("Rent") due under this Lease.
1.5 Initial Payment. Tenant shall pay Landlord upon execution of this
Lease Twenty-three Thousand Nine Hundred Seven and 63/100 Dollars ($23,907.63)
representing the first month's Base Rent except if the Lease Commencement Date
is a date other than the first day of a month, then Tenant shall then pay to
Landlord a prorata share of the first month's Base Rent.
1.6 Notice and Payment Addresses.
Notice Addresses:
If to Landlord:
Avion (Fairfax) Associates, L.P.
c/o ▇▇▇▇▇▇▇▇ ▇▇▇▇ Real Estate Services, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Washington, D. C. 20007
If to Tenant:
Fuisz Technologies Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Either party may, by written notice, designate a new address to which all
notices hereunder shall be directed.
1.7 Lease Year. Each twelve (12) month period within the Lease Term shall
be referred to herein as a "Lease Year." The first Lease Year shall commence on
the Lease Commencement Date and terminate on the last day of the twelfth full
calendar month after such Lease Commencement Date. Each subsequent Lease Year
shall commence on the date immediately following the last day of the preceding
Lease Year and shall continue for a period of twelve (12) full calendar months,
except that the last Lease Year of the Lease
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Term shall terminate on the date this Lease expires or is otherwise terminated.
2. DELIVERY OF POSSESSION.
Tenant hereby accepts the Premises "AS IS" and acknowledges and agrees
Landlord shall have no obligation to construct any tenant improvements to the
Premises or make any alterations or additions thereto or to provide any tenant
improvement allowance to Tenant.
3. PAYMENT OF RENT.
Tenant shall pay Landlord the Rent including Additional Rent or other
payments due under this Lease without prior notice, deduction or offset, in
lawful money of the United States. Rent (including any monthly payments of
Estimated Costs Allocable to the Premises (as defined below) payable in
accordance with this Lease) shall be paid in advance on or before the first
(1st) day of each month, except that the first month's Base Rent shall be paid
upon the execution hereof, at the address noted in Section 1.6, or to such other
party or at such other place as Landlord may hereafter from time to time
designate in writing. Rent and other amounts due under this Lease for any
partial month at the beginning or end of the Lease Term shall be prorated. All
other payments required to be made by Tenant to Landlord under this Lease for
which the payment period is not otherwise specified herein shall be made no
later than ten (10) business days after Landlord provides an invoice to Tenant
specifying the amount of such payment obligation.
4. SECURITY DEPOSIT.
As security for its full and faithful performance of this Lease, Tenant
has previously paid to Landlord a security deposit of $12,766.50 pursuant to the
Existing Leases (as such term is defined in No. 5 of Exhibit B) which shall be
retained by Landlord pursuant to and in accordance with the terms of this Lease.
If Tenant defaults with respect to any covenant or condition of this Lease,
including but not limited to the payment of Rent or any other payment due under
this Lease (and such default shall continue beyond any applicable cure period),
Landlord may apply all or any part of the security deposit to the payment of any
sum in default or any other sum which Landlord may be required to or may
reasonably deem necessary to spend or incur by reason of Tenant's default. In
such event, Tenant shall, upon demand, deposit with Landlord the amount so
applied to replenish the security deposit. Within thirty (30) days of the
expiration or sooner termination of this Lease, Landlord will refund Tenant the
security deposit less any amounts necessary to cure any default of Tenant under
this Lease.
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5. USES.
5.1 Permitted Uses. Landlord acknowledges that Tenant intends to use the
Premises to develop, manufacture and market pharmaceutical delivery systems,
which use shall include, without limitation, performing laboratory work,
including wet laboratory work. Landlord consents to such use of the Premises by
Tenant. Tenant shall not do any act in or about the Premises that is unlawful.
Tenant shall not commit or allow to be committed any waste upon the Premises, or
any public or private nuisance or any other act or thing which disturbs the
quiet enjoyment of any other tenant in the Building. Tenant, at its expense,
shall comply with all laws, statutes, ordinances, governmental rules,
regulations and requirements now existing or hereafter in effect relating to its
use, operation or occupancy of the Premises; provided, however that, subject to
Tenant's obligations pursuant to Section 16, Landlord shall comply with all
laws, statutes, ordinances, governmental rules, regulations and requirements now
existing or hereinafter in effect that are generally applicable to the Building
and the Premises (e.g., if local codes change and require the installation of
new systems, such as a sprinkler system, in the Building and the Premises,
Landlord shall be responsible for causing the Building and the Premises to
comply subject, however, to reimbursement for such costs by Tenant as part of
Other Operating Costs, as that term is defined in Section 9.1.3). Tenant shall
observe such reasonable rules and regulations as may be adopted with respect to
all tenants in the Building and made available to Tenant by Landlord from time
to time for the safety, care and cleanliness of the Premises or the Building and
for the preservation of good order therein, provided that such rules and
regulations do not interfere with the Food and Drug Administration's
requirements imposed upon Tenant to observe "current good manufacturing
practices" and with the necessity of Tenant to protect its trade secrets.
5.2 Hazardous Substances. The term "Hazardous Substances," as used in this
Lease shall mean all pollutants, contaminants, toxic or hazardous wastes, or any
other substances, the use and/or removal of which is required or the use of
which is restricted, prohibited or penalized by an "Environmental Law," which
term shall mean any federal, state or local law or ordinance relating to
pollution or protection of the environment. Tenant hereby agrees that (i) no
activity will be conducted on the Premises that will produce any Hazardous
Substances, except for such activities that are a part of the ordinary course of
the Tenant's business activities (the "Permitted Activities") provided said
Permitted Activities are conducted in accordance with all Environmental Laws and
Tenant shall be responsible for obtaining any required permits and paying any
fees and providing any testing required by any governmental agency; (ii) the
Premises will not be used in any manner for the storage of any Hazardous
Substances except for the temporary storage of such materials that are used in
the ordinary
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course of Tenant's business (the "Permitted Materials") provided such Permitted
Materials are properly used and stored in a manner and location meeting all
Environmental Laws; (iii) no portion of the Premises will be used as a landfill
or a dump; (iv) Tenant will not install any underground tanks of any type; (v)
Tenant will not allow any surface or subsurface conditions to exist or come into
existence that constitute, or with the passage of time may constitute, a public
or private nuisance; (vi) Tenant will not permit Hazardous Substances to be
brought onto the Premises, except for the Permitted Materials described above,
and if so brought or found located thereon, the same shall be immediately
removed, with proper disposal, and all required cleanup procedures shall be
diligently undertaken pursuant to all Environmental Laws at Tenant's sole cost
and expense. If at any time during or after the Lease Term, the Premises is
found to be so contaminated or subject to said conditions as a result of an act
or omission of Tenant, Tenant agrees to indemnify and hold Landlord harmless
from all claims, demands, actions, liabilities, costs, expenses, damages and
obligations of any nature arising from or as a result of the use of the Premises
by Tenant. The foregoing indemnification and the responsibility of Tenant shall
survive the termination or expiration of this Lease.
6. LATE CHARGES.
6.1 Administrative Late Charge. Tenant hereby acknowledges that late
payment to Landlord of Rent or Additional Rent or other sums due hereunder will
cause Landlord to incur administrative costs and loss of investment income not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. If any Rent, Additional Rent or other sum due from
Tenant is not received on or before its due date by Landlord or Landlord's
designated agent within five (5) days after receipt of written notice by Tenant,
then Tenant shall pay to Landlord immediately upon Landlord's demand therefore a
late charge equal to three percent (3%) of such overdue amount, plus any
attorneys' fees and costs incurred by Landlord by reason of Tenant's failure to
pay Rent and other charges when due hereunder. The parties hereby agree that
such late charges represent a fair and reasonable estimate of the administrative
cost that Landlord will incur by reason of Tenant's late payment and is not
intended as a penalty. Landlord's acceptance of such late charges shall not
constitute a waiver of Tenant's default with respect to such overdue amount or
estop Landlord from exercising any of the other rights and remedies granted
hereunder.
6.2 Additional Late Charge. In addition to the administrative late charge
provided for under Section 6.1, above, if any Rent, Additional Rent or other sum
due from Tenant to Landlord is not paid as and when due under this Lease, such
unpaid amount shall bear interest from the date due until the date paid at an
annual rate of interest equal to the prime rate of interest as
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published in the Wall Street Journal (or any successor publication thereto) from
time to time plus two percent (2%).
Initials:
Landlord Tenant
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7. REPAIRS AND MAINTENANCE.
7.1. Landlord Repair and Maintenance Responsibilities. Landlord shall, at
its cost and expense, maintain and repair, or cause to be maintained and
repaired, the common areas of the Building (such as lobbies, elevators, stairs,
and corridors); the roof, foundations, exterior walls and other structural
elements of the Building; the plumbing (located outside of the Premises),
existing heating, air conditioning and other existing utility systems serving
the Building located outside of the Premises; the landscaping, paving, parking
lots and other external common areas surrounding the Building; and the
underground utility and sewer pipes and other utility connections outside the
exterior walls of Tenant's Premises, if any; provided, however, that to the
extent any such repair is rendered necessary by (i) the gross negligence or
willful misconduct of Tenant, its agents, customers, employees, independent
contractors, guests or invitees or (ii) any improvement or upgrade made to such
utility system by Tenant or at Tenant's request, Tenant shall be obligated to
reimburse Landlord for all costs sustained by Landlord in connection with such
repair, as Additional Rent hereunder, which reimbursement shall be due no later
than thirty (30) days after Landlord's written demand therefor. Landlord shall
provide termite and pest extermination, exterior window washing and regular
removal of trash, garbage and debris to the Premises. All expenses incurred by
Landlord pursuant to this Section 7.1 (to the extent not payable directly by
Tenant as above provided) will be included within "Other Operating Costs" as
defined in Section 9.1.3 below.
7.2. Tenant Repair and Maintenance Responsibilities. Tenant shall be
responsible for repairs and maintenance to the interior of the Premises,
including janitorial service, and the upgraded portion of any utility system
made by Tenant or at Tenant's request to the extent Landlord is not responsible
therefor under Section 7.1; provided, however, that to the extent any such
repair is rendered necessary by the gross negligence or willful misconduct of
Landlord, its agents, customers, employees, independent contractors, guests or
invitees, Landlord shall be obligated to reimburse Tenant for all costs
sustained by Tenant in connection with such repair, which reimbursement shall be
due no later than thirty (30) days after Tenant's written demand therefor.
Landlord shall be under no obligation to inspect the Premises. Tenant shall
promptly report in writing to Landlord any defective condition known to it that
exists in the Premises which Landlord is required to repair. Notwithstanding
anything to the contrary contained in
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this Section 7, Tenant shall, at its own cost and expense, enter into a
regularly scheduled preventive maintenance/service contract with a maintenance
contractor for servicing all heating and air conditioning systems and equipment
within the Premises. The maintenance contractor and the contract must be
approved by Landlord, such approval not to be unreasonably withheld, conditioned
or delayed. The service contract must include all services suggested by the
equipment manufacturer within the operation/ maintenance manual and must become
effective (and a copy thereof delivered to Landlord) within thirty (30) days of
the date Tenant takes possession of the Premises.
8. UTILITIES AND SERVICES.
8.1 Services. Tenant shall have access to the Premises twenty-four (24)
hours per day, seven (7) days per week. Landlord shall install separate meters
for electricity, gas, water and other utilities serving the Premises or shall
otherwise cause such utilities to be separately allocated and billed to the
Premises. Tenant shall pay the cost of such utility service used by Tenant in
connection with its occupancy of the Premises directly to the applicable utility
company or to Landlord as Additional Rent (if such utility service is billed to
Landlord instead of Tenant). Tenant shall pay its proportionate share of Costs
of Common Area Utilities to Landlord in accordance with the terms set forth in
Section 9. Landlord shall not be liable for any loss, injury or damage to
property caused by or resulting from any variation, interruption, or failure of
such services due to any cause whatsoever, or from failure to make any repairs
or perform any maintenance. In no event shall Landlord be liable to Tenant for
(a) any damage to the Premises, or (b) any loss, damage or injury to any
property therein or thereon, or (c) any claims for the interruption of or loss
to Tenant's business or for any indirect damages or consequential losses
occasioned by bursting, rupture, leakage or overflow of any plumbing or other
pipes or other similar cause in, above, upon or about the Premises or the
Building. If any public utility or governmental body shall require Landlord or
Tenant to restrict the consumption of any utility or reduce any service to the
Premises or the Building, Landlord and Tenant shall comply with such
requirements, without any abatement or reduction of the Rent, Additional Rent or
other sums payable by Tenant hereunder.
