EXHIBIT 10.20
SUBLEASE
between
PG&E GENERATING COMPANY
and
INFORMAX, INC.
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1. Subleased Premises and Term .........................................................................1
(a) Term .......................................................................................1
(b) Inability to Deliver Possession ............................................................1
(c) Measurement of Subleased Premises ..........................................................2
2. Construction of Subleased Premises ..................................................................2
(a) Delivery and Acceptance ....................................................................2
(b) Initial Leasehold Improvements .............................................................2
(c) Architectural Services .....................................................................2
(d) Design and Construction Schedule ...........................................................3
(e) Construction ...............................................................................3
(f) Permits ....................................................................................3
(g) Leasehold Improvement Allowance ............................................................3
3. Rent.................................................................................................4
(a) Base Rental ................................................................................4
(b) Additional Base Rental .....................................................................4
(c) Payment of Rent ............................................................................5
(d) Late Payment ...............................................................................5
4. Permitted Use .......................................................................................5
5. Incorporation of Lease ..............................................................................5
6. Transmittal of Notices and Demands ..................................................................6
7. Landlord's Consent to Certain Acts ..................................................................7
8. Sublandlord's Right to Cure Subtenant's Default .....................................................7
9. Utilities ...........................................................................................7
(a) Overtime Heating and Air Conditioning ......................................................7
(b) Excessive Electrical Use ...................................................................7
10. Assignment of Sublease ..............................................................................7
11. Alterations to Subleased Premises ...................................................................8
12. Signage .............................................................................................9
(a) Directory and Suite Entrance Signs .........................................................9
(b) Consent Required ...........................................................................9
13. Indemnity ...........................................................................................9
14. Subtenant's Insurance ..............................................................................10
15. Eminent Domain, Loss by Casualty ...................................................................10
16. Default ............................................................................................10
(a) Events of Default .........................................................................10
(b) Remedies ..................................................................................11
17. Notice and Demands .................................................................................11
18. Surrender of Subleased Premises ....................................................................11
19. Parking ............................................................................................12
20. Brokerage Fees .....................................................................................12
21. Authority to Execute Lease .........................................................................12
22. Security Deposit ...................................................................................12
23. Subtenant's Roof Use ...............................................................................14
24. Right of First Opportunity .........................................................................15
(a) Option and Exercise .......................................................................15
(b) Base Rental ...............................................................................16
25. Consent of Landlord ................................................................................17
26. Subordination of Sublandlord's Lien ................................................................18
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27. Non-Disturbance Agreement ..........................................................................18
28. Quiet Enjoyment ....................................................................................18
29. Miscellaneous ......................................................................................18
(a) No Offer ..................................................................................18
(b) No Partnership ............................................................................18
(c) Time of the Essence .......................................................................18
(d) Separability ..............................................................................18
(e) Counterparts ..............................................................................18
(f) Merger ....................................................................................18
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Exhibits
Exhibit A - Lease
Exhibit B - Floor Plan of Subleased Premises
Exhibit C - Commencement Letter
Exhibit D - Base Building Improvements
Exhibit E - Subtenant's Space Plan
Exhibit F - Construction Schedule
Exhibit G - Sublandlord Supplied Materials
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SUBLEASE
This Sublease ("Sublease") made as of the 21 day of September, 2000,
between PG&E GENERATING COMPANY, a California general partnership
("Sublandlord"), and INFORMAX, INC., a Delaware corporation qualified to do
business in the State of Maryland ("Subtenant").
WITNESSETH
WHEREAS, Sublandlord, as successor in interest to U.S. Generating
Company, a California general partnership, is the "Tenant" under a certain
Office Lease Agreement dated June 25, 1998 (the "Lease"), a true and correct
copy of which is attached hereto as Exhibit A and hereby made a part hereof, by
which it has leased the first (1st) through the eleventh (11th) floors
("Premises") of the building located at 7600 Wisconsin Avenue, Bethesda,
Maryland 20814, commonly known as Bethesda Place II (the "Building")from
Bethesda Place II Limited Partnership, a Maryland limited partnership
("Landlord"); and
WHEREAS, Subtenant desires to sublease from Sublandlord, and
Sublandlord desires to sublease to Subtenant, the approximately 36,190 rentable
square feet of space on the tenth (10th) and eleventh (11th) floors of the
Building (the "Subleased Premises") shown as the cross-hatched area on the floor
plans attached hereto as Exhibit B and hereby made a part hereof in accordance
with the terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of the rents, covenants and agreements
herein contained, IT IS HEREBY AGREED AS FOLLOWS:
1. SUBLEASED PREMISES AND TERM.
(A) TERM. Sublandlord hereby subleases the Subleased Premises
to Subtenant and Subtenant hereby subleases the Subleased Premises from
Sublandlord upon and subject to the terms, covenants, rentals and conditions
herein set forth, for a term (the "Term") consisting a Preliminary Term and a
Main Term. The Preliminary Term shall commence on the date Sublandlord delivers
possession of the Subleased Premises to Subtenant (the "Preliminary Commencement
Date") and shall expire ninety (90) days after the Preliminary Commencement
Date. The Main Term shall commence on the ninety-first (91st) day following the
Preliminary Commencement Date (the "Rent Commencement Date") and expiring on
October 31, 2012 (the "Termination Date"); provided, however that if the Lease
shall be terminated for any reason prior to the Termination Date, then this
Sublease shall expire on the termination date of the Lease.
For purposes of this Sublease, the term "Sublease Year" shall mean each
twelve (12) month period during the Term beginning on the first day of the month
coincident with or next following the Rent Commencement Date and each subsequent
anniversary thereof; provided, that the last Sublease Year of the Term shall end
on the Termination Date and if the Rent Commencement Date is not the first day
of a calendar month, the period between the Rent Commencement Date and the first
day of the next calendar month shall be included in the first Sublease Year.
(B) INABILITY TO DELIVER POSSESSION. Sublandlord anticipates
delivering possession of the Subleased Premises to Subtenant on September 1,
2000 (the "Anticipated Preliminary Commencement Date") If Sublandlord shall be
unable to deliver possession of the Subleased Premises to Subtenant on the
Anticipated Preliminary Commencement Date for any reason, Sublandlord shall not
be subject to any liability for the failure to tender possession on said date.
In such event, the rent covenanted to be paid herein shall not commence and the
Rent Commencement Date shall not occur until the ninety-first (91st) day after
possession of the Subleased Premises is tendered to Subtenant. No such failure
to give possession on the
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Anticipated Preliminary Commencement Date shall in any other respect affect the
validity of this Sublease or the obligations of Subtenant hereunder, nor shall
the same be construed to extend the Term, which shall in all events expire on
the Termination Date. Within fifteen (15) days after the Rent Commencement Date,
Sublandlord and Subtenant shall execute a Commencement Letter in the form of
Exhibit C. Notwithstanding any other provision hereof to the contrary, if
Sublandlord has not delivered possession of the Subleased Premises to Subtenant
by December 1, 2000, for any reason, Subtenant, at its sole option, may
terminate this Sublease by written notice to Sublandlord on or before December
31, 2000, unless Sublandlord shall have delivered possession of the Subleased
Premises to Subtenant before such notice. In the event Subtenant terminates this
Sublease pursuant to this paragraph, Sublandlord shall refund any advance Rental
payment and return any security deposit to Subtenant, and the parties shall
thereupon be relieved of any and all liability hereunder.
(c) MEASUREMENT OF SUBLEASED PREMISES. Before the Preliminary
Commencement Date, Landlord's architect shall determine the exact number of
rentable square feet in the Subleased Premises in accordance with the
Washington, D.C. Association of Realtors method (hereinafter defined), and the
Base Rental and Subtenant's Share (each hereinafter defined) shall be
proportionately adjusted. Subtenant's architect shall have the right to confirm
Landlord's architect's measurements. The parties agree that the Rentable Area of
the Subleased Premises, determined pursuant to this section, and the adjusted
Base Rental and Subtenant's Share shall be set forth in the Commencement Letter,
attached hereto as Exhibit C, to be executed by the parties within fifteen (15)
days after the Rent Commencement Date of the Lease Term. As used herein, the
"Washington, D.C. Association of Realtors Method" shall mean the Washington,
D.C. Association of Realtors Standard Method of Measurement dated January 1989.
2. CONSTRUCTION OF SUBLEASED PREMISES.
(A) DELIVERY AND ACCEPTANCE. Sublandlord shall deliver, and
Subtenant agrees to accept, possession of the Subleased Premises with only the
"Base Building Improvements" listed on the attached Exhibit D completed.
(B) INITIAL LEASEHOLD IMPROVEMENTS. During the Preliminary
Term, Subtenant, at Subtenant's sole cost and expense (subject to reimbursement
by Sublandlord pursuant to Paragraph 2(g)), shall construct the Subleased
Premises, including the elevator lobby, for Subtenant's use and occupancy (the
"Initial Leasehold Improvements") in accordance with a space plan reasonably
approved by Sublandlord and Landlord and the Leasehold Improvement Plans and
Specifications (hereinafter defined), and in accordance with the provisions of
this Paragraph 2.
(C) ARCHITECTURAL SERVICES. An architect selected by Subtenant
and approved by Sublandlord and Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed (herein "Subtenant's Architect")
shall, at Subtenant's expense, perform all of the architectural services
required in connection with the construction of the Initial Leasehold
Improvements, including, but not limited to, preparation of space plans,
standard furniture and equipment layout plans, dimensional partition plans,
dimensional electrical, telephone and computer outlets, reflected ceiling plans,
door and hardware selections, and room finish schedules, including wall
coverings, carpet and tile floor covers and other necessary construction
details. The plans and specifications for the Initial Leasehold Improvements
shall be approved in writing by Landlord and Sublandlord, which approval shall
not be unreasonably withheld, conditioned or delayed. The approved final plans
and specifications for the Leasehold Improvements are herein referred to as the
"Leasehold Improvement Plans and Specifications". The approved space plan
("Subtenant's Space Plan") shall be attached hereto and made a part hereof as
Exhibit E.
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 2
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(D) DESIGN AND CONSTRUCTION SCHEDULE. In order to insure
timely completion of construction of the Initial Leasehold Improvements,
Subtenant shall prepare and Sublandlord shall approve a timetable whereby each
party shall be obligated to meet certain dates in the design and construction
process (the "Construction Schedule"). The approved Construction Schedule shall
be attached hereto as Exhibit F. Subtenant's failure to meet any deadlines in
the Construction Schedule shall not constitute a default hereunder.
(E) CONSTRUCTION. The construction of the Initial Leasehold
Improvements shall be performed in accordance with the following provisions of
this Paragraph 2(e):
(i) Subtenant shall contract with a general
contractor approved by Sublandlord and Landlord, which approval shall not be
unreasonably withheld ("Subtenant's Contractor") for performance of the Initial
Leasehold Improvements.
(ii) All contractors performing such construction
must be licensed to perform such work in the State of Maryland, and such
contractors, or Subtenant, must maintain all insurance required by Section 16.B
of the Lease.
(iii) Such construction shall be performed in
accordance with the Leasehold Improvement Plans and Specifications, and in
compliance with all legal requirements and all matters of record affecting the
Building. All materials and equipment to be incorporated into the Initial
Leasehold Improvements shall be new and of good quality and in good operating
condition, and construction shall be free from any known faults and defects.
Construction not conforming to these requirements shall be corrected.
Sublandlord and Landlord, at their sole cost and expense, shall be entitled to
oversee all construction by Subtenant hereunder in order to assure compliance by
Subtenant of the approved plans and specifications.
(iv) Subtenant shall indemnify Sublandlord and
Landlord against (A) any damage sustained in connection with the work performed
by any contractors retained by Subtenant, unless such damage is caused by
negligence or willful misconduct of Landlord, Sublandlord or their respective
agents, employees or contractors, and (B) any mechanics' or materialmen's liens
against the Premises or the Building arising from the work performed by any
contractors retained by Subtenant.
(F) PERMITS. Subtenant shall be responsible for obtaining the
construction and occupancy permits for the Subleased Premises and any other
permits or licenses necessary for its lawful occupancy of the Subleased
Premises. This requirement shall not relieve Subtenant of its liability for Base
Rental (as defined in Paragraph 3(a)) and Additional Base Rental (as defined in
Paragraph 3(b)) from the Rent Commencement Date in the event all said permits
have not been acquired prior thereto.
(G) LEASEHOLD IMPROVEMENT ALLOWANCE. Sublandlord shall provide
Subtenant with materials, on site, costing approximately Sixty Thousand Six
Hundred Ninety-seven and 46/100 Dollars ($60,697.46), for incorporation into the
Initial Leasehold Improvements. Those materials (the "Sublandlord Supplied
Materials") and the cost of the same are listed on the attached Exhibit G.
Sublandlord shall also provide Subtenant with an improvement allowance (the
"Leasehold Improvement Allowance") not to exceed One Million Eighty-five
Thousand Seven Hundred and No/100 Dollars ($1,085,700.00) [i.e., Thirty Dollars
($30.00) per square foot of rentable area in the Subleased Premises], to be
applied to the cost of the Initial Leasehold Improvements. The Leasehold
Improvement Allowance shall be paid by Sublandlord to Subtenant in not more than
three (3) installments, payable jointly to Subtenant and Subtenant's Contractor,
as the Initial Leasehold Improvements are completed. The first two (2)
installments (which shall not exceed, in the aggregate, two thirds (2/3) of the
total amount of the Leasehold Improvement
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 3
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Allowance) shall be paid (provided that Subtenant is not in default under this
Sublease) within thirty (30) days after Subtenant's submission of a written
payment request identifying the items for which payment is sought and the amount
of such payment, which payment request is accompanied by (i) a certificate of
Subtenant's architect to Sublandlord and any other party reasonably designated
by Sublandlord, specifying that the work for which Subtenant is seeking
reimbursement has been performed in accordance with the Leasehold Improvement
Plans and Specifications, (ii) invoices for the work for which Subtenant is
seeking reimbursement, and (iii) interim (or if final payment for an item is
sought, final) releases of lien, in form and substance reasonably satisfactory
to Sublandlord, from all contractors and materialmen who supplied labor or
materials for the work for which Subtenant is seeking reimbursement. The final
installment of the Leasehold Improvement Allowance shall be paid (provided that
Subtenant is not in default under this Sublease) within thirty (30) days after
the last to occur of the following: (i) final completion of all of the Initial
Leasehold Improvements in accordance with the terms of this Sublease, (ii)
evidence of the satisfaction of the requirements of governmental authorities
with respect thereto, (iii) receipt of releases of lien from all contractors and
materialmen who supplied labor or materials for the Initial Leasehold
Improvements, (iv) Sublandlord's receipt of from Subtenant of invoices for
materials and labor for the Initial Leasehold Improvements in an amount equal to
or in excess of the Leasehold Improvement Allowance, and (v) Subtenant having
commenced to use the Subleased Premises for office purposes.
3. RENT. Commencing on the Rent Commencement Date, Subtenant covenants
and agrees to pay to Sublandlord as rent for the Subleased Premises:
(A) BASE RENTAL. A base rental of One Million Three Hundred
Fifty-seven Thousand One Hundred Twenty-five and No/100 Dollars ($1,357,125.00)
per annum ("Base Rental") payable in equal monthly installments of monthly base
rent in the amount of One Hundred Thirteen Thousand Ninety-three and 75/100
Dollars ($113,093.75) ("Monthly Base Rental"). Subtenant shall pay the first
monthly installment of Base Rental upon execution of this Sublease. Subtenant
shall pay the remaining monthly installments of Base Rental in advance without
prior demand, and without deduction, abatement, recoupment or set-off of any
kind, upon the first day of each and every calendar month throughout the Term.
On the first day of the second Sublease Year, and on
the first day of each Sublease Year thereafter during the Term, the Base Rental
(then in effect) shall be increased by two and one-half percent (2.5%).
(B) ADDITIONAL BASE RENTAL. Additional Base Rental, upon
demand therefor by Sublessor, consisting of:
(i) Eighteen and twenty-four ,one hundredths percent
(18.24%) ("Subtenant's Share", the ratio of the rentable area of the Subleased
Premises to the rentable area of the Building, subject to adjustment if the
rentable area of the Subleased Premises changes in accordance with Paragraph
1(c) hereof) of any increases in "Expenses" (as defined in Sections 1.B(11) and
4.E of the Lease, excluding the charges for heating and air conditioning paid by
Subtenant pursuant to Paragraph 3(b)(v) below) during each calendar year over
the Expenses for calendar year 2001, adjusted (as to each calendar year,
including calendar year 2001), if the Building is not at least ninety-five
percent (95%) occupied for the full calendar year, to reflect ninety-five
percent (95%) occupancy for the full calendar year (the "Expense Base Year"),
which Expense increases shall be billed by Sublandlord and payable by Subtenant
in the same manner as set forth in Section 4.D of the Lease;
(ii) Subtenant's Share of any increases in "Taxes"
(as defined in Section 4.E(7) of the Lease) during each tax year over the Taxes
for the tax year ending June 30, 2002,
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 4
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or if later, the first twelve (12) months in which the Building is fully
assessed as a completed building (the "Tax Base Year"), which Tax increases
shall be billed by Sublandlord and payable by Subtenant in the same manner as
set forth in Section 4.D of the Lease;
(iii) Subtenant's Share of any increases in the
charges for electricity supplied to the Building (exclusive of charges for
electricity consumption which is separately metered or submetered and payable
directly by subtenants pursuant to their subleases) during each calendar year
over the charges for electricity supplied to the Building (exclusive of charges
for electricity consumption which is separately metered or submetered and
payable directly by subtenants pursuant to their subleases) for calendar year
2001, which electric charge increases shall be billed by Sublandlord and payable
by Subtenant in the same manner as set forth in Section 4.D of the Lease;
(iv) Subtenant's Share of all taxes (if any) passed
through by Landlord to the tenants of the Building pursuant to Section 4.G of
the Lease;
(v) The actual cost to Sublandlord of heating and air
conditioning supplied to the Subleased Premises after normal Building operating
hours at Subtenant's request, pursuant to Paragraph 9(a) of this Sublease, which
amounts shall be payable by Subtenant to Sublandlord within ten (10) days after
delivery to Subtenant of a bill therefor; and
(vi) Any other payment (other than Base Rental)
required to be paid by Subtenant to Sublandlord under the terms of this
Sublease.
In the event of a default in the payment of Additional Base Rental, Sublandlord
shall have the same remedies as for a default in payment of Base Rental.
(C) PAYMENT OF RENT. Payment of Base Rental and Additional
Base Rental (collectively "Rent") shall be paid in lawful money of the United
States io Sublandlord "Attention: David N. Bassett, Vice President and
Treasurer" at the address designated in Paragraph 17 hereof, or as otherwise
designated from time to time by written notice from Sublandlord to Subtenant.
The obligation to pay Rent hereunder is independent of each and every other
covenant and agreement contained in this Sublease except as specifically set
forth herein.
(D) LATE PAYMENT. All Rent not paid when due shall bear
interest from the date due until paid at the rate of fifteen percent (15%) per
annum or the highest legal rate, whichever is lower (the "Maximum Rate" for
purposes of this Sublease and the Lease). In addition, if Subtenant fails to pay
any installment of Rent within five (5) days from the date when due and payable
hereunder (or the date of notice thereof, in the case of non-regularly scheduled
payments of Additional Base Rental), a late payment penalty in the amount of
five percent (5%) of the overdue installment shall be due and payable
immediately by Subtenant to Sublandlord, as Additional Base Rental.
Notwithstanding the foregoing, Sublandlord agrees to waive the first such late
payment penalty in each calendar year, provided that Sublandlord receives the
overdue payment within five (5) days after written notice to Subtenant that such
payment is overdue.
4. PERMITTED USE. Subtenant shall use and occupy the Subleased Premises
for general office purposes, including a computer/data center and telephone
switch facility, and for no other use or purpose.
5. INCORPORATION OF LEASE. Except as herein otherwise expressly
provided, all of the terms of the Lease as they pertain to the Subleased
Premises are hereby incorporated into and made a part of this Sublease as if
stated at length herein, and Subtenant accepts this Sublease subject to, and
hereby, during the Term of this Sublease, assumes all of the terms, covenants,
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 5
<PAGE>
conditions and agreements contained in the Lease with respect to the Subleased
Premises, to be performed by Sublandlord thereunder. The parties hereto agree
that subject to the provisions of this Sublease, wherever the words "Premises"
or words of similar import appear in the Lease, the same shall be deemed to mean
the Subleased Premises and wherever the words "Landlord" and "Tenant" appear in
the Lease, the words shall be deemed to refer to Sublandlord and Subtenant
respectively, so that, subject to the provisions of this Sublease and with
respect only to the Subleased Premises, Sublandlord shall have the rights and
powers of the Landlord under the Lease, and Subtenant shall have and does hereby
agree to be bound by and accept all the rights, powers, duties and obligations
of the Tenant under the Lease; provided, however, that notwithstanding the
foregoing, Sublandlord shall have no obligation to perform or furnish any of the
work, services, repairs or maintenance undertaken to be made by Landlord under
the Lease, or any other term, covenant or condition required to be performed by
Landlord under the Lease. Subtenant covenants and agrees that it shall do
nothing which shall have the effect of creating a breach of any of the terms,
covenants and conditions of the Lease. In the event that Landlord shall fail or
refuse to comply with any of the respective provisions of the Lease, Sublandlord
shall have no liability on account of any such failure or refusal. Subtenant may
communicate directly with Landlord and/or Landlord's management agent with
respect to day-to-day matters within the scope of services provided by Landlord
to, and for use and occupancy of, the Premises by Sublandlord under the terms of
the Lease. Sublandlord hereby agrees to cooperate with and execute, all at
Subtenant's expense, all instruments and supply information reasonably required
by Subtenant in order to enforce such compliance. Subtenant hereby agrees to
indemnify and hold Sublandlord harmless of and from any and all damages,
liabilities, obligations, costs, claims, losses, demands, and expenses,
including reasonable attorneys' fees, which may be incurred by Sublandlord in or
as a result of such cooperation and execution, unless caused by Sublandlord's
negligence or willful misconduct. In amplification and not in limitation of the
foregoing and without any allowance to Subtenant or other reduction or
adjustment of Rent, Sublandlord shall not be responsible for furnishing
electrical, elevator, heating, air conditioning, cleaning, window washing, or
other services, nor for any maintenance or repairs in or to the Subleased
Premises or the Building of which it is a part or to any of the facilities or
equipment therein; provided, however, for any period during which Sublandlord
receives an abatement of Rent under Section 7.B of the Lease due to a failure of
Landlord to provide services, Subtenant shall receive an abatement of the Rent
due under this Sublease.
The following sections of the Lease shall not be applicable to this
Sublease: 1A(1), 1A(2), 1A(4), 1A(5), 1A(6), 1A(7), 1A(8), 1B(1), 1(B(2), 1B(4),
1B(6), 1B(12), 1B(14) 1B(15), 1B(17), 1B(20), 1B(21), 1B(25), 1B(26), 1B(32),
1B(34), 1B(35), 1B(37) and 1B(38) (Basic Lease Information; Definitions); 3
(Term); 4A, 4B, 4C, 4F, 4H, 4I, 4J and 4K (Rent); 6 (Storage Space); 9
(Graphics); the last three sentences of 10A, the last sentence of 10B and the
first sentence of 10C (Repairs and Alterations); 11A and the first two sentences
of 11 B (Electrical Services); 13A (Assignment and Subletting); 15 (Indemnity);
16A and 16D (Tenant's Insurance); the last sentence of 18A, 18B and 18C
(Landlord's Insurance); 28 (Construction of the Premises); the second, third and
fourth paragraphs of 30 (Subordination); 34 (Access to Roof); 37 (Parking
Garage); the last sentence of 38 (Access); 39 (Option to Extend); 40 (Expansion
Space); 41F, 41I,41O and 41P (Miscellaneous); 42 (Right of First Offer); Exhibit
D (Commencement Letter); Exhibit E (Outline and Location of Storage Space);
Exhibit G (Schedule of Base Building Plans and Specifications); Exhibit H (Form
of Guaranty); Exhibit I (Title Insurance Policy and Commitment on Property);
Exhibit J (Construction Schedule); Exhibit K (Schedule of Base Rental); Exhibit
L (Schedule of Insurance Deductibles); and Exhibit M (Work Letter).
6. TRANSMITTAL OF NOTICES AND DEMANDS. Sublandlord shall promptly
transmit to Landlord any notice or demand received from Subtenant and shall
promptly transmit to Subtenant any notice or demand received from Landlord.
Subtenant shall promptly transmit to Sublandlord any notice or demand received
from Landlord or any other party relating to the Subleased Premises.
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 6
<PAGE>
7. LANDLORD'S CONSENT TO CERTAIN ACTS. Subtenant agrees that in any
case where the provisions of the Lease or this Sublease require the consent or
approval of Landlord prior to the taking of any action, it shall be a condition
precedent to the taking of such action that the prior consent or approval of
Landlord shall have been obtained. Subtenant agrees that Sublandlord shall not
have any duty or responsibility with respect to obtaining the consent or
approval of Landlord when the same is required under the terms of the Lease,
other than the transmission by Sublandlord to Landlord of Subtenant's request
for such consent or approval.
8. SUBLANDLORD'S RIGHT TO CURE SUBTENANT'S DEFAULT. Subtenant shall not
do or suffer or permit anything to be done which would cause the Lease to be
terminated or forfeited by virtue of any rights of termination or forfeiture
reserved or vested in Landlord or by law or in equity. If Subtenant shall
default beyond the expiration of any applicable cure period in the performance
of any of its obligations under this Sublease or under the Lease, Sublandlord,
without being under any obligation to do so and without thereby waiving such
default, may remedy such default for the account and at the expense of Subtenant
upon prior notice. If Sublandlord makes any expenditures or incurs any
obligation for the payment of money in connection therewith, such sums paid or
obligations incurred shall be deemed to be Additional Rent hereunder and shall
be paid to Sublandlord by Subtenant on demand.
9. UTILITIES.
(A) OVERTIME HEATING AND AIR CONDITIONING. Should Subtenant
require heating or cooling services beyond the Normal Business Hours for the
Building stipulated in Section 1B(23) of the Lease, Sublandlord will furnish
such additional service at the then-prevailing hourly rate, as established by
Sublandlord from time to time, provided that Subtenant gives Sublandlord no less
than forty-eight (48) hours advance written notice of the need therefor.
(B) EXCESSIVE ELECTRICAL USE. If Sublandlord believes (i) that
the Subleased Premises, and portion thereof, or any electrical equipment or
machinery therein, is consuming or will consume electricity in excess of 1.5
watts per square foot for lighting (exclusive of the electric power needed for
the Building MEP systems) and/or 5 watts per square foot for receptacles
(exclusive of the electric power needed for the Building MEP systems), or (ii)
that the Subleased Premises, and portion thereof, or any electrical equipment or
machinery therein, is consuming or will consume electricity for significantly
more hours per week than is standard for normal office use, then Sublandlord may
require that the Subleased Premises or such portion thereof or such equipment or
machinery therein be separately metered or submetered for electricity
consumption. The cost of any such meters and of installation, maintenance and
repair thereof shall be paid by Subtenant. Subtenant agrees to pay Sublandlord
or Landlord (or the utility company, if direct service is provided by the
utility company), promptly upon demand therefor, for all such electricity
consumption as shown by said meters, at the rates charged for such service by
the local public utility company.