8.2 Recycling Regulations. Tenant shall comply, at its sole cost and
expense, with all orders, requirements and conditions now or hereafter imposed
by any ordinances, laws, orders and/or regulations (hereinafter collectively
called "regulations") of any governmental body having jurisdiction over the
Premises or the Building, whether required of Landlord or otherwise, regarding
the collection, sorting, separation and recycling of waste products, garbage,
refuse and trash (hereinafter collectively called "waste products") including
but not limited to the separation of such
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waste products into receptacles reasonably approved by Landlord and the removal
of such receptacles in accordance with any collection schedules prescribed by
such regulations. Landlord reserves the right (a) to refuse to accept from
Tenant any waste products that are not prepared for collection in accordance
with any such regulations, (b) to require Tenant to arrange for waste product
collection at Tenant's sole cost and expense, using a contractor reasonably
satisfactory to Landlord, and (c) to require Tenant to pay all costs, expenses,
fines, penalties or damages that may be imposed on Landlord or Tenant by reason
of Tenant's failure to comply with any such regulations. Notwithstanding the
foregoing, the costs of collecting waste materials to be recycled shall be
included in Other Operating Costs, as set forth in Section 9.1.3, below. The
cost of all other expenses, fines, penalties or damages that may be imposed on
Landlord or Tenant resulting from Tenant's noncompliance relating to waste
products shall be borne solely by Tenant.
9. COST OF SERVICES AND UTILITIES.
9.1 Definitions. In addition to the Rent, Tenant shall pay to Landlord the
Actual Costs Allocable to the Premises (as defined in Section 9.1.6, below), as
Additional Rent and the payments shall be made as provided herein, using the
following definitions:
9.1.1 "Operating Costs" shall include Costs of Utilities and Other
Operating Costs.
9.1.2 "Costs of Utilities" shall mean all expenses paid or incurred by
Landlord for electricity, including any surcharges imposed, water, gas, sewers,
oil and utility services for the common areas of the Building, land and parking
and other common areas provided to or used by Tenant.
9.1.3 "Other Operating Costs" shall mean all other expenses paid or
incurred by Landlord for maintaining, operating, repairing, and managing (i) the
Building, (ii) the personal property used in conjunction therewith, (iii) the
Building roof, and (iv) the land upon which the Building is situated. Such costs
shall include, without limitation, Property Taxes (as defined in Section
10.1.1), supplies and cleaning services (for the Building only, not the
Premises), garbage and trash collection, personal property taxes, replacement
lighting, maintenance and service contracts, wall and window washing, towel
service, machinery, equipment, a reasonable management fee (not to exceed four
(4%) percent of monthly Base Rent), window glass replacement and repair,
landscaping services of independent contractors (including, without limitation,
ice and snow removal), compensation (including employment taxes and fringe
benefits) of all persons who perform duties in connection with the management,
operation, maintenance and repair of the Building (but only for a pro rata
portion of such persons' time actually spent on matters relating to the
Building),
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the personal property and equipment used in conjunction therewith and the land
upon which the Building is situated but only for a pro rata portion of the cost
of such personal property or equipment based on the amount of time such personal
property or equipment is used in connection with the Building and all curbs and
sidewalks adjacent to the same, capital improvements to the Building which are
required by local or governmental authorities or which are reasonably expected
to reduce Operating Costs, insurance premiums, repair, replacement and
maintenance costs required by any applicable federal, state or local law now or
hereafter in effect, permits and inspection fees, legal fees and costs incurred
in connection with contesting the amounts or the imposition of any Property
Taxes, and accounting fees and any other expense or charge whether or not
hereinbefore described which, in accordance with generally accepted accounting
and management practices, would be considered an expense of maintaining,
operating, replacing or repairing the Building, the personal property and
equipment used in conjunction therewith, and the land upon which the Building is
situated and all curbs and sidewalks adjacent to the same, excluding: (a) costs
of any special services rendered to individual tenants (including Tenant), for
which a special, separate charge shall be made (and shall be payable within
thirty (30) days of written demand); (b) Property Taxes; and (c) depreciation or
amortization of costs required to be capitalized in accordance with generally
accepted accounting practices (except that Other Operating Costs shall include
amortization in accordance with generally accepted accounting principles of any
capital improvements which are made pursuant to the requirement of any local or
governmental authority which are reasonably expected to reduce Operating Costs
or which are required to be made by Landlord pursuant to Section 7.
9.1.4 "Calendar Year" shall mean the twelve-month period commencing
January 1 and ending December 31.
9.1.5 "Actual Costs" shall mean the actual expense paid or incurred by
Landlord for Operating Costs during any Calendar Year of the Lease Term.
9.1.6 "Actual Costs Allocable to the Premises" shall mean the Tenant's
prorata share of the Actual Costs determined by Tenant's percentage of the
Building described in Section 1.2.
9.1.7 "Estimated Costs Allocable to the Premises" shall mean
Landlord's estimate of Actual Costs Allocable to the Premises for the following
Calendar Year to be given by Landlord to Tenant pursuant to Section 9.2.
9.2 Estimated Costs Allocable to the Premises. Prior to the commencement
of each Calendar Year (or, if the Lease Commencement Date falls on a date other
than January 1, for the partial calendar year consisting of the period through
December 31, 1997
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(hereinafter, "Partial Calendar Year")), Landlord shall furnish Tenant a written
statement of the Estimated Costs Allocable to the Premises for such Calendar
Year (or Partial Calendar Year) and a calculation of the payments to be made by
Tenant as follows: One-twelfth (1/12th) of the amount, shall be payable by
Tenant as Additional Rent as provided in Section 3 for each month during such
Calendar Year (or Partial Calendar Year). If at any time or times during such
Calendar Year (or Partial Calendar Year), it appears to Landlord that the
Estimated or Actual Costs Allocable to the Premises will vary from Landlord's
estimate by more than five percent (5%) on an annualized basis, Landlord may, by
written notice to Tenant, revise its estimate for such Calendar Year (or Partial
Calendar Year) and payments by Tenant of the Estimated Costs Allocable to the
Premises for such Calendar Year (or Partial Calendar Year) shall be based on
such revised estimate.
9.3 Actual Costs. Within one hundred twenty (120) days after the close of
each Calendar Year (or Partial Calendar Year) during the Lease Term, Landlord
shall deliver to Tenant a written statement setting forth the Actual Costs
Allocable to the Premises during the preceding Calendar Year (or Partial
Calendar Year). Landlord certifies to Tenant that, where possible, all of the
above costs have been incurred as the result of competitive bidding with
independent contractors in "arms length" negotiations, and that Landlord will
use commercially reasonable, good faith efforts to obtain the lowest price for
quality work and materials on Tenant's behalf. If such costs for any Calendar
Year (or Partial Calendar Year) exceed Estimated Costs Allocable to the Premises
paid by Tenant to Landlord pursuant to Section 9.2, Tenant shall pay the amount
of such excess to Landlord as Additional Rent within thirty (30) days after
receipt of such statement by Tenant. If such statement shows such costs to be
less than the amount paid by Tenant to Landlord pursuant to Section 9.2, then
the amount of such overpayment by Tenant shall be credited by Landlord to the
next Rent payable by Tenant. Tenant shall have the right, on an annual basis, at
Landlord or Landlord's property manager's place of business, to audit any of
Landlord's records to substantiate the statement delivered by Landlord setting
forth Tenant's Actual Costs Allocable to the Premises during the preceding
Calendar Year. If such audit shows any variance from Landlord's statement of
Actual Costs Allocable to the Premises, Landlord or Tenant, as the case may be,
shall reimburse the other for such variance within thirty (30) days after demand
therefor. To the extent such audit reveals a discrepancy in Tenant's favor
greater than five percent (5%), Landlord shall reimburse Tenant for the
reasonable costs of such audit within thirty (30) days after demand for such
reimbursement.
9.4 End of Term. If this Lease terminates on a day other than the last day
of a Calendar Year, the amount of any adjustment to Estimated Costs Allocable to
the Premises with respect to the Calendar Year in which such termination occurs
shall be prorated on the basis which the number of days from the commencement of
such
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Calendar Year to and including such termination date bears to 365; and any
amount payable by Landlord to Tenant or Tenant to Landlord with respect to such
adjustment shall be payable within thirty (30) days after delivery by Landlord
to Tenant of the statement of Actual Costs Allocable to the Premises with
respect to such Calendar Year.
9.5 Further Adjustment. In the event Landlord shall furnish any utility or
service which is included in the definition of Operating Costs to less than
ninety-five percent (95%) of the rentable area of the Building because (i) the
average occupancy level of the Building for the Calendar Year (or Partial
Calendar Year) in question was not ninety-five percent (95%) or more of full
occupancy, (ii) any such utility or service is not required by or provided to
one or more of the tenants or occupants of the Project, or (iii) any tenant or
occupant is itself obtaining or providing any such utility or services, then the
Actual Costs for such year shall be increased to equal the total expenses that
Landlord reasonably estimates it would have incurred if Landlord had provided
all such utilities and services to all tenants and occupants in the Project, and
shall be allocated among the tenants by the Landlord to reflect those costs
which would have occurred had the Building been ninety-five percent (95%)
occupied during the year in question and such utilities and services provided to
all tenants. The intent of this Section 9.5 is to ensure that the reimbursement
of all Operating Costs is fair and equitably allocated among the tenants
receiving the utilities and services in question.
10. PROPERTY TAXES.
10.1 Contribution to Property Taxes. In addition to the Base Rent provided
in Section 1.4, Tenant shall pay to Landlord as one of the Operating Costs
associated with the Premises, its share of the Property Taxes under this Section
10. Landlord confirms that it is the intention of the parties that this Article
10 supplement Article 9, but not result in double payment of Tenant's share of
Property Taxes. Tenant's share of Property Taxes shall be determined as provided
herein, utilizing the following definitions:
10.1.1 "Property Taxes" shall mean any form of assessment, license,
fee, rent tax, levy, penalty (if a result of Tenant's delinquency), or tax
(other than net income, estate, succession, inheritance, transfer or franchise
taxes), imposed by any authority having the direct or indirect power to tax, or
by any city, county, state or federal government or any improvement or other
district or division thereof, on the Building or any part thereof (or on
Landlord with respect thereto), the land, the parking area, or any other legal
or equitable interest of Landlord in the same, or any rental income derived
therefrom, excluding personal property taxes payable by Tenant on the property
of Tenant located within the Premises, as indicated in Section 10.4 herein.
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10.1.2 The term "Calendar Year" shall mean the period defined in
Section 9.1.4. The term "Partial Calendar Year" shall be as defined in Section
9.2.
10.1.3 The term "Tenant's Share of Property Taxes" shall mean the
amount of Property Taxes payable during any Calendar Year (or Partial Calendar
Year) during the Lease Term by Landlord multiplied by Tenant's percentage of the
Building described in Section 1.2.
10.2 Tenant's Estimated Share of Property Taxes. Prior to the commencement
of each Calendar Year (or Partial Calendar Year), Landlord shall furnish Tenant
with a written statement setting forth the estimate of Tenant's Share of
Property Taxes for such Calendar Year (or Partial Calendar Year) and a
calculation of the payments to be made by Tenant as follows: One-twelfth
(1/12th) of the amount, shall be payable by Tenant as Additional Rent as
provided in Section 3 for each month during such Calendar Year (or Partial
Calendar Year).
10.3 Actual Property Taxes. Within one hundred twenty (120) days after the
close of each Calendar Year during the Lease Term, Landlord shall deliver to
Tenant a written statement setting forth the Tenant's Share of Property Taxes
during the preceding Calendar Year. If such amount exceeds the Tenant's
estimated Share of Property Taxes pursuant to Section 10.2, Tenant shall pay the
amount of such excess to Landlord as Additional Rent within thirty (30) days
after receipt of such statement by Tenant. If such statement shows such amount
to be less than the amount paid by Tenant to Landlord pursuant to Section 10.2,
then the amount of such overpayment shall be credited by Landlord to the next
immediate Rent payable by Tenant. Tenant shall have the right, on an annual
basis, at Landlord or Landlord's property manager's place of business, to audit
any of Landlord's records to substantiate the statement delivered by Landlord
setting forth Tenant's Share of Property Taxes during the preceding Calendar
Year. If such audit shows any variance from Landlord's statement of Tenant's
Share of Property Taxes for the preceding Calendar Year, Landlord or Tenant, as
the case may be, shall reimburse the other for such variance within thirty (30)
days after demand therefor. To the extent such audit reveals a discrepancy in
Tenant's favor greater than five percent (5%), Landlord shall reimburse Tenant
for the reasonable costs of such audit within thirty (30) days after demand for
such reimbursement.