10. ASSIGNMENT OF SUBLEASE.
(A) Subtenant shall not assign, mortgage or encumber this
Sublease, nor sublet, nor suffer or permit the Subleased Premises or any part
thereof to be used by others (any of which events is hereinafter and in the
Lease referred to as a "Transfer"), except with the prior written consent of
Sublandlord and Landlord, which consent may be granted or withheld in their sole
discretion, except as otherwise set forth in Paragraphs 10(b), 10(c) and 10(d).
Any attempted Transfer in violation of this provision shall be void. In no event
shall any Transfer, including without limitation a Transfer permitted under
Paragraph 10(b) below, relieve Subtenant of its liability and responsibility to
Sublandlord under this Sublease or to Landlord under the Lease in the absence of
any express written agreement with Sublandlord or Landlord, as the case may be,
to that effect.
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 7
<PAGE>
(B) Provided that Subtenant is not then in default, and is
then (and after the commencement of the proposed sublease will be) occupying at
least seventy-five percent (75%) of the Subleased Premises, Subtenant shall have
the right to sublet up to twenty-five percent (25%) of the Subleased Premises
with the prior written consent of Sublandlord and Landlord, WHICH consent shall
not be unreasonably withheld, conditioned or delayed, provided that the proposed
subtenant is comparable to other tenants of first class office buildings in
Bethesda, Maryland.
(C) In the event Subtenant desires to sublet any part of the
Subleased Premises, and the part of the Subleased Premises proposed to be
sublet, together with the parts of the Subleased Premises previously sublet by
Subtenant, constitutes more than twenty-five percent (25%) of the Subleased
Premises, Subtenant shall give Sublandlord and Landlord written notice of
Subtenant's desire to do so. Within sixty (60) days of receipt of said notice,
Sublandlord shall have the right to terminate this Sublease with respect to the
portion of the Subleased Premises that Subtenant desires to sublet. If
Sublandlord fails to exercise such right, Subtenant shall have the right to
sublet such portion of the Subleased Premises with the prior written consent of
Sublandlord and Landlord, which consent shall not be unreasonably withheld,
provided that Subtenant is not then in default and that the proposed subtenant
is comparable to other tenants of first class office buildings in Bethesda,
Maryland; provided, however, that Subtenant shall pay to Sublandlord monthly
fifty percent (50%) of the "Net Profits" (as defined herein) received by
Subtenant in connection with such sublease. "Net Profits" is defined as the
excess of the rent and/or all other sums collected by Subtenant under or in
connection with such sublease over and above the Rent payable by Subtenant to
Sublandlord under this Sublease for the space covered by such sublease (which
shall be the pro rata portion of the total Rent payable hereunder) and the
direct, out of pocket costs incurred by Subtenant in performing alterations or
leasehold improvements for the assignee or subtenant and the leasing commissions
paid, and rental abatement granted, by Subtenant in connection with such
assignment or sublease.
(D) Notwithstanding anything to the contrary herein, Subtenant
may assign this Sublease or sublet all or part of the Subleased Premises either
to a wholly owned corporation or entity or controlled subsidiary or parent of
the Subtenant or to any successor to Subtenant by purchase, merger,
consolidation or reorganization (hereinafter collectively referred to as
"Corporate Transfer") without the consent of Sublandlord or Landlord and without
being subject to Sublandlord's rights under Paragraph 10(c), provided that (i)
Subtenant is not in default under this Sublease; (ii) if such proposed
Transferee is a successor to Subtenant by purchase, said proposed Transferee
shall acquire all or substantially all of the stock or assets of Subtenant's
business or, if such proposed Transferee is a successor to Subtenant by merger,
consolidation or reorganization, the continuing or surviving corporation shall
own all or substantially all of the assets of Subtenant; (lii) such Corporate
Transfer shall be subject to the terms of this Sublease; (iv) in the case of an
assignment, such proposed Transferee shall have a net worth which is equal to or
greater than Subtenant's net worth at the date of this Sublease; and (v) in the
case of an assignment, such proposed Transferee shall assume all the obligations
of Subtenant hereunder. Subtenant shall give Sublandlord and Landlord written
notice at least thirty (30) days prior to the effective date of any such
Corporate Transfer. As used herein, the term "controlled subsidiary" shall mean
a corporate entity wholly owned by Subtenant or at least fifty-one percent (51%)
of whose voting stock is owned by Subtenant.
11. ALTERATIONS TO SUBLEASED PREMISES. Subtenant covenants at all times
during the Term not to make any alterations or additions to the Subleased
Premises of any nature whatsoever without the prior written consent of
Sublandlord and Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed for nonstructural, interior alterations. In the event
Subtenant obtains Sublandlord's and Landlord's consent and all necessary
governmental approvals and permits, Subtenant shall have the right to make such
alterations at Subtenant's sole expense. All alterations and additions made by
Subtenant to the Subleased Premises shall remain upon the
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 8
<PAGE>
Subleased Premises and be surrendered with the Subleased Premises at the
expiration of the Term without disturbance, molestation or injury, unless
otherwise specified by Sublandlord or Landlord. Should Sublandlord or Landlord
elect, at the time of consenting to any alterations or additions to be made by
Subtenant upon the Subleased Premises, that such alteration or additions be
removed upon the expiration of the Term, Subtenant agrees that Sublandlord or
Landlord shall have the right to cause same to be removed at Subtenant's sole
cost and expense. Subtenant agrees to reimburse Sublandlord or Landlord for the
cost of such removal and repairing any damage resulting therefrom.
12. SIGNAGE.
(A) DIRECTORY AND SUITE ENTRANCE SIGNS. Sublandlord agrees to
display, at Subtenant's expense, Subtenant's name and other listings for
Subtenant on the Building directory or directories in the size and style or
lettering used by Sublandlord. The number of individual names listed on the
Building directory or directories for Subtenant shall, after deducting the
portion of the directory used by Sublandlord, be proportional to percentage of
portion of the Building not occupied by Sublandlord, which is subleased by
Subtenant. Subtenant may display its name on the corridor wall adjacent to the
Subleased Premises, as directed by Sublandlord, in Building standard color, size
and style of lettering, to be furnished by Sublandlord at Subtenant's expense.
(B) CONSENT REQUIRED. No sign, advertisement or notice shall
be inscribed, painted, affixed or displayed on any part of the outside or the
inside of the Building, or inside of the Subleased Premises where it may be
visible from outside or from the public areas of the Building, except with the
prior written consent of Sublandlord and Landlord, which may be granted or
withheld in their sole discretion, and then only in such location, number, size,
color and style as is authorized by Sublandlord and Landlord. If any such sign,
advertisement or notice is exhibited without first obtaining Sublandlord's and
Landlord's written consent, Sublandlord shall have the right to remove same, and
Subtenant shall be liable for any and all expenses incurred by Sublandlord in
connection with said removal.
13. INDEMNITY. Except for the negligent or willful acts or omissions of
Landlord, its members, principals, beneficiaries, partners, officers, directors,
employees, Mortgagee(s) and agents, and the respective principals and members of
any such agents (collectively, the "Landlord Related Parties"), Sublandlord, and
its members, principals, beneficiaries, partners, officers, directors, employees
and agents, and the respective principals and members of any such agents
(collectively, the "Sublandlord Related Parties"), Subtenant shall indemnify,
defend and hold Landlord, the Landlord Related Parties, Sublandlord and the
Sublandlord Related Parties harmless against and from all liabilities,
obligations, damages, penalties, claims, costs, charges and expenses
(collectively, "Claims"), including, without limitation, reasonable attorneys'
fees and other professional fees (if and to the extent permitted by law), which
may be imposed upon, incurred by, or asserted against Landlord, any of the
Landlord Related Parties, Sublandlord or any of the Sublandlord Related Parties
that (1) arise from or in connection with the possession, occupancy, management,
repair, maintenance or control of the Subleased Premises, or any portion
thereof, by Subtenant or any party claiming by, through or under Subtenant, or
(2) arise from or in connection with any act or omission by Subtenant or any
party claiming by, through or under Subtenant in the Limited Common Areas of the
Building (defined, for purposes of this Sublease and the Lease, notwithstanding
anything to the contrary in the Lease, as those areas of the Building provided
for the common use or benefit of Sublandlord, Subtenant, the other subtenants of
the Building and Landlord, such as corridors, elevator foyers, restrooms, lobby
areas, loading docks and other similar facilities) including, to the extent
applicable under this subparagraph (2), all such Claims resulting by reason of
any injury or death to persons or damage to property, or (3) arise from or in
connection with any willful or negligent act or omission of Subtenant or any of
its transferees, agents, servants, contractors, employees, customers, licensees
or invitees, or (4)
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 9
<PAGE>
result from any failure on the part of Subtenant to perform or comply with any
of the covenants, agreements, terms or conditions contained in the Lease or this
Sublease with which Subtenant must comply or perform, or (5) arise from injury
or death to persons or damage to property sustained in the Subleased Premises or
any other space leased to Subtenant in the Building. In case any action or
proceeding is brought against Landlord, any of the Landlord Related Parties,
Sublandlord or any of the Sublandlord Related Parties by reason of any of the
foregoing, Subtenant shall, at Subtenant's sole cost and expense, resist and
defend such action or proceeding with counsel approved by Landlord and
Sublandlord, or at Landlord's and Sublandlord's option, reimburse Landlord and
Sublandlord for the cost of any counsel directly retained by Landlord and
Sublandlord to defend and resist such action or proceeding.
14. SUBTENANT'S INSURANCE. At all times commencing on or after the
earlier of the Preliminary Commencement Date or the date Subtenant or its
agents, employees or contractors enters the Subleased Premises for any purpose,
Subtenant shall carry and maintain, at its sole cost and expense:
(1) Commercial General Liability Insurance applicable to the
Subleased Premises, providing, on an occurrence basis, a minimum combined single
limit of Two Million Dollars ($2,000,000.00), with a contractual liability
endorsement covering Subtenant's indemnity obligations under this Sublease and
the Lease.
(2) All Risk of Physical Loss Insurance written at replacement
cost value and with a replacement cost endorsement covering all of Subtenant's
Property in the Subleased Premises.
(3) Workers' Compensation Insurance as required by the state
in which the Subleased Premises is located and in amounts as may be required by
applicable statute, and Employers' Liability Coverage of One Million Dollars
($1,000,000.00) per occurrence.
(4) Whenever Landlord requires Tenant to obtain additional
insurance coverage or different types of insurance pursuant to the Lease,
Subtenant shall, upon request, obtain such insurance at Subtenant's expense and
provide Sublandlord with evidence thereof.
The requirements of Section 16C of the Lease shall apply to all insurance which
Subtenant is required to maintain pursuant to the terms of this Sublease.
15. EMINENT DOMAIN, LOSS BY CASUALTY. In the event of any taking by
eminent domain or damage by fire or other casualty to the Subleased Premises
thereby rendering the Subleased Premises wholly or in part untenantable,
Subtenant shall acquiesce in and be bound by any action taken by or agreement
entered into between Landlord and Sublandlord with respect thereto.
16. DEFAULT.
(A) EVENTS OF DEFAULT. In addition to the events of default
set forth in Section 22 of the Lease, the following event shall be deemed to be
events of default under this Sublease:
(i) A Transfer in violation of Paragraph 10; or
(ii) Subtenant's abandonment of the Subleased
Premises for more than thirty (30) consecutive days.
Notwithstanding anything to the contrary in subsection 22A of the Lease,
Sublandlord shall not be required to give Subtenant more than two (2) such
notices in any twelve (12) month period.
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 10
<PAGE>
(B) REMEDIES. If this Sublease or Sublessee's right to
possession of the Subleased Premises is terminated because of an event of
default, Sublandlord shall have all of the remedies set forth in Section 23 of
the Lease.
17. NOTICE AND DEMANDS. All notices or demands under this Sublease
shall be in writing and shall be sent by overnight courier service (such as
Federal Express), or registered or certified mail, return receipt requested, or
hand delivered, to the following addresses or such other address as either of
the parties may designate by written notice:
If To Sublandlord: PG&E Generating Company
7500 Old Georgetown Road
13th Floor
Bethesda, Maryland 20814
Attn: P. Chrisman Iribe,
PCI President
with a copy to: PG&E Generating Company
7500 Old Georgetown Road
13th Floor
Bethesda, Maryland 20814
Attn: Stephen Herman, Esquire,
General Counsel
If To Subtenant: Before occupancy of Subleased
Premises:
InforMax, Inc.
6010 Executive Boulevard
Rockville, Maryland 20852
After occupancy of Subleased Premises:
InforMax, Inc.
7600 Wisconsin Avenue
10th Floor
Bethesda, Maryland 20814
With a copy (in either case) to: Hogan & Hartson L.L.P.
8300 Greensboro Drive
Suite 1100
McLean, Virginia 22102
Attn: Dennis K. Moyer, Esquire
All notices hereunder shall be effective when delivered in person or by
overnight courier service, as indicated on the receipt obtained by the messenger
or overnight delivery service, or three (3) business days after mailing, as the
case may be.
18. SURRENDER OF SUBLEASED PREMISES. Upon the expiration or other
termination of the Term, Subtenant covenants to quit and surrender to
Sublandlord or Landlord, as the case may be, the Subleased Premises, broom
clean, in good order and condition, ordinary wear and tear damage by fire or
other casualty excepted, and at Subtenant's expense to remove all property of
Subtenant. Any property not so removed shall be deemed to have been abandoned by
Subtenant
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 11
<PAGE>
and may be retained or disposed of at Subtenant's expense by Sublandlord or
Landlord, as either may desire.
19. PARKING. Subtenant shall have the right to use up to two (2)
parking spaces in the Building parking garage per one thousand (1,000) rentable
square feet of floor space in the Subleased Premises; provided, however, that if
Subtenant does not commence using all such parking spaces on the Rent
Commencement Date, or ceases using all such parking spaces at any time
thereafter, Subtenant shall thereafter have the right to use the remaining
parking spaces allocated to Subtenant only to the extent there are then unused
parking spaces in the Building parking garage. For each month during the Term,
Subtenant shall pay to Sublandlord, as Additional Rent for the use of such
parking spaces, an amount equal to the product obtained by multiplying: (i) the
number of parking spaces utilized by Subtenant in this paragraph, by (ii) the
market rent for each such space, as determined from time to time by Landlord,
Sublandlord and/or the garage operator. On the Rent Commencement Date the rent
for each such space shall be One Hundred and No/100 Dollars ($100.00) per month.
No specific parking spaces shall be designated for use by Subtenant; provided,
however, that if Sublandlord or Landlord institutes reserved parking for
subtenants of the Building, then at Subtenant's option, up to four (4) of the
parking spaces allocated to Subtenant above shall be designated as reserved for
Subtenant and the rent for each such reserved space shall be the market rent for
a reserved space, as determined from time to time by Landlord, Sublandlord
and/or the garage operator. Subtenant acknowledges that Landlord has the right
to institute either a valet or self-parking system.
20. BROKERAGE FEES. The parties hereto represent and warrant to each
other that they have not dealt with any broker other than Jones Lang LaSalle USA
and The Bank Companies. Sublandlord shall pay said brokers a brokerage
commission pursuant to a separate agreement between Sublandlord and said brokers
in connection with this Sublease. Each party hereto agrees to indemnify, defend
and hold the other party harmless against any claim or liability for a
commission by any broker, arising by reason of a breach by the indemnifying
party of the aforesaid representation and warranty.
21. AUTHORITY TO EXECUTE LEASE. Each of Subtenant and Sublandlord
represents and warrants that this Sublease has been duly authorized, executed
and delivered by and on behalf of such party and constitutes the valid and
binding agreement of such party in accordance with the terms hereof.
22. SECURITY DEPOSIT.
(A) Subtenant has deposited with Sublandlord before or
simultaneously with the execution of Sublease, a cash deposit or an irrevocable
and unconditional letter of credit, in form and substance and with a bank
satisfactory to Landlord, in the amount of Four Hundred Sixty Thousand Two
Hundred and No/100 Dollars ($460,200.00) as a deposit to secure the prompt
performance of Subtenant's obligations hereunder. On or before the Delivery
Date, Subtenant shall deposit with Sublandlord a cash deposit or an irrevocable
and unconditional letter of credit, in form and substance and with a bank
satisfactory to Landlord, in the amount of Nine Hundred Twenty Thousand Four
Hundred and No/100 Dollars ($920,400.00) as an additional deposit to secure the
prompt performance of Subtenant's obligations hereunder. In the event that
Subtenant fails to provide Landlord with such additional Nine Hundred Twenty
Thousand Four Hundred and No/100 Dollar ($920,400.00) deposit on or before the
Delivery Date, then this Sublease shall automatically terminate on the Delivery
Date, Sublandlord shall retain the Four Hundred Sixty Thousand Two Hundred and
No/100 Dollar ($460,200.00) deposit as full and complete liquidated damages for
Subtenant's failure to deliver such additional deposit, Sublandlord shall return
any advance Rent payment to Subtenant, and the parties shall thereupon be
relieved of any and all further liability under this Sublease.
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 12
<PAGE>
(B) If Subtenant provides cash deposits, such deposits may be
commingled with Sublandlord's general funds, if permitted by law. Sublandlord
shall have the right, but shall not be obligated, to apply all or any portion of
such deposits to cure any default, in which event Subtenant shall be obligated
to deposit with Sublandlord the amount necessary to restore such deposits to
their original amount within five (5) days after written notice from
Sublandlord. To the extent not forfeited or otherwise used as provided herein,
and provided the Subleased Premises are vacated in good condition, ordinary wear
and tear and damage by fire or other casualty excepted, as described in
Paragraph 18, the deposits shall be returned, without interest, to Subtenant
within thirty (30) days after the expiration or other termination of this
Sublease.
(C) If Subtenant provides letters of credit, said letters of
credit shall be issued by a commercial bank satisfactory to Sublandlord, having
banking offices at which said letters of credit may be drawn upon in the
Washington, D.C. metropolitan area, and a net worth of not less that One Billion
Dollars. Said letters of credit shall be subject to the International Standby
Practices 1998, International Chamber of Commerce Publication No. 590, and shall
be transferable one or more times by Sublandlord without the consent of
Subtenant. Any transfer fees in connection therewith shall be payable by
Subtenant. Sublandlord hereby approves PNC Bank as the issuing bank for said
letters of credit. Sublandlord shall have the right, but shall not be obligated,
to draw down all or any portion of said letters of credit to cure any event of
default which continues beyond the expiration of any applicable cure period. The
letter of credit shall provide that it may be drawn down by Sublandlord upon
presentation of Sublandlord's draft drawn on the issuing bank. If, during the
Preliminary Term or during any Sublease Year, Sublandlord draws down more than
twenty-five percent (25%) of the original aggregate amount of the letters of
credit, then Subtenant, within fifteen (15) days after written notice from
Sublandlord, shall provide Landlord with an additional letter of credit in the
amount of the difference between the original aggregate amount of the letters of
credit and the then-current balance thereof. Not less than thirty (30) days
prior to the expiration date of any letter of credit provided hereunder,
Subtenant shall provide Sublandlord with a replacement letter of credit in the
same amount (or such lesser amount as may be required under subparagraph 22(d)
(except that if Subtenant does not exercise its renewal option with Landlord, no
such replacement letter of credit shall be required after the expiration of the
twelfth (12th) Sublease Year, and if Subtenant does exercise its renewal option
with Landlord, the replacement letter of credit required at the expiration of
the twelfth (12th) Sublease Year shall be deposited with Landlord and shall
provide that it may be drawn down by Landlord upon presentation of Landlord's
draft drawn on the issuing bank). Each letter of credit provided hereunder
(except, if Subtenant does not exercise its renewal option with Landlord, that
provided during the twelfth (12th) Sublease Year) shall provide that in the
event it is not supplemented by a replacement letter of credit or cash deposit
on or before thirty (30) days prior to its expiration, then Sublandlord may draw
down the full amount of such letter of credit. Sublandlord agrees that if it
draws down a letter of credit due solely to a failure of Subtenant to so provide
a replacement letter of credit, Sublandlord shall hold the proceeds of same in
an interest-bearing account with a financial institution that is insured by the
FDIC or any federal successor thereto, until the sooner to occur of (i)
Subtenant's provision of such a replacement letter of credit, at which time such
proceeds shall be paid to Subtenant, or (ii) an event of default by Subtenant of
one or more of its obligations under this Sublease which continues beyond the
expiration of any applicable cure period, at which time Sublandlord shall
withdraw proceeds in an amount equal to the economic loss suffered by
Sublandlord as a result of such event of default, and the remaining proceeds (if
any) shall continue to be held in such account pursuant to the terms hereof.
Notwithstanding the foregoing, if Subtenant exercises its renewal option with
Landlord, and Sublandlord draws down on the letter of credit provided during the
twelfth (12th) Sublease Year due solely to a failure of Subtenant to provide a
replacement letter of credit, then Sublandlord shall pay the proceeds of such
letter of credit to Landlord, to be held in accordance with the terms of this
paragraph. Subtenant hereby agrees to cooperate, at its expense, with
Sublandlord to promptly execute and deliver to Sublandlord any and all
modifications, amendments and replacements to the letters of credit as
Sublandlord may reasonably request to carry out the terms and conditions of this
Paragraph 22(c).
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 13
<PAGE>
(D) Notwithstanding anything to the contrary herein, Subtenant
may reduce the amount of the cash or letter of credit security deposit provided
hereunder to Six Hundred Ninety Thousand Three Hundred and No/100 Dollars
($690,300.00) [i.e., six (6) times the initial monthly Base Rental], provided
that Subtenant gives Sublandlord not less than thirty (30) days written notice
of its intent to so reduce the security deposit, which notice is accompanied by
Subtenant's most recent annual audited financial statement, and a year-to-date
financial statement certified as correct by Subtenant's Chief Financial Officer,
both of which financial statements show cash and cash equivalents of at least
Five Million Dollars ($5,000,000.00) and earnings before interest, taxes,
depreciation and amortization of at least One Million Dollars ($1,000,000.00).
(E) Sublandlord, in its sole discretion, may permit Subtenant
to replace all or part of the cash or letter of credit deposits with a bond,
provided that the bond issuer's creditworthiness and experience as a surety and
the form of the bond are acceptable to Sublandlord, in its sole discretion.
(F) Sublandlord may deliver the cash, letter of credit or bond
deposits to any assignee of Sublandlord's interest in this Sublease, whereupon
Sublandlord shall be discharged from any further liability with respect to such
deposits. This provision shall apply also to any and all subsequent transferors
of the Sublandlord's interest in this Sublease.
23. SUBTENANT'S ROOF USE.
(A) Throughout the Term, Subtenant shall have the right to
install and maintain, subject to applicable laws and governmental regulations
and the provisions of this Paragraph 23, one or more satellite or antenna
dishes, solely for Subtenant's use in the operation of its primary business, on
an area or areas in locations mutually and reasonably acceptable to Sublandlord
and Subtenant and approved by Landlord, on the roof of the Building
("Subtenant's Roof Use"). Subtenant shall screen such installations in a manner
mutually acceptable to Landlord, Sublandlord and Subtenant. Subtenant shall
remove any such satellite or antenna dishes and any related equipment from the
Building at the expiration or other termination of the Term of this Sublease,
and Subtenant shall, at its sole cost and expense, make all necessary repairs or
restoration occasioned by such removal and restore any portion of the Building
affected by the installation of the satellite or antenna dishes and related
equipment to its original condition. Subtenant shall pay all costs associated
with the installation, maintenance, repair, use, insurance and removal of such
satellite or antenna dishes and any related equipment. Subtenant may use up to
fifty (50) square feet of space on the roof of the Building for Subtenant's Roof
Use without the payment of rent therefor to Sublandlord or Landlord. If
Subtenant requires more than fifty (50) square feet of space on the roof of the
Building for Subtenant's Roof Use, Sublandlord and Landlord reserve the right to
charge Subtenant rent for the roof space in excess of fifty (50) square feet
used for Subtenant's Roof Use. Subtenant shall not assign or sublet any of its
rights under this Paragraph 23 to any other party.
(B) Subtenant shall give Landlord reasonable telephonic notice
before any entry onto the roof of the Building by Subtenant's agents, employees
or contractors, and shall permit Landlord's agents or employees to accompany
Subtenant's agents, employees or contractors on any such entry onto the roof.
Landlord and Sublandlord shall not be liable for any claims, losses, actions,
damages, liabilities or expenses arising from any satellite or antenna dishes or
related equipment installed by Subtenant on the roof of the Building, or the
installation, maintenance, repair, use or removal of such dishes and related
equipment.
(C) Subtenant shall obtain Sublandlord's and Landlord's
written consent prior to installation of any satellite or antenna dishes or
other roof-top equipment, with respect to the type, weight, method of
installation and appearance of all such items. Sublandlord and Landlord shall be
entitled to condition its consent to the installation of such load supports as
Sublandlord or
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement- Page 14
<PAGE>
Landlord may reasonably determine necessary to support the proposed roof-top
equipment. Subtenant shall provide Sublandlord and Landlord with plans and
specifications sufficient for such purposes. Subtenant will obtain prior to
installation, any and all governmental licenses, approvals necessary for the
installation, maintenance and use of any equipment installed pursuant to this
Paragraph 23. Subtenant's Roof Use shall not in any way conflict with any
applicable laws or governmental regulations. Subtenant shall indemnify and hold
Sublandlord and Landlord harmless from and against any and all loss, cost
(including reasonable attorney's fees incurred in defending Sublandlord and
Landlord), damage or liability arising out of any violation by Subtenant's Roof
Use of any applicable laws. The provisions contained in Sections 10 and 16 of
the Lease shall fully govern all roof-top installations by Subtenant hereunder.
(D) Subtenant's Roof Use shall be exercised: (i) in such
manner as will not create any hazardous condition or interfere with or impair
the operation of the heating, ventilation, air conditioning, plumbing,
electrical, fire protection, life, safety, public utilities or other systems or
facilities in the Building; (ii) in such a manner as will not unreasonably
interfere with Landlord's operation or maintenance of the Building or the
operations of other tenants of the Project; (iii) at Subtenant's cost, including
the cost of repairing any damage to the Building and any personal injury and/or
property damage caused by the installation, inspection, adjustment, maintenance,
removal or replacement of any of Subtenant's equipment on the roof; and (iv) in
a manner which will not void or invalidate any roof warranty then in effect with
respect to the roof of the Building. Subtenant, at its expense, shall use a roof
contractor approved by Landlord to seal any roof penetration caused by the
installation, maintenance or removal of Subtenant's equipment and Subtenant
shall be responsible for all roof repairs necessitated by the installation,
maintenance, use or removal of such equipment, including any roof repairs which
would have been covered by a warranty lost by reason of any of the same.
Subtenant shall eliminate, to the extent possible, any electromagnetic
interference with the equipment of Landlord, Sublandlord and other subtenants of
the Building caused by Subtenant's satellite or antenna dishes and related
equipment.
(E) To the extent that Subtenant shall cause any wiring or
cabling (including, without limitation, any and all supporting structures) to be
installed, pulled or operated in the Subleased Premises (including, without
limitation, any telecommunications equipment installed by reason of Subtenant's
Roof Use) such wiring or cabling, and supporting structures at Landlord's option
shall be removed (provided Landlord advised Subtenant in writing at the time of
its consent to the installation of such wiring and cabling that such items are
to be removed) and the Building restored by Subtenant at Subtenant's expense
upon expiration or earlier termination of this Sublease. The obligations of
Subtenant under this Paragraph 23 shall expressly survive such termination or
expiration of this Lease.
24. RIGHT OF FIRST OPPORTUNITY.
(A) OPTION AND EXERCISE. If the second (2nd) or third (3rd)
floor of the Building (each, an "Expansion Floor") shall become available for
subletting at any time during the Term, then provided that Subtenant is not in
default and is occupying at least seventy-five percent (75%) of the Subleased
Premises, Subtenant shall have a right of first opportunity to sublease the
entire such Expansion Floor (but not less than the entire such Expansion Floor)
for the then-remaining Term of this Sublease, upon the same terms, covenants and
conditions as set forth in this Sublease with respect to the Subleased Premises,
except that (i) the Rent Commencement Date for the Expansion Floor shall be the
date on which Sublandlord delivers possession of the Subleased Premises to
Subtenant in its "as is" condition, and (ii) there shall be no Improvement
Allowance with respect to the Expansion Floor, and (iii) the Base Rental payable
for the Expansion Floor shall be determined in accordance with Paragraph 24(b).
Sublandlord shall give Subtenant not less than twelve (12) months written notice
of the date on which Sublandlord anticipates that the Expansion Floor will be
available for occupancy by a subtenant (the "Anticipated Occupancy Date").
Subtenant may then exercise its right of first opportunity by giving written
notice of the
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 15
<PAGE>
exercise to Sublandlord within thirty (30) days after the date of Landlord's
notice. A failure by Subtenant to respond within said thirty (30) day period
shall totally extinguish Subtenant's right of first opportunity to sublease the
Expansion Floor. The right of first opportunity granted hereby may not be
assigned or transferred by Subtenant.
(B) BASE RENTAL. If Subtenant exercises its right of first
opportunity to sublease the Expansion Floor, the Base Rental for the Expansion
Floor shall be computed as an amount equal to the fair market rental rate of the
Expansion Floor as then improved, as if vacant, based on its use as general
office space and taking into account all relevant provisions of this Lease.
Sublandlord and Subtenant shall employ the procedure and timetable described
below for the purpose of computing the fair market rental rate of the Expansion
Floor and the Base Rental properly payable during the first Sublease Year of the
extension term:
(i) Not later than the three hundred fortieth (340th) day
prior to the Anticipated Occupancy Date, Sublandlord
shall deliver to Subtenant notice of its proposed
Base Rental for the Expansion Floor.
(ii) Not later than the three hundred thirty-fifth (335th)
day prior to the Anticipated Occupancy Date,
Subtenant shall send to Sublandlord notice of its
proposed Base Rental for the Expansion Floor.
(iii) In the event the parties negotiate and agree to a
Base Rental and have executed a written agreement
establishing same on or before the three hundred
twenty-fifth (325th) day prior to the Anticipated
Occupancy Date, then said Base Rental shall be
binding upon the parties.
(iv) In the event the parties have failed to, execute such
an agreement by said date, then Subtenant shall
engage an appraiser, who is a member of the American
Institute of Real Estate Appraisers (a "MAI
Appraiser"), on or before the three hundred fifth
(305th) day prior to the Anticipated Occupancy Date,
and shall notify the Sublandlord thereof. In the
event Subtenant does not engage a MAI Appraiser as
required above, then the Base Rental last proposed by
the Sublandlord shall be deemed the Base Rental for
the Expansion Floor.
(v) Not later than the two hundred eighty-fifth (285th)
day prior to the Anticipated Occupancy Date,
Subtenant shall deliver to Sublandlord a copy of its
appraiser's determination of the fair market rental
as aforesaid. In the event Subtenant does not deliver
a copy as aforesaid, then the Base Rental last
proposed by Sublandlord shall be deemed the Base
Rental for the Expansion Floor.
(vi) In the event the parties negotiate and agree to a
Base Rental, and have executed a written agreement
establishing same on or before the two hundred
seventieth (370th) day prior to the Anticipated
Occupancy Date, then said Base Rental shall be
binding upon the parties.
(vii) In the event the parties have failed to execute such
an agreement by said date, then Sublandlord shall
engage a MAI Appraiser, on or before the two hundred
sixty-fifth (265th) day prior to the Anticipated
Occupancy Date, and shall notify the Subtenant
thereof. In the event Sublandlord does not engage a
MAI appraiser as required above, then the Base Rental
proposed by Subtenant's appraiser shall be deemed the
Base Rental for the Expansion Floor.
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 16
<PAGE>
(viii) No later than the two hundred forty-fifth (245th) day
prior to the Anticipated Occupancy Date, Sublandlord
shall deliver to Subtenant a copy of its appraiser's
determination of the fair market rental as aforesaid.
In the event Sublandlord does not deliver a copy as
aforesaid, then the Base Rental last proposed by
Subtenant's appraiser shall be deemed the Base Rental
for the Expansion Floor.
(ix) In the event the parties negotiate and agree to a
Base Rental, and have executed a written agreement
establishing same on or before the two hundred
fortieth (240th) day prior to the Anticipated
Occupancy Date, then said Base Rental shall be
binding upon the parties.
(x) In the event the parties have failed to execute such
an agreement by said date, then the two (2) MAI
Appraisers shall choose a third MAI Appraiser and
notify Sublandlord and Subtenant of such choice. The
parties shall share equally the cost of the three (3)
appointed MAI Appraisers. In the event that said two
(2) MAI Appraisers cannot agree on the choice of a
third MAI Appraiser and notify the parties thereof by
the two hundred thirty-fifth (235th) day prior to the
Anticipated Occupancy Date, then the President of the
Montgomery County Board of Realtors shall choose a
third MAI Appraiser on or before the two hundred
twenty-fifth (225th) day prior to the Anticipated
Occupancy Date.
(xi) Not later than the two hundred fifteenth (215th) day
prior to the Anticipated Occupancy Date, the third
appraiser shall determine the fair market rental rate
of the Expansion Floor, as then improved, based on
its use as general office space, by selecting as such
fair market rental rate either (i) the fair market
rental rate proposed by Subtenant's MAI Appraiser or
(ii) the fair market rental rate proposed by
Sublandlord's MAI Appraiser and submitting such
determination to each party in writing. Based on said
third MAI Appraiser's determination, Sublandlord and
Subtenant shall promptly thereafter execute a written
agreement establishing the aforesaid Base Rental,
which rent shall be binding upon the parties.
(xii) In no event shall the newly-established Base Rental
for the Expansion Floor be less than the
per-square-foot Base Rental then paid by Subtenant
for the Subleased Premises.
The Base Rental for the Expansion Floor shall be increased at
the same times and by the same percentage as the Base Rental for the Subleased
Premises.
25. CONSENT OF LANDLORD. The written consent of Landlord to this
Sublease is required under the terms of the Lease, and neither party hereto
shall be bound hereby until said consent is fully executed and delivered among
the parties. This Sublease is contingent, in its entirety, upon Sublandlord's
obtaining Landlord's consent to this Sublease. If the aforesaid consent has not
been obtained within thirty (30) days after execution of this Sublease by
Sublandlord and Subtenant, then either party may terminate this Lease by written
notice to the other given before such consent is obtained. In the event of such
termination, Sublandlord shall return any Security Deposit and advance rental
payment theretofore paid by Subtenant, and the parties shall thereupon be
relieved of any and all liability hereunder. Upon the execution hereof,
Sublandlord will promptly submit this Sublease to Landlord for its consent.
Sublandlord shall use reasonable efforts to obtain such consent within fifteen
(15) days after the execution of this Sublease by both parties.
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 17
<PAGE>
26. SUBORDINATION OF SUBLANDLORD'S LIEN. Sublandlord agrees to
subordinate any lien it may have on Subtenant's property in the Subleased
Premises to the lien of any bona fide lender providing financing for Subtenant's
business in the Subleased Premises.
27. NON-DISTURBANCE AGREEMENT. Sublandlord shall use reasonable efforts
to obtain for Subtenant a non-disturbance agreement from Landlord, providing
that so long as Subtenant is not in default in the payment of Base Annual Rental
or Additional Rental or any other material covenant or condition of this
Sublease, (i) its rights as Subtenant hereunder shall not be affected or
terminated, (ii) its possession of the Subleased Premises shall not be
disturbed, (iii) no action or proceeding shall be commenced to remove or evict
Subtenant, and (iv) this Sublease shall at all times continue in full force and
effect notwithstanding the termination of the Lease prior to the expiration or
termination of this Sublease.
28. QUIET ENJOYMENT. So long as Subtenant shall observe and perform all
of the covenants and agreements binding on it hereunder, (i) Subtenant shall at
all times during the Term hereof peacefully and quietly have and enjoy
possession of the Subleased Premises without hindrance by Sublandlord, (ii)
Sublandlord shall not default under the Lease, and (iii) Sublandlord shall
maintain the Lease in full force and effect throughout the Term hereof, unless a
termination is caused by factors beyond Sublandlord's control.
29. MISCELLANEOUS.
(A) NO OFFER. Submission of this instrument for examination
shall not constitute a reservation of or option for the Subleased Premises or in
any manner bind Sublandlord and no Sublease or obligation on Sublandlord shall
arise until this instrument is signed and delivered by Sublandlord and
Subtenant; provided, however, the execution and delivery by Subtenant of this
Sublease to Sublandlord shall constitute an irrevocable offer by Subtenant to
sublease the Subleased Premises on the terms and conditions herein contained,
which offer may not be revoked for thirty (30) days after such delivery.
(B) NO PARTNERSHIP. Nothing contained in this Sublease shall
be deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Sublandlord and Subtenant, it being expressly understood and
agreed that neither the method of computation of Base Rental nor any other
provisions contained in this Sublease nor any act of the parties hereto shall be
deemed to create any relationship between Sublandlord and Subtenant other than
the relationship of landlord and tenant.
(C) TIME OF THE ESSENCE. Time is of the essence of this
Sublease and of each and all provisions hereof.
(D) SEPARABILITY. The legal invalidity of any provision of
this Sublease shall not impair or affect in any manner the validity,
enforceability or effect of the rests of this Sublease.
(E) COUNTERPARTS. This Sublease may be executed in several
counterparts, all of which shall constitute one and the same document.
(F) MERGER. All understandings and agreements, oral or
written, heretofore made between the parties hereto are merged in this Sublease,
which alone fully and completely expresses the agreement between Sublandlord and
Subtenant.
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 18
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this Sublease
the day and year first above written.
WITNESS: SUBLANDLORD:
PG&E GENERATING COMPANY
/s/ Sherry Blackmon By: /s/ P. Chrisman Iribe (SEAL)
------------------------------ ----------------------------------
President
-------------------
WITNESS: SUBTENANT:
INFORMAX, INC.
/s/ ILLEGIBLE By: /s/ Joseph E. Lehnen (SEAL)
------------------------------ ----------------------------------
8/22/00 CFO
-------------------
PG&E Generating Company and
InforMax, Inc.
Sublease Agreement - Page 19
<PAGE>
EXHIBIT A
LEASE
[WHEREAS #I]
<PAGE>
OFFICE LEASE AGREEMENT
between
Bethesda Place II Limited Partnership
(Landlord)
and
U.S. Generating Company
(Tenant)
Dated: ________________, 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. BASIC LEASE INFORMATION; DEFINITIONS ............................................................... 1
2. LEASE GRANT ........................................................................................ 7
3. COMMENCEMENT DATE/MEASUREMENT ...................................................................... 7
4. RENT ............................................................................................... 8
5. USE ................................................................................................ 14
6. STORAGE SPACE ...................................................................................... 14
7. SERVICES TO BE FURNISHED BY LANDLORD ............................................................... 15
8. LEASEHOLD IMPROVEMENTS ............................................................................. 16
9. GRAPHICS ........................................................................................... 16
10. REPAIRS AND ALTERATIONS ............................................................................ 16
11. ELECTRICAL SERVICES ................................................................................ 17
12. ENTRY BY LANDLORD .................................................................................. 18
13. ASSIGNMENT AND SUBLETTING .......................................................................... 18
14. LIENS .............................................................................................. 19
15. INDEMNITY .......................................................................................... 19
16. TENANT'S INSURANCE ................................................................................. 20
17. SUBROGATION ........................................................................................ 21
18. LANDLORD'S INSURANCE ............................................................................... 22
19. CASUALTY DAMAGE .................................................................................... 23
20. INTENTIONALLY OMITTED .............................................................................. 24
21. CONDEMNATION ....................................................................................... 24
22. EVENTS OF DEFAULT .................................................................................. 24
23. REMEDIES ........................................................................................... 25
24. LIMITATION OF LIABILITY ............................................................................ 26
25. NO WAIVER .......................................................................................... 27
26. EVENT OF BANKRUPTCY ................................................................................ 27
27. WAIVER OF JURY TRIAL ............................................................................... 28
28. CONSTRUCTION OF THE PREMISES ....................................................................... 28
<PAGE>
29. HOLDING OVER ....................................................................................... 31
30. SUBORDINATION TO MORTGAGES ......................................................................... 31
31. ATTORNEYS' FEES .................................................................................... 33
32. NOTICE ............................................................................................. 33
33. ESTOPPEL CERTIFICATES .............................................................................. 33
34. ACCESS TO ROOF ..................................................................................... 34
35. EXCEPTED RIGHTS .................................................................................... 35
36. SURRENDER OF PREMISES .............................................................................. 35
37. PARKING GARAGE ..................................................................................... 35
38. ACCESS ............................................................................................. 36
39. OPTION TO EXTEND ................................................................................... 37
40. EXPANSION SPACE .................................................................................... 39
41. MISCELLANEOUS ...................................................................................... 42
42. RIGHT OF FIRST OFFER ............................................................................... 42
43. ENTIRE AGREEMENT ................................................................................... 46
</TABLE>
EXHIBITS
EXHIBIT A Site Plan of Property [Section 1.B (29)]
EXHIBIT B Outline of Premises [Section I.A (6)]
EXHIBIT C Rules and Regulations [Article 5]
EXHIBIT D Commencement Letter [Section 3.A]
EXHIBIT E Outline and Location of Storage Space [Section 6.A]
EXHIBIT F-1 Building HVAC and Electricity Capacity Specifications
[Section 7.A.2]
EXHIBIT F-2 Janitorial Service Specifications [Section 7.A.4]
EXHIBIT G Schedule of Base Building Plans and Specifications
[Section 28.A]
EXHIBIT H
EXHIBIT I Title Insurance Policy and Commitment on Property
[Section 41.P]
EXHIBIT J Construction Schedule [Section 28.C]
EXHIBIT K Schedule of Base Rental [Section 4.B]
EXHIBIT L Schedule of Insurance Deductibles [Section. 18.B]
EXHIBIT M Work Letter [Section 28.A]
<PAGE>
OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease") is made and entered into as
of the _____ Day of ________________, 1998 by and between Bethesda Place II
Limited Partnership, a Maryland Limited Partnership ("Landlord") and U.S.
Generating Company, a California general partnership ("Tenant").
1. BASIC LEASE INFORMATION; DEFINITIONS.
A. The following are some of the basic lease information and defined
terms used in this Lease.
(1) "Additional Base Rental" shall mean Excess Basic Costs,
Storage Space Rental, Parking Garage Rental, Improvement Loan Rental (if any)
payable pursuant to Section 28B, and any other sums (exclusive of Base Rental)
that are required to be paid by Tenant to Landlord hereunder, which sums are
deemed to be additional rent under this Lease. Additional Base Rental and Base
Rental are sometimes collectively referred to herein as "Rent."
(2) "Base Rental" shall mean the minimum base rent that Tenant
is required to pay to Landlord.
(3) "Building" shall mean the office building located at 7600
Wisconsin Avenue Bethesda, Maryland 20814, commonly known as Bethesda Place II.
(4) The "Lease Term" shall consist of a Preliminary Term, a
Main Term and, if exercised, Extension Terms. The "Preliminary Term" shall mean
the period commencing on the Preliminary Commencement Date and ending on the day
before the Commencement Date. Before and during the Preliminary Term, the
Initial Leasehold Improvements will be constructed on a floor-by-floor basis.
The "Main Term" shall mean a period of one hundred forty-four (144) months
commencing on the Commencement Date.
If Landlord's Contractor constructs the Initial
Leasehold Improvements:
(a) the "Preliminary Commencement Date" shall be the
earlier of (i) five (5) days after Landlord first obtains a use and occupancy
permit for an entire floor of the Premises, or (ii) the date on which Tenant
first conducts its business operations on an entire floor of the Premises;
(b) the "Commencement Date" shall be the date on
which a use and occupancy permit is issued for the Base Building and all Initial
Leasehold Improvements for which the Landlord is responsible; and
(c) during the Preliminary Term, the Lease Term will
commence for each successive individual entire floor of the Premises on the date
on which Tenant first conducts its business operations on such entire floor.
If Tenant's Contractor constructs the Initial
Leasehold Improvements,
(a) the "Preliminary Commencement Date" shall be the
date on which Tenant first conducts its business operations on an entire floor
of the Premises;
<PAGE>
(b) the "Commencement Date" shall be the earlier of
(i) sixty (60) days after the last floor of the Premises is delivered to Tenant
with all Base Building items and any Initial Leasehold Improvements for which
Landlord is responsible substantially complete with the understanding that no
more than three (3) floors will be delivered at any one time and that delivery
of all such floors will occur over a period of no less than either eight (8)
weeks (if Tenant's Contractor is the same contractor used by Landlord to perform
the Base Building or twelve (12) weeks (if Tenant's Contractor is not the
contractor used by Landlord to perform the Base Building), or (ii) the first day
on which Tenant conducts its business operations in the entire Premises; and
(c) during the Preliminary Term, the Lease Term will
commence for each successive individual entire floor of the Premises on the date
on which Tenant first conducts its business operations on such entire floor.
The "Termination Date" shall, unless sooner terminated as provided herein, mean
the last day of the Lease Term. Notwithstanding the foregoing, if the
Termination Date, as determined herein, does not occur on the last day of a
calendar month, the Lease Term shall be extended by the number of days necessary
to cause the Termination Date to occur on the last day of the last calendar
month of the Lease Term. The "Extension Terms", if exercised, shall mean the
periods after the Main Term by which Tenant may extend the Lease Term pursuant
to Article 39. The term "Lease Year" shall refer to each consecutive twelve (12)
month period commencing with the Commencement Date (if such date is the 1st day
of a calendar month) or on the first day of the calendar month following the
month in which such Commencement Date shall occur (if such date is other than on
the 1st day of a calendar month) and each successive anniversary thereof;
provided, however that the first Lease Year shall commence as of the
Commencement Date.
(5) "Parking Garage Rental" shall mean the rent that Tenant is
required to pay to Landlord for the Parking Garage.
(6) "Premises" shall mean the area located on the first (1st)
through the eleventh (11th) floors of the Building, containing approximately
197,017 rentable square feet of floor space, as outlined on Exhibit B attached
hereto. The "Rentable Area of the Premises" shall mean the rentable square foot
area determined by measurement of the Premises in accordance with Section 3.B.
(7) "Permitted Use" shall mean general office use and any
lawful associated use for the portions of the Premises located on the second
(2nd) through the eleventh (11th) floors of the Building, and shall mean retail
use and/or general office use and any lawful associated use for the portion of
the Premises located on the first (1st) floor of the Building.
(8) "Storage Space Rental" shall mean the rent that Tenant is
required to pay to Landlord for the Storage Space.
(9) "Notice Addresses" shall mean the following addresses for
Tenant and Landlord, respectively:
Landlord:
c/o Polinger Shannon & Luchs Company
5530 Wisconsin Avenue
Suite 1000
Chevy Chase, Maryland 20815
Attention: Mr. Arnold L. Polinger
2
<PAGE>
With a copy to:
Mr. Gary M. Abramson
c/o Tower Construction Company
11501 Huff Court
North Bethesda, MD 20895
and an additional copy to:
Richard F. Levin, Esquire
Grossberg, Yochelson, Fox & Beyda
2100 Pennsylvania Avenue, N.W.
Suite 770
Washington, D.C. 20037
Tenant:
Before the Commencement Date:
7500 Old Georgetown Road
Suite 1300
Bethesda, Maryland 20814
Attention: P. Chrisman Iribe
With a copy to:
Stephen A. Herman, Esquire
General Counsel
U.S. Generating Company
7500 Old Georgetown Road
Suite 1300
Bethesda, Maryland 20814
And a copy to:
Lawrence A. Shulman, Esquire
Shulman, Rogers, Gandal, Pordy & Ecker, P.A.
11921 Rockville Pike
Third Floor
Rockville, Maryland 20852
After the Commencement Date:
7600 Wisconsin Avenue
Bethesda, Maryland 20814
Attention: P. Chrisman Iribe
With a copy to:
Stephen A. Herman, Esquire
General Counsel
U.S. Generating Company
7600 Wisconsin Avenue
Bethesda, Maryland 20814
3
<PAGE>
And a copy to:
Lawrence A. Shulman, Esquire
Shulman, Rogers, Gandal, Pordy & Ecker, P.A.
11921 Rockville Pike
Third Floor
Rockville, Maryland 20852
Payments of Rent only shall be made payable to the order of:
Bethesda Place II Limited Partnership c/o Polinger Shannon
& Luchs Company, Agent or to such other party that Landlord
may designate from time to time by written notice to Tenant
B. The following are additional definitions of some of the defined
terms used in the Lease.
(1) "Base Building" shall have the meaning set forth in
Section 28.A. "Base Building Plans and Specifications" and designated on the
schedule described in Exhibit G attached hereto and made a part hereof.
(2) "Base Year" shall refer to the following:
(a) "Expense Base Year" shall mean the calendar
year 2001, adjusted, if the Building is not
at least ninety-five percent (95%) occupied
for the full calendar year, to reflect
ninety-five percent (95%) occupancy for the
full calendar year.
(b) "Tax Base Year" shall mean the tax year
commencing July 1, 2001 through June 30,
2002, or if later, the first twelve (12)
months in which the Building is fully
assessed as a completed building.
(3) "Basic Costs" shall mean all costs and expenses paid or
incurred in connection with operating, maintaining, repairing and managing the
Building and the Property, as further described in Section 4.E hereof.
(4) "Broker" shall means Jones Lang Wootton USA and Polinger
Shannon & Luchs Company.
(5) "Business Day(s)" shall mean Mondays through Fridays
exclusive of any business holidays ("Holidays") designated by Tenant in writing
to Landlord from time to time during the Lease Term.
(6) "Commencement Date" shall have the meaning set forth in
Section 1.A(4).
(7) "Common Areas" shall mean the Limited Common Areas, the
General Common Areas and the Project Common Areas.
(8) "Excess" or "Excess Basic Costs" shall mean the sum of the
Excess Expenses and the Excess Taxes.
4
<PAGE>
(9) "Excess Expenses" shall mean the amount of the Expenses
for any for any calendar year in excess of the amount of the Expenses for the
Expense Base Year.
(10) "Excess Taxes" shall mean the amount of the Taxes for any
tax year in excess of the Taxes for the Tax Base Year, as determined in
accordance with Section 4.J of this Lease.
(11) "Expenses" shall mean Basic Costs exclusive of Taxes.
(12) "Extension Term" shall have the meaning set forth in
Section 1.A(4).
(13) "General Common Areas" shall mean those outdoor areas on
the Property provided for the common use or benefit of Tenant, Landlord, the
other tenants of the Project, and members of the general public, such as
sidewalks, roadways, plazas, landscaped areas and other similar facilities.
(14) "Landlord's Contractor" shall mean the general contractor
designated by Landlord to bid on the Initial Leasehold Improvements, if such
contractor is engaged by Landlord (as opposed to Tenant) following its selection
by Tenant to perform the Initial Leasehold Improvements. "Landlord's Contractor"
shall also mean the general contractor designated by Landlord to perform the
Base Building construction. Consequently, there may be two Landlord's
Contractors.
(15) "Landlord's Work" shall mean any work to be performed by
Landlord's Contractor pursuant to Article 28.
(16) "Laws" shall have the meaning set forth in Article 5.
(17) "Lease Year" shall have the meaning set forth in Section
1.A(4).
(18) "Leasehold Improvements" and "Initial Leasehold
Improvements" shall have the meanings set forth in Article 8.
(19) "Limited Common Areas" shall mean those areas in the
Building provided for the common use or benefit of Tenant and Landlord, such as
corridors, elevator foyers, restrooms, lobby areas (whether at ground level or
otherwise), loading docks and other similar facilities.
(20) "Main Term" shall have the meaning set forth in Section
1.A(4).
(21)
(22) "Mortgage" and "Mortgagee" shall have the meaning set
forth in Article 30.
(23) "Normal Business Hours" for the Building shall mean
7:00 A.M. to 7:00 P.M. Mondays through Fridays, exclusive of Holidays, or such
other hours as may be designated by Tenant in writing to Landlord from time to
time during the Lease Term.
(24) "Parking Garage" shall have the meaning set forth in
Section 37.A.
5
<PAGE>
(25) "Preliminary Commencement Date" shall have the meaning
set forth in Section 1.A(4).
(26) "Preliminary Term" shall have the meaning set forth in
Section 1.A(4).
(27) "Project" shall the office and retail project known as
Bethesda Place, which includes the Property, the office building known as
Bethesda Place I, with an address of 7700 Wisconsin Avenue, Bethesda, Maryland,
and the parcel of land on which it is located, and the apartment building known
as the Bethesda Place Apartments, with an address of 7701 Woodmont Avenue,
Bethesda, Maryland, and the parcel of land on which it is located.
(28) "Project Common Areas" shall mean those outdoor areas, on
parts of the Project other than the Property, provided for the common use or
benefit of Tenant, Landlord and the other tenants of the Project, such as
sidewalks, roadways, plazas, landscaped areas and other similar facilities.
(29) "Property" shall mean the Building (including the Parking
Garage) and the parcel of land on which it is located. The Property is shown on
the site plan attached hereto as Exhibit A.
(30) "Required Removables" shall have the meaning set forth in
Section 8
(31) "Storage Space" shall have the meaning set forth in
Section 6.A.
(32) "Substantial Completion" of the Landlord's Work shall be
the date determined by the Building architect (unless otherwise expressly
provided in this subsection 32 below) that the Landlord's Work has been
performed, other than any details of construction, mechanical adjustment or any
other matter, the non-completion of which does not materially interfere with the
ability of Tenant's Contractor to construct the Initial Leasehold Improvements
(if Tenant's Contractor constructs the Initial Leasehold Improvements) or the
ability of Tenant to commence beneficial use and occupancy of the Premises (if
Landlord's Contractor constructs the Initial Leasehold Improvements; provided,
however, that if Landlord's Contractor shall be delayed in substantially
completing the Landlord's Work as a result of the occurrence of a Tenant Caused
Delay (below defined), then for purposes of determining the date this Lease
commences with respect to any floor of the Premises, the date of substantial
completion shall be deemed to be the day that said Landlord's Work would have
been substantially completed absent any such Tenant Caused Delay(s).
Notwithstanding the foregoing, in the event the Landlord's Contractor shall
perform the Initial Leasehold Improvements, then Substantial Completion of the
Initial Leasehold Improvements shall be determined by Tenant's Architect as
opposed to the Building architect.