10.4 Taxes on Tenant's Personal Property. Tenant shall pay, prior to
delinquency, all personal property taxes payable with respect to all property of
Tenant located in the Premises or the Building and shall provide promptly, upon
request of Landlord, written proof of such payment. This obligation shall apply
throughout the Lease Term.
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10.5 End of Term. If this Lease terminates on a day other than the last
day of a Calendar Year, the amount of any adjustment between the estimated and
actual Tenant's Share of Property Taxes with respect to the Calendar Year in
which such termination occurs shall be prorated on the basis of a 365-day year;
and any amount payable by Landlord to Tenant or Tenant to Landlord with respect
to such adjustment shall be payable within thirty (30) days after delivery by
Landlord to Tenant of the statement of Tenant's Share of Property Taxes with
respect to such Calendar Year.
10.6 Tax Contest. Tenant may, alone or along with any other tenant of the
Building, at its or their sole cost and expense, in its or their own name(s)
and/or in the name of Landlord, dispute and contest any Property Taxes by
appropriate proceedings diligently conducted in good faith, but only after
Tenant and all other tenants, if any, joining with Tenant in such contest have
deposited with Landlord the amount so contested and unpaid, or their
proportionate shares thereof, as the case may be, which shall be held by
Landlord without obligation for interest until the termination of the
proceedings, at which time the amount(s) deposited shall be applied by Landlord
toward the payment of the items held valid (plus any court costs, interest,
penalties, and other liabilities associated with the proceedings), and Tenant's
share of any excess shall be returned to Tenant. Tenant further agrees to pay to
Landlord, within thirty (30) days following demand therefor, Tenant's share (as
among tenants which participated in the contest) of all court costs, interest,
penalties, and other liabilities relating to such proceedings. Tenant hereby
indemnifies and agrees to hold Landlord harmless from and against any cost,
damage or expense (including reasonable attorneys' fees) in connection with such
proceedings.
11. TENANT'S INSURANCE.
11.1 Insurance Coverage. Tenant shall during the Lease Term procure at its
expense and keep in force the following insurance: (i) Commercial general
liability insurance naming the Landlord and Landlord's managing agent as
additional insurers against any and all claims for bodily injury and property
damage occurring in or about the Premises. Such insurance shall have a combined
single limit of not less than One Million Dollars ($1,000,000.00) per occurrence
with a Two Million Dollars ($2,000,000.00) aggregate limit and excess umbrella
liability insurance in the amount of Two Million Dollars ($2,000,000.00). Such
liability insurance shall be primary and not contributing to any insurance
available to Landlord and Landlord's insurance shall be in excess thereto. In no
event shall the limits of such insurance be considered as limiting the liability
of Tenant under this Lease; (ii) Personal property insurance insuring all
equipment, trade fixtures, inventory, fixtures and personal property located
within the Premises for perils covered by the causes of loss. Such insurance
shall be written on a replacement cost basis in an amount equal to one hundred
percent
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(100%) of the full replacement value of the aggregate of the foregoing; (iii)
Workers' compensation insurance in accordance with statutory laws and
employers' liability insurance with a limit of not less than One Hundred
Thousand Dollars ($100,000.00) per employee and a Five Hundred Thousand Dollars
($500,000.00) policy limit; and (iv) Such other insurance as Landlord deems
necessary and prudent (if in the reasonable opinion of Landlord, the coverage
becomes inadequate and is less than is commonly maintained by tenants of
similar buildings in the area with similar uses or required by Landlord's
beneficiaries or mortgagees of any deed of trust or mortgage encumbering the
Premises.
11.2 Policy Requirements. The policies required to be maintained by Tenant
shall be with companies rated AX or better in the most current issue of Best's
Insurance Reports. Insurers shall be licensed to do business in the state in
which the Premises are located and domiciled in the U.S.A. Any deductible
amounts under any insurance policies required hereunder shall not exceed One
Thousand Dollars ($1,000.00). Certificates of insurance (certified copies of the
policies may be required) shall be delivered to Landlord prior to the Lease
Commencement Date and annually thereafter prior to the expiration date of the
old policy. Tenant shall have the right to provide insurance coverage which it
is obligated to carry pursuant to the terms hereof in a blanket policy, provided
such blanket policy expressly affords coverage to the Premises and to Landlord
as required by this Lease. Each policy of insurance shall provide notification
to Landlord at least thirty (30) days prior to any cancellation except for ten
(10) days notice for nonpayment of premium.
11.3 Non-Coverage. In the event Tenant does not purchase the insurance
required by this Lease or keep the same in full force and effect, Landlord may,
but shall not be obligated to, purchase the necessary insurance and pay the
premium. Tenant shall repay to Landlord, as Additional Rent, any and all
reasonable expenses (including attorneys' fees) and damages which Landlord may
sustain by reason of the failure of Tenant to obtain and maintain insurance.
12. LANDLORD'S INSURANCE.
At all times during the Lease Term, Landlord will maintain (a) fire and
extended coverage insurance covering the replacement cost of the Building, and
(b) public liability and property damage insurance in an amount customary for
properties which are comparable to the Building, determined by Landlord in its
sole discretion. Landlord shall also have the right to obtain such other types
and amounts of insurance coverage on the Building and Landlord's liability in
connection with the Building as are customary or advisable for a first class
office building in the Washington, D. C.-Suburban Maryland-Suburban Virginia
metropolitan area, as determined by Landlord in Landlord's sole discretion.
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Tenant acknowledges and agrees that all premiums for insurance obtained by
Landlord pursuant to this Article 12 shall be included within "Other Operating
Costs", as such term is defined in Section 9.1.3 above. Landlord shall provide
to Tenant, within ten (10) business days after the execution of this Lease, a
certificate of insurance evidencing Landlord's compliance with the terms of this
Article 12.
13. DAMAGE OR DESTRUCTION.
13.1 Notification. If the Building should be damaged or destroyed by any
peril covered by the insurance to be provided by Landlord, Tenant shall give
immediate notice thereof to Landlord and Landlord shall at its sole cost and
expense thereupon proceed with reasonable diligence to rebuild and repair the
Building to substantially the condition in which it existed prior to such damage
or destruction, except that Landlord shall not be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and other improvements
including, without limitation, the Improvements, the Rooftop Equipment and the
Roof Improvements which may have been placed in, on or about the Premises by
Tenant and except that Tenant shall pay to Landlord, upon demand, Tenant's
proportionate share of any applicable deductible amount specified under
Landlord's insurance (said deductible amount not to exceed Ten Thousand Dollars
($10,000.00)). The Rent payable hereunder shall be equitably abated from the
date of such damage. Notwithstanding anything herein to the contrary, in the
event the holder of any indebtedness secured by a mortgage or deed of trust
covering the Premises requires that the insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such requirement is made by any such holder whereupon all rights and
obligations hereunder shall cease and terminate. Landlord's obligations to
repair and restore the Building are limited to the amount of insurance proceeds
actually received by Landlord. In the event that such insurance proceeds are not
sufficient to repair or restore the Building and Landlord does not agree to
provide sufficient additional funds to complete the repair or restoration, this
Lease shall terminate and Landlord and Tenant shall have no further rights or
obligations hereunder.
13.2 Business Interruption. Other than rental abatement as and to the
extent provided in Section 13.1, no damages, compensation or claim shall be
payable by Landlord for inconvenience or loss of business arising from
interruption of business, repair or restoration of the Building or Premises.
13.3 Repairs. Landlord's obligations should it elect to repair, shall be
limited to the base Building, common areas and the interior improvements
installed by Landlord. Anything herein to the contrary notwithstanding, if the
Premises are destroyed or
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damaged during the last twelve (12) months of the Lease Term, then Landlord may,
at its option, cancel and terminate this Lease as of the date of the occurrence
of such damage.
14. MACHINES AND EQUIPMENT; REMOVAL OF PERSONAL PROPERTY.
14.1 Machines and Equipment. Landlord acknowledges that Tenant intends to
install in the Premises, without limitation, laboratory and pharmaceutical
processing equipment. Landlord consents to the installation and Tenant's
operation and use of such equipment and machinery in the Premises. Landlord also
acknowledges and consents to the fact that Tenant may install additional
machinery and equipment of similar type, nature, size and use in the Premises
during the Lease Term. Tenant, at its expense, shall comply with all laws,
statutes, ordinances and governmental rules, regulations and requirements
governing the installation, operation and removal of such equipment. To the
extent that any machines, mechanical equipment and materials belonging to Tenant
cause vibration, noise, cold, heat or fumes that may be transmitted to any other
leased space in the Building to such a degree as to be objectionable to any
other tenant in the Building, such equipment or machines shall be placed,
maintained, isolated, stored and/or vented by Tenant at its sole expense so as
to absorb and prevent such vibration, noise, cold, heat or fumes.
14.2 Removal of Personal Property. Upon the expiration or sooner
termination of the Lease Term, Tenant shall remove all of its machinery,
equipment, personal property and trade fixtures and shall return the Premises to
Landlord broom clean but without any refurbishing. With respect to an earlier
termination of this Lease by Landlord, Tenant shall have a reasonable period of
time (not to exceed fifteen (15) days) in which to remove all such equipment,
personal property and fixtures. All items of Tenant's personal property that are
not removed from the Premises or the Building by Tenant at the termination of
this Lease or within a reasonable period of time (not to exceed fifteen (15)
days) when Landlord has the right of reentry shall be deemed abandoned and
become the exclusive property of Landlord, without further notice to or demand
upon Tenant. If the Premises are not surrendered as and when aforesaid, Tenant
shall indemnify Landlord against all claims, losses, cost expense (including
reasonable attorneys' fees) and liability resulting from the delay by Tenant in
so surrendering the same, including without limitation any claims made by any
succeeding occupant founded on such delay. Tenant's obligation under this
Section 14.2 shall survive the expiration or termination of this Lease.
15. ACCEPTANCE OF PREMISES.
Unless Landlord has expressly agreed in this Lease to perform certain
tenant improvement work in the Premises, Tenant shall be
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deemed to have accepted the Premises on the Lease Commencement Date in an "AS
IS" condition.
16. TENANT IMPROVEMENTS AND ALTERATIONS.
16.1 Tenant Improvements.
[Intentionally Omitted]
16.2 Tenant Alterations. Other than with respect to the Improvements set
forth in Section 16.1 hereof, Tenant shall not make or allow to be made any
alterations, additions or improvements to or on the Premises or the Building
without first obtaining the written consent of Landlord, which consent shall not
unreasonably be withheld, conditioned or delayed. Any such alterations,
additions or improvements shall be made at Tenant's sole expense, according to
plans and specifications approved in writing by Landlord, in compliance with all
applicable laws, by a licensed contractor, and in a good and workmanlike manner.
17. ACCESS.
Tenant shall permit Landlord and its agents to enter the Premises at all
reasonable times to inspect the same; to show the Premises to prospective
tenants (during the last six (6) months of the Term), or interested parties such
as prospective lenders and purchasers; to exercise its rights under this Lease;
to clean, repair, alter or improve the Premises or the Building; to discharge
Tenant's obligations when Tenant has failed to do so within a reasonable time
after written notice from Landlord; to post notices of nonresponsibility and
similar notices and "For Sale" signs and to place "For Lease" signs upon or
adjacent to the Building or the Premises at any time within twelve (12) months
of the expiration of the Lease Term. Tenant shall permit Landlord and its agents
to enter the Premises at any time in the event of an emergency. Notwithstanding
the foregoing, any nonemergency access to the Premises by Landlord or its agents
shall be subject to the following conditions: (i) written notice to Tenant at
least two (2) days in advance of the proposed inspection, (ii) Landlord shall
designate in writing the names of those persons authorized by Landlord to make
such inspection, (iii) Tenant may require an authorized representative of Tenant
to accompany the inspection, and (iv) any information obtained by Landlord or
its agents pursuant to such inspection which information constitutes a trade
secret or is otherwise unique to Tenant's business shall not be disclosed or
disseminated to any other party and shall be held in strict confidence. Landlord
hereby agrees to indemnify Tenant for any loss, damage, claim or demand suffered
by Tenant as a result of a breach by Landlord of its covenants and agreements
contained in this Article 17 by reason of Landlord's gross negligence or wilful
misconduct. In the event that any prospective tenant wishes to inspect any
portion of the Premises which is a restricted access
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area, Tenant may require such prospective tenant to execute a confidentiality
agreement in favor of Tenant in form and substance reasonably satisfactory to
Tenant. When reasonably necessary, Landlord may temporarily close entrances,
doors, corridors, elevators or other facilities without liability to Tenant by
reason of such closure.