(33) "Taxes" shall have the meaning set forth in Section
4.E(7).
(34) "Tenant Caused Delay" shall mean any delay resulting by
reason of any one or more of the following:
(a) Tenant's failure to furnish information or to
respond to any request by Landlord for any approval or information within any
time period prescribed; or
(b) Tenant's insistence on materials, finishes or
installations that have long lead times after having first been informed by
Landlord that such materials, finishes or installations will cause a delay; or
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(c) Changes in any plans and specifications requested
by Tenant after final approval thereof; or
(d) Any request by Tenant that Landlord delay the
completion of any of the Landlord Work; or
(e) Any breach or default by Tenant in the
performance of Tenant's obligations with respect to construction of the Premises
under this Lease.
(f) The delay resulting by reason of the failure of
Tenant to abide the reasonable requirements of Landlord's Contractor with
respect to the performance of any installations within the Premises by or on
behalf of Tenant by reason of the access rights under Section 28.F(5) below.
(g) Any failure of Tenant or Tenant's Guarantor to
timely satisfy the "investment grade" rating requirement described in Section
41.1 of this Lease, if and only if as a consequence thereof Landlord elects to
delay the commencement of excavation (as defined in Section 3.D below), or
(h) The delay resulting by reason of the performance
by Landlord of any Base Building Upgrade (as defined in Section 28.A) requested
by Tenant recognizing that there shall be no such delay in the case of any
particular Base Building Upgrade requested within the time period permitted
under the Construction Schedule (as defined in Section 28.C) to obtain such
particular Base Building Upgrade.
(35) "Tenant's Contractor" shall mean the contractor selected
by Tenant to perform the Initial Leasehold Improvements, if such contractor is
engaged by Tenant following its selection by both Tenant to perform the Initial
Leasehold Improvements.
(36) "Tenant's Property" shall have the meaning set forth in
Article 8.
(37) "Tenant's Work" shall mean any work to be performed by
Tenant or Tenant's Contractor pursuant to Article 28.
(38) "Termination Date" shall have the meaning set forth in
Section 1.A(4).
2. LEASE GRANT.
Subject to and upon the terms herein set forth, Landlord leases to
Tenant and Tenant leases from Landlord the Premises, together with the right, in
common only with Landlord, to use the Limited Common Areas and the right, in
common with Landlord, other tenants of the Project, and members of the general
public, to use the General Common Areas and the Project Common Areas.
3. COMMENCEMENT DATE/MEASUREMENT.
A. The Lease Term, Preliminary Term, Main Term, Preliminary
Commencement Date, Commencement Date and Termination Date are to be determined
in accordance with Section I.A(4). above. Promptly after the determination of
the Commencement Date, Landlord and Tenant shall enter into a letter agreement
(the "Commencement Letter") on the form attached hereto as Exhibit D setting
forth the Commencement Date, the Termination Date and any other dates that are
affected by the Commencement Date. Tenant, within seven (7) days
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after receipt thereof from Landlord, shall execute the Commencement Letter and
return the same to Landlord.
B. Upon substantial completion of construction of the Leased Premises,
Landlord's architect shall determine the exact number of rentable square feet in
the Premises in accordance with the Washington, D.C. Association of Realtors
method (hereinafter defined), and the Base Rental shall be proportionately
adjusted. The parties agree that the Rentable Area of the Premises, determined
pursuant to this section, and the adjusted Base Rental shall be set forth in the
Commencement Letter, attached hereto as Exhibit D, to be executed by the parties
within fifteen (15) days after the Commencement Date of the Lease Term. As used
herein, the "Washington, D.C. Association of Realtors Method" shall mean the
Washington, D.C. Association of Realtors Standard Method of Measurement dated
January 1989.
C. Subject to the provisions contained in Section 3.D below, Tenant
expressly agrees that the adjustment of the Commencement Date and, accordingly,
the postponement of Tenant's obligation to pay Rent, shall be Tenant's sole
remedy and shall constitute full settlement of all claims that Tenant might
otherwise have against Landlord by reason of any delay by Landlord in the
substantial completion of the Landlord's Work.
D.
4. RENT.
A. During each calendar year, or portion thereof, falling within the
Lease Term, Tenant shall pay to Landlord the Base Rental. The Base Rental shall
be payable in equal monthly installments during the Lease Term, commencing as of
the Preliminary Commencement Date. In the event the Preliminary Commencement
Date shall occur on other than the first day of a calendar month, the Base
Rental and the Parking Garage Rental, and if applicable, the Storage Space
Rental shall be pro-rated for such month based upon a thirty (30) day month.
B.
C.
D. Tenant shall also pay during the Lease Term as Excess Basic Costs
hereunder the sum of (1) the Excess Taxes for the applicable tax year plus (2)
the Excess Expenses for the applicable calendar year. The Excess Taxes and the
Excess Expenses shall be computed separate and independent of each other. Prior
to the first anniversary of the Commencement Date and prior to January 1 of each
subsequent calendar year during the Lease Term, or as soon thereafter as
practical, Landlord shall provide to Tenant the estimated amount of the Excess
Expenses and the Excess Taxes for the applicable calendar year. On or before the
first day of each month during such calendar year, Tenant shall pay to Landlord,
as Excess Basic Costs, a monthly installment equal to one-twelfth of Landlord's
estimate. Landlord shall have the right from time to time, but no more than
twice, during any such calendar year to revise the reasonable estimate of Excess
Basic Costs to be paid by Tenant for such year and provide Tenant with a revised
statement therefor, and thereafter the amount Tenant shall pay each month shall
be based upon such revised estimate. If Landlord does not provide Tenant with an
estimate of the Excess Basic Costs by January 1 of any calendar year, Tenant
shall continue to pay a monthly installment based on the previous year's
estimate until such time as Landlord provides Tenant with an estimate of such
Excess Basic Costs for the current year. Upon receipt of such current year's
estimate, an adjustment shall be made for any month
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during the current year with respect to which Tenant paid monthly installments
of Excess Basic Costs based on the previous year's estimate. Tenant shall pay
Landlord any underpayment within thirty (30) days after demand. Any overpayment
shall, at Landlord's option, be refunded to Tenant within thirty (30) days from
the date determined by Landlord or credited against the installment of Excess
Basic Costs (if any) due for the months immediately following the furnishing of
such estimate provided that in the event Tenant shall then be in default
hereunder in the payment of any monetary sums (excluding any sums in good faith
disputed by Tenant), after notice and expiration of the applicable cure period,
Landlord shall be entitled to apply any such overpayment on account of those
sums then due to Landlord. Any amounts paid by Tenant based on any estimate
shall be subject to adjustment pursuant to the immediately following paragraph
when actual Basic Costs are determined for such calendar year. Tenant shall not
be entitled to any credit or offset if Taxes decrease below the Taxes for the
Tax Base Year or Expenses decrease below the Expenses for the Expense Base Year.
As soon as is practical following the end of each calendar year during
the Lease Term, Landlord shall furnish to Tenant a detailed statement, certified
by Landlord to be correct and including copies of any bills from taxing
authorities, of Landlord's actual Basic Costs and the actual Excess for the
previous calendar year. If the estimated Excess actually paid by Tenant for the
prior year is in excess of the actual Excess for such prior year, then Landlord
shall apply such overpayment against Excess Basic Costs due or to become due
hereunder, provided if the Lease Term expires prior to the determination of such
overpayment, Landlord shall refund such overpayment to Tenant within thirty (30)
days after the date of Landlord's statement of the actual Basic Costs for such
year. Likewise, Tenant shall pay to Landlord, within thirty (30) days after
demand, any underpayment with respect to the prior year, whether or not the
Lease has terminated prior to receipt by Tenant of a statement for such
underpayment, it being understood that this clause shall survive the expiration
of the Lease.
E. Basic Costs shall mean all costs and expenses paid or incurred in
each calendar year in connection with operating, maintaining, repairing and
managing the Building and the Property (exclusive of the Parking Garage),
including, but not limited to, the following:
(1) Labor costs for all persons, not exceeding the rank of
Building manager, performing services required or utilized in connection with
the operation, repair, replacement and maintenance of and control of access to
the Building and the Property, including but not limited to amounts incurred for
wages, salaries and other compensation for services, payroll, social security,
unemployment and other similar taxes, workers' compensation insurance, uniforms,
training, disability benefits, pensions, hospitalization, retirement plans,
group insurance or any other similar or like expenses or benefits.
(2) Management fees which shall not exceed either (i) in the
event Landlord or an affiliate of Landlord (i.e a management company owned by,
or under substantially common ownership with, Landlord) performs same, three
percent (3%) of the Base Rental and Additional Base Rental (exclusive of Parking
Garage Rental) or (ii) in the event an unaffiliated third party performs same,
amounts in excess of arms-length competitive prices paid in the Washington, D.C.
metropolitan area for such services. In the event management fees are paid to an
unaffiliated third party, Landlord shall also be entitled to include in the
determination of Basic Costs administrative charges for services such as
accounting, secretarial, and bookkeeping incurred with respect to the Building.
Basic Costs shall also include accounting services and legal fees not
attributable to leasing or collection activity or negotiations or disputes with
Tenant.
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(3) Rental and/or purchase costs of materials, supplies, tools
and equipment used in the operation, repair, replacement and maintenance and the
control of access to the Building and the Property.
(4) Amounts charged to Landlord by contractors and/or
suppliers for services, replacement parts, components, materials, equipment and
supplies furnished in connection with the operation, repair, maintenance,
replacement of and control of access to any part of the Building, or the
Property generally, including the heating, air conditioning, ventilating,
plumbing, electrical, elevator and other systems and equipment.
(5) Premiums and deductibles paid by Landlord for all risks of
physical loss insurance, earthquake and extended coverage insurance, liability
and extended coverage insurance, rental loss insurance, elevator insurance,
boiler insurance and other insurance customarily carried from time to time by
landlords of comparable office buildings or required to be carried by Landlord's
Mortgagee.
(6) Charges for utilities, including but not limited to water,
gas and sewer, but excluding those electricity charges which Tenant pays
directly to the utility company or Landlord.
(7) "Taxes," which for purposes hereof, shall mean: (a) all
real estate taxes and assessments on the Property, and taxes and assessments
levied in substitution or supplementation in whole or in part of such taxes, (b)
all personal property taxes for the Building's personal property, (c) all other
taxes, fees or assessments now or hereafter levied by any governmental authority
on the Property, the Building or its contents or on the operation and use
thereof (except as relate to specific tenants), (d) all amounts paid to any
business improvement district by Landlord, (e) any solid waste disposal fees
payable to any governmental authority and (f) all costs and fees incurred in
connection with seeking reductions in or refunds in Taxes including, without
limitation, any costs incurred by Landlord to challenge the tax valuation of the
Building or to sustain a proposed assessment by reason of a challenge thereto
from a citizens group or other entity. Taxes shall exclude income taxes, estate
taxes, inheritance taxes or any other tax computed based upon the net income (as
opposed to gross receipts or gross income) of Landlord, franchise taxes,
transfer taxes, recordation taxes and permit fees. Taxes shall also exclude any
interest or penalties arising by reason of the late payment of same, unless
caused by any default by Tenant in the payment of Base Rental or Additional Base
Rental hereunder. For the purpose of determining real estate taxes and
assessments for any given tax year, the amount to be included in Taxes for such
year shall be as follows: (1) with respect to any special assessment that is
payable in installments, Taxes for such year shall include the amount of the
installment (and any interest) due and payable during such year; and (2) with
respect to all other real estate taxes, Taxes for such year shall include the
amount due and payable for such year. If a reduction in Taxes is obtained for
any year of the Lease Term during which Tenant paid Excess Taxes, then Taxes for
such year will be retroactively adjusted and Landlord shall provide Tenant with
a credit or refund based on such adjustment, after deduction therefrom of any
expenses incurred in obtaining such refund. Likewise, if a reduction is
subsequently obtained for Taxes for the Tax Base Year, Taxes for the Tax Base
Year shall be restated and the Excess Taxes for all subsequent years
re-computed. Tenant shall pay to Landlord any such increase in the Excess within
thirty (30) days after Tenant's receipt of a statement therefor from Landlord.
(8) Landscape expenses and costs of maintaining, repairing,
resurfacing and striping of the roadways of the Property, if any, and the costs
of maintaining and repairing the other General Common Areas.
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(9) Cost of all maintenance service agreements, including
those for equipment, alarm service, trash removal, window cleaning, drapery or
venetian blind cleaning, janitorial services, pest control, uniform supply,
plant maintenance and landscaping.
(10) Cost of all other repairs, replacements and general
maintenance of the Property and Building neither specified above nor directly
billed to Tenant.
(11) The amortized cost of capital improvements made to the
Building or the Property which are: (a) primarily for the purpose of reducing
operating expense costs; or (b) required to comply with any laws, rules or
regulations of any governmental authority first applicable to the Property or
Building subsequent to the Preliminary Commencement Date. The cost of such
capital improvements (herein referred to collectively as "Permitted Capital
Expenditures") shall be amortized over the estimated useful life of such capital
improvement and shall, at Landlord's option, include interest at a rate that is
reasonably equivalent to the interest rate that Landlord would be required to
pay to finance the cost of the capital improvement in question as of the date
such capital improvement is performed, not to exceed the rate then announced by
Bank America, N.A., or its successor, as its publicly announce "prime rate".
(12) Cost to furnish or maintain lobby attendants or security
services or personnel for the Building.
(13) Any other expense or charge of any nature whatsoever
which, in accordance with general industry practice with respect to the
operation of a first-class office building, would be construed as an operating
expense typically passed through to tenants.
Notwithstanding the foregoing, Basic Costs shall not include: any
expenses of a capital nature, including without limitation capital improvements,
capital repairs, capital equipment and capital tools, all as determined in
accordance with generally accepted accounting principles, consistently applied,
except the Permitted Capital Expenditures; any costs of constructing the Base
Building or the Leasehold Improvements; depreciation or amortization, except
amortization of the Permitted Capital Expenditures; lease commissions; interest
or principal payments on mortgages or other debts of Landlord (except the
interest permitted in Section 4.E(11) with respect to Permitted Capital
Expenditures); amounts paid to any person, firm or corporation related to or
otherwise affiliated with Landlord or its management company or any general
partner or member of Landlord, which are in excess of arms-length competitive
prices paid in the Washington, D.C. metropolitan area for the services or goods
provided; ground rent payments to any ground lessor; and the costs of any items
for which Landlord (a) is reimbursed by insurance or condemnation proceeds or
parties other than Tenant pursuant this Article 4, or (b) would have been
covered by insurance proceeds had Landlord maintained the insurance required to
be maintained by Landlord under this Lease; the cost of any repairs or other
work, to the extent covered by any warranty; any loss, claim, damage, award or
other amount paid or payable by Landlord (including all attorneys' fees, court
costs, and other costs incurred in connection therewith) as a result or arising
out of (a) the violation or breach by Landlord of the terms and conditions of
the Lease, or (b) any act of negligence or willful misconduct by Landlord, or
Landlord's agents, employees and assigns; Landlord's general overhead and
general administrative expenses, except for the costs of accounting and computer
services relating to the operation of the Building and/or any on-site management
office located at the Building; rentals and other related expenses incurred in
leasing air conditioning systems, elevators or other equipment ordinarily
considered to be capital in nature except (a) equipment which is used in
providing janitorial or similar services which are provided to Tenant and which
is not affixed to the Building, (b) equipment the purchase of which would be a
Permitted Capital Expenditure, and (c) maintenance costs (including maintenance
contract charges) for any
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capital equipment in the Building; costs of correcting defects in the design or
construction of the Base Building or the materials used in the construction of
the Base Building (except to the extent Tenant specified such design or
materials or such costs are Permitted Capital Expenditures); costs and expenses
associated with the operation of the business of the person or entity which
constitutes Landlord, such as Landlord's general partnership overhead, as the
same are distinguished from the costs of operation of the Building, including
accounting and legal matters and costs of selling or financing Landlord's
interest in the Property; any costs, fines or penalties incurred due to
violations by Landlord of any federal, state or local law, statute or ordinance,
or any rule, regulation, judgment or decree of any governmental authority
(recognizing that Landlord shall be entitled to be fully reimbursed by Tenant
for all such costs, fines or penalties under Section 5 below in the event any
such costs, fines or penalties resulted by reason of any act or omission of
Tenant or by any party claiming by, through, or under Tenant); or any
advertising or promotional expenses for the Building (other than expenses to
hire prospective building personnel). Any Basic Costs (other than costs of
maintaining and repairing the General Common Areas) which benefit the Property
and other properties in the Project shall be equitably allocated among all of
the benefitted properties. Tenant shall be entitled at its request to designate
the supplier of those utilities, if any, which are available from more than one
supplier, recognizing, however, that in the event utilities from a supplier
designated by Tenant shall be thereafter suspended or interrupted, and such
suspension or interruption would not have occurred had the Landlord Designated
Supplier (defined below) provided such utilities hereunder, then notwithstanding
any provision contained in Section 7.B below, no rent shall abate. The Landlord
Designated Supplier shall be deemed to be the supplier previously used by
Landlord hereunder, if any, or the supplier designated by Landlord as its
preferred supplier by written notice no less than thirty (30) days preceding the
date of the interruption or suspension..
F. Tenant, within one hundred eighty (180) days after receiving
Landlord's statement of actual Basic Costs for a particular calendar year, shall
have the right to provide Landlord with written notice (the "Review Notice") of
its intent to review Landlord's books and records relating to the Basic Costs
for such calendar year. Within a reasonable time after receipt of a timely
Review Notice, Landlord shall make such books and records available to Tenant or
Tenant's agent for its review at either Landlord's main office in the
Washington, D.C. area or at the office of the Building, provided that if Tenant
retains an agent to review Landlord's books and records for any calendar year,
such agent must execute a copy of a confidentiality agreement with respect to
such audit and not be compensated on a contingency basis]. Except to the extent
expressly provided below in this Section 4.F, Tenant shall be solely responsible
for any and all costs, expenses and fees incurred by Tenant or Tenant's agent in
connection with such review. If Tenant elects to review Landlord's books and
records, within sixty (60) days after such books and records are made available
to Tenant, Tenant shall have the right to give Landlord written notice stating
in reasonable detail any objection to Landlord's statement of actual Basic Costs
for such calendar year. If Tenant fails to give Landlord written notice of
objection within such sixty (60) day period or fails to provide Landlord with a
Review Notice within the one hundred eighty (180) day period provided above,
Tenant shall be deemed to have approved Landlord's statement of Basic Costs in
all respects and shall thereafter be barred from raising any claims with respect
thereto. Upon Landlord's receipt of a timely objection notice from Tenant,
Landlord and Tenant shall work together in good faith to resolve the discrepancy
between Landlord's statement and Tenant's review. If Landlord and Tenant
determine that Basic Costs for the calendar year in question are less than
reported, Landlord shall provide Tenant with a credit against future Additional
Base Rental in the amount of any overpayment by Tenant, or shall refund such
amount to Tenant if the Lease Term has terminated or expired. Likewise, if
Landlord and Tenant determine that Basic Costs for the calendar year in question
are greater than reported, Tenant shall forthwith pay to Landlord the amount of
underpayment by Tenant. Tenant shall bear all costs of any such inspection of
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Landlord's books and records; provided, however, that if any such inspection
shows that the amount reported by Landlord to Tenant as Expenses exceeded by
more than three percent (3%) the actual amount of the Expenses or that the
amount reported by Landlord to Tenant as Taxes exceeded by more than three
percent (3%) the actual amount of the Taxes, then Landlord shall pay to Tenant
the reasonable cost of Tenant's inspection. Any information obtained by Tenant
pursuant to the provisions of this section shall be treated as confidential.
Notwithstanding anything herein to the contrary, Tenant shall not be permitted
to examine Landlord's books and records or to dispute any statement of Basic
Costs unless Tenant has paid to Landlord the amount due as shown on Landlord's
statement of actual Basic Costs, said payment being a condition precedent to
Tenant's right to examine Landlord's books and records.
G. Tenant covenants and agrees to pay to Landlord during the Lease
Term, without any setoff or deduction whatsoever, the full amount of all Base
Rental and Additional Base Rental due hereunder. In addition, Tenant shall pay
and be liable for, as additional rent, all rental, sales and use taxes or other
similar taxes (exclusive of income taxes, estate taxes, inheritance taxes or any
other tax based on the net income, as opposed to gross receipts or gross income,
of Landlord, and exclusive of any taxes included in the definition of Taxes in
Section 4.E(7)), if any, levied or imposed by any city, state, county or other
governmental body having authority with respect to such Base Rental and
Additional Base Rental, such payments to be in addition to all other payments
required to be paid to Landlord by Tenant under the terms and conditions of this
Lease. Any such payments shall be paid concurrently with the payments of the
Rent on which the tax is based. The Base Rental, Tenant's Excess Basic Costs and
any recurring monthly charges due hereunder (such as Parking Garage Rental,
Storage Space Rental and, if any, Improvement Loan Rental) shall be due and
payable in advance on the first day of each calendar month during the Lease Term
without demand, provided that the installment of Base Rental for the first full
calendar month of the Lease Term shall be payable upon the execution of this
Lease by Tenant. All other items of Rent shall be due and payable by Tenant on
or before ten (10) days after billing by Landlord. If the Lease Term commences
on a day other than the first day of a calendar month or terminates on a day
other than the last day of a calendar month, then the monthly Base Rental and
Tenant's Excess Basic Costs for such month shall be prorated for the number of
days in such month occurring within the Lease Term based on a fraction, the
numerator of which is the number of days of the Lease Term that fell within such
calendar month and the denominator of which is thirty (30). All such payments
shall be by a good and sufficient check or by wire transfer. No payment by
Tenant or receipt or acceptance by Landlord of a lesser amount than the correct
amount of Rent due under this Lease shall be deemed to be other than a payment
on account of the earliest Rent due hereunder, nor shall any endorsement or
statement on any check or any letter 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 or pursue any other
available remedy. The acceptance by Landlord of any Rent on a date after the due
date of such payment shall not be construed to be a waiver of Landlord's right
to declare a default for any other late payment. Tenant's covenant to pay Rent
shall be independent of every other covenant set forth in this Lease.
H.
I.
J.
K.
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5. USE.
The Premises shall be used for the Permitted Use and for no other
purpose. Tenant agrees not to use or permit the use of the Premises for any
purpose which is illegal, dangerous to life, limb or property or which, in
Landlord's reasonable opinion, creates a nuisance or which would increase the
cost of insurance coverage with respect to the Building. Tenant shall conduct
its business and control its agents, servants, contractors, employees,
customers, licensees, and invitees in such a manner as not to unreasonably
interfere with, annoy or disturb tenants of the other office building or the
apartment building in the Project, or unreasonably interfere with Landlord in
the management and operation of the Building. Tenant will maintain the Premises
in a clean and healthful condition, and comply with all laws, ordinances,
orders, rules and regulations of any governmental entity, including without
limitation, the Americans with Disabilities Act (collectively referred to as
"Laws") with reference to the operation of Tenant's business and to the use,
condition, configuration or occupancy of the Premises. Landlord, at Landlord's
expense (subject to reimbursement by Tenant pursuant to Article 4, if such
expense is included in the definition of "Basic Costs"), shall comply with all
Laws relating to the roof and structural elements of the Building and the Common
Areas. Each party, within ten (10) days after receipt thereof, shall provide the
other party with copies of any notices it receives with respect to a violation
or alleged violation of any Laws. Tenant will comply with the rules and
regulations of the Building attached hereto as Exhibit C and such other
reasonable rules and regulations adopted and altered by Landlord from time to
time and will cause all of its agents, servants, contractors, employees,
customers, licensees and invitees to do so.
6. STORAGE SPACE.
A. The "Storage Space" is the space in the P-5 Level of the Building
shown on the attached Exhibit E. Throughout the Lease Term, Tenant shall lease
the Storage Space, and Tenant shall pay Landlord, as Additional Base Rental,
Storage Space Rental for the Storage Space so leased, in equal monthly
installments.
B. The Storage Space leased by Tenant shall be used only for the
storage of Tenant's Property. Landlord, at Tenant's expense, shall provide the
following finishes to the Storage Space leased by Tenant: fire-rated drywalls,
solid-core wood doors with deadbolt locks, fire and life safety systems, to the
extent required by code, and ceiling lighting. Landlord shall provide
electricity for lighting purposes and no other services to the Storage Space.
C. In the event that the Storage Space leased by Tenant is damaged or
destroyed by fire or other casualty, Tenant may terminate its lease of such
Storage Space by written notice to Landlord within ten (10) days after the date
of such casualty. If Tenant does not so terminate its lease of such Storage
Space, then Landlord, at Landlord's expense, shall promptly restore such Storage
Space to the condition described in Section 6.B, and the Storage Space Rental
shall be abated from the date of the casualty until such restoration is
substantially completed.
D. On the Termination Date, Tenant shall remove all of Tenant's
Property from the Storage Space and surrender the Storage Space to Landlord in
broom clean, "as is" condition.
7. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord, as part of Basic Costs (except as otherwise provided),
agrees to furnish Tenant within the Premises and the Limited Common Areas the
following services:
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(1) Hot and cold water for use in the lavatories in the
Limited Common Areas and in any private lavatories and kitchens in the Premises,
and at all other valved outlets at the locations in the Premises shown on
Tenant's Space Plan.
(2) Central heat and air conditioning in season, in accordance
with the Building Standard HVAC specifications set forth on the attached Exhibit
F-l, during Normal Business Hours and such other hours as may be requested by
Tenant by written or telephonic notice delivered to Landlord at the office of
the Building, during Normal Business Hours, at least two (2) hours in advance of
the beginning of the period of time for which such usage is requested.
(3) Maintenance and repair of all Common Areas in the manner
and to the extent standard for first class office buildings in Bethesda,
Maryland.
(4) Janitor service in accordance with the specifications set
forth on the attached Exhibit F-2 after 6:00 p.m. on Business Days.
(5) Automatically operated elevator service 24 hours a day,
seven days a week.
(6) Electricity for lighting purposes and operation of all of
Tenant's equipment, subject to the requirements of Section 11.B below.
(7) Adequate supplies for all of the toilet rooms located in
the Limited Common Areas.
(8) All electric bulbs and fluorescent tubes in permanently
installed light fixtures in the Premises.
(9) A reasonable number of keys to the suite entry doors to
each portion of the Premises located on a separate floor of the Building; and
(10) An electronic card security access system for the
Building and the Parking Garage and a reasonable number of access cards for use
by Tenant's employees and subtenants.
B. The failure by Landlord to any extent to furnish, or the
interruption or termination of, any services in whole or in part, resulting from
adherence to laws, regulations and administrative orders, wear, use, repairs,
improvements, alterations or any causes beyond the reasonable control of
Landlord shall not render Landlord liable in any respect nor be construed as a
constructive eviction of Tenant, nor give rise to an abatement of Rent, nor
relieve Tenant from the obligation to fulfill any covenant or agreement hereof,
except as follows. In the event that (i) electricity and/or heating or air
conditioning (in season) of the Premises, or elevator service in the Building,
shall not be furnished by reason of matters either (x) within the control of
Landlord for more than three (3) consecutive business days, or (y) beyond the
control of Landlord for more than five (5) consecutive business days, and (ii)
Tenant, in its reasonable business judgment, determines that it is unable to use
and occupy the Premises (or any part thereof) as a result thereof, then the Base
Rental Tenant is obligated to pay hereunder shall abate with respect to that
part of the Premises which Tenant does not use and occupy, commencing on the
fourth or sixth such day until the date on which such services and utilities are
restored, unless the failure to furnish such services and utilities is caused by
Tenant's acts or omissions or as otherwise provided in the last sentence of
Section 4.E above. Landlord will use reasonable efforts to diligently remedy any
interruption in the furnishing of any services or utilities required to be
performed by Landlord hereunder. Should any of the equipment or
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machinery used in the provision of such services or utilities for any cause
cease to function properly, Landlord shall use reasonable diligence to repair
such equipment or machinery. Landlord shall use reasonable efforts not to
interrupt or reduce utility services during Normal Business Hours for purposes
of making discretionary alterations, improvements or repairs, and shall, if
feasible, give Tenant at least twenty-four (24) hours telephonic notice of any
such interruption of utility service.
C. Tenant expressly acknowledges that if Landlord, from time to time,
provides one or more lobby attendants (which Landlord will not do without
Tenant's sole discretionary approval, and will do upon Tenant's written request
provided Tenant bears all costs thereof as Additional Base Rental) or security
services, Landlord shall not be deemed to have warranted the efficiency of any
lobby attendant, security personnel, service, procedures or equipment and
Landlord shall not be liable in any manner for the failure of any such security
personnel, services, procedures or equipment to prevent or control, or apprehend
anyone suspected of personal injury, property damage or any criminal conduct in,
on or around the Property, unless such failure results from Landlord's
negligence or willful misconduct.
8. LEASEHOLD IMPROVEMENTS.
Any trade fixtures, unattached and movable equipment or furniture, or
other personalty brought into the Premises, the Storage Space or the Parking
Garage by Tenant ("Tenant's Property") shall be owned or leased by Tenant.
Tenant shall remove all such Tenant's Property from the Premises in accordance
with the terms of Article 36 hereof. Any and all alterations, additions and
improvements to the Premises, including any built-in furniture (collectively,
"Leasehold Improvements") shall be owned by Landlord and shall remain upon the
Premises, all without compensation, allowance or credit to Tenant; provided,
however, that following the Commencement Date, in the event Tenant requests to
perform any Leasehold Improvements [i.e. improvements other than the "Initial
Leasehold Improvements" (defined below)], and Landlord's consent to such
Leasehold Improvements shall be required under this Lease, Landlord shall be
entitled at the time of its consent thereto to condition such consent upon the
requirement that Tenant remove the proposed Leasehold Improvements upon
expiration of the Term at the sole cost and expense of Tenant. Any such
designated Leasehold Improvements, together with any installations made by
Tenant upon the roof, or any work of visual art subject to the Visual Artists
Right Act of 1990 (17 U.S.C. Section 101 et. seq.) (commonly referred to as"
VARA") installed on or about the Premises by Tenant shall be collectively
referred to herein as the "Required Removables". Nothing contained herein shall
be deemed to constitute the designation by Landlord of Tenant as its agent with
respect to any works of visual art proposed to be installed by or on behalf of
Tenant in the Building. Tenant expressly covenants to obtain the written waiver
of any artist of any work of visual art to the removal of same from the Building
upon termination or expiration of this Lease. The Leasehold Improvements to be
constructed by Landlord or Tenant prior to the Commencement Date, in accordance
with Article 28 are sometimes hereinafter referred to as the "Initial Leasehold
Improvements".
9. GRAPHICS.
A.
B.
C. Landlord shall not install, or permit any other party to install,
any signage on the exterior of the Building or the Property without Tenant's
prior written approval, which approval may be granted or withheld in Tenant's
sole discretion.
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10. REPAIRS AND ALTERATIONS.
A. Except to the extent such obligations are imposed upon Landlord
hereunder, Tenant, at its sole cost and expense, shall perform all maintenance
and repairs to the Premises as are necessary to keep the same in good condition
and repair throughout the entire Lease Term, reasonable wear and tear and
casualty damage not required to be repaired by Tenant hereunder excepted.
Tenant's repair and maintenance obligations with respect to the Premises shall
include, without limitation, any necessary repairs with respect to: (1) any
carpet or other floor covering, (2) any interior partitions, (3) any doors, (4)
the interior side of any demising walls, (5) any telephone and computer cabling
that serves Tenant's equipment exclusively, and (6) any supplemental air
conditioning units, private showers and kitchens, including any plumbing in
connection therewith, and similar facilities serving Tenant exclusively. All
such work shall be performed in accordance with Section 10.C below. If Tenant
fails to make any necessary repairs to the Premises, Landlord may, at its
option, after fifteen (15) days written notice to Tenant (or such longer period
as may be reasonably required to complete such repairs, provided that Tenant
commences the same promptly after receipt of Landlord's notice and thereafter
diligently proceeds with the same), make such repairs, and in such event Tenant
shall pay the cost thereof to the Landlord together with an administrative
charge thereon of five percent (5%) of such costs, on demand as Additional Base
Rental. Tenant, at its option, may at any time or from time to time, by written
notice to Landlord, elect to have Landlord assume responsibility for the
performance of any or all of Tenant's maintenance and repair obligations under
this Section 10.A. In such event, Tenant shall pay to Landlord the costs
incurred by Landlord to perform such maintenance and repairs, as Additional Base
Rent. Any such repair or maintenance costs shall be paid on a monthly or other
periodic basis, as mutually agreed upon by Landlord and Tenant at the time of
Tenant's request to Landlord for performance by Landlord of such services.
B. Landlord shall, at its expense (except as included in Basic Costs
pursuant to Article 4), keep and maintain in good repair and working order, and
make all repairs to and perform necessary maintenance upon: (a) all structural
elements of the Building; and (b) all mechanical, electrical and plumbing
systems that serve the Building; (c) the toilet rooms, lobbies, elevators,
corridors, stairways and other Limited Common Areas in the Building; and (d) the
exterior of the Building, including the roof and windows. Landlord shall use
reasonable efforts to minimize disruption to Tenant's business operations when
making repairs to the Premises, including, when requested by Tenant, making
non-emergency repairs outside of Tenant's normal operating hours. If Landlord
refuses or neglects to promptly commence and complete repairs or maintenance to
the Property necessary to satisfy the provisions of this section, Tenant may,
after fifteen (15)days written notice to Landlord (or such longer period as may
be reasonably required to complete such repairs, provided that Landlord
commences the same promptly after receipt of Tenant's notice and thereafter
diligently proceeds with the same), but shall not be required to, make and
complete such repairs or maintenance, in which event Landlord shall pay Tenant
the cost of such repairs or maintenance upon demand.
C. Tenant shall not make or allow to be made any alterations, additions
or improvements to the Premises which (i) affect the structural elements or
exterior of the Building, (ii) include or require material modifications to the
mechanical, electrical, plumbing or life safety systems of the Building, or
(iii) cost more than Fifty Thousand Dollars ($50,000.00), without first
obtaining the written consent of Landlord in each such instance, which consent
shall not be unreasonably withheld for nonstructural, interior alterations.
Prior to commencing any such work requiring Landlord's consent and as a
condition to obtaining such consent, Tenant must furnish Landlord with plans and
specifications reasonably acceptable to Landlord; names and addresses of
contractors; copies of necessary permits and
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approvals; and evidence of contractor's and subcontractor's insurance in
accordance with Section 16.B hereof. All improvements, alterations or additions
(whether or not requiring Landlord's consent hereunder) shall be constructed in
a good and workmanlike manner new materials of good quality. Upon completion of
any improvements, alterations or additions, Tenant shall furnish "as-built"
plans and full and final waivers of liens. All improvements, alterations and
additions shall comply with all insurance requirements, codes, ordinances, laws
and regulations, including without limitation, the Americans with Disabilities
Act. If Landlord so requests, Landlord, at its expense, shall be entitled to
oversee the construction of any alterations, additions or improvements that
affect the structure of the Building or include or require material
modifications to any of the mechanical, electrical, plumbing or life safety
systems of the Building. Landlord's approval of Tenant's plans and
specifications for any work performed for or on behalf of Tenant Shall not be
deemed to be a representation by Landlord that such plans and specifications
comply with applicable insurance requirements, building codes, ordinances, laws
or regulations or that the alterations, additions and improvements constructed
in accordance with such plans and specifications will be adequate for Tenant's
use.
11. ELECTRICAL SERVICES.
A. During the Preliminary Term, Tenant shall pay to Landlord, as
Additional Base Rental, a fraction of the cost of all electricity consumed or
utilized upon the Property, the numerator of which fraction is the number of
floors of the Premises for which the Lease Term has then commenced, and the
denominator of which fraction is eleven (11). The Additional Base Rental
described in this Section 11.A shall be paid by Landlord to Tenant within thirty
(30) days after Tenant's receipt of an invoice from Landlord therefor, which
invoice shall be accompanied by a copy of the bill from the public electric
utility company.
B. Commencing on the Commencement Date and thereafter throughout the
remaining Lease Term, Tenant shall be responsible for the payment for all
electricity consumed or utilized upon the Property. Tenant shall pay directly to
the public electric utility company, or other electric supplier selected by
Tenant, in its sole discretion, all charges for electricity supplied to the
Property. Tenant's use of electrical service in the Premises shall not exceed,
either in voltage, rated capacity, use or overall load, that which the Building
electrical equipment is designed to handle. In the event Tenant shall wish to
consume electrical service in excess of the capacity of the Building electrical
equipment, as described more fully in the specifications set forth on the
attached Exhibit F-l, the installation of any necessary utility service upgrades
shall be paid for by Tenant.
12. ENTRY BY LANDLORD.
Landlord and its agents or representatives shall have the right to
enter the Premises at reasonable times to inspect the same, or to show the
Premises to prospective purchasers, mortgagees, tenants (during the last twelve
months of the Lease Term) or insurers, or to clean or make repairs, alterations
or additions thereto, including any work that Landlord deems necessary for the
safety, protection or preservation of the Building or the occupants thereof, or
to facilitate repairs, alterations or additions to the Building. Except for any
entry by Landlord in an emergency situation or to provide normal cleaning and
janitorial service, Landlord shall provide Tenant with reasonable prior notice
of any entry into the Premises, which notice may be given verbally. If
reasonably necessary for the protection and safety of Tenant and its employees,
Landlord shall have the right to temporarily close the portions of the Premises
to perform repairs, alterations or additions in the Premises, provided that
Landlord shall use reasonable efforts to perform all such work on weekends and
after Normal Business Hours. Entry by Landlord hereunder shall not constitute a
constructive eviction or entitle Tenant to any abatement or reduction of Rent by
reason thereof.
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13. ASSIGNMENT AND SUBLETTLNG.
A. Except as otherwise set forth in Section 13.C, Tenant shall not
assign, sublease, transfer or encumber this Lease or any interest therein or
grant any license, concession or other right of occupancy of the Premises or any
portion thereof or otherwise permit the use of the Premises or any portion
thereof by any party other than Tenant (any of which events is hereinafter
called a "Transfer") without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, conditioned or delayed with respect
to any proposed assignment or subletting. Landlord's consent shall not be
considered unreasonably withheld if the proposed use is different than the
Permitted Use or Tenant is in default. Any attempted Transfer in violation of
the terms of this Article shall, at Landlord's option, be void. Consent by
Landlord to one or more Transfers shall not operate as a waiver of Landlord's
rights as to any subsequent Transfers.
B. If Tenant requests Landlord's consent to a Transfer, Tenant,
together with such request for consent, shall provide Landlord with the name of
the proposed transferee and the nature of the business of the proposed
transferee, the term, use, rental rate and all other material terms and
conditions of the proposed Transfer, including, without limitation, a copy of
the proposed assignment, sublease or other contractual documents. Landlord shall
consent to or reasonably refuse to consent to such Transfer in writing within
fifteen (15) days after receipt of all of the information and documentation
required herein. In the event Landlord consents to any such Transfer, the
Transfer and consent thereto shall be in a form approved by Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed.
C. Tenant shall have the right to assign this Lease or sublet all or
any part of the Premises to an entity which controls, is controlled by or is
under common control with Tenant, without the necessity of obtaining Landlord's
consent but with no less than thirty (30) days prior written notice to Landlord
thereof.
D. Any Transfer consented to by Landlord in accordance with this
Article 13 shall be only for the Permitted Use and for no other purpose. In no
event shall any Transfer release or relieve Tenant or any Guarantors from any
obligations under this Lease.
E. Notwithstanding anything to the contrary contained in this Lease, no
assignment of Tenant's interest in this Lease shall be binding upon Landlord
unless the assignee shall execute and deliver to Landlord an agreement whereby
such assignee agrees unconditionally to be personally bound by and to perform
all of the obligations of Tenant hereunder and further expressly agrees that
notwithstanding such assignment the provisions of this paragraph shall continue
to be binding upon such assignee with respect to all future assignments and
transfers. A failure or refusal of such assignee to execute or deliver such an
agreement shall not release the assignee from its liability for the obligations
of Tenant hereunder assumed by acceptance of the assignment of this Lease.
14. LIENS.
Tenant will not permit any mechanic's liens or other liens to be placed
upon the Premises or Tenant's leasehold interest therein, the Building, or the
Property. Landlord's title to the Building and Property is and always shall be
paramount to the interest of Tenant, and nothing herein contained shall empower
Tenant to do any act that can, shall or may encumber Landlord's title. In the
event any such lien does attach, Tenant shall, within twenty (20) days of notice
of the filing of said lien, either discharge or bond over such lien to the
satisfaction of Landlord and Landlord's Mortgagee (as hereinafter defined), and
in such a manner as to remove the lien as an encumbrance against the Building
and Property. If Tenant shall fail to
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so discharge or bond over such lien, then, in addition to any other right or
remedy of Landlord, Landlord may, but shall not be obligated to bond over or
discharge the same. Any reasonable amount paid by Landlord for any of the
aforesaid purposes, including reasonable attorneys' fees (if and to the extent
permitted by law) shall be paid by Tenant to Landlord on demand as Additional
Base Rental. Notice is hereby given that the Landlord shall not be liable for
any labor or materials furnished or to be furnished to the Tenant upon credit,
and that no mechanic's or materialmen's or other lien for any such labor or
materials shall attach to or affect the reversionary or other estate or interest
of the Landlord in and to the Land and Building. No contractor of Tenant shall
by virtue of its contract be entitled to assert any mechanic's lien against the
Building or land appurtenant thereto.
15. INDEMNITY.
A. Except for the negligent or willful acts or omissions of Landlord,
its members, principals, beneficiaries, partners, officers, directors,
employees, Mortgagee(s) and agents, and the respective principals and members of
any such agents (collectively the "Landlord Related Parties"), Tenant shall
indemnify, defend and hold Landlord and the Landlord Related Parties harmless
against and from all liabilities, obligations, damages, penalties, claims,
costs, charges and expenses (collectively "Claims"), including, without
limitation, reasonable attorneys' fees and other professional fees (if and to
the extent permitted by law), which may be imposed upon, incurred by, or
asserted against Landlord or any of the Landlord Related Parties that (1) arise
from or in connection with the possession, use, occupancy, management, repair,
maintenance or control of the Premises, Storage Space or the Parking Garage, or
any portion thereof, by Tenant or any party claiming by, through or under Tenant
or (2) arise from or in connection with the possession, use or occupancy of any
of the Limited Common Areas or any portion thereof, by Tenant or any party
claiming by, through or under Tenant, including, to the extent applicable under
this subsection 2, all such Claims resulting by reason of any injury or death to
persons or damage to property or (3) arise from or in connection with any
willful or negligent act or omission of Tenant or any of its transferees,
agents, servants, contractors, employees, customers, licensees or invitees, or
(4) result from any failure on the part of Tenant to perform or comply with any
of the covenants, agreements, terms or conditions contained in this Lease with
which Tenant must comply or perform, or (5) arise from injury or death to
persons or damage to property sustained in the Premises, the Parking Garage or
the Storage Space leased by Tenant, or (6) arise from Tenant's installation,
maintenance, repair, use or removal of any rooftop satellite or antenna dishes
or related equipment. In case any action or proceeding is brought against
Landlord or any of the Landlord Related Parties by reason of any of the
foregoing, Tenant shall, at Tenant's sole cost and expense, resist and defend
such action or proceeding with counsel approved by Landlord or, at Landlord's
option, reimburse Landlord for the cost of any counsel retained directly by
Landlord to defend and resist such action or proceeding.
B.
C.
16. TENANT'S INSURANCE.
A. At all times commencing on and after the earlier of the Preliminary
Commencement Date or the date Tenant or its agents, employees or contractors
enters the Premises for any purpose, Tenant shall carry and maintain, at its
sole cost and expense:
(1) Commercial General Liability Insurance applicable to the
Premises, the Parking Garage, the Storage Space and their appurtenances
providing, on an occurrence
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basis, a minimum combined single limit of Two Million Dollars ($2,000,000.00),
with a contractual liability endorsement covering Tenant's indemnity obligations
under this Lease.
(2) All Risk of Physical Loss Insurance written at replacement
cost value and with a replacement cost endorsement covering all of Tenant's
Property in the Premises, the Storage Space and the Parking Garage.
(3) Workers' Compensation Insurance as required by the state
in which the Premises is located and in amounts as may be required by applicable
statute, and Employers' Liability Coverage of One Million Dollars
($1,000,000.00) per occurrence.
(4) Whenever good business practice indicates the need of
additional insurance coverage or different types of insurance in connection with
the Premises or Tenant's use and occupancy thereof, and similar tenants of
similar properties in the Bethesda, Maryland area are then being required
generally to obtain such additional insurance coverage or different types of
insurance, Tenant shall, upon request, obtain such insurance at Tenant's expense
and provide Landlord with evidence thereof.
B. Except for construction items for which Landlord is responsible
under this Lease, before any repairs, alterations, additions, improvements, or
construction are undertaken by or on behalf of Tenant, Tenant shall carry and
maintain, at its expense, or Tenant shall require any contractor performing work
on the Premises to carry and maintain, at no expense to Landlord, in addition to
workers' compensation insurance as required by the jurisdiction in which the
Building is located, All Risk Builder's Risk Insurance in the amount of the
replacement cost of any alterations, additions or improvements (or such lesser
amount reasonably required by Landlord) and Commercial General Liability
Insurance (including, without limitation, Contractor's Liability coverage,
Contractual Liability coverage and Completed Operations coverage), written on an
occurrence basis with a minimum combined single limit of Two Million Dollars
($2,000,000.00) and adding the "owner(s) of the Building and its (or their)
respective members, principals, beneficiaries, partners, officers, directors,
employees, agents (and their respective members and principals) and
mortgagee(s)" (and any other designees of Landlord as the interest of such
designees shall appear) as additional insureds.
C. Any company writing any insurance which Tenant is required to
maintain or cause to be maintained pursuant to the terms of this Lease (all such
insurance as well as any other insurance pertaining to the Premises or the
operation of Tenant's business therein being referred to as "Tenant's
Insurance"), as well as the form of such insurance, shall at all times be
subject to Landlord's reasonable approval, and each such insurance company shall
if rated by A.M. Best, have an A.M. Best rating of "A-" or better. Any such
insurance company shall be licensed and lawfully permitted to do business in the
state in which the Premises is located. All policies evidencing Tenant's
Insurance (except for Workers' Compensation) shall specify Tenant as named
insured and the "owner(s) of the Building and its (or their) respective members,
principals, beneficiaries, partners, officers, directors, employees, agents (and
their respective members and principals) and mortgagee(s)" (and any other
designees of Landlord as the interest of such designees shall appear) as
additional insureds. Provided that the coverage afforded Landlord and any
designees of Landlord shall not be reduced or otherwise adversely affected, all
of Tenant's Insurance may be carried under a blanket policy covering the
Premises and any other of Tenant's locations. All policies of Tenant's Insurance
shall contain endorsements that the insurer(s) will give to Landlord and its
designees at least thirty (30) days' advance written notice of any change,
cancellation, termination or lapse of said insurance. Tenant shall be solely
responsible for payment of premiums for all of Tenant's Insurance. Tenant shall
deliver to Landlord at least fifteen (15) days prior to the time Tenant's
Insurance is first required to be carried by Tenant, and upon renewals at least
five (5) business
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days prior to the expiration of any such insurance coverage, a certificate of
insurance of all policies procured by Tenant in compliance with its obligations
under this Lease. The limits of Tenant's Insurance shall in no event limit
Tenant's liability under this Lease.
D.
E. Tenant shall not do or fail to do anything in, upon or about the
Premises which will: (1) violate the terms of any of Landlord's insurance
policies; or (2) prevent Landlord from obtaining policies of insurance
reasonably acceptable to Landlord or any Mortgagees. If Tenant fails to obtain
the insurance coverage required by this Lease, and such failure continues for
more than ten (10) days after Tenant's receipt of written notice thereof from
Landlord, Landlord may, at its option, obtain such insurance for Tenant, and
Tenant shall pay, as Additional Base Rental, the cost of all premiums thereon
and all of Landlord's reasonable costs associated therewith.
17. SUBROGATION.
Notwithstanding anything set forth in this Lease to the contrary,
Landlord and Tenant do hereby waive any and all right of recovery, claim, action
or cause of action against the other, their respective principals,
beneficiaries, partners, officers, directors, agents, and employees, and, with
respect to Landlord, its Mortgagee(s), for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to their respective property,
interruption of their respective business, the Building, the Property or the
Premises or any addition or improvements thereto, or any contents therein, by
reason of fire, the elements or any other cause, regardless of cause or origin,
including the negligence of Landlord or Tenant, or their respective principals,
beneficiaries, partners, officers, directors, agents and employees and, with
respect to Landlord, its Mortgagee(s), which loss or damage is (or would have
been, had the insurance required by this Lease been carried) covered by
insurance. Since this mutual waiver will preclude the assignment of any such
claim by subrogation (or otherwise) to an insurance company (or any other
person), Landlord and Tenant each agree to give each insurance company which has
issued, or in the future may issue, policies of insurance, with respect to the
items covered by this waiver, written notice of the terms of this mutual waiver,
and to have such insurance policies properly endorsed, if necessary, to prevent
the invalidation of any of the coverage provided by such insurance policies by
reason of such mutual waiver. For the purpose of the foregoing waiver, the
amount of any deductible applicable to any loss or damage shall be deemed
covered by, and recoverable by the insured under the insurance policy to which
such deductible relates. In the event that Tenant is permitted to and
self-insures any risk which would have been covered by the insurance required to
be carried by Tenant pursuant to Article 16 of the Lease, or if Tenant fails to
carry any insurance required to be carried by Tenant pursuant to Article 16 of
this Lease, then all loss or damage to Tenant, its leasehold interest, its
business, its property, the Premises or any additions or improvements thereto or
contents thereof shall be deemed covered by and recoverable by Tenant under
valid and collectible policies of insurance. In the event that Landlord is
permitted to and self-insures any risk which would have been covered by the
insurance required to be carried by Landlord pursuant to Article 18 of the
Lease, or if Landlord fails to carry any insurance required to be carried by
Landlord pursuant to Article 18 of this Lease, then all loss or damage to
Landlord, its business, its property, the Land, the Building or any additions or
improvements thereto or contents thereof shall be deemed covered by and
recoverable by Landlord under valid and collectible policies of insurance.
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18. LANDLORD'S INSURANCE.
A. Throughout the Lease Term, Landlord shall carry and maintain:
(1) Commercial General Liability Insurance applicable to the
Property and its appurtenances providing, on an occurrence basis, a minimum
combined single limit of Two Million Dollars ($2,000,000.00), with a contractual
liability endorsement covering Landlord's indemnity obligations under this
Lease.
(2) All Risk of Physical Loss Insurance written at replacement
cost value and with a replacement cost endorsement covering the Property
(including all Leasehold Improvements to the Premises and the Parking Garage)
and all of Landlord's personal property on the Property.
The cost of such insurance shall be included as a part of the Basic Costs.
Payments for losses and recoveries under Landlord's All Risks of Physical Loss
Insurance shall be made solely to Landlord or the Mortgagees of Landlord as
their interests shall appear. All policies of Landlord's Commercial General
Liability Insurance shall specify Landlord as the named insured and Tenant as
Additional Insured.
B. Any company writing any insurance which Landlord is required to
maintain or cause to be maintained pursuant to the terms of this Lease (all such
insurance as well as any other insurance pertaining to the Property or the
operation of Landlord's business with respect thereto being referred to as
"Landlord's Insurance"), as well as the form of such insurance, shall at all
times be subject to Tenant's reasonable approval, and each such insurance
company if rated by A.M. Best, shall have an A.M. Best rating of "A-" or better
and shall be licensed and lawfully permitted to do business in the state in
which the Property is located. Each insurance policy shall contain only those
deductible amounts as designated on Exhibit L attached hereto and made a part of
this Lease (such amounts being referred to herein as the "Base Year
Deductibles"). Notwithstanding the foregoing, in the event subsequent to the
Base Year, Tenant requests Landlord to increase any of the Base Year
Deductibles, Landlord agrees to do so, provided that in the event a claim is
thereafter made, Tenant shall pay to Landlord within thirty (30) days following
written demand the amount by which the deductible exceeds the Base Year
Deductible. The obligation of Tenant to reimburse Landlord for any such increase
of the Base Year Deductible shall expressly survive any termination of this
Lease with respect to any claim arising by reason of an act, event or omission
during the Lease Term. Provided that the coverage afforded Tenant shall not be
reduced or otherwise adversely affected, all of Landlord's Insurance may be
carried under a blanket policy covering the Property and other property of
Landlord. All policies of Landlord's Insurance shall contain endorsements that
the insurer(s) will give to Tenant at least thirty (30) days' advance written
notice of any change, cancellation, termination or lapse of said insurance.
Landlord shall deliver to Tenant at least fifteen (15) days prior to the time
Landlord's Insurance is first required to be carried by Landlord, and upon
renewals at least fifteen (15) days prior to the expiration of any such
insurance coverage, a certificate of insurance of all policies procured by
Landlord in compliance with its obligations under this Lease. The limits of
Landlord's Insurance shall in no event limit Landlord's liability under this
Lease.
C. If Landlord fails to obtain the insurance coverage required by this
Lease, and such failure continues for more than ten (10) days after Landlord's
receipt of written notice thereof from Tenant, Tenant may, at its option, obtain
such insurance for Landlord. In such event, Landlord shall pay the cost of all
premiums thereon (which cost shall be included in Basic Costs) and Landlord, at
its sole expense, shall pay all of Tenant's reasonable costs associated
therewith.
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19. CASUALTY DAMAGE.