18. WAIVER OF SUBROGATION.
18.1 Tenant's Waiver. Whether the loss or damage is due to the negligence
of Landlord or Landlord's agents or employees, or any other cause, Tenant hereby
releases Landlord and Landlord's agents and employees from responsibility for
and waives its entire claim of recovery for (i) any loss or damage to the
personal property of Tenant located in the Building, including the Building
itself, arising out of any of the perils which are covered by Tenant's property
insurance policy, with extended coverage endorsements, or (ii) loss resulting
from business interruption or loss of rental income, at the Premises, arising
out of any of the perils which are capable of being covered by the business
interruption or by the loss of rental income insurance policy held by Tenant.
Tenant shall cause its insurance carrier(s) to consent to such waiver of all
rights of subrogation against Landlord, and to issue an endorsement to all
policies of insurance obtained by Tenant confirming that the foregoing release
and waiver will not invalidate such policies.
18.2 Landlord's Waiver. Whether due to the negligence of Tenant or
Tenant's agents or employees, or any other cause, Landlord hereby releases
Tenant and Tenant's agents and employees from responsibility for and waives its
entire claim of recovery for (i) any loss or damage to the personal property of
Landlord located in the Building, including the Building itself, arising out of
any of the perils which are covered by Landlord's property insurance policy,
with extended coverage endorsements, or (ii) loss resulting from business
interruption or loss of rental income, at the Premises, arising out of any of
the perils which are covered by the business interruption or by the loss of
rental income insurance policy held by Landlord. Landlord shall cause its
insurance carrier(s) to consent to such waiver of all rights of subrogation
against Tenant.
19. INDEMNIFICATION.
Tenant shall defend, indemnify and hold harmless Landlord, its agents,
employees, officers, directors, partners and shareholders from and against any
and all liabilities, judgments, demands, causes of action, claims, losses,
damages, costs and expenses, including reasonable attorneys' fees and costs,
arising out of the use, occupancy, conduct, operation, or management of the
Premises by, or the willful misconduct or gross negligence of, Tenant, its
officers, contractors, licensees, agents, servants, employees,
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guests, invitees, or visitors. This indemnification shall survive expiration or
earlier termination of this Lease. This provision shall not be construed to make
Tenant responsible for loss, damage, liability, expense, judgments, demands,
causes of action, claims, including reasonable attorney's fees and costs caused
by the gross negligence or willful misconduct of Landlord, or its officers,
contractors, licensees, agents, employees, invitees, servants, guests or
visitors.
20. ASSIGNMENT AND SUBLETTING.
20.1 Landlord's Consent. Tenant shall not assign, encumber, mortgage,
pledge or license the Premises or this Lease, or sublease all or any part of the
Premises, or permit the use of the Premises by any party other than Tenant,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. When Tenant requests Landlord's
consent to such assignment or sublease, it shall notify Landlord in writing, at
least thirty (30) days prior to the commencement date of the proposed sublease
or assignment, of the name and address of the proposed assignee or subtenant and
the nature and character of the business of the proposed assignee or subtenant
and shall provide financial information including financial statements of the
proposed assignee or subtenant. Tenant shall also provide Landlord with a copy
of the proposed sublet or assignment agreement. Landlord and Tenant hereby
acknowledge and agree that Landlord, in determining whether or not to withhold
or give its consent, shall consider the following factors as reasonable criteria
for its decision: (i) whether the proposed assignee or subtenant has a financial
strength similar to that of Tenant as of the commencement of the Lease Term,
(ii) whether the proposed assignee or subtenant has a good business reputation,
and (iii) whether the proposed use of the Premises will negatively impact on the
value or marketability of the Building or overburden the Common Area facilities
of the Building. Landlord shall have the option (to be exercised within fourteen
(14) days after Landlord's receipt of Tenant's request with all required
information included) to cancel this Lease or the portion of this Lease that
relates to the subleased premises (as applicable) effective as of the
commencement date stated in the proposed sublease or assignment. If Landlord
shall not exercise its option within the time set forth above, its consent to
any proposed assignment or sublease shall be deemed given and Tenant shall then
be permitted without any further consent of Landlord to assign or sublet the
Premises in accordance with the assignment or sublet agreement provided to
Landlord. Nothing contained in this Section 20.1 shall be deemed to prohibit any
transfer of any ownership interest in Tenant or to require Landlord's consent
thereto.
20.2 Approved Subleases and Assignments. If Landlord approves an
assignment or sublease as herein provided, Tenant shall pay to Landlord, as
Additional Rent due under this Lease, as applicable
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(i) in the case of a sublease, an overage amount equal to the difference, if
any, between the Rent allocable to that part of the Premises affected by such
sublease pursuant to this Lease, and the rent paid by the subtenant to Tenant in
connection with the sublease which are approved by Landlord in its reasonable
discretion, and (ii) in the case of an assignment, an overage amount equal to
the consideration, if any, received by Tenant for such assignment. Such overage
amounts shall be due and payable by Tenant to Landlord within ten (10) days of
Tenant's receipt of payment from the subtenant or assignee. Overage amounts in
the case of a sublease shall be calculated and adjusted (if necessary) on a
Lease Year (or partial Lease Year) basis, and there shall be no cumulative
adjustment for the term. No consent to any assignment or sublease shall
constitute a further waiver of the provisions of this Section, and all
subsequent assignments or subleases may be made only as set forth in Section
20.1 hereinabove with the prior written consent of Landlord, which consent shall
not unreasonably be withheld, conditioned or delayed. An assignee of Tenant, at
the option of Landlord, shall become directly liable to Landlord for all
obligations of Tenant hereunder and shall assume all such obligations in writing
in a form satisfactory to Landlord in its reasonable discretion, but no sublease
or assignment by Tenant shall relieve Tenant of any liability hereunder. Any
assignment or sublease without Landlord's prior written consent shall be void,
and shall, at the option of the Landlord, constitute a default under this Lease.
21. ADVERTISING/SIGNS.
Landlord and Tenant acknowledge and agree that Tenant shall have the right
to retain the monument sign and the other signage Tenant currently has at the
Building. Further, Landlord shall allow Tenant to have one (1) exterior sign on
the Building. The exterior sign shall be erected, maintained and removed by
Tenant at Tenant's sole cost and expense. The exact location of the exterior
sign shall be mutually agreed upon by Landlord and Tenant. Tenant shall not have
the right to assign this right to signage to any sublessee, transferee or
assignee of this Lease or the Premises, nor may such sublessee, transferee or
assignee enjoy the use or benefit of such right (except an assignee or subtenant
approved by Landlord in writing). The design, construction, size, color and all
other aspects of such exterior signage shall conform with the established sign
criteria for the office complex of which the Building is a part and shall be
subject to Landlord's prior written consent, which consent may be withheld or
conditioned in Landlord's reasonable discretion. Tenant shall promptly repair
any damage to the Building resulting from the installation, construction,
maintenance or removal of such signage. Upon the expiration of Tenant's right to
such signage as provided hereinabove or otherwise upon the termination or
expiration of this Lease, Tenant shall promptly remove the signs at its sole
cost and expense. Tenant agrees to indemnify and hold Landlord harmless for any
cost,
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expense, loss (normal wear and tear excepted) or other liability associated with
the installation, construction, maintenance and removal of the signs. Such signs
shall comply with all applicable local government restrictions and shall comply
with any rules or guidelines for the Building or surrounding development. Tenant
shall not display any other sign, graphics, notice, picture, or poster, or any
advertising matter whatsoever, anywhere in or about the Premises or the Building
at places visible from anywhere outside or at the entrance to the Premises
without first obtaining Landlord's written consent thereto, such consent to be
at Landlord's reasonable discretion.
22. LIENS.
Tenant shall keep the Premises and the Building free from any liens
arising out of any work performed, materials ordered or obligations incurred by
or on behalf of Tenant, and Tenant hereby agrees to indemnify and hold Landlord,
its agents, employees, independent contractors, officers, directors, partners,
and shareholders harmless from any liability, cost or expense for such liens.
Tenant shall cause any such lien imposed to be released of record by payment or
posting of the proper bond acceptable to Landlord within thirty (30) days after
the earlier of imposition of the lien or written request by Landlord. Tenant
shall give Landlord written notice of Tenant's intention to perform work on the
Premises which might result in any claim of lien at least thirty (30) days prior
to the commencement of such work to enable Landlord to post and record a notice
of nonresponsibility or other notice deemed proper before commencement of any
such work. If Tenant fails to remove any lien within the prescribed thirty (30)
day period, then Landlord may do so at Tenant's expense and Tenant's
reimbursement to Landlord for such amount, including attorneys' fees and costs,
shall be deemed Additional Rent. Tenant shall have no power to do any act or
make any contract which may create or be the foundation for any lien, mortgage
or other encumbrance upon the reversion or other estate of Landlord, or of any
interest of Landlord in the Premises.
23. DEFAULT.
23.1 Tenant's Default. A default under this Lease by Tenant shall exist if
any of the following occurs:
23.1.1 If Tenant fails to pay Rent, Additional Rent or any other sum
required to be paid hereunder within ten (10) days after written notice to
Tenant; or
23.1.2 If Tenant fails to perform any term, covenant or condition of
this Lease except those requiring the payment of money to Landlord as set forth
in Section 23.1.1 above, and Tenant fails to cure such breach within thirty (30)
days after written notice from Landlord where such breach could reasonably be
cured
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within such thirty (30) day period; provided, however, that where such failure
could not reasonably be cured within the thirty (30) day period, that Tenant
shall not be in default if it commences such performance within the thirty (30)
day period and diligently thereafter prosecutes the same to completion, such
grace period not to exceed a maximum of forty-five (45) days in the aggregate,
and no such grace period to be permitted in the event of any one or more of the
following: (i) there exists a risk of prosecution of the Landlord, (ii) there
exits a reasonable possibility of danger to the health or safety of the
Landlord, the Tenant, Tenant's invitees, or any other occupants of, or visitors
to, the Building, (iii) the default relates to the maintenance of insurance
obligations, (iv) the default relates to the assignment and subletting
provisions, and (v) the default relates to a violation of Section 5.2 of this
Lease; the determination as to whether or not any such conditions exist to be
made in Landlord's reasonable discretion; and
23.1.3 If Tenant or any guarantor of this Lease shall (i) make an
assignment for the benefit of creditors, (ii) acquiesce in a petition in any
court in any bankruptcy, reorganization, composition, extension or insolvency
proceedings, (iii) seek, consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of any guarantor of this Lease and
of all or any part of Tenant's or such guarantor's property, (iv) file a
petition seeking an order for relief under the Bankruptcy Code, as now or
hereafter amended or supplemented, or by filing any petition under any other
present or future federal, state or other statute or law for the same or similar
relief, or (v) fail to win the dismissal, discontinuation or vacating of any
involuntary bankruptcy proceeding within thirty (30) days after such proceeding
is initiated; or
23.1.4 If Tenant shall have abandoned or vacated all or
substantially all of the Premises for more than ninety (90) consecutive days
after written notice by Landlord to Tenant.
23.2 Remedies. Upon the occurrence of any of such events of default
described in Section 23.1 above, Landlord shall have the option to pursue any
one or more of the following remedies without any notice or demand whatsoever:
23.2.1 Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails so to do, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearages to rent, enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying such Premises or any
part thereof, without being liable for prosecution or any claim of damages.
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23.2.2 Enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying such Premises or any
part thereof, and relet the Premises and receive the Rent therefor.
23.2.3 Enter upon the Premises, without being liable for prosecution
or any claim for damages therefore, and do whatever Tenant is obligated to do
under the terms of this Lease; and Tenant agrees to reimburse Landlord on demand
for any expenses which Landlord may incur by thus effecting compliance with
Tenant's obligations under this Lease.
23.2.4 After obtaining a judgment or an order from a court with
jurisdiction, alter all locks and other security devices at the Premises without
terminating this Lease.
23.2.5 Notwithstanding anything to the contrary contained herein,
Tenant shall retain for all times to which the terms of the Lease apply all
rights and privileges accorded a commercial Tenant under the law, statutory and
otherwise, of the Commonwealth of Virginia and nothing contained herein shall be
deemed a waiver of any said rights or privileges. Notwithstanding anything to
the contrary contained herein, so long as Tenant is occupying the Premises, no
act which would deny Tenant possession of the Premises or access thereto shall
be taken by Landlord unless Landlord has, prior to taking such action, obtained
the right to do so from a court with jurisdiction.
23.3 Exercise by Landlord of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender of the
Premises by Tenant, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Landlord and Tenant. No such alteration of locks or other security devices and
no removal or other exercise of dominion by Landlord over the property of Tenant
or others at the Premises shall be deemed unauthorized or constitute a
conversion, Tenant hereby consenting, after any event of default, to the
aforesaid exercise of dominion over Tenant's property within the Premises. All
claims for damages by reason of such reentry and/or repossession and/or
alteration of locks or other security devices are hereby waived, as are all
claims for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings or other legal process. Tenant agrees
that any reentry by Landlord may be pursuant to judgment obtained in forcible
detainer proceedings or other legal proceedings and Landlord shall not be liable
to trespass or otherwise.
23.4 In the event Landlord elects to terminate the Lease by reason of an
event of default, then notwithstanding such termination, Tenant shall be liable
for and shall pay to Landlord, at the address specified for notice to Landlord
herein, the sum of all rental and other indebtedness accrued to date of such
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termination, plus, as damages, an amount equal to the difference between the
total present value of the rental hereunder for the remaining portion of the
Lease Term (had such term not been terminated by Landlord prior to the date of
expiration stated in Section 1.3 and the then present value of the then fair
rental value of the Premises for such period.
23.5 Subject to the provisions of Section 1.3, in the event that Landlord
elects to repossess the Premises without terminating the Lease, then Tenant
shall be liable for and shall pay to Landlord, at the address specified for
notice to Landlord herein, all rental and other indebtedness accrued to the date
of such repossession, plus rental required to be paid by Tenant to Landlord
during the remainder of the Lease Term until the date of expiration of the term
as stated in Section 1.3 diminished by any net sums thereafter received by
Landlord through reletting the Premises during said period (after deducting
expenses incurred by Landlord as provided below). In no event shall Tenant be
entitled to any excess of any rental obtained by reletting over and above the
rental herein reserved. Actions to collect amounts due by Tenant to Landlord
under this subparagraph may be brought from time to time, on one or more
occasion, without the necessity of Landlord's waiting until expiration of the
Lease Term.
23.6 In case of any event of default or breach by Tenant, Tenant shall
also be liable for and shall pay to Landlord, at the address specified for
notice to Landlord herein, in addition to any sum provided to be paid above,
brokers' fees incurred by Landlord in connection with reletting the whole or any
part of the Premises; the costs of removing and storing Tenant's or other
occupant's property; the reasonable costs of repairing, altering, remodelling or
otherwise putting the Premises into condition acceptable to a new tenant or
tenants; and all reasonable expenses incurred by Landlord in enforcing or
defending Landlord's rights and/or remedies including reasonable attorney's
fees.
23.7 In the event of termination or repossession of the Premises for an
event of default, Landlord shall make commercially reasonable efforts to
mitigate damages to relet or to attempt to relet the Premises, or any portion
thereof, or to collect rental after reletting; and in the event of reletting,
Landlord may relet the whole or any portion of the Premises for any period to
any tenant and for any use and purpose.
23.7.1 If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account of Tenant (and enter
the Premises for such purpose), and thereupon Tenant shall be obligated to, and
hereby agrees, to pay Landlord, upon demand, all costs,
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expenses and disbursements (including reasonable attorney's fees) incurred by
Landlord in taking such remedial action.
23.8 In the event that Landlord shall have taken possession of the
Premises pursuant to the authority herein granted then Tenant shall have a
reasonable period of time (not to exceed fifteen (15) days) in which to remove
its furniture, fixtures, equipment and other property located on the Premises,
and if Tenant fails to do so within such reasonable period then Landlord shall
have the right to all or any portion of such furniture, fixtures, equipment and
other property located thereon and to place same in storage at any premises
within the County in which the Premises is located; and in such event, Tenant
shall be liable to Landlord for costs incurred by Landlord in connection with
such removal and storage. Landlord shall also have the right to relinquish
possession of all or any portion of such furniture, fixtures, equipment and
other property to any person ("Claimant") claiming to be entitled to possession
thereof who presents to Landlord a copy of any instrument represented to
Landlord by Claimant to have been executed by Tenant (or any predecessor of
Tenant) granting Claimant the right under various circumstances to take
possession of such furniture, fixtures, equipment or other property, without the
necessity on the part of Landlord to inquire into the authenticity of said
instrument's copy of Tenant's or Tenant's predecessor's signature thereon and
without the necessity of Landlord making any nature of investigation or inquiry
as to the validity of the factual or legal basis upon which Claimant purports to
act; and Tenant agrees to indemnify and hold Landlord harmless from all cost,
expense, loss, damage and liability incident to Landlord's relinquishment of
possession of all or any portion of such furniture, fixtures, equipment or other
property to Claimant. The rights of Landlord herein stated shall be in addition
to any and all other rights which Landlord has or may hereafter have at law or
in equity; and Tenant stipulates and agrees that the rights herein granted
Landlord are commercially reasonable.
24. SUBORDINATION AND ATTORNMENT.
Tenant accepts this Lease subject and subordinate to any mortgage(s)
and/or deed(s) of trust now or at any time hereafter constituting a lien or
charge upon the Premises or the Improvements situated thereon, provided,
however, that if the mortgagee, trustee, or holder of any such mortgage or deed
of trust elects to have Tenant's interest in this Lease superior to any such
instrument, then by notice to Tenant from such mortgagee, trustee or holder,
this Lease shall be deemed superior to such lien, whether this Lease was
executed before or after said mortgage or deed of trust. Tenant shall at any
time hereafter on demand execute any instruments, releases or other documents
which may be required by any mortgagee for the purpose of subjecting and
subordinating this Lease to the lien of any such mortgage, provided, however,
that so long as Tenant is not in default, this
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Lease shall not be divested, terminated or in any way affected by foreclosure of
mortgage or deed of trust, or deed in lieu of foreclosure. Tenant shall execute
and deliver to Landlord a Subordination, Non-Disturbance and Attornment
Agreement in the form attached hereto as Exhibit F (the "SNDA") in order to
confirm the foregoing subordination within ten (10) days after Landlord's
written request. If Tenant does not provide Landlord with the SNDA within ten
(10) days after Landlord's written request, then Tenant hereby authorizes
Landlord to execute such subordination documents acting as duly authorized agent
for Tenant.
25. SURRENDER OF POSSESSION.
Upon expiration of the Lease Term, Tenant shall promptly and peacefully
surrender the Premises to Landlord in as good condition as when received by
Tenant from Landlord or as thereafter improved, reasonable use and wear and tear
excepted, all to the reasonable satisfaction of Landlord. If the Premises are
not surrendered in accordance with the terms of this Lease, Tenant shall
indemnify Landlord and its agent, employees, independent contractors, officers,
directors, partners, and shareholders against any loss or liability including
reasonable attorneys' fees and costs, and including liability to succeeding
tenants, resulting from delay by Tenant in so surrendering the Premises. This
indemnification shall survive termination of this Lease.
26. NON-WAIVER.
Waiver by Landlord of any breach of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant, or
condition(s), or any subsequent breach of the same or any other term, covenant
or condition of this Lease, other than the failure of Tenant to pay the
particular rental so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such Rent.
27. HOLDOVER.
If Tenant shall, without the written consent of Landlord, hold over after
the expiration of the Lease Term, Tenant shall be deemed a tenant at sufferance,
which tenancy may be terminate as provided by applicable state law. During such
tenancy, Tenant agrees to pay to Landlord, each month, one hundred twenty-five
percent (125%) of the Rent and Additional Rent payable by Tenant for the last
month of the Lease Term. Tenant shall give to Landlord thirty (30) days prior
written notice of any intention to quit the Premises. Tenant shall be entitled
to thirty (30) days prior written notice to quit the Premises, except in the
event of non-payment of Rent in advance or the breach of any other covenant or
the existence of a default, or upon expiration of the Lease Term as provided
herein, in which event Tenant shall not be entitled to any notice to quit, the
usual notice to quit being hereby expressly waived.
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28. CONDEMNATION.
If twenty percent (20%) or more of the Premises or of such portion of the
Building as may be required for the reasonable use of the Premises, are taken by
eminent domain or sale under threat of condemnation by eminent domain, this
Lease shall automatically terminate as of the date title vests in the condemning
authority, and all Rent, Additional Rent, and other payments shall be paid to
that date. Landlord reserves all rights to damages to the Premises for any
partial or entire taking by eminent domain, and Tenant hereby assigns to
Landlord any right Tenant may have to such damages or award, and Tenant shall
make no claim against Landlord or the condemning authority for damages for
termination of Tenant's leasehold interest or for interference with Tenant's
business. Tenant shall have the right to claim and recover separately from the
condemning authority compensation for any loss which Tenant may incur for
Tenant's moving expenses, business interruption or taking of Tenant's personal
property (not including Tenant's leasehold interest).
29. NOTICES.
All notices and demands which may be required or permitted to be given to
either party hereunder shall be in writing, and shall be delivered personally,
by telecopy (with confirming copy by United States certified mail) or sent by
United States certified mail, postage prepaid, return receipt requested, or by
Federal Express or other reputable overnight carrier, to the addresses set out
in Section 1.6, and to such other person or place as each party may from time to
time designate in a notice to the other. Notice shall be deemed given upon the
earlier of actual receipt, refusal of delivery or on the date which is three (3)
days after the date of mailing.
30. MORTGAGEE PROTECTION.
Tenant agrees to give any mortgagee(s) and/or trust deed holder(s), by
registered mail, a copy of any notice of default served upon the Landlord,
provided that prior to such notice Tenant has been notified in writing (by way
of notice of assignment of rents and leases, or otherwise) of the addresses of
such mortgagee(s) and/or trust deed holder(s). Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then the mortgagee(s) and/or trust deed holder(s) shall have an
additional thirty (30) days within which to cure such default or if such default
cannot be cured within that time, then such additional time as may be necessary
if within such thirty (30) days any mortgagee and/or trust deed holder(s) has
commenced and is diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings, if
necessary to effect such cure), in which event Tenant shall not have the right
to
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pursue any claim against Landlord, such mortgagee and/or such trust deed
holder(s), including but not limited to any claim of actual or constructive
eviction, so long as such remedies are being so diligently pursued.
31. COSTS AND ATTORNEYS' FEES.
If either party shall bring any action against the other, arising out of
this Lease, including any suit by Landlord for the recovery of Rent, Additional
Rent or other payments hereunder, or possession of the Premises, the losing
party shall pay to the prevailing party a reasonable sum for attorneys' fees and
costs in such suit, at trial and on appeal, and such attorneys' fees and costs
shall be deemed to have accrued on the commencement of such action.
32. BROKERS.
Landlord and Tenant represent and warrant to each other that neither
Landlord nor Tenant nor its officers or agents nor anyone acting on its behalf
has dealt with any real estate broker other than ▇▇▇▇▇▇▇▇ ▇▇▇▇ Real Estate
Services, Inc. who represented Landlord (and who shall be paid by Landlord
pursuant to a separate agreement) in the negotiating or making of this Lease and
Landlord and Tenant agree to indemnify and hold each other and the others'
agents, employees, partners, directors, shareholders and independent contractors
harmless from all liabilities, costs, demands, judgments, settlements, claims
and losses, including reasonable attorneys fees and costs, incurred by such
party in conjunction with any such claim or claims of any other broker or
brokers claiming to have interested Tenant in the Building or Premises or
claiming to have caused Tenant to enter into this Lease.
33. LANDLORD'S LIABILITY AND DEFAULT.
Anything in this Lease to the contrary notwithstanding covenants,
undertakings and agreements herein made on the part of the Landlord are made and
intended not for the purpose of binding Landlord personally or the assets of
Landlord but are made and intended to bind only the Landlord's interest in the
Premises and Building, as the same may, from time to time, be encumbered and no
personal liability shall at anytime be asserted or enforceable against Landlord
or its stockholders, officers or partners or their respective heirs, legal
representatives, successors and assigns on account of this Lease or on account
of any covenant, undertaking or agreement of Landlord in this Lease. In
addition, in no event shall Landlord be in default of this Lease unless Tenant
notifies Landlord of the precise nature of the alleged breach by Landlord, and
Landlord fails to cure such breach within thirty (30) days after the date of
Landlord's receipt of such notice (provided that if the alleged breach is of
such a nature that it cannot reasonably
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be cured within such thirty (30) day period, then Landlord shall not be in
default if Landlord commences a cure within such thirty (30) day period and
diligently thereafter prosecutes such cure to completion). In the event that
Landlord does not cure the default within such thirty (30) day period or does
not diligently proceed to cure such default if such default is not capable of
being cured with such thirty (30) day period, Tenant shall have the right to
cure such default on Landlord's behalf and Landlord shall promptly reimburse
Tenant for all reasonable, out-of-pocket expenses incurred by Tenant in
connection with such cure.