If the Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give prompt written notice thereof to Landlord. In case
(i) Landlord will not be permitted by applicable law to rebuild the Building in
substantially the same form as existed prior to the fire or casualty, or (ii)
the Premises has been materially damaged and there is less than two (2) years of
the Lease Term (as extended by any Extension Terms exercised as of the date of
the casualty) remaining on the date of such casualty, or (iii) there shall occur
any material uninsured loss to the Building, either (x) Landlord or (y) provided
the damage did not result by reason of any willful misconduct of Tenant or any
of its invitees, agents, employees, contractors or licensees, Tenant, may, at
its option, terminate this Lease by notifying the other party in writing of such
termination within thirty (30) days after the date of such casualty; provided,
however, that if Tenant exercises any then remaining Extension Term within such
thirty (30) day period, then Landlord shall not have the right to terminate this
Lease under (ii) above as a result of such casualty, and any notice of
termination theretofore given by Landlord shall be void. Such termination shall
be effective as of the date of fire or casualty, with respect to any portion of
the Premises that was rendered untenantable, and the effective date of
termination specified in Landlord's or Tenant's termination notice (which shall
be no less than ninety (90) days after the date of such notice), with respect to
any portion of the Premises that remained tenantable. If neither Landlord nor
Tenant elects to terminate this Lease, Landlord shall commence and proceed with
reasonable diligence to restore the Building and the Leasehold Improvements (but
excluding any improvements, alterations or additions made by Tenant in violation
of this Lease) located within the Premises to substantially the same condition
they were in immediately prior to the happening of the casualty. Notwithstanding
the foregoing, Landlord's obligation to restore the Building and the Leasehold
Improvements shall not require Landlord to expend for such repair and
restoration work the insurance proceeds actually received by the Landlord as a
result of the casualty or which would have been received had Landlord continued
in full force and effect the insurance required of Landlord hereunder. Further,
any proceeds of insurance received by Landlord's mortgagee or ground lessor
shall be deemed received by Landlord for purposes hereof. When repairs to the
Premises have been completed by Landlord, Tenant shall complete the restoration
or replacement of all Tenant's Property necessary to permit Tenant's
re-occupancy of the Premises. Landlord shall not be liable for any inconvenience
or annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage or the repair thereof, except that Landlord shall allow Tenant
a fair diminution of Rent on a per diem basis (based on the ratio of the square
foot area of the untenantable portion of the Premises to the total square foot
area of the Premises) during the time and to the extent any damage to the
Premises or the means of access thereto causes the Premises to be rendered
untenantable and not used by Tenant except to the extent provided in the case of
a Tenant Caused Casualty (below defined). Such diminution of Rent shall continue
until the first to occur of (i) resumption of use and occupancy by Tenant of the
damaged portion for the conduct of its business operations thereon or (ii) the
last to occur of (x) substantial completion by Landlord of its repair and
restoration of the Premises or (y) substantial completion by Tenant of its
repair and restoration, not to exceed however under this subsection (y) ninety
(90) days following the date of substantial completion by Landlord of its
repairs and restoration. In the case of damage or destruction affecting less
than the entire Premises but rendering Tenant unable to reasonably conduct its
business in the remaining undamaged portion, then any abatement of rent to which
Tenant shall be entitled hereunder shall be extended to the entire Premises.
Notwithstanding the foregoing, if the Premises or any other portion of the
Building is damaged by fire or other casualty resulting from the negligence of
Tenant or any Tenant Related Parties (herein a "Tenant Caused Casualty"), the
Rent hereunder shall not be diminished during any period during which the
Premises, or any portion thereof, is untenantable (except to the extent Landlord
is or would be entitled to be reimbursed by the proceeds of any rental
interruption insurance either carried by Landlord or which is
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generally available to commercial landlords owning large modern office buildings
within the Washington, D.C. metropolitan area). Landlord and Tenant hereby waive
the provisions of any law from time to time in effect during the Lease Term
relating to the effect upon leases of partial or total destruction of leased
property. Landlord and Tenant agree that their respective rights in the event of
any damage to or destruction of the Premises shall be those specifically set
forth herein.
20. INTENTIONALLY OMITTED
21. CONDEMNATION.
If (a) the whole or any substantial part of the Premises or (b) any
portion of the Building or Property which would leave the remainder of the
Building unsuitable for use as an office building comparable to its use on the
Commencement Date, shall be taken or condemned for any public or quasi-public
use under governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, then Landlord or Tenant may, at
its option, terminate this Lease effective as of the date the physical taking of
said Premises or said portion of the Building or Property shall occur. In the
event this Lease is not terminated, the Rentable Area of the Premises shall be
appropriately adjusted, and Landlord, at its expense, shall restore the
remaining Premises to a complete, tenantable unit. In the event of a taking or
condemnation of the Parking Garage, if such taking or condemnation is of less
than all of such Parking Garage, the Parking Garage Rental shall be appropriated
adjusted, and Landlord, at its expense, shall restore the remaining portion of
the Parking Garage. In addition, Rent for any portion of the Premises so taken
or condemned (or Parking Garage Rental for any portion of the Parking Garage)
shall be abated during the unexpired term of this Lease effective when the
physical taking of said portion of the Premises shall occur. All compensation
awarded for any such taking or condemnation, or sale proceeds in lieu thereof,
shall be the property of Landlord, and Tenant shall have no claim thereto, the
same being hereby expressly waived by Tenant, except for any portions of such
award or proceeds which are specifically allocated by a court of competent
jurisdiction for the taking of or damage to trade fixtures of Tenant, Tenant's
moving expenses or any other damages personal to Tenant as determined by the
court which if paid to Tenant will not reduce the award to which Landlord would
in the absence of such payment be entitled to claim for its account, which
proceeds Tenant specifically reserves to itself.
22. EVENTS OF DEFAULT.
The following events shall be deemed to be events of default under this
Lease:
A. Tenant shall fail to pay when due any Base Rental, Additional Base
Rental or other Rent under this Lease and such failure shall continue for ten
(10) days after written notice from Landlord (hereinafter sometimes referred to
as a "Monetary Default").
B. Any failure by Tenant (other than a Monetary Default) to comply with
any term, provision or covenant of this Lease, including, without limitation,
the rules and regulations, which failure is not cured within thirty (30) days
after delivery to Tenant of notice of the occurrence of such failure, provided,
however, that if the failure identified is incapable of being cured within such
thirty (30) day period for reasons which are beyond the reasonable control of
Tenant, then such thirty (30) day cure period shall be extended for an
additional reasonable amount of time necessary for Tenant to effect such cure,
as long as Tenant proceeds diligently to effect such cure upon its receipt of
Landlord's written notice, and provided, further, that if any such failure
creates a hazardous condition, such failure must be cured immediately.
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C. Tenant or any Guarantor shall make a transfer in fraud of creditors,
or shall commit an act of bankruptcy or shall make an assignment for the benefit
of creditors, or Tenant or any Guarantor shall admit in writing its inability to
pay its debts as they become due.
D. Tenant or any Guarantor shall file a petition under any section or
chapter of the United States Bankruptcy Code, as amended, pertaining to
bankruptcy, or under any similar law or statute of the United States or any
State thereof, or Tenant or any Guarantor shall be adjudged bankrupt or
insolvent in proceedings filed against Tenant or any Guarantor thereunder; or a
petition or answer proposing the adjudication of Tenant or any Guarantor as a
debtor or its reorganization under any present or future federal or state
bankruptcy or similar law shall be filed in any court and such petition or
answer shall not be discharged or denied within one hundred twenty (120) days
after the filing thereof.
E. A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any Guarantor or of the Premises or of any of
Tenant's Property located thereon in any proceeding brought by Tenant or any
Guarantor, or any such receiver or trustee shall be appointed in any proceeding
brought against Tenant or any Guarantor and shall not be discharged within one
hundred twenty (120) days after such appointment or Tenant or such Guarantor
shall consent to or acquiesce in such appointment.
F. The leasehold estate hereunder shall be taken on execution or other
process of law or equity in any action against Tenant.
G. The liquidation, termination, dissolution or forfeiture of right to
do business of Tenant or any Guarantor.
23. REMEDIES.
A. Upon the occurrence of any event or events of default under this
Lease, for so long as such event(s) of default are continuing, Landlord shall
have the option in its sole and exclusive discretion to pursue any one or more
of the following remedies, using appropriate legal proceedings, but without any
notice (except as expressly prescribed in Article 22 above) or demand whatsoever
(and without limiting the generality of the foregoing, Tenant hereby
specifically waives notice and demand for payment of Rent or other obligations
due [except as expressly prescribed in Article 22 above or elsewhere in, this
Lease] and waives any and all other notices or demand requirements imposed by
applicable law):
(1) Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord. If Tenant fails to surrender the
Premises upon termination of the Lease hereunder, Landlord may without prejudice
to any other remedy which it may have, enter upon and take possession of the
Premises and expel or remove Tenant and any other person who may be occupying
said Premises, or any part thereof, and Tenant hereby agrees to pay to Landlord
on demand the amount of all loss and damage which Landlord may suffer by reason
of such termination, whether through inability to relet the Premises on
satisfactory terms or otherwise, specifically including but not limited to all
Costs of Reletting (hereinafter defined) and any deficiency that may arise by
reason of any reletting or failure to relet.
(2) Enter upon and take possession of the Premises and expel
or remove Tenant or any other person who may be occupying said Premises, or any
part thereof, without having any civil or criminal liability therefor and
without terminating this Lease. Landlord may (and shall following recovery of
exclusive use and possession of the Premises from Tenant use reasonable efforts
to) relet the Premises or any part thereof for the account of Tenant, in the
name of Tenant or Landlord or otherwise, without notice to Tenant, for such term
or terms
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which may be greater or less than the period which would otherwise have
constituted the balance of the Lease Term and on such conditions (which may
include concessions, free rent and alterations of the Premises) and for such
uses as Landlord in its absolute discretion may determine, and Landlord may
collect and receive any rents payable by reason of such reletting. Reasonable
efforts to relet shall be as determined by Landlord in its reasonable
discretion; recognizing, however, that Landlord shall not be required hereunder
to lease the Premises prior to leasing any other office space in the Project
available for lease to others and that Landlord shall be fully entitled to take
into consideration expansion requirements or needs of its other tenants in
making decisions with respect to the duration or other conditions of any
reletting. Tenant agrees to pay Landlord on demand all Costs of Reletting and
any deficiency that may arise by reason of such reletting or failure to relet.
Landlord shall not be responsible or liable for any failure to relet the
Premises or any part thereof or for any failure to collect any rent due upon any
such reletting, provided that Landlord uses reasonable efforts to relet as above
provided, and to collect such rent. No such re-entry or taking of possession of
the Premises by Landlord shall be construed as an election on Landlord's part to
terminate this Lease unless a written notice of such termination is given to
Tenant.
(3) After two (2) days written notice to Tenant, enter upon
the Premises without having any civil or criminal liability therefor, and do
whatever Tenant is obligated to do under the terms of this Lease, and Tenant
agrees to reimburse Landlord on demand for any reasonable expense which Landlord
may incur in thus affecting compliance with Tenant's obligations under this
Lease together with interest at a per annum rate equal to the Maximum Rate.
(4) In order to regain possession of the Premises and to deny
Tenant access thereto in any instance in which Landlord has terminated this
Lease or Tenant's right to possession, or to limit access to the Premises in
accordance with local law in the event of a default by Tenant, Landlord or its
agent may, at the expense and liability of the Tenant, alter or change any or
all locks or other security devices controlling access to the Premises without
posting or giving notice of any kind to Tenant. Landlord shall have no
obligation to provide Tenant a key or grant Tenant access to the Premises so
long as Tenant is in default under this Lease. Tenant shall not be entitled to
recover possession of the Premises, terminate this Lease, or recover any actual,
incidental, consequential, punitive, statutory or other damages or award of
attorneys' fees, by reason of Landlord's alteration or change of any lock or
other security device. Landlord may, without notice, remove and either dispose
of or store, at Tenant's expense, any property belonging to Tenant that remains
in the Premises after Landlord has regained possession thereof; provided,
however, that Landlord shall grant the owner of any property leased by Tenant
access to the Premises to remove such property.
(5) Terminate this Lease, in which event, Tenant shall
immediately surrender the Premises to Landlord and pay to Landlord the sum of:
(a) all Rent accrued hereunder through the date of termination, and, upon
Landlord's determination thereof, (b) an amount equal to: the total Rent that
Tenant would have been required to pay for the remainder of the Lease Term
discounted to present value at the Prime Rate then in effect, minus the then
present fair rental value of the Premises for the remainder of the Lease Term,
similarly discounted, after deducting all anticipated Costs of Reletting (as
defined below).
B. For purposes of this Lease, the term "Costs of Reletting" shall mean
all costs and expenses incurred by Landlord in connection with the reletting of
the Premises, including without limitation, the cost of cleaning, renovation,
repairs, decoration and alteration of the Premises for a new tenant or tenants,
advertisement, marketing, brokerage and reasonable legal fees (if and to the
extent permitted by law), the cost of protecting or caring for the Premises
while vacant, the cost of removing and storing any property located on the
Premises,
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any increase in insurance premiums caused by the vacancy of the Premises and any
other out-of-pocket expenses incurred by Landlord including tenant incentives,
allowances and inducements.
C. Except as otherwise herein provided, no repossession or re-entering
of the Premises or any part thereof pursuant to Article 23 hereof or otherwise
shall relieve Tenant or any Guarantor of its liabilities and obligations
hereunder, all of which shall survive such repossession or re-entering.
Notwithstanding any such repossession or re-entering by reason of the occurrence
of an event of default, Tenant will pay to Landlord the Rent required to be paid
by Tenant pursuant to this Lease.
D. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy, and each and every right
and remedy shall be cumulative and in addition to any other right or remedy
given hereunder or now or hereafter existing by agreement, applicable law or in
equity. In addition to other remedies provided in this Lease, Landlord shall be
entitled, to the extent permitted by applicable law, to injunctive relief, or to
a decree compelling performance of any of the covenants, agreements, conditions
or provisions of this Lease, or to any other remedy allowed to Landlord at law
or in equity. Forbearance by Landlord to enforce one or more of the remedies
herein provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default.
E. This Article 23 shall be enforceable to the maximum extent such
enforcement is not prohibited by applicable law, and the unenforceability of any
portion thereof shall not thereby render unenforceable any other portion.
24. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD HEREUNDER) TO TENANT SHALL
BE LIMITED TO THE INTEREST OF LANDLORD IN THE BUILDING, AND TENANT AGREES TO
LOOK SOLELY TO LANDLORD'S INTEREST IN THE BUILDING FOR THE RECOVERY OF ANY
JUDGMENT OR AWARD AGAINST THE LANDLORD, IT BEING INTENDED THAT NEITHER LANDLORD
NOR ANY MEMBER, PRINCIPAL, PARTNER, SHAREHOLDER, OFFICER, DIRECTOR OR
BENEFICIARY OF LANDLORD SHALL BE RERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE LANDLORD AND ALL MORTGAGEES
WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST LIENS ON THE
PROPERTY, BUILDING OR PREMISES NOTICE AND REASONABLE TIME TO CURE SUCH ALLEGED
DEFAULT BY LANDLORD.
25. NO WAIVER.
Failure of Landlord or Tenant to declare any default immediately upon
its occurrence, or delay in taking any action in connection with an event of
default shall not constitute a waiver of such default, nor shall it constitute
an estoppel against such party, but such party shall have the right to declare
the default at any time and take such action as is lawful or authorized under
this Lease. Failure by Landlord or Tenant to enforce its rights with respect to
any one default shall not constitute a waiver of its rights with respect to any
subsequent default. Receipt by Landlord of Tenant's keys to the Premises shall
not constitute an acceptance or surrender of the Premises.
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26. EVENT OF BANKRUPTCY.
In addition to, and in no way limiting the other remedies set forth
herein, Landlord and Tenant agree that if Tenant ever becomes the subject of a
voluntary or involuntary bankruptcy, reorganization, composition, or other
similar type proceeding under the federal bankruptcy laws, as now enacted or
hereinafter amended (collectively an "Event of Bankruptcy"), then:
A. "Adequate protection" of Landlord's interest in the Premises
pursuant to the provisions of Section 361 and 363 (or their successor sections)
of the Bankruptcy Code, 11 U.S.C. Section 101 et seq., (such Bankruptcy Code as
amended from time to time being herein referred to as the "Bankruptcy Code"),
prior to assumption and/or assignment of the Lease by Tenant shall include, but
not be limited to all (or any part) of the following:
(1) the continued payment by Tenant of the Base Rental and all
other Rent due and owing hereunder and the performance of all other covenants
and obligations hereunder by Tenant;
(2) the furnishing of an additional/new security deposit by
Tenant in the amount of the two (2) times the then current monthly Base Rental.
B. "Adequate assurance of future performance" by Tenant and/or any
assignee of Tenant pursuant to Bankruptcy Code Section 365 will include (but not
be limited to) payment of an additional/new Security Deposit in the amount of
three (3) times the then current monthly Base Rental payable hereunder.
C. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, shall be deemed without further act or deed
to have assumed all of the obligations of Tenant arising under this Lease on and
after the effective date of such assignment. Any such assignee shall, upon
demand by Landlord, execute and deliver to Landlord an instrument confirming
such assumption of liability.
D. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of the Landlord under this Lease, whether or
not expressly denominated as "Rent," shall constitute "rent" for the purposes of
Section 502(b) (6) of the Bankruptcy Code.
E. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other considerations
payable or otherwise to be delivered to Landlord (including Base Rentals and
other Rent hereunder), shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the bankruptcy estate of
Tenant. Any and all monies or other considerations constituting Landlord's
property under the preceding sentence not paid or delivered to Landlord shall be
held in trust by Tenant or Tenant's bankruptcy estate for the benefit of
Landlord and shall be promptly paid to or turned over to Landlord.
F. If Tenant assumes this Lease and proposes to assign the same
pursuant to the provisions of the Bankruptcy Code to any person or entity who
shall have made a bona fide offer to accept an assignment of this Lease on terms
acceptable to the Tenant, then notice of such proposed offer/assignment, setting
forth: (1) the name and address of such person or entity, (2) all of the terms
and conditions of such offer, and (3) the adequate assurance to be provided
Landlord to assure such person's or entity's future performance under the Lease,
shall be given to Landlord by Tenant no later than twenty (20) days after
receipt by Tenant, but in any event no later than ten (10) days prior to the
date that Tenant shall make application to a court of competent jurisdiction for
authority and approval to enter into such assumption and
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assignment, and Landlord shall thereupon have the prior right and option, to be
exercised by notice to Tenant given at any time prior to the effective date of
such proposed assignment, to accept an assignment of this Lease upon the same
terms and conditions and for the same consideration, if any, as the bona fide
offer made by such persons or entity, less any brokerage commission which may be
payable out of the consideration to be paid by such person for the assignment of
this Lease.
27. WAIVER OF JURY TRIAL.
Landlord and Tenant hereby waive any right to a trial by jury in any
action or proceeding based upon, or related to, the subject matter of this
Lease. This waiver is knowingly, intentionally, and voluntarily made by Landlord
and Tenant, and each party acknowledges that neither the other party nor any
person acting on behalf of the other party has made any representations of fact
to induce this waiver of trial by jury or in any way to modify or nullify its
effect. Landlord and Tenant each further acknowledges that it has been
represented (or has had the opportunity to be represented) in the signing of
this Lease and in the making of this waiver by independent legal counsel,
selected of its own free will, and that it has had the opportunity to discuss
this waiver with counsel.
28. CONSTRUCTION OF THE PREMISES.
A. Landlord, at Landlord's sole cost and expense, shall construct the
"Base Building", and the Common Areas, in accordance with the plans and
specifications prepared by Landlord's architect described on Exhibit G (the Base
Building Plans and Specifications), and in compliance with all legal
requirements and all matters of record affecting the Property. All materials and
equipment to be incorporated into the Base Building and Common Areas shall be
new and of good quality and in good operating condition, and construction shall
be free from faults and defects. Construction not conforming to these
requirements shall be corrected. Tenant shall be entitled to obtain changes to
the Base Building Plans and Specifications by reason of Tenant's request for
either additional or substituted items within the Base Building, (the "Base
Building Upgrades"). All costs (including without limitation all design,
engineering and construction costs) which Landlord shall incur to design,
implement or furnish the Base Building Upgrades shall be at the sole cost and
expense of Tenant. Tenant shall be entitled to direct that Landlord apply either
or both the improvement Allowance or improvement Loan to the payment of Base
Building Upgrades. Attached hereto as Exhibit M is the Workletter dealing with
the performance of the Base Building, Base Building Upgrades and the Initial
Leasehold Improvements.
B.
C.
D.
E.
F. If Landlord's Contractor is selected to perform the Initial
Leasehold Improvements, such work shall be performed, at Tenant's expense, in
accordance with the following provisions of this Section 28.F:
(1) Landlord shall contract with Landlord's Contractor for
performance of the Initial Leasehold Improvements. In addition, Landlord shall
be responsible for obtaining the
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construction permits for the Initial Leasehold Improvements and the use and
occupancy permits for the Premises.
(2) All materials and equipment to be incorporated into the
Initial Leasehold Improvements shall be new and of good quality and in good
operating condition, and construction shall be free from faults and defects.
Construction not conforming to these requirements shall be corrected.
(3) Tenant shall be given access to the Premises during the
period when Landlord is constructing the Initial Leasehold Improvements, for the
purpose of installing telephone and computer cabling and equipment, other
special equipment, fixtures and furniture therein, provided that (i) Tenant
shall coordinate such installations with Landlord's Contractor, (ii) such
installations shall not unreasonably impede, hinder or delay Landlord's
completion of the Base Building or the Initial Leasehold Improvements or
obtaining a use and occupancy permit for the Premises, (iii) Tenant shall
maintain the liability insurance coverage required by this Lease, and (iv)
Tenant shall indemnify Landlord against any and all damages sustained in
connection with the installation of such furniture, fixtures and equipment,
unless such damage is caused by the negligence or willful misconduct of
Landlord, its agents, employees or contractors.
(4)
G. If Tenant elects to have the Initial Leasehold Improvements
performed by Tenant's Contractor, such work shall be performed, at Tenant's
expense, in accordance with the following provisions of this Section 28.G:
(1) Tenant shall contract with Tenant's Contractor for
performance of the Initial Leasehold Improvements. In addition, Tenant shall be
responsible for obtaining the construction permits for the Initial Leasehold
Improvements and the use and occupancy permits for the Premises.
(2) All contractors performing such construction must be
licensed to perform such work in the State of Maryland, and such contractors, or
Tenant, must maintain all insurance required by Section 16.B of this Lease.
(3) Such construction shall be performed in accordance with
the Leasehold Improvement Plans and Specifications, and in compliance with all
legal requirements and all matters of record affecting the Property. All
materials and equipment to be incorporated into the Initial Leasehold
Improvements shall be new and of good quality and in good operating condition,
and construction shall be free from faults and defects. Construction not
conforming to these requirements shall be corrected. Landlord shall be entitled
to oversee all construction by Tenant hereunder in order to assure compliance by
Tenant of the approved plans and specifications.
(4) Tenant shall indemnify Landlord against (i) any damage
sustained in connection with the work performed by any contractors retained by
Tenant, unless such damage is caused by negligence or willful misconduct of
Landlord, its agents, employees or contractors, and (ii) any mechanics' or
materialmen's liens against the Premises or the Building arising from the work
performed by any contractors retained by Tenant.
(5) Landlord shall pay any portion of the Improvement
Allowance and the Improvement Loan (if any) remaining after payment for
architect's charges pursuant to Section
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28.D to Tenant, in installments made payable jointly to Tenant and Tenant's
Contractor equal to the sum of invoices for completed portions of the Initial
Leasehold Improvements submitted by Tenant to Landlord, within thirty (30) days
after Landlord's receipt of such invoices, together with waivers from such
contractors, subcontractors and material suppliers of any lien rights same may
have for such completed portions of the Initial Leasehold Improvements. Any
amount which is not paid when due pursuant to this Section 28.G(5) shall bear
interest at the Maximum Rate from the date due until paid.
29. HOLDING OVER.
In the absence of a written agreement executed by Landlord expressly
recognizing that such agreement shall prevail over the provisions contained in
this Article 29, in the event of holding over by Tenant after expiration or
other termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Articles 22 and 23 hereof, occupancy of the Premises subsequent to such
termination or expiration shall be that of a tenancy at sufferance and in no
event for month-to-month or year-to-year, but Tenant shall, throughout the
entire holdover period, be subject to all the terms and provisions of this Lease
and shall pay for its use and occupancy an amount equal to one hundred
twenty-five percent (125%) of the Base Rental due for the period immediately
preceding such holding over, plus any Additional Base Rental due hereunder. No
holding over by Tenant or payments of money by Tenant to Landlord after the
expiration of the term of this Lease shall be construed to extend the Lease Term
or prevent Landlord from recovery of immediate possession of the Premises by
summary proceedings or otherwise; provided, however, that Landlord shall not
unreasonably withhold its consent to a holdover tenancy not to exceed ninety
(90) days; provided, however that Landlord shall not be required to consent to
any holdover in the event that such holdover impairs Landlord's ability to
tender all or any substantial (i.e. more than one-fourth) portion of the
Premises under a replacement lease. In addition to the obligation to pay the
amounts set forth above during a holdover period, in the event Tenant holds over
without the express prior written consent from Landlord, the Tenant also shall
be liable to Landlord for all actual (but not consequential) damage which
Landlord may suffer by reason of any holding over by Tenant, and Tenant shall
indemnify Landlord against any and all claims made by any other tenant or
prospective tenant against Landlord for delay by Landlord in delivering
possession of the Premises to such other tenant or prospective tenant.
30. SUBORDINATION TO MORTGAGES.
Tenant accepts this Lease subject and subordinate to any mortgage, deed
of trust, ground lease or other lien presently existing or hereafter arising
upon the Premises, or upon the Building and/or the Property and to any renewals,
modifications, refinancings and extensions thereof (any such mortgage, deed of
trust, lease or other lien being sometimes hereinafter referred to as a
"Mortgage", and the person or entity having the benefit of same being sometimes
referred to hereinafter as a "Mortgagee"). Tenant agrees upon demand to execute
such further instruments subordinating this Lease, acknowledging the
subordination of this Lease or attorning to the holder of any such Mortgage as
Landlord may reasonably request. If any person shall succeed to all or part of
Landlord's interests in the Premises whether by purchase, foreclosure, deed in
lieu of foreclosure, power of sale, termination of lease or otherwise, Tenant
shall, without charge, attorn to such successor-in-interest.
This subordination provision with respect to ground leases is subject
to the express condition that so long as Tenant is not in default beyond any
applicable cure period in the payment of Base Rental or Additional Base Rental
or any other material covenant or condition
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of this Lease, (i) its rights as Tenant hereunder shall not be affected or
terminated, (ii) its possession of the Premises shall not be disturbed, (iii) no
action or proceeding shall be commenced to remove or evict Tenant, and (iv) the
Lease shall at all times continue in full force and effect notwithstanding the
termination or expiration of such ground lease prior to the expiration or
termination of this Lease (or if terminated by law as a result of Landlord's
interest being terminated, the ground lessor will enter into a new lease with
Tenant with the identical terms and conditions of this Lease).
This subordination provision with respect to mortgages or deeds of
trust is subject to the express condition that so long as Tenant is not in
default in the payment of Base Rental or Additional Base Rental or of any other
material covenants and conditions of this Lease, its rights as Tenant hereunder
shall not be terminated and its possession of the Premises shall not be
disturbed by any mortgagee or trustee or by any proceedings on the debts which
any such mortgage or deed of trust secures or by virtue of a right or power
contained in any such mortgage or deed of trust or the bond or note secured
thereby and that any sale at foreclosure shall be subject to this Lease.