34. ESTOPPEL CERTIFICATES.
Tenant shall, from time to time, within thirty (30) days of Landlord's
written request, execute, acknowledge and deliver to Landlord or its designee a
written statement stating: the date this Lease was executed and the date it
expires; the date the Tenant entered occupancy of the Premises; the amount of
Rent, Additional Rent and other charges due hereunder and the date to which such
amounts have been paid; that this Lease is in full force and effect and has not
been assigned, modified, supplemented or amended in any way (or specifying the
date and terms of any agreement so affecting this Lease); that this Lease
represents the entire agreement between the parties as to this leasing; that all
conditions under this Lease to be performed by the Landlord have been satisfied
(or specifying any such conditions that have not been satisfied); that all
required contributions by Landlord to Tenant on account of Tenant's improvements
have been received (or specifying any such contributions that have not been
received); that on this date there are no existing defenses or offset which the
Tenant has against the enforcement of this Lease by the Landlord; that no Rent
has been paid more than one (1) month in advance; that no security has been
deposited with Landlord (or, if so, the amount thereof); or any other matters
evidencing the status of this Lease, as may be required either by a lender
making a loan to Landlord to be secured by a deed of trust or mortgage against
the Building, or a purchaser of the Building. Landlord and Tenant hereby approve
the form of the Estoppel Certificate attached hereto as Exhibit E. It is
intended that any such statement delivered pursuant to this paragraph may be
relied upon by a prospective purchaser of Landlord's interest or a mortgagee of
Landlord's interest or assignee of any mortgage upon Landlord's interest in the
Building. If Tenant fails to respond within ten (10) business days of receipt by
Tenant of a written request by Landlord as herein provided, Tenant shall be
deemed to have given such certificate as above provided without modification and
shall be deemed to have admitted the accuracy of any information supplied by
Landlord to a prospective purchaser or mortgagee. Landlord shall, from time to
time, within thirty (30) days of Tenant's written request, execute, acknowledge
and deliver to Tenant or its designee a written statement stating such factual
matters with respect to the Lease as Tenant may reasonably request.
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35. FINANCIAL STATEMENTS.
Within fifteen (15) days after Landlord's request (but no more often than
two (2) times in a calendar year), Tenant shall deliver to Landlord the current
financial statements of Tenant, including a balance sheet and profit and loss
statement for the most recent prior year, all prepared in accordance with
generally accepted accounting principles consistently applied. The financial
statements and the information contained therein shall be kept in strict
confidence by Landlord and its management company and shall not be disclosed or
otherwise disseminated to any other party except any current or potential
mortgagee or purchaser of the Building which current or potential mortgagee or
purchaser shall execute, at Tenant's request, a confidentiality agreement in
favor of Tenant in form and substance reasonably satisfactory to Tenant.
Landlord hereby agrees to indemnify Tenant for any loss, damage, claim or demand
suffered by Tenant as a result of a breach by Landlord of its covenants and
agreements contained in this Article 35 by reason of Landlord's gross negligence
or wilful misconduct.
36. TRANSFER OF LANDLORD'S INTEREST.
In the event of any transfer(s) of Landlord's interest in the Premises or
the Building, other than a transfer for security purposes only, the transferor
shall be automatically relieved of any and all obligations and liabilities on
the part of Landlord accruing from and after the date of such transfer, and
Tenant agrees to attorn to the transferee.
37. RIGHT TO PERFORM.
If Tenant shall fail to pay any sum of money, other than Rent and
Additional Rent, required to be paid by it hereunder or shall fail to perform
any other act on its part to be performed hereunder, and (except in the event of
emergency in which case no grace or cure period shall be applicable or required)
such failure shall continue for ten (10) days, Landlord may, but shall not be
obligated so to do, and without waiving or releasing Tenant from any obligations
of Tenant, make any such payment or perform any such other act on Tenant's part
to be made or performed as provided in this Lease. Landlord shall have (in
addition to any other right or remedy of Landlord) the same rights and remedies
in the event of the nonpayment of sums due under this section as in the case of
default by Tenant in the payment of Rent. All sums paid by Landlord and all
penalties, interest and costs in connection therewith, shall be due and payable
by Tenant on the next day after such payment by Landlord, together with interest
thereon at the maximum rate of interest permitted by law from such date to the
date of payment.
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38. SUBSTITUTED PREMISES.
[Intentionally Omitted]
39. SALES AND AUCTIONS.
Tenant may not display or sell merchandise outside the exterior walls and
doorways of the Premises and may not use such areas for storage. Tenant agrees
not to install any exterior lighting, amplifiers or similar devices in or about
the Premises. Tenant shall not conduct or permit to be conducted any sale by
auction in, upon or from the Premises whether said auction be voluntary,
involuntary, pursuant to any assignment for the payment of creditors or pursuant
to any bankruptcy or other insolvency proceedings.
40. ACCESS TO ROOF.
Except as set forth in this Section 40, Tenant shall have no right of
access to the roof of the Premises or the Building.
40.1 Rooftop Equipment. Tenant may install, at its sole cost, certain
additional HVAC and utility equipment (the "Rooftop Equipment") on the roof of
the Building, subject to Landlord's prior written approval, not to be
unreasonably withheld, of plans and specifications for the Rooftop Equipment and
the type and placement of all cabling and wiring ancillary thereto. Landlord
shall not charge Tenant Additional Rent for the use of space on the roof for the
Rooftop Equipment. Tenant shall be responsible for obtaining and maintaining all
approvals, permits and licenses required by Fairfax County, Reston or any
federal, state or local government for installation and operation of the Rooftop
Equipment and shall pay all fees attendant thereto. If the Rooftop Equipment is
installed, Tenant shall have sole responsibility for the maintenance, repair and
replacement thereof and of all cabling and wiring ancillary thereto and Tenant
will be responsible for bearing the costs to repair any damage cause to the roof
or Building by the installation of the Rooftop Equipment.
Additionally, Tenant covenants and agrees that:
(a) The Rooftop Equipment shall not unreasonably interfere with the
standard use of the Building by other tenants;
(b) Tenant shall fully insure against damage occasioned by the
installation and/or operation of the Rooftop Equipment;
(c) Landlord shall retain the right to designate the placement of the
Rooftop Equipment and to require such reasonable "screening" type
improvements to the Building, as may be required to maintain its
cosmetic appearance;
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(d) If Tenant accesses the roof without a designated representative of
Landlord, the burden of proof for any damages subsequent to such
access shall be upon Tenant;
(e) Tenant agrees to indemnify Landlord (and its agents, employees,
officers, representatives and shareholders) and hold Landlord (and
its agents, employees, officers, representatives and shareholders)
harmless from all loss, cost, damage and expense, including
reasonable attorneys fees, incurred by Landlord (and its agents,
employees, officers, representatives and shareholders) as a result
of the installation, maintenance, presence, use or removal of any
Rooftop Equipment; and
(f) Tenant's rights to install, operate and maintain the Rooftop
Equipment as contained in this provision shall not be transferable
or assignable to an assignee or subtenant (except to an assignee or
subtenant that was approved by Landlord in writing) without the
express written consent of Landlord which can be granted or withheld
in Landlord's sole discretion.
40.2 Roof Improvements. Tenant may, at its sole cost and expense,
construct certain improvements on the roof of the Building (the "Roof
Improvements") subject to Landlord's prior written approval, not to be
unreasonably withheld, of Tenant's plans and specifications. The Roof
Improvements shall be substantially similar to the roof improvements made by
Tenant at the ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ building. The Roof Improvements shall be in
a location reasonably agreed upon by Landlord and Tenant. Landlord reserves the
right to require Tenant, at its cost and expense, to screen the Roof
Improvements to maintain the Building's appearance. The plans and specifications
and the Roof Improvements, after construction, shall comply with all applicable
federal, state and local laws, rules, regulations and ordinances. Tenant shall
be solely responsible for obtaining all required approvals, permits and licenses
with respect to the construction and operation of the Roof Improvements. At the
expiration of earlier termination of this Lease, Tenant shall promptly remove
the Roof Improvements and all cabling and wiring ancillary thereto, shall
restore the roof of the Building to the condition that existed prior to the
installation of the Roof Improvements and shall be responsible for all damage to
the roof or the Building in connection with such removal.
40.3 Additional Roof Improvements. Landlord acknowledges that Tenant may
request that Tenant be allowed to construct additional Roof Improvements and
Landlord hereby agrees to reasonably consider such request.
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41. SECURITY.
Tenant hereby agrees to the exercise by Landlord and its agents and
employees, within their sole discretion, of such security measures as it deems
necessary for the Building. Landlord hereby acknowledges that Tenant shall
employ such security measures with respect to the interior of the Premises as
Tenant deems reasonably necessary.
42. AUTHORITY OF TENANT.
If Tenant is a corporation or partnership, each individual executing this
Lease on behalf of said corporation or partnership represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation or partnership, and that this Lease is binding upon said corporation
or partnership.
43. NO ACCORD OR SATISFACTION.
No payment by Tenant or receipt by Landlord of a lesser amount than the
Rent and other sums due hereunder shall be deemed to be other than on account of
the earliest Rent or other sums due, nor shall any endorsement or statement on
any check or accompanying any check or payment be deemed an accord and
satisfaction; and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or other sum and to pursue
any other remedy provided in this Lease.
44. MODIFICATION FOR LENDER.
[Intentionally Omitted]
45. PARKING.
Tenant shall have the right to park in the Building parking facilities in
common with other tenants of the Building upon such terms and conditions,
established by Landlord at any time during the term of this Lease. Landlord
shall provide Tenant the nonexclusive right to ninety-eight (98) parking spaces.
Landlord shall not charge Tenant a parking fee at any time during the Lease Term
or any extensions or renewals thereof. In the event Tenant occupies additional
space in the Building, Tenant shall have the right to park additional
automobiles in the Building's parking lot based on the ratio of three (3)
parking spaces for each additional one thousand (1,000) square feet leased.
Tenant agrees not to overburden the parking facilities and agrees to cooperate
with Landlord and other tenants in use of the parking facilities. Landlord
reserves the right in its absolute discretion to determine whether the parking
facilities are becoming overburdened and to allocate and assign parking spaces
among Tenant and other tenants, and to reconfigure the parking area and modify
the existing ingress
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to and egress from the parking area as Landlord shall deem appropriate.
46. GENERAL PROVISIONS.
46.1 Acceptance. This Lease shall only become effective and binding upon
full execution hereof by Landlord and delivery of a signed copy to Tenant.
46.2 Joint Obligation. If there be more than one Tenant, the obligations
hereunder imposed shall be joint and several.
46.3 Marginal Headings, Etc. The marginal headings, Table of Contents,
lease summary sheet and titles to the articles of this Lease are not a part of
this Lease and shall have no effect upon the construction or interpretation of
any part hereof.
46.4 Choice of Law. This Lease shall be governed by and construed in
accordance with the laws of the State in which the Premises are located (without
regard to the choice of law and/or conflict of law principles applicable in such
State).
46.5 Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, inure to and bind the
heirs, successors, executors, administrators and assigns of the parties hereto.
46.6 Recordation. Except to the extent otherwise required by law, neither
Landlord nor Tenant shall record this Lease, but a short-form memorandum hereof
may be recorded at the request of Landlord at Landlord's sole cost and expense.
46.7 Quiet Possession. Upon Tenant's paying the Rent reserved hereunder
and observing and performing all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the Lease Term hereof, free from any disturbance
or molestation by Landlord, or anyone claiming by, through or under Landlord,
but in all events subject to all the provisions of this Lease.
46.8 Inability to Perform. This Lease and the obligations of the Tenant
hereunder shall not be affected or impaired because the Landlord is unable to
fulfill any of its obligations hereunder or is delayed in doing so, and
Landlord's obligation shall be excused during the period in which it is unable
to fulfill such obligations, if and to the extent such inability or delay is
caused by reason of strike, labor troubles, acts of God, or any other cause
beyond the reasonable control of the Landlord, which may be referred to in this
Lease as "Force Majeure." Tenant's obligations hereunder (other than the payment
of Rent, Additional Rent or any other sum) shall be excused during the period in
which Tenant is
34
38
unable to fulfill such obligations if and to the extent such inability or delay
is due to Force Majeure.
46.9 Partial Invalidity. Any provision of this Lease which shall prove to
be invalid, void, or illegal shall in no way affect, impair or invalidate any
other provision hereof and such other provision(s) shall remain in full force
and effect.
46.10 Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, whenever possible, be cumulative with all other remedies at
law or in equity.
46.11 Entire Agreement. This Lease together with the Exhibits attached
hereto, contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties, not embodied herein, shall be of any force or effect. The Exhibits
attached hereto are incorporated herein and made a part of this Lease by this
reference.
46.12 Survival. All indemnities set forth in this Lease shall survive the
expiration or earlier termination of this Lease.
46.13 Consents. If any provision of this Lease subjects any action,
inaction, activity or other right or obligation of Tenant to the prior consent
or approval of Landlord, Landlord shall be deemed to have the right to exercise
its sole and unfettered discretion in determining whether to grant or deny such
consent or approval, unless the provision in question states that Landlord's
consent or approval "shall not be unreasonably withheld", in which event
Landlord's consent shall be subject to Landlord's sole, but reasonable,
discretion.