Landlord shall obtain for Tenant, from the holder of each ground lease,
mortgage and deed of trust now or hereafter encumbering the Building, a
Non-Disturbance Agreement in form acceptable to Landlord's ground lessor or
mortgagee, and reasonably satisfactory to Tenant, confirming the statements
hereinabove set forth in this section. Tenant expressly recognizes that the
holder under any such Non-Disturbance Agreement shall be entitled to except
therefrom any obligations under Section 40 below pertaining to the Adjacent
Building or Section 42 pertaining to rights of first offering. Landlord agrees
to use reasonable efforts to obtain the agreement from the holder of each ground
lease, mortgage and deed of trust now or hereafter encumbering the Building to
both notify Tenant of any default by Landlord under such ground lease, mortgage
or deed of trust and to accept the cure by Tenant of such default.
Tenant agrees that any Mortgagee shall have the right at any time to
subordinate such Mortgage to this Lease on such terms and subject to such
conditions as such Mortgagee may deem appropriate in its discretion, provided
the Mortgagee for itself and any party claiming by, through or under such
Mortgagee agrees in writing to recognize this Lease in the event it or such
party acquires the Building by foreclosure or deed-in-lieu of foreclosure.
Tenant waives the provisions of any statute or rule of law, now or
hereafter in effect, which may give or purport to give Tenant any right to
terminate or otherwise adversely affect this Lease and the obligations of Tenant
hereunder in the event that any such foreclosure proceeding is prosecuted or
completed. Tenant agrees to give any Mortgagee, by certified mail, return
receipt requested, a copy of any notice of default served upon 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 address of
such mortgagees and/or trust deed holders. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then the mortgagees and/or trust deed holders 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,
not to exceed an additional ninety (90) days, if within such thirty (30) days,
the mortgagee and/or trust deed holder 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 this Lease shall not be terminated while such remedies are being so
diligently pursued. Tenant agrees that in the event of the sale of the Property,
by foreclosure or deed in lieu thereof, the purchaser at such sale shall only be
responsible for the return of any Security Deposit paid by Tenant to Landlord in
connection with this Lease to the extent that
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such purchaser actually receives such Security Deposit. Tenant further agrees
that any successor to Landlord's interest shall not be bound by (i) any payment
of monthly Base Rental or Additional Base Rental for more than one (1) month in
advance, except prepayments in the nature of security for the performance by
Tenant of its obligations under this Lease or (ii) any amendment or modification
of this Lease made after Tenant's receipt of the name and address of any
Landlord's Mortgagee, without the consent of such Mortgagee.
31. ATTORNEYS' FEES.
In the event that Landlord should retain counsel and institute any suit
against Tenant for violation of or to enforce any of the covenants or conditions
of this Lease, or should Tenant retain counsel and institute any suit against
Landlord for violation of any of the covenants or conditions of this Lease, or
should either party intervene in any suit in which the other is a party to
enforce or protect its interest or rights hereunder, the prevailing party (as
determined by the court in which the suit is instituted) in any such suit shall
be entitled to all of its costs, expenses and reasonable fees of its attorney(s)
(if and to the extent permitted by law) in connection therewith.
32. NOTICE.
Whenever any demand, request, approval, consent or notice ("Notice")
shall or may be given to either of the parties by the other, each such Notice
shall be in writing and shall be sent by registered or certified mail with
return receipt requested, or sent by messenger or overnight courier service
(such as Federal Express) at the respective addresses of the parties for notices
as set forth in Section I.A(9). of this Lease, provided that if Tenant has
vacated the Premises, Landlord may serve Notice by any manner permitted by law.
Any Notice under this Lease delivered by registered or certified mail shall be
deemed to have been given, delivered, received and effective on the earlier of
(a) the third Business Day following the day on which the same shall have been
mailed with sufficient postage prepaid or (b) the delivery date indicated on the
return receipt. Notice sent by messenger or overnight courier service shall be
deemed given, delivered, received and effective upon the day such notice is
actually received, as indicated on the receipt obtained by the messenger or
overnight courier service. Either party may, at any time, change its Notice
Address by giving the other party Notice stating the change and setting forth
the new address.
33. ESTOPPEL CERTIFICATES.
Landlord and Tenant each agrees, at any time and from time to time
during the Term of this Lease, upon not less than fifteen (15) days prior
written notice by the other party, to execute, acknowledge and deliver to the
other party a statement certifying to substantially the following provisions
(recognizing that any of such statement may be modified by the certifying party
to reflect the then state of facts): (i) a statement that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the Lease is in full force and effect as modified and stating the
modifications), (ii) a statement of the dates to which the Rent and any other
charges hereunder have been paid by Tenant, (iii) a statement of whether or not,
to the best knowledge of the certifying party, the other party is in default in
the performance of any covenant, agreement or condition contained in this Lease,
and if so, specifying each such default of which the certifying party may have
knowledge, (iv) a statement of the address to which notices to the certifying
party should be sent, (v) a statement that all work required to be performed by
the Landlord under this Lease has been completed and that Tenant has accepted
the Premises and improvements therein and/or that all payments of the Allowance
have been satisfied by Landlord, (vi) a statement that Tenant will not attempt
to terminate this Lease by
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reason of Landlord's default or omission without giving written notice of such
default or omission to Landlord and any mortgagee of which Tenant has knowledge
and/or (vi) such other statement or statements as the requesting party, any
prospective purchaser of the Property, any mortgagee or prospective mortgagee of
the Property or of Landlord's interest in either, any prospective assignee of
any such mortgagee and/or any prospective assignee of Tenant's interest in this
Lease or prospective subtenant of Tenant may reasonably request. Any such
statement delivered pursuant hereto, may be relied upon by any owner of the
Property, any prospective purchaser of the Property, any mortgagee or
prospective mortgagee of the Property or of Landlord's interest in either, any
prospective assignee of any such mortgagee or any prospective assignee of
Tenant's interest in this Lease or prospective subtenant of Tenant.
Tenant agrees to make such reasonable changes or modifications to this
Lease as may be required by any mortgagee of the Building and/or the Land,
provided that such changes or modifications shall not increase the amount of
Base Rental, Additional Base Rental, shorten the Term of this Lease or change or
redefine the Premises, or otherwise adversely affect the rights or obligations
of the parties hereunder.
34. ACCESS TO ROOF.
A. Landlord shall not install, nor permit any other party to install,
any satellite or antenna dishes on the roof of the Building. Throughout the
Term, Landlord shall permit Tenant to install and maintain, subject to
applicable Laws and the provisions of this Article 34, one or more satellite or
antenna dishes on the roof of the Building ("Tenant's Roof Use").
B. Landlord shall make available to Tenant access to and locations
mutually acceptable to Landlord and Tenant on the roof for the construction,
installation, maintenance, repair, operation and use of such satellite or
antenna dishes. Tenant shall screen such installations in a manner mutually
acceptable to Landlord and Tenant. Tenant shall be entitled to remove, or if
designated by Landlord at the time of its consent, Tenant shall be required to
remove, any such satellite or antenna dishes and any related equipment from the
Building at the expiration or other termination of the Term of this Lease, and
Tenant shall be required at its sole cost and expense to make all necessary
repairs or restoration resulting occasioned by such removal. Tenant shall pay
all costs associated with the installation, maintenance, repair, use, insurance
and removal of such satellite or antenna dishes and any related equipment.
C. Tenant shall give Landlord reasonable telephonic notice before any
entry onto the roof of the Building by Tenant's agents, employees or
contractors, and shall permit Landlord's agents or employees to accompany
Tenant's agents, employees or contractors on any such entry onto the roof.
Except as otherwise hereinafter set forth in this Article 34, Landlord shall not
be liable for any claims, losses, actions, damages, liabilities or expenses
arising from any satellite or antenna dishes or related equipment installed by
Tenant on the roof of the Building, or the installation, maintenance, repair,
use or removal of such dishes and related equipment, unless caused by the
negligence or willful misconduct of Landlord, its agents, employees or
contractors.
D. Tenant shall obtain Landlord's written consent prior to installation
of any satellite or antenna dishes or other roof-top equipment, which consent
shall not be unreasonably delayed or withheld, with respect to the type, weight,
method of installation and appearance of all such items. Landlord shall be
entitled to condition its consent to the installation of such load supports as
Landlord may reasonably determine necessary to support the proposed roof-top
equipment. Tenant shall provide Landlord with plans and specifications
sufficient for such purposes. Tenant will obtain prior to installation, any and
all governmental licenses, approvals
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necessary for the installation, maintenance and use of any equipment installed
pursuant to this Article 34. Tenant's Roof Use shall not in any way conflict
with any applicable Laws. Tenant shall indemnify and hold Landlord harmless from
and against any and all loss, cost (including reasonable attorney's fees
incurred in defending Landlord), damage or liability arising out of any
violation by Tenant's Roof Use of any applicable Laws. The provisions contained
in Sections 10 and 16 shall fully govern all roof-top installations by Tenant
hereunder.
E. Tenant's Roof Use shall be exercised: (1) in such manner as will not
create any hazardous condition or interfere with or impair the operation of the
heating, ventilation, air conditioning, plumbing, electrical, fire protection,
life, safety, public utilities or other systems or facilities in the Building;
(2) in such a manner as will not unreasonably interfere with Landlord's
operation or maintenance of the Building or the operations of other tenants of
the Project located in the Adjacent Building; (3) at Tenant's cost, including
the cost of repairing any damage to the Building and any personal injury and/or
property damage caused by the installation, inspection, adjustment, maintenance,
removal or replacement of any of Tenant's equipment on the roof; and (4) in a
manner which will not void or invalidate any roof warranty then in effect with
respect to the roof of the Building.
To the extent that Tenant shall cause any wiring or cabling (including,
without limitation, any and all supporting structures) to be installed, pulled
or operated in the Premises (including, without limitation, any
telecommunications equipment installed by reason of Tenant's Roof Use) such
wiring or cabling, and supporting structures at Landlord's option shall be
removed (provided Landlord advised Tenant in writing at the time of its consent
to the installation of such wiring and cabling that such items are to be
removed), and the Building restored by Tenant at Tenant's expense upon
expiration or earlier termination of this Lease, or as reasonably required by
Landlord.
In the event Tenant shall elect to permit a third party not occupying
in the Building at least 1,000 square feet of rentable area to use any portion
of the roof for the placement of any devices or other equipment, then and in
such event Tenant agrees to cause such third party subtenant or licensee to
remove all wiring and cabling servicing such third party's roof top devices or
other equipment, together with all such devices and equipment. Landlord shall be
entitled to notify Tenant to cause such removal at Landlord's option, at anytime
prior to thirty (30) days following the termination or expiration of this Lease.
Any damage caused to the roof or Building by reason of such removal shall be
promptly repaired or restored at Tenant's sole cost and expense. The obligations
of Tenant hereunder shall expressly survive such termination or expiration of
this Lease.
35. EXCEPTED RIGHTS.
Except as otherwise set forth herein, this Lease does not grant any
rights to light or air over or about the Building. Landlord specifically excepts
and reserves to itself such areas within the Premises as are required for
installation of utility lines and the right to maintain and repair the same, and
no rights with respect thereto are conferred upon Tenant unless otherwise
specifically provided herein. Landlord further reserves to itself the right from
time to time: (a) to make any alterations, additions, improvements to the
Building, or any part thereof (including the Premises) which are necessary for
the safety, protection, preservation or improvement of the Building or which are
approved by Tenant, or as Landlord may be required to do by law; (b) to retain
at all times and to use pass-keys to all locks within and into the Premises; and
(c) to approve the weight, size, or location of heavy equipment or articles in
and about the Premises. Landlord, in accordance with Article 12 hereof, shall
have the right to enter the Premises in connection with the exercise of any of
the rights set forth herein and such entry into the
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Premises and the performance of any work therein shall not constitute a
constructive eviction or entitle Tenant to any abatement or reduction of Rent by
reason thereof.
36. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's
right of possession hereunder, Tenant shall remove all Tenant's Property and all
Required Removables from the Premises and quit and surrender the Premises to
Landlord, broom clean, and in good order, condition and repair, ordinary wear
and tear and casualty damage not required to be repaired by Tenant hereunder
excepted. If Tenant fails to remove any of Tenant's Property within five (5)
days after the termination of this Lease or Tenant's right to possession
hereunder, Landlord, at Tenant's sole cost and expense, shall be entitled, after
two (2) business days written notice to Tenant, to remove and/or store such
Tenant's Property and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. Tenant shall pay Landlord, upon demand, any
and all expenses caused by such removal and all storage charges against such
property so long as the same shall be in the possession of Landlord or under the
control of Landlord. In addition, if Tenant fails to remove any Tenant's
Property from the Premises or storage, as the case may be, within ten (10)days
after written notice from Landlord, Landlord, at its option, may deem all or any
part of such Tenant's Property to have been abandoned by Tenant and title
thereof shall immediately pass to Landlord.
37. PARKING GARAGE.
A. Prior to the Preliminary Commencement Date, Landlord, at Landlord's
expense, shall construct on the subsurface levels of the Building a parking
garage capable of accommodating at least four hundred (400) parking spaces (the
"Parking Garage"), in accordance with plans and specifications approved by
Tenant. It is understood that the Parking Garage shall be completed
substantially similar to the garage existing as of the date of this Lease in the
Adjacent Building, and tendered in broom-clean condition (i.e., the finished
concrete, striping (if desired by Tenant), painting, lighting, sprinklering and
exhaust fans in place shall all be similar to that which is presently provided
at the Adjacent Building, including also the finished elevator lobbies but
excluding all gates, booths, and other equipment typically utilized in the
operation of a parking garage). Throughout the Lease Term, Tenant shall have
exclusive use of the Parking Garage, and Tenant shall pay Landlord the Parking
Garage Rental, as Additional Base Rental. The Parking Garage Rental shall be
payable in equal monthly installments during the Lease Term, commencing as of
the Preliminary Commencement Date.
B. Throughout the Lease Term, Tenant, at its sole cost and expense,
shall operate and maintain the Parking Garage, and shall make all repairs
thereto and perform all maintenance therein required in order to maintain the
Parking Garage in good operating condition (including re-painting, restriping,
re-sealing, re-tubing all light fixtures, performing all repairs to the lights,
light fixtures, gates and doors therein and all ventilation, drainage, fire and
life safety equipment servicing the Parking Garage) unless necessitated by the
negligent act or omission of Landlord, or any agent, employee, or contractor of
Landlord. Landlord shall not be responsible to perform or provide any services
whatsoever in or for the Parking Garage, other than structural repairs not
caused by reason of any act or omission of Tenant or any Tenant Related Parties.
Throughout the Lease Term, Landlord shall make any repairs to the Parking Garage
which are the responsibility of Landlord under the two immediately preceding
sentences. Tenant shall operate the Parking Garage in compliance with all
applicable Laws. Tenant, at its discretion, may employ one or more independent
contractors to assist Tenant in the performance of its obligations under this
section.
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Tenant will not cause the Property to incur the Parking Tax levied by
Montgomery County Maryland pursuant to Montgomery Co. Code Chapter 60 Section
60.1 et. seq., as same may be hereafter amended, supplemented or replaced.
Notwithstanding the foregoing, Tenant shall be entitled to change the use of the
first floor portion of the Premises to a use which would result in the
imposition of the Parking Tax provided both (x) Tenant is able to provide
assurances reasonably acceptable to Landlord confirming that upon termination of
this Lease and the cessation of the use proposed by Tenant, the Property will no
longer incur the Parking Tax, and (y) Tenant shall bear the entire Parking Tax,
and any other costs or expenses resulting by reason of the imposition of same
against the Property.
C. The use of the Parking Garage and the elevator vestibules servicing
the Parking Garage by Tenant and Tenant's visitors, invitees and licensees shall
be at their sole risk and expense, and in no event shall Landlord have any
liability for damage to, theft or loss of property of the Tenant or of Tenant's
employees, visitors, licensees or invitees suffered or sustained in or about
said parking areas or elevator vestibules. Further, in no event shall Landlord
have any liability for any injury or death occurring within the Parking Garage
or such vestibules unless caused by the negligence or willful misconduct of
Landlord. Tenant shall indemnify and hold Landlord harmless from all such claims
in accordance with Section 15.A above. The Parking Garage and all security
therefore shall be under the exclusive control of Tenant, who shall have the
right to establish rules and regulations governing the use of the Parking
Garage, and the right to change such rules and regulations from time to time,
and the right to limit or terminate the right of any parties to use the Parking
Garage.
D. If the Parking Garage is damaged or destroyed by casualty, then
unless the Premises is also damaged or destroyed by such casualty and this Lease
is terminated as a result thereof, Landlord shall commence and proceed with
reasonable diligence to restore the Parking Garage to substantially the same
condition it was in immediately prior to the happening of the casualty. Landlord
shall not be liable for any inconvenience or annoyance to Tenant or injury to
the business of Tenant resulting in any way from such damage or the repair
thereof, except that Landlord shall allow Tenant a fair diminution of Parking
Garage Rental on a per diem basis (based on the ratio of the square foot area of
the unusable portion of the Parking Garage to the total square foot area of the
Parking Garage) during the time and to the extent any damage to the Parking
Garage or the means of access thereto causes the Parking Garage to be rendered
unusable and not used by Tenant.
E. On the Termination Date, Tenant shall remove all of Tenant's
Property from the Parking Garage and surrender the Parking Garage to Landlord in
broom clean, "as is" condition.
38. ACCESS.
Tenant shall have access to the Premises and the Parking Garage
twenty-four (24) hours per day, seven (7) days per week (subject, however, to
the reasonable rules and regulations established from time to time by Landlord
for the Building). Access to the Building entrance outside the Normal Business
Hours will be by means of a security card access system and/or a guard system or
other system or arrangement as established from time to time by Landlord with
Tenant's approval, which may be granted or withheld in Tenant's sole discretion.
There will be a minimum of one (1) elevator in operation for Tenant's use
outside of the Normal Business Hours. Notwithstanding anything to the contrary
in this Lease, Tenant shall have the right to restrict access to the Building
(including also the entrance from the plaza area) by parties other than
Landlord, its agents, employees and contractors, and Tenant, its subtenants, and
their respective agents, employees, contractors, licensees and invitees.
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39. OPTION TO EXTEND.
40. EXPANSION SPACE.
41. MISCELLANEOUS.
A. If any term or provision of this Lease, or the application thereof
to any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and enforced to the fullest extent permitted by law.
This Lease represents the result of negotiations between Landlord and Tenant,
each of which has been (or has had opportunity to be) represented by counsel of
its own selection, and neither of which has acted under duress or compulsion,
whether legal, economic or otherwise. Consequently, Landlord and Tenant agree
that the language in all parts of the Lease shall in all cases be construed as a
whole according to its fair meaning and neither strictly for nor against
Landlord or Tenant.
B. Tenant agrees not to record this Lease or any memorandum hereof
without Landlord's prior written consent, which consent shall not be
unreasonably withheld in the case of a proposed memorandum (as opposed to the
Lease itself), recognizing that any such recordation shall be at the sole cost
and expense of Tenant, and in the event thereof, Tenant shall execute and
deliver to Landlord within ten (10) days following any termination of this Lease
at no cost or expense to Landlord a memorandum of termination in recordable form
evidencing the termination of such memorandum.
C. This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed, and enforced in accordance with the laws of the
state in which the Building is located.
D. Events of "Force Majeure" shall include strikes, riots, acts of God,
shortages of labor or materials, war, governmental law, regulations or
restrictions and any other cause whatsoever that is beyond the control of
Landlord or Tenant, as the case may be. Whenever a period of time is herein
prescribed for the taking of any action by Landlord or Tenant, such party shall
not be liable or responsible for, and there shall be excluded from the
computation of such period of time, any delays due to events of Force Majeure.
In no event shall either party claim Force Majeure with respect to any payment
obligation hereunder.
E. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations hereunder and in the Building and
Property referred to herein, and in such event and upon such transfer, Landlord
shall be released from any obligations hereunder accruing after the date of the
transfer, and Tenant agrees to look solely to such successor in interest of
Landlord for the performance of such obligations.
F. Tenant hereby represents to Landlord that it has dealt directly with
and only with the party[ies] designated as the Broker under Section 1 of this
Lease as the broker[s] in connection with this Lease. Tenant agrees to indemnify
and hold Landlord and the Landlord Related Parties harmless from all claims of
any other brokers claiming to have represented Tenant in connection with this
Lease. Landlord agrees to indemnify and hold Tenant and the Tenant Related
Parties harmless from all claims of any brokers claiming to have represented
Landlord in connection with this Lease. Landlord agrees to compensate the Broker
in
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accordance with the terms of a separate written agreement heretofore entered
into by and between Landlord and the Broker.
G. If there is more than one Tenant, or if the Tenant is comprised of
more than one person or entity, the obligations hereunder imposed upon Tenant
shall be joint and several obligations of all such parties. All notices,
payments, and agreements given or made by, with or to any one of such persons or
entities shall be deemed to have been given or made by, with or to all of them.
H. In the event Tenant is a corporation (including any form of
professional association), partnership (general or limited), or other form of
organization other than an individual (each such entity is individually referred
to herein as an "Organizational Entity"), then Tenant hereby covenants, warrants
and represents: (1) that such individual is duly authorized to execute or attest
and deliver this Lease on behalf of Tenant in accordance with the organizational
documents of Tenant and has been duly appointed as the attorney-in-fact for the
Tenant; (2) that this Lease is binding upon Tenant; (3) that Tenant is duly
organized and legally existing in the state of its organization, and is
qualified to do business in the state in which the Premises is located; and (4)
that the execution and delivery of this Lease by Tenant will not result in any
breach of, or constitute a default under any mortgage, deed of trust, lease,
loan, credit agreement, partnership agreement or other contract or instrument to
which Tenant is a party or by which Tenant may be bound. If Tenant or Guarantor
is an Organizational Entity, upon request, Tenant or such Guarantor will
concurrent with execution of this Lease or Guaranty, as the case may be, deliver
to Landlord copies of an appropriate resolution or consent of such entity's
board of directors or other appropriate governing body authorizing or ratifying
the execution and delivery of this Lease or Guaranty, as appropriate, which
resolution or consent will be duly certified to Landlord's satisfaction by an
appropriate individual with authority to certify such documents, such as the
secretary or assistant secretary or the managing general partner of Tenant or
Guarantor. Tenant and its Guarantor shall also provide to Landlord a legal
opinion from its counsel (which at Tenant's option may be its in-house general
counsel) addressed to Landlord and its lender certifying that all requisite
actions have been taken by both Tenant and Guarantor in order to render this
Lease and Guaranty as valid and binding obligations of such parties, enforceable
in accordance with their terms.
I.
J. Except as expressly otherwise herein provided, time is of the
essence of this Lease. This Lease shall create the relationship of Landlord and
Tenant between the parties hereto.
K. This Lease and the covenants and conditions herein contained shall
inure to the benefit of and be binding upon Landlord and Tenant and their
respective permitted successors and assigns.
L. Notwithstanding anything to the contrary contained in this Lease,
the expiration of the Lease Term, whether by lapse of time or otherwise, shall
not relieve Tenant from Tenant's obligations accruing prior to the expiration of
the Lease Term, and such obligations shall survive any such expiration or other
termination of the Lease Term.
M. The headings and titles to the paragraphs of this Lease are for
convenience only and shall have no affect upon the construction or
interpretation of any part hereof.
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N. LANDLORD HAS DELIVERED A COPY OF THIS LEASE TO TENANT FOR TENANT'S
REVIEW ONLY, AND THE DELIVERY HEREOF DOES NOT CONSTITUTE AN OFFER TO TENANT OR
OPTION. THIS LEASE SHALL NOT BE EFFECTIVE UNTIL AN ORIGINAL OF THIS LEASE
EXECUTED BY BOTH LANDLORD AND TENANT AND AN ORIGINAL GUARANTY, IF ANY, EXECUTED
BY EACH GUARANTOR IS DELIVERED TO AND ACCEPTED BY LANDLORD.
O. Tenant shall, and may peacefully have, hold, and enjoy the Premises,
subject to the other terms of this Lease (including, without limitation, Article
30 hereof), provided that Tenant pays the Rent herein recited to be paid by
Tenant and performs all of Tenant's covenants and agreements herein contained.
This covenant and any and all other covenants of Landlord shall be binding upon
Landlord and its successors only during its or their respective periods of
ownership of the Landlord's interest hereunder.
P. Landlord represents and warrants to Tenant that as of the date
hereof, Landlord is the fee simple owner of record (and in fact) of the Property
or has contracted to acquire those portions of the Property not heretofore
acquired by Landlord. A copy of Landlord's title insurance policy on the
portions of the Property which have been previously acquired together with a
copy of Landlord's Title Insurance Commitment for those portions of the Property
not presently acquired are attached hereto as Exhibit I. Landlord shall acquire
all portions of the Property not presently acquired within the thirty (30) day
period following the execution of this Lease. Within thirty (30) days following
receipt of such policy, Landlord shall provide Tenant a copy of its title
insurance policy for each such portion acquired subsequent to the date hereof.
42. RIGHT OF FIRST OFFER.
Provided that the Lease shall be in full force and effect, and Tenant
shall not then be in default nor subject to any Event of Bankruptcy, and further
provided that Tenant has not let its right to the particular Extension Term
succeeding the term then in effect lapse by reason of the failure of Tenant to
renew this Lease timely, then and only in such event, Tenant shall be entitled
to a right of first offer of the Property (in accordance with the following
terms) unless the rights of first offering hereunder have been extinguished
pursuant to the conditions below contained. Such right of first offer shall
apply if, and only if, Landlord shall desire to sell its interest in the
Property, in a transaction where neither Landlord nor any one or more partners,
members or shareholders of Landlord, owning or controlling in the aggregate at
least one-third (1/3) of all ownership interests therein (such parties being
collectively herein the "Remaining Members"), reasonably anticipate retainage of
a beneficial ownership in the Property or the rents derived therefrom. It is
expressly recognized that any proposed exchange, sale or other disposition of
the Property to a real estate investment trust, a Down REIT, an UPREIT or other
future entity used to hold or operate real properties, whereunder the Remaining
Members obtain equity interests (or debt interests convertible to equity) shall
constitute retainage of a beneficial ownership interest in the Property or the
rents therefrom (even if such entity owns diverse other properties).
Consequently a transfer to such a trust, Down REIT, UPREIT or entity shall not
trigger the rights of first offer hereunder and all rights of Tenant thereafter
under this section shall be totally extinguished.
In those circumstances where Tenant is entitled to have a right of
first opportunity (i.e. an anticipated sale for cash of the Property to an
unrelated third party whereunder the Remaining Members will not retain a
beneficial interest) Tenant shall have a right of first opportunity to purchase
the Property for a purchase price and upon terms to be mutually agreed upon by
Landlord and Tenant. Promptly after deciding it wishes to sell its interest in
the Property, Landlord shall give Tenant written notice of same. Tenant may then
exercise its right of first opportunity by giving written notice of the exercise
to Landlord within thirty (30) days after the date of Landlord's notice. A
failure by Tenant to respond within said thirty (30) day period shall totally
extinguish Tenant's right of first opportunity to purchase Landlord's interest
41
<PAGE>
in the Property. Upon receipt of notice of exercise from Tenant, Landlord shall
keep the Property off the market for sixty (60) days, during which period
Landlord and Tenant shall negotiate in good faith the purchase price, terms and
conditions of Tenant's purchase of Landlord's interest in the Property. If
Landlord and Tenant do not mutually agree upon such purchase price, terms and
conditions within said sixty (60) day period, Tenant's right of first
opportunity to purchase Landlord's interest in the Property shall be totally
extinguished. Notwithstanding the foregoing, if the property proposed to be sold
includes other portions of the Project then owned by Landlord or its affiliates
or third parties, then Tenant may exercise its right of first opportunity only
by agreeing to purchase all of the portions of the Project then proposed to be
sold.