46.14 Saving Clause. In the event (but solely to the extent) the
limitations on Landlord's liability set forth in Section 8.2 of this Lease would
be held to be unenforceable or void in the absence of a modification holding the
Landlord liable to Tenant or to another person for injury, loss, damage or
liability arising from Landlord's omission, fault, negligence or other
misconduct on or about the Premises, or other areas of the Building appurtenant
thereto or used in connection therewith and not under Tenant's exclusive
control, then such provision shall be deemed modified as and to the extent (but
solely to the extent) necessary to render such provision enforceable under
applicable law. The foregoing shall not affect the application of Article 33 of
this Lease to limit the assets available for execution of any claim against
Landlord.
46.15 Reservation. Nothing herein set forth shall be deemed or construed
to restrict Landlord from making any modifications to any of the parking and/or
common areas serving the Building and/or Premises as of the date of execution
hereof, and
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39
Landlord expressly reserves the right to make any modifications to such areas as
Landlord may deem appropriate, including but not limited to, the addition or
deletion of temporary and/or permanent improvements therein, and/or the
conversion of areas now dedicated for the non-exclusive common use of tenants
(including Tenant) to the exclusive use of one (1) or more tenants or licensees
within the Building.
47. RULES AND REGULATIONS.
Tenant agrees to comply with the Rules and Regulations attached hereto as
Exhibit D, and with any reasonable additions thereto and modifications thereof
adopted from time to time by Landlord and delivered to Tenant. Landlord shall
not be responsible to Tenant for the nonperformance of any of said rules and
regulations by any other tenants or occupants of the Building.
48. LANDLORD'S LIEN.
[Intentionally Omitted]
49. WAIVER OF JURY TRIAL.
Landlord and Tenant hereby waive trial by jury in any action, proceeding
or counterclaim brought by either of them against the
36
40
other on all matters arising out of this Lease, or the use and occupancy of the
Premises.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the
day and year first above written.
LANDLORD:
AVION (FAIRFAX) ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Real Estate Services,
Inc., agent
By: [SIG]
----------------------------
Name: [SIG]
--------------------------
Title: SENIOR VICE PRESIDENT
-------------------------
TENANT:
FUISZ TECHNOLOGIES LTD., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: CHAIRMAN & CEO
-----------------------------
37
41
EXHIBIT A
LOCATIONS AND DIMENSIONS OF PREMISES
[To be provided by ▇▇▇▇▇▇▇▇ ▇▇▇▇ Real Estate Services, Inc.]
42
EXHIBIT B
SPECIAL STIPULATIONS
These Special Stipulations are hereby incorporated into this Lease and in
the event they conflict with any provision of this Lease, the Special
Stipulations shall control.
1. Rent.
During the Lease Term, Tenant shall pay Base Rent as follows:
Months of the Base Rent Rate Per Rentable Monthly Rent Payment
Lease Term Square Foot Per Annum (Base Rent only)
---------- --------------------------- ----------------
Lease Commencement
Date - 03/31/97 --- $23,907.63
04/01/97 - 11/30/97 --- 24,206.35
12/01/97 - 03/31/98 --- 24,624.96
04/01/98 - 11/30/98 --- 24,932.64
12/01/98 - 11/30/99 $ 9.28 25,127.92
12/01/99 - 11/30/00 9.56 25,886.09
12/01/00 - 11/30/01 9.85 26,671.34
12/01/01 - 11/30/02 10.14 27,456.59
12/01/02 - 11/30/03 10.44 28,268.91
12/01/03 - 11/30/04 10.76 29,135.39
12/01/04 - 07/31/05 11.08 30,001.87
B. Base Rent during a Renewal Term (as that term is defined in
Paragraph No. 2 of this Exhibit B), if Tenant exercises its renewal
option in accordance with this Lease, shall be determined in
accordance with Paragraph No. 2 of this Exhibit B.
2. Renewal Option. Provided that (i) both at the time of the exercise of the
option hereinafter set forth and at the time of commencement of the Renewal Term
(as hereinafter defined) this Lease is in full force and effect and provided
further that Tenant is not then in default hereunder beyond the expiration of
any applicable notice and cure period provided for in this Lease and (ii) Tenant
is in occupancy of at least fifty percent (50%) of the Premises for the purpose
of conducting its own business, Tenant is hereby granted the option to renew the
Lease Term for one (1) additional period of sixty (60) months each (a "Renewal
Term"), such Renewal Term to commence at the expiration of the initial Lease
Term. Tenant shall exercise its option to renew by delivering notice of such
election (the "Renewal Notice") to Landlord not less than nine (9) months prior
to the expiration of the initial Lease Term. In the event that Landlord does not
receive the Renewal Notice prior to the expiration of such
43
time period (time being of the essence with respect thereto), then such option
to renew the Lease Term shall, upon the expiration of such time period, become
null and void and be of no further force or effect and Tenant shall, at the
request of Landlord, execute an instrument in form and substance acceptable to
Landlord confirming such facts. The Renewal Term shall be upon the same terms
and conditions of this Lease except that the Base Rent during the Renewal Term
shall be at an annual rate equal to ninety five percent (95%) of the then
current fair market rental rate for leases comparable to this Lease for space
comparable to the Premises in the Building taking into account such factors as
tenant improvement allowances, rent concessions, and rental escalations (the
"FMR"). The FMR shall be determined by Landlord and Tenant by mutual agreement;
however, if Landlord and Tenant cannot agree in writing on the FMR within ten
(10) days after Tenant's notice of its election to renew, the FMR shall be
determined by the Three Broker Method set forth below. Tenant shall have no
option to renew this Lease beyond the expiration of the Renewal Term, and the
Premises shall be delivered in their existing condition (on an "as is" basis) at
the time the Renewal Term commences.
The "Three Broker Method" shall operate as follows: The FMR shall be based
upon ninety-five percent (95%) of the current fair market rental rate for
comparable space in comparable buildings in the Chantilly, Virginia area,
(taking into account concessions which are being offered in the marketplace)
which shall be determined by a board of three (3) licensed real estate brokers,
one of whom shall be named by Landlord, one by Tenant, and the two so appointed
shall select a third broker. Each member of the board of brokers shall be
licensed in Virginia as a real estate broker, specializing in the field of
commercial office leasing in the Chantilly area of Virginia, having no less than
ten (10) years' experience in such field, and recognized as ethical and
reputable within the field. Landlord and Tenant agree to make their appointments
promptly after Landlord and Tenant are unable to agree upon the FMR. The two (2)
brokers selected by Landlord and Tenant shall select the third broker within ten
(10) days after they both have been appointed, and each broker, within fifteen
(15) days after the third broker is elected, shall submit his or her
determination of the FMR. The FMR shall be the determination of the broker that
is not the highest or the lowest (or, if two brokers reach an identical
determination, the determination of such two brokers). Landlord and Tenant shall
each pay the fee of the broker selected by it, and they shall equally share the
payment of the fee of the third broker.
The FMR shall be the Base Rent with respect to the Premises during the
first year of the Renewal Term and shall thereafter escalate during the
remainder of the Renewal Term at three percent (3%) per annum over the prior
year's Base Rent.
3. Cancellation Option. Notwithstanding anything to the contrary contained in
this Lease, provided Tenant is not in default hereunder, Tenant shall have the
option to terminate this Lease,
B-2
44
effective as of July 31, 2003 (the "Cancellation Date") by providing Landlord
with written notice of such option election (the "Cancellation Notice"). Such
Cancellation Notice shall be effective only if it is given to Landlord at least
six (6) months prior to the Cancellation Date (the "Cancellation Notice
Deadline"); accordingly, if Tenant has not given its Cancellation Notice to
Landlord prior to the Cancellation Notice Deadline, the Cancellation Option
shall terminate and be of no further force or effect. As a condition precedent
to the cancellation of this Lease pursuant to the provisions of this paragraph,
Tenant shall pay to Landlord $35,000 as a cancellation fee which shall be
payable by Tenant to Landlord at least thirty (30) days prior to the
Cancellation Date. It is hereby acknowledged that any such amount required to be
paid by Tenant in connection with such early termination is not a penalty but a
reasonable pre-estimate of the loss incurred by Landlord as a result of such
early termination of this Lease (which loss is impossible to calculate more
precisely) and, in that regard, constitutes liquidated damages with respect to
such loss. Tenant shall continue to be liable for its obligations under this
Lease to and through the Cancellation Date, including, without limitation,
Additional Rent that accrues pursuant to the terms of the Lease, with all of
such obligations surviving the early termination of the Term of this Lease. The
rights granted to Tenant under this paragraph are personal to Tenant, and in the
event of any assignment of this Lease or sublease by Tenant (except to an
assignee which is approved by Landlord in writing), this Cancellation Option
shall thenceforth be void and of no further force or effect.
4. Right of First Refusal. Landlord hereby grants to Tenant an on-going right of
first refusal (the "Right of First Refusal") to lease any other space in the
Building which becomes available for lease (the "Refusal Space") during the term
of this Lease. If Landlord receives a bona fide offer to lease all or any part
of the Refusal Space which Landlord intends to accept or if Landlord makes a
bona fide offer to lease all or any part of the Refusal Space which the
prospective tenant intends to accept, then Landlord shall deliver written notice
of such offer to Tenant (the "Refusal Notice") and Tenant shall have the right
to exercise the Right of First Refusal upon the terms and conditions set forth
in such Refusal Notice, within ten (10) business days after receipt of the
Refusal Notice. If Tenant fails to timely exercise its Right of First Refusal,
Tenant shall be deemed to have rejected the Refusal Space designated in the
Refusal Notice and Landlord shall have the right to lease the Refusal Space to
the third party upon terms and conditions set forth in the Refusal Notice. In
the event Tenant accepts Landlord's offer, Tenant shall execute a new lease for
the Refusal Space under the terms and conditions set forth in the Refusal
Notice. If Tenant fails to or elects not to exercise the Right of First Refusal
and the third party prospective tenant does not lease the Refusal Space, the
Refusal Space shall again become subject to the Right of First Refusal herein
contained as to any
B-3
45
subsequent third party offer submitted to Landlord. In the event Tenant fails to
or elects not to exercise the Right of First Refusal and the third party
prospective tenant does lease the Refusal Space, if the Refusal Space again
becomes available for lease, then the Refusal Space shall again become subject
to the Right of First Refusal.
5. Termination of Existing Leases. This Lease shall act as a termination and
replacement of the following: (i) Lease Agreement dated December 10, 1993 with
respect to a portion of the Premises (9,093 rsf commonly known as Premises A)
and (ii) Lease Agreement dated December 10, 1993 with respect to a portion of
the Premises (7,929 rsf commonly known as Premises C) (collectively, the
"Existing Leases") effective as of the Lease Commencement Date.
B-4
46
EXHIBIT C
WORK LETTER
[Intentionally Omitted]
47
EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks in front of Premises shall not be obstructed by Tenant or
used by Tenant for any purpose other than ingress and egress from and to
Tenant's offices. Tenant shall remove promptly, at its own expense,
without the use of chemical agents, any debris from the sidewalks in front
of Premises. Landlord shall in all cases obtain the right to control or
prevent access thereto by any person whose presence, in Landlord's
judgment, would be prejudicial to the safety, peace, character or
reputation of the Building or of any Tenant of the Property.
2. The toilet rooms, water closets, sinks, faucets, plumbing and other
service apparatus of any kind shall not be used by Tenant for any purpose
other than those for which they were installed, and no sweepings, rubbish,
rags, ashes, chemicals or other refuse or injurious substances shall be
placed therein or used in connection therewith by Tenant.
3. No skylight, window, door or transom of the Building shall be covered or
obstructed by Tenant, and no window shade, blind, curtain, screen, storm
window, awning or other material shall be installed or placed on any
window or in any window space, except as approved in writing by Landlord.
If Landlord has installed or hereafter installs any shade, blind or
curtain in the Premises, Tenant shall not remove it without first
obtaining Landlord's written consent thereto.
4. No sign, lettering, insignia, advertisement, notice or other thing shall
be inscribed, painted, installed, erected or placed in any portion of the
Premises which may be seen from outside the Building, or on any window,
space or other part of the exterior or interior of the Building, unless
first approved in writing by Landlord. Names on suite entrances shall be
provided by and only Landlord and at Tenant's expense, using in each
instance lettering of a design and in a form consistent with the other
lettering in the Building, and first approved in writing by Landlord.
Tenant shall not erect any stand, booth or showcase or other article or
matter in or upon the Premises and/or the Building without first obtaining
Landlord's written consent thereto.
5. Tenant shall not place any additional lock upon any door within the
Premises or elsewhere upon the Property, without Landlord's prior written
approval, such approval not to be unreasonably withheld, and shall
surrender all keys for all such locks, at the end of the Term. Landlord
shall provide Tenant with one set of keys to the Premises when Tenant
assumes possession thereof.
48
6. Tenant shall not do or permit to be done anything which obstructs or
interferes with the rights of any other tenant or the Property. Tenant
shall not keep anywhere within the Property any matter having an offensive
odor, or any kerosene, gasoline, benzine, camphene, fuel or other
explosive or highly flammable material except for small amounts of
chemicals used in Tenant's ordinary course of business, stored in a safe
manner meeting all regulations and standards including, but not limited
to, fire ▇▇▇▇▇▇▇▇ codes/environmental protection agency rules, regulations
and standards and OSHA requirements and for which Tenant is reasonably
insured. No bird, fish or other animal shall be brought into or kept in or
about the Premises.
7. If Tenant desires to install signalling, telegraphic, telephonic,
protective alarm or other wires, apparatus or devices within the Premises,
Tenant shall need Landlord's prior written approval, such approval shall
not be unreasonably withheld. Landlord shall have the right (a) to prevent
or interrupt the transmission of excessive, dangerous or annoying current
of electricity or otherwise into or through the Building or the Premises,
(b) to require the changing or wiring connections or layout at Tenant's
expense, to the extent that Landlord may reasonably deem necessary, (c) to
require compliance with such reasonable rules as Landlord may establish
relating thereto, and (d) in the event of noncompliance with such
requirements or rules, immediately to cut wiring or do whatever else it
considers necessary to remove the danger, annoyance or electrical
interference with apparatus in any part of the Building. Each wire
installed by Tenant must be clearly tagged at each distributing board and
junction box and elsewhere where required by Landlord with the number of
the office to which such wire leads and the purpose for which it is used,
together with the name of Tenant or other concern, if any, operating or
using it.
8. Tenant shall have access to the Premises at all reasonable times. Landlord
shall in no event be responsible for admitting or excluding any person
from the Premises. In case of invasion, hostile attack, insurrection, mob
violence, riot, public excitement or other commotion, explosion, fire or
any casualty, Landlord shall have the right to bar or limit access to the
Building to protect the safety of occupants or the Property, or any
property within the Property.
9. Tenant and its employees, agents and invitees shall observe and comply
with the driving and parking signs and markers on the Premises surrounding
the Building.
10. Landlord shall have the right to rescind, suspend or modify the Rules and
Regulations and to promulgate such other Rules or Regulations as, in
Landlord's reasonable judgment, are from
D-2
49
time to time needed for the safety, care, maintenance, operation or
cleanliness of the Building, or for the preservation of good order
therein. Upon Tenant's having been given notice to the taking of any such
action, the Rules and Regulations as so rescinded, suspended, modified or
promulgated shall have the same force and effect as if in effect at the
time at which Tenant's Lease was entered into (except that nothing in the
Rules and Regulations shall be deemed in any way to alter or impair any
provision of such Lease).
11. The use of any room within the Building as sleeping quarters is strictly
prohibited at all times.
12. Nothing in these Rules and Regulations shall give any Tenant any right or
claim against Landlord or any other person if Landlord does not enforce
any of them against any other Tenant or person (whether or not Landlord
has the right to enforce them against such Tenant or person), and no such
nonenforcement with respect to any tenant shall constitute a waiver of the
right to enforce them as to Tenant or any other Tenant person.
Notwithstanding anything above to the contrary, Landlord will enforce the
Rules and Regulations uniformly with all tenants.
D-3
50
EXHIBIT E
TENANT ESTOPPEL CERTIFICATE
Date: _________________, 19__
To: Allstate Life Insurance Company ("Lender")
Allstate Plaza West M2C
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Commercial Mortgage Division
From: Fuisz Technologies Ltd. ("Tenant")
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Multiple Suites, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Property")
The undersigned lessee ("Tenant") under that certain lease dated
______________, 1997, amended ____________, 19__ and ______________, 19__
("Lease") by and between Tenant and Avion (Fairfax) Associates, L.P., as lessor
("Landlord") covering premises commonly known as Flex I Building (the
"Premises") certifies the following as of the date hereof:
a. Tenant is the lessee under the Lease demising the Premises. The term of
the Lease commenced on February 1, 1997 and will expire on July 31, 2005.
b. Tenant certifies to Lender that: (a) the Lease has been properly
executed by Tenant and is presently in full force and effect without amendment
or modification except as noted in the first paragraph; (b) the Premises
consists of 32,493 rentable square feet; (c) the current monthly Base Rent is
$____________ and the current annual Base Rent is $______________; (d) all
construction required by the Lease to be made by Landlord has been completed and
any payments, credits or abatements required to be given by Landlord to Tenant
have been given; (e) no installment of Rent under the Lease other than current
monthly Rent has been paid more than thirty (30) days in advance; (f) Tenant is
not in arrears on any Rent or other charges payable by Tenant under the Lease;
(g) Tenant has accepted and is occupying the Premises; (h) the Lease has not
been assigned nor the Premises subleased by Tenant; (i) to Tenant's knowledge,
Landlord is not in default under the Lease and, to Tenant's knowledge as of the
date hereof, no event has occurred which, with the giving of notice or passage
of time, or both, could result in a default by Landlord; (j) to Tenant's
knowledge, Tenant has no existing defenses, offsets, liens, claims or credits
against the rentals under the Lease or against the enforcement of the Lease by
Landlord; (k) Tenant has not been granted any options to extend
51
or terminate the term of the Lease earlier than the date specified in paragraph
1, except as may be specified in the Lease, and Tenant has not been granted any
options nor rights of first refusal to purchase the Premises or the Property;
and (l) Tenant has not received notice of violation of any federal, state,
county or municipal laws, regulations, ordinances, orders or directives relating
to the use or condition of the Premises or the Property.
c. This certification is made with the knowledge that the Lender is about
to provide Landlord with financing which shall be secured by a Deed of Trust,
Security Agreement and Assignment of Rents, Leases and Contracts ("Mortgage")
upon the Property. Tenant further acknowledges and agrees that Lender and
Lender's respective successors and assigns holding the Mortgage at any time
after the date of this Certificate shall have the right to rely on the
information contained in this Certificate.
7. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of Tenant.
FUISZ TECHNOLOGIES LTD., a Delaware
corporation
By:
-------------------------------
Its:
------------------------------
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇▇▇▇▇▇▇▇▇ AND ATTORNMENT AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
[RETURN TO ALLSTATE'S OUTSIDE COUNSEL]
--------------------------------
--------------------------------
--------------------------------
--------------------------------
THIS AGREEMENT is dated the ____ day of _________, 19__, between ALLSTATE
LIFE INSURANCE COMPANY ("Lender") and FUISZ TECHNOLOGIES LTD., a Delaware
corporation ("Tenant").
RECITALS:
1. Tenant has executed that certain lease dated __________, 1997 (the
"Lease") with Avion (Fairfax) Associates, L.P., as lessor ("Landlord"), covering
the Premises in that certain building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Property") and more particularly described in
Exhibit A attached hereto and made a part hereof, by this reference; and
2. Lender has made or has agreed to make a mortgage loan to the Landlord
secured by a mortgage or deed of trust on the Property which includes an
assignment of Landlord's interest in the Lease (the "Mortgage"); and
3. Tenant and Lender desire to confirm their understanding with respect to
the Lease and the Mortgage.
NOW, THEREFORE, in consideration of the covenants, terms, conditions,
agreements contained herein, the parties hereto agree as follows:
a. The Lease is and shall continue to be subject and subordinate in all
respects to the Mortgage and the lien created thereby, and to any advancements
made thereunder and to any consolidations, extensions, modifications or renewals
thereof.
b. Tenant agrees to give Lender a copy of any notice of default served on
Landlord by certified mail, return receipt requested, with postage prepaid, at
Allstate Plaza West M2C, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
Commercial Mortgage Division Servicing Manager. If Landlord fails to cure such
default within the time provided in the Lease, Lender shall have the right, but
not the obligation to cure such default on behalf of Landlord within thirty (30)
calendar days after the time
53
provided for in the Lease or within a reasonable period if such default cannot
be cured within that time and Lender is proceeding with due diligence to cure
such default. In such event Tenant shall not terminate the Lease while such
remedies are being diligently pursued by Lender. Further, Tenant shall not, as
to Lender, require cure of any such default which is not susceptible of cure by
Lender.
c. So long as Tenant is not in default under the Lease, Tenant's
possession and occupancy of the Premises shall not be disturbed by Lender during
the term of the Lease or any extension thereof.
d. If Lender obtains the right to possession of the Premises or if
Landlord's interest under the Lease is transferred to Lender by foreclosure,
deed in lieu of foreclosure, or otherwise, and, subject to Tenant's performance
of its obligation under the Lease, then the Lease will continue in full force
and effect and Lender shall recognize the Lease and Tenant's rights thereunder
and Tenant shall make full and complete attornment to Lender as substitute
Landlord upon the same terms, covenants and conditions as provided in the Lease.
e. If Lender succeeds to Landlord's interest under the Lease, Lender shall
not be:
(a) liable for any act or omission of Landlord or any prior
landlord; or
(b) subject to any offsets or defenses which Tenant might have
against Landlord or any prior landlord; or
(c) required or obligated to credit Tenant with any Rent or
Additional Rent for any rental period beyond the then current
month which Tenant might have paid Landlord or any prior
landlord; or
(d) bound by any amendments or modifications of the Lease made
without Lender's consent, other than exercise of rights,
options or elections contained in the Lease, including without
limitation, options to extend the term of the Lease; or
(e) liable for the return of any security deposit unless such
security deposit shall have been actually received by Lender.
In the event of receipt of any such security deposit, Lender's
obligations with respect thereto shall be limited to the
amount of such security deposit actually received by Lender,
and Lender shall be entitled to
F-2
54
all rights, privileges and benefits of Landlord set forth in
the Lease with respect thereto.
f. The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Furthermore, the provisions of this Agreement shall be binding upon any
guarantor of Tenant's obligations under the Lease. The words, "Lender,"
"Landlord" and "Tenant" shall include their respective heirs, legatees,
executors, administrators, beneficiaries, successors and assigns.
g. Any notices to Tenant hereunder shall be effective upon mailing notice
to Tenant by certified mail, return receipt requested, with postage prepaid, at
the address set forth in the Lease or at such other address as Tenant may
designate in writing to Lender at the address set forth in paragraph 2.
h. This Agreement contains the entire agreement between the parties and no
modifications shall be binding upon any party hereto unless set forth in a
document duly executed by or on behalf of such party.
i. This Agreement may be executed in multiple counterparts, all of which
shall be deemed originals and with the same effect as if all parties had signed
the same document. All of such counterparts shall be construed together and
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
LENDER: TENANT:
ALLSTATE LIFE INSURANCE COMPANY FUISZ TECHNOLOGIES LTD., a
Delaware corporation
By: By:
--------------------------- ----------------------------------
Its:
-----------------------------
By:
---------------------------
Its Authorized Signatories
F-3
55
STATE OF ______________ )
) SS:
COUNTY OF _____________ )
On _____________, 19__, before me, __________________________, a Notary
Public in and for the State of __________________________, personally appeared
_________________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument, and acknowledged to me that he or she executed the same
in his or her authorized capacity and that, by his or her signature on the
instrument, the person or the entity upon behalf of which he or she acted,
executed the instrument.
WITNESS my hand and official seal.
-----------------------------
Notary Public in and for said
State
[NOTARIAL SEAL]
STATE OF ______________ )
) SS:
COUNTY OF _____________ )
On ______________, 19__, before me, ________________________, a Notary
Public in and for the State of ______________, personally appeared
________________________ and __________________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the persons whose
names are subscribed to the within instrument, and acknowledged to me that they
executed the same in their authorized capacities and that, by their signatures
on the instrument, the person(s) or the entity upon behalf of which they acted
executed the instrument.
WITNESS my hand and official seal.
-----------------------------
Notary Public in and for said
State
[NOTARIAL SEAL]
▇-▇
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ )
) SS:
COUNTY OF ▇▇▇▇ )
I, the undersigned, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that ______________________ and
_______________________________, authorized signatories for ALLSTATE LIFE
INSURANCE COMPANY, an Illinois insurance corporation, personally known to me to
be the same persons who executed the within instrument, appeared before me on
_______________, 19__, in person, and acknowledged that they executed the within
instrument as their free and voluntary act, for the uses and purposes therein
set forth.
-------------------------------
Notary Public
[NOTARIAL SEAL]
F-5