Tenant's rights hereunder shall not be binding upon any mortgagee or
ground lessor of Landlord, nor shall any purchase at foreclosure or in lieu of
foreclosure be subject to the provisions of this Section.
43. ENTIRE AGREEMENT.
This Lease Agreement, including the following Exhibits:
Exhibit A - Site Plan of Property [Section I.B(29)]
Exhibit B - Outline of Premises [Section I.A(6)]
Exhibit C - Rules and Regulations [Article 5]
Exhibit D - Commencement Letter [Section 3.Al
Exhibit E - Outline and Location of Storage Space [Section 6.A]
Exhibit F-1 - Building HVAC and Electricity Specifications
[Section 7.A.2]
Exhibit F-2 - Janitorial Service Specifications [Section 7.A.4]
Exhibit G - Schedule of Base Building Plans and Specifications
[Section 28.A]
Exhibit H
Exhibit I - Title Insurance Policy and Commitment on Property
[Section 41.P]
Exhibit J - Construction Schedule [Section 28.C]
Exhibit K - Schedule of Base Rental [Section 4.B]
Exhibit L - Schedule of Insurance Deductibles [Section 18.B]
Exhibit M - Work Letter [Section 28.A]
constitutes the entire agreement between the parties hereto with respect to the
subject matter of this Lease and supersedes all prior agreements and
understandings between the parties related to the Premises, including all lease
proposals, letters of intent and similar documents. TENANT AND LANDLORD EACH
EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE OTHER PARTY HAS NOT MADE AND IS NOT
MAKING, AND SUCH PARTY, IN EXECUTING AND DELIVERING THIS LEASE, IS NOT RELYING
UPON, ANY WARRANTIES, REPRESENTATIONS, PROMISES OR STATEMENTS, EXCEPT TO THE
EXTENT THAT THE SAME ARE EXPRESSLY SET FORTH IN THIS LEASE. ALL UNDERSTANDINGS
AND AGREEMENTS HERETOFORE MADE BETWEEN THE PARTIES ARE MERGED IN THIS LEASE
WHICH ALONE FULLY AND COMPLETELY EXPRESSES THE AGREEMENT OF THE PARTIES, NEITHER
PARTY RELYING UPON ANY STATEMENT OR REPRESENTATION NOT EMBODIED IN THIS LEASE.
THIS LEASE MAY BE MODIFIED ONLY BY A WRITTEN AGREEMENT SIGNED BY LANDLORD AND
TENANT.
42
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IN WITNESS WHEREOF, Landlord, acting by both of its two general
partners, and Tenant have executed this Lease as of the day and year first above
written.
WITNESS/ATTEST: LANDLORD:
BETHESDA PLACE II LIMITED PARTNERSHIP
By: 7626 Wisconsin Corp., its General Partner
By:
------------------------------ -----------------------------------------
By: Tower MD Holdings, LLC, its General Partner
By:
------------------------------ -----------------------------------------
WITNESS: TENANT:
U.S. GENERATING COMPANY
By:
------------------------------ -----------------------------------------
Authorized Officer and Attorney-In-Fact
43
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EXHIBIT "A"
SITE PLAN OF PROPERTY
[GRAPHIC OMITTED]
<PAGE>
EXHIBIT "B"
OUTLINE OF PREMISES
<PAGE>
EXHIBIT "C"
RULES AND REGULATIONS
1. All keys to demised premises shall be surrendered to Landlord upon
termination of this Lease.
2. Tenant will refer all contractor's representatives and installation
technicians rendering any service for Tenant at the demised premises
affecting any of the building's systems or requiring access to the roof
to Landlord before performance of any such contractual service.
Tenant's contractors and installation technicians shall comply with
Landlord's rules and regulations pertaining to construction and
installation.
3. Tenant shall not at any time occupy any part of the demised premises or
project as sleeping or lodging quarters.
4. Tenant shall not place or use in or about the demised premises or
project any explosives, gasoline, kerosene, oil, acids, caustics, or
any flammable, explosive or hazardous materials, except those used in
Tenant business and used, stored and disposed of in accordance with
applicable law, without written consent of Landlord.
5. Landlord will not be responsible for lost or stolen personal property,
equipment, money or jewelry from the demised premises or the project
regardless of whether or not such loss occurs when the area is locked
against entry.
6. No dogs, cats, fowl, or other animals shall be brought into or kept in
or about the demised premises or project.
7. Employees of Landlord shall not receive or carry messages for or to any
Tenant or other person, nor shall they render free or paid services to
any Tenant, its agent, employees or invitees.
8. None of the parking, plaza, recreation or lawn areas, entries, passages
or doors shall be obstructed with any rubbish, litter, trash, or
material of any nature by Tenant's agents, employees or invitees at any
time. Stairways may be unlocked if allowed by County Fire Marshall.
9. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed. Any damage
resulting to them from misuse or by the defacing or injury of any part
of the building shall be borne by the person who shall occasion it.
10. Nothing shall be thrown out of the windows of the building or down the
stairways or other passages.
11. Tenant assumes, and shall indemnify Landlord against all risks and
claims of damage to persons or property arising in connection with any
said movement of furniture or office supplies and equipment in or out
of the building.
12. Landlord shall not be liable for any damage from the stoppage of
elevators for necessary or desirable repairs or improvements or delays
of any sort in connection with the elevator service, provided that
Landlord uses reasonable efforts to restore full elevator service as
quickly as possible.
<PAGE>
13. The use of cement or other similar adhesive materials not easily
removed with water to lay floor coverings is expressly prohibited.
14. Tenant agrees to cooperate and assist Landlord in the prevention of
canvassing, soliciting and peddling within the building or project.
15. Tenant shall be entitled to establish additional rules and regulations
for its employees, contractors, invitees and agents, provided same are
not inconsistent with the foregoing.
<PAGE>
EXHIBIT "D"
COMMENCEMENT LETTER
Date: _________________________________
Tenant: _________________________________
Address: _________________________________
Re: Commencement Letter with respect to that certain Lease
dated ___________________ by and between Bethesda Place II Limited
Partnership, as Landlord, and U.S. GENERATING COMPANY, as Tenant, for
___________ square feet of Rentable Area in the Building located at
7600 Wisconsin Avenue, Bethesda, Maryland.
Dear _____________________:
In accordance with the terms and conditions of the above referenced
Lease, Tenant hereby accepts possession of the Premises and agrees as follows:
1. The Commencement Date of the Lease is ___________________;
2. The Termination Date of the Lease is ____________________.
Please acknowledge your acceptance of possession and agreement to the
terms set forth above by signing all three (3) copies of this Commencement
Letter in the space provided and returning two (2) fully executed copies of the
same to my attention.
Sincerely,
Agreed and Accepted:
Tenant:__________________________________
By: __________________________________
Name: __________________________________
Title: __________________________________
Date: __________________________________
<PAGE>
EXHIBIT "E"
OUTLINE AND LOCATION OF STORAGE SPACE
<PAGE>
EXHIBIT "F-1"
BUILDING HVAC AND, ELECTRICITY SPECLFICATIONS
BETHESDA PLACE II
BETHESDA, MARYLAND
________________________________________________________________________________
BASE BUILDING INFORMATION MANUAL
________________________________________________________________________________
[GRAPHIC OMITTED]
FOR:
BETHESDA PLACE II LIMITED PARTNERSHIP
NOTE: THE INFORMATION CONTAINED HEREIN IS PRELIMINARY AND SUBJECT TO AMENDMENTS
AND REFINEMENTS.
By:
KISHIMOTO.GORDON PC April 15, 1998
KISHIMOTO.GORDON PC
<PAGE>
BETHESDA PLACE II BASE BUILDING INFORMATION MANUAL
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
page no.
<S> <C> <C>
I. GENERAL INFORMATION
A. Introduction 3.
B. Project Location 3.
C. General Building Descriptions 3.
D. Office Tower General Specifications 4.
E. Loading Dock Specifications 4.
F. Vertical Transportation 4.
II. CORE AND SHELL DEVELOPMENT
A. Introduction 5.
B. General Interior Areas 5.
C. Public Areas and Core Finishes 6.
D. Hardware 6.
E. Roofing 6.
F. Structural Systems 6.
G. Mechanical Systems 9.
H. Electrical 11.
I. Fire/Life Safety 12.
J. Plumbing : 14.
K. Telephone Service 15.
L. Drinking Fountains 15.
M. Window Coverings 15.
N. Keying 15.
O. Mail Facilities 15.
P. Signage 15.
III. EXHIBITS
See full size documents: Approved Project Plan- Optional Method of
Development: ARCHITECTURAL SCHEMATIC DESIGN PACKAGE -January 22, 1998
</TABLE>
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PROJECT DISCRIPTION OF BETHESDA PLACE II
I. GENERAL INFORMATION
A. INTRODUCTION
The information provided here is current as of the date noted in the
lower left hand corner of this page.
B. PROJECT LOCATION
Bethesda Place II is located in the downtown central business district
of Bethesda, Maryland at the northwest corner of Wisconsin Avenue and
Commerce Lane.
Bethesda Place II is the second phase of a premier mixed-use
office/residential/retail complex within walking distance of dozens of
restaurants and retail outlets. The project is conveniently located one
block north of the Bethesda Metro station and one mile from the Capital
Beltway.
C. GENERAL BUILDING DESCRIPTION
EXTERIOR
Bethesda Place II is to be a memorable project that responds to the
unique character of the site while blending and complementing the
entire Bethesda Place complex. The building's materials, massing and
site plan will respond to the first phase character but will be unique
and distinctive as a project. The design concept draws upon the
multiple identities of the site; High density urban location, a
prominent corner site on a major regional thoroughfare, the second
phase of an urban mixed use project, to visually and functionally fit
and enhance the entire complex.
The massing of Bethesda Place II will respect the urban street edges of
Wisconsin Ave. and Commerce Lane while also responding to appropriate
pedestrian and building proportions relating to scale. The base of the
building will visually connect to the existing project with similar
treatment of the first two levels. Deeply recessed glass and metal
curtain walls between column pilasters that end with a prominent
cornice at the third floor line provides an intimate scale for retail
and pedestrian activity. The 3rd - 11th floors form the main body of
the building with the street edge sides (east and south sides) matching
and holding the street edges.
A signature unifying element which provides a dominant focus and unique
identity to the building will be found in the glass curtain wall of the
corner shaft as it extends through the building and ends at the top of
the penthouse. This ellipsoid shaped element recalls the central mass
and penthouse element of Bethesda Place I while responding to the
unique character of this building and site.
The plaza side (northwest elevation) has a fenestration similar to the
other sides but the massing responds to the plaza with a diagonal face
that fronts this prominent urban space. The top two floors step back
and present a glass curtain wall that bows toward the plaza. This
diagonal side also reveals the leading edge of the central ellipsoid
mass as it penetrates the building and continues to end at the
penthouse roof.
A pedestrian oriented Streetscape will be designed to adhere to the
Bethesda Central Business District Sector Plan with a 20' sidewalk
setback at Wisconsin Avenue and will include lighting standards, brick
pavers and trees along both street fronts consistent to the sector
plan. The main lobby entrance will be prominently visible from
Wisconsin Ave, and will be oriented toward the corner of the two roads,
A landscaped pedestrian connection is provided
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between Wisconsin Avenue and Commerce Lane to the existing interior
plaza. The passage will feature landscape planting as well as paved
hardscape plaza material.
The exterior building materials will be a mixture of revealed exposed
granite aggregate precast concrete panels on the spandrels and
pilasters and pewter colored high performance glass as continuous
ribbon windows and as curtain wall at the central ellipsoid mass and
two story base. Anodized aluminum will be used at the window frames and
as panels in selected locations. The color palate will be similar to
the original Bethesda Place. The precast concrete will have a variety
of textures and colors similar to the rose/gray tones of the first
phase.
INTERIOR
Bethesda Place II will continue the high level of quality of design and
finishes found in the phase I project. The main entry lobby will be
entered through all glass doors into a two story high granite clad
feature lobby enclosed by a two story curtain wall. An emphasis on easy
accessibility and high visibility from Wisconsin Ave. will be the
primary objective. A second story balcony will overlook the main floor
and connect to the second level office spaces.
The typical elevator lobbies above the second floor shall be finished
to a base building standard as described in Section II B of this
document.
D. OFFICE TOWER GENERAL SPECIFICATIONS
Note: All values are approximate, and subject to refinements.
<TABLE>
<S> <C>
Overall length (tower} 153'- 6"
Overall width (tower) 153'- 6"
Overall height (plaza floor slab to roof) 143'- 0"
Typical slab to stab (floors 2-11 ) 12'- 6'
(plaza) 14'- 0"
Typical slab to finish ceiling (floors 2-11) 8'- 6"
(plaza) 10'- 0"
Typical window sill height at curtain wall 2'- 8"
Typical column spacing 20'- 0" x 40'-0" to 45'-0"
Typical vertical mullion spacing on curtain wall 5'- 0" o.c.
</TABLE>
E. LOADING DOCK SPECIFICATIONS
<TABLE>
<S> <C>
Truck dock spaces (including trash bay) 2
Maximum truck length 55'-0"
Height clearance 13'- 8" min.
Weight maximum Standard 18 wheel
</TABLE>
F. VERTICAL TRANSPORTATION
Five passenger elevators grouped in two banks service the main lobby
level through to the 11th floor with one of five elevators extending
down to service the P1 level and providing a swing freight function as
well. A separate bank of two parking garage access hydraulic elevators
service the main lobby level through the P5 level. The following are
the elevator specifications:
Note: All Dimensions and values are approximate, and may vary depending
upon final manufacturer and finishes selected.
Tower Elevators (geared traction):
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Total Quantity: 5
Four of five (4 of 5):
Number of floor stops 11
Floors served Plaza through 11
Door opening 3'-6"w x 7'-0"h center opening
Platform size 7'-4"w x 6'-2" d
Cab clearance (approx.) 6'-8" w x 5'-3"d
Cab height 9'-0"
Weight capacity 3,500 Lbs.
Speed 450 F.P.M.
One of five (1 of 5):
Number of floor stops 12
Floors served P 1 through 11
Door opening 4'-0"w x 7'-O"h center opening
Platform size 8'-0"w x 6'-2" d
Cab clearance (approx.) 7'-2"w x 5'-3"d
Cab height 9'-0"
Weight capacity 4,000 Lbs.
Speed 450 F.P.M.
Parking Garage Elevators (hydraulic):
Quantity 2
Floor stops 6
Floors served P5-Plaza
Door opening 4'-0"w x 7'-0"h center opening
Platform size 7'-6"w x 6'-0" d
Cab clearance (approx.) 6'-10"w x 5'-1"d
Cab height 9'-0"
Weight capacity 3,000 Lb.
Speed 150F.P.M.
Note: Cab and door dimensions must meet Montgomery County gourney size
requirements.
II. CORE AND SHELL DEVELOPMENT
A. INTRODUCTION
This section is intended to describe the scope of the proposed base
building development. In addition, a general description of many of the
building's utilities, services and proposed amenities has been
provided. The work beyond what is noted here is the sole responsibility
of the Tenant and will be completed at the Tenant's sole expense.
Additionally, any work required to supplement these systems shall be
the sole responsibility of the Tenant and shall be completed at the
Tenant's sole expense unless expressly agreed mutually by the Building
Owner and Tenant.
B. GENERAL INTERIOR AREAS
Typical concrete floor slabs will be provided with a smooth trowel
finish. All core walls and columns connected to core walls are dry-wall
finished to a minimum of 8'- 6", taped, sanded smooth, and ready for
paint. Exterior column and perimeter walls will also be drywall
finished land paint ready.
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Finished ceilings will not be provided for the tenant floor areas.
Metal decking and fireproofed structural steel beams are left exposed
in these areas except that toilet room and other interior core areas
will be finished according to the building color and finish scheme to
be determined.
Core doors will be provided as the "Building Standard" cherry wood
veneer in the "Building Standard" finish as provided in Bethesda Place
I. Hardware shall be the "Building Standard" with a hollow metal frame
painted to match the finish of the "Building Standard" door frame
color.
C. PUBLIC AREAS AND CORE FINISHES
1. EXTERIOR FINISH MATERIALS:
a. Precast concrete: Exposed granite aggregate
panels on spandrels and columns.
b. Visible (as op, to butt-glazed) window,
storefront, and curtain-wall mullions
finished with 0.7mil. thick clear anodized
hard coating.
c. Metal Panels; Kynar XL-based painted
aluminum panels at curtain wall parapet.
d. 1" Insulated vision panels - Color to match
Bethesda Place I at all tenant areas; clear
at retail areas.
e. Glazed Spandrel Panels - Color to match
Bethesda Place I w/ black opacifier.
f. Entrance doors - Herculite type or equal.
g. Exterior Pavers: To match existing plaza and
sidewalk.
2. MAIN BUILDING LOBBY AND MAIN ELEVATOR LOBBY FINISH
MATERIALS;
a. Main Lobby Floors: Mud-set natural stone up
to 3' x3'.
b. Main Elevator Lobby Floor Accents: Mud-set
natural stone up to 3' x3'.
c. Main Lobby Main Elevator Lobby Walls and
Columns: Hand-set natural stone, wood and
polimyx painted GWB.
d. Ceilings: Gypsum Wall Board (GWB) painted w/
architectural reveals.
e. Handrails: Satin bronze and clear tempered
glass.
f. Doors: Cherry veneer solid core doors.
3. ELEVATOR CAB FINISH MATERIALS;
a. Cab walls -Quality similar to Bethesda Place
I.
b. Cab front returns, doors and ceiling - Satin
bronze.
c. Floors- carpet.
d. Elevator jambs at typical tenant floor
painted, color to be selected.
4. MENS AND WOMENS RESTROOM FINISHES:
a. Toilet Partitions: Painted metal partitions
- ceiling hung.
a. Lavatory Tops: Natural stone; type TBD.
b. Floors: Ceramic Tile; type and color
TBD/Carpet in vestibule.
c. Walls: Full height ceramic tile w/painted
GWB in vestibule; color and type TBD.
D. HARDWARE
Interior Core Doors: lever-handled latchset with satin bronze finish,
hinges, and door stops shall be installed on all interior doors.
F. STRUCTURAL SYSTEMS
1. DESIGN LOADS
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The structural systems will be designed to meet the design
load requirements of Chapter 16 of the BOCA National Building
Code, 1996 edition.
The following Design Live Loads will be utilized for floor and
roof.
<TABLE>
<S> <C>
Office Floors 100 Ibs./sq.ft. (including partitions)
Lobby and Retail Areas 100 Ibs./sq.ft.
Parking Levels 50 Ibs./sq.ft.
Corridors, Stairs, Elevator Lobbies 100 Ibs./sq.ft.
Mechanical Equipment Rooms 125 lbs./sq.ft. (or actual equipment load,
whichever governs)
Snow on Roof 30 Ibs./sq.ft.
Plaza Areas 100 Ibs./sq.ft.
+ landscape/hardscape Weight
Loading and Truck Traffic Areas 250 Ibs./sq.ft.
</TABLE>
The structural frame will be designed to resist a Basic Wind
Speed of 80 miles per hour, utilizing site exposure category
B.
2. DESCRIPTION OF STRUCTURAL SYSTEMS
The structure of the building is composite steel framing for
the superstructure and reinforced concrete frame for the
substructure (plaza level and below).
Office Tower:
The superstructure, or the office tower, utilizes exterior to
interior column spacings of approximately 40 feet on the south
and east sections of the building, and approximately 46 feet
on its northwestern section.
The office floor system consists of 3 I/2-inch lightweight
concrete placed over a 3-inch deep bonding-type metal floor
deck, which is in turn supported on steel beams, typically
spaced 10 feet apart. The steel is designed to act compositely
with the concrete topping via shear studs field-welded through
the metal deck to the steel beams. Overall depth of the
structural floor system is 2'-3 1/2" in the 40-foot span
areas, and 2'-7 1/2" in the 46-foot spans.
The building roof consists of roofing and insulation over
3-inch deep metal roof deck on steel beams spaced 10 feet
apart.
Columns are typically 14-inch x 14-inch steel, wide-flange
type. Wind loads are resisted by several vertical trusses or
K-bracing, located within stair and elevator walls.
Fireproofing of the structural steel floors and roof is
achieved via sprayed-on cementations fibers, to be applied to
all structural steel surfaces, and the underside of roof deck
(but not to the floor decks).
Plaza and Parking Levels:
The substructure of the building, i.e. from the plaza level
down through the Level P6, is reinforced concrete. Additional
columns are introduced in between the office tower columns in
an effort to limit the maximum column to column span to 30
feet in any direction.
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The floor slabs of the parking levels and the plaza (ground
floor) level of the building will be 8 to 9 inch thick, with
thickened drop panels at columns. Top reinforcing bars in the
entire P1 parking deck and the drive aisles of parking decks
P2 through P5, will be epoxy-coated. Concrete columns under
the tower columns will be 24-inch wide, while supplementary
columns will be 16-inch wide, rectangular in shape. Where
office tower columns are located over driveways and ramps, the
columns in question will be terminated and supported on
reinforced concrete "transfer" girders at the plaza level.
Concrete shear walls will be utilized under the steel
K-bracing of the office tower.
Slabs-on-Grade at the P-5 & P-6 level will be 5-inch thick,
reinforced with wire mesh, and placed over vapor barrier,
gravel bed, and subdrainage system.
Basement walls will be 12-inch thick reinforced concrete.
Foundations are expected to be individual footings under
columns, and continuous footings under walls.
Column Transition Detail:
Where the steel columns of the office tower terminate at the
plaza level, the steel column base plate and anchorage
assembly will be concealed within a floor recess at the plaza
level slab at that location, as well as by the column cover.
3. OUTLINE STRUCTURAL SPECIFICATIONS
CONCRETE WORK:
Concrete design and detailing will conform to the requirements
of the American Concrete Institute, ACl 318-95.
Concrete utilized in composite steel construction will be
lightweight structural concrete ( 118 pcf density) All other
concrete will be normal weight.
Minimum ultimate compressive strength of concrete at 28 days
will be as follows:
<TABLE>
<S> <C>
Concrete over Metal Deck 3,000 psi
Formed Slabs and Beams 4,000 psi
Columns 5,000 psi / 6,000 psi
Basement Walls 4,000 psi
Footings 3,000 psi
Slabs-on-Grade 4,000 psi
</TABLE>
All concrete exposed to weather will be air-entrained.
Water-cement ratio of concrete for parking decks will be
limited to 0.40. Reinforcing bars will conform to ASTM A615,
Grade 60.
STRUCTURAL STEEL:
Structural steel design and detailing shall conform to the
requirements of the American Institute of Steel Construction.
Structural steel shall conform to ASTM A572, Grade 50 or ASTM
A36, as noted on the plans. Connections between structural
steel components will be bolted, welded or a combination of
the two. Shear connectors will be 3/4-inch diameter x 5-inch
long, field welded to the beam flanges after metal deck is
installed. Openings through steel beams for duct work and
pipes shall be
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permitted only where specifically called for on plans.
Composite steel beams will be unshared.
METAL DECKING:
Metal floor and roof deck shall be designed, detailed and
installed for conformance to the requirements of the AISI
Specifications for the Design of Light Gage Cold- Formed
Structural Steel Members, and the Steel Deck Institute's
requirements.
Metal floor deck shall be 3-inch deep, 20-gauge minimum,
bonding-type, phosphatized.
Metal roof deck shall be 3-inch deep, 22-gauge minimum,
hot-dip galvanized.
G. MECHANICAL EQUIPMENT
<TABLE>
<S> <C> <C>
1. MEP Design Criteria for the Heating, Ventilating and
Air Conditioning (HVAC) System are as follows:
a. Inside Conditions: * -+3 (degrees) F operating tolerance.
Summer 73 (degrees) F -+3 (degrees) F/50% RH
Winter 72 (degrees) F (No Humidity Control)
b. Outdoor Conditions:
Summer 95 (degrees) F DB
Winter 10 (degrees) F DB
c. Lighting:
Office Space 1.5 WATTS/SF (70% to Space)
Main Lobby 5.0 WATTS/SF (100% to Space)
d. Receptacles:
Office Space 2.5 WATTS/SF
e. Occupancy:
Office 7 People/1000 SF or
1 Person/142 SF
f. Outside Air:
Office 20 CFM/Person Average
Design Conditions (ASHRAE 1%) 93 (degrees) F DB/75 (degrees) F WB
g. Minimum Air Circulation: 0.65 CFM/SF
h. Window Wall and Roof:
1) All Glass:
The glass shall be reflective, double pane, insulating type.
Shading Coefficient:
Without Interior Shading, SC = 0.25 (Maximum)
U Values: Us = 0.49 (Maximum)
Uw = 0.42 (Maximum)
2) Spandrel: U = 0.08 (Overall Spandrel Assembly R Value = 12.5
Minimum)
3) Wall: U = 0.08 (Overall Wall Assembly R Value = 12.5
Minimum)
4) Roof: U = 0.061 (Overall Roof Assembly R Value = 16.4
Minimum)
i. Air Handling Systems for Typical Office
Areas:
1) The typical floor system will
consist of one self-contained water
cooled vertical draw-through
variable air volume air handling
unit (AHU) with economizer cooling
coil. Various fan
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powered terminal devices (FPTD) and
VAV boxes will be supplied but not
installed at a ratio of
approximately 1 box per 1,200 SF.
AHU's will have variable speed fan
drives and replaceable media type
filters.
2) Air will be supplied through
internally lined or externally
insulated ductwork. Supply and
return ductwork will be lined near
the AHU and for the first six feet
downstream of terminal devices for
acoustical purposes, Supply
ductwork will be externally
insulated at other locations.
3) Supply diffusers, return grilles,
and lay-in slot diffusers for the
perimeter zones will be provided by
the tenant within all leased areas.
Supply diffusers for the interior
zones shall be two by two
perforated face diffusers. Supply
diffusers for elevator lobbies and
toilet rooms will be selected to
match finishes and ceiling
construction.
4) Air will be returned to the ceiling
plenums through heat extract type
light fixtures provided by the
tenant. Additional two by two
perforated face return air grilles
will be added to the interior zone
areas to supplement the light
fixture return openings as
required, and are also provided by
tenant.
5) Outside air will be filtered and
pre-heated through a heating
ventilating unit located at the
penthouse/roof level. Outside air
shall be supplied to each floor
through insulated supply ductwork.
j. Condenser Water System:
1) The condenser water system will
consist of a two cell roof-
mounted, induced draft crossflow
cooling tower; two condenser water
pumps. Each cooling tower cell and
pump will be sized at approximately
50% of the total load or 360 tons
per ceil.
2) The cooling towers and main piping
risers will be sized for the total
estimated building cooling load of
720 tons. Total tonnage is based on
an average of 320 SF per ton for
209,000 SF with 10% added for
future capacity.
3) The condenser water system will
operate at a 10 degrees F (95
degrees F to 85 degrees F)
differential temperature. During
the economizer mode, the condenser
water system will supply as low as
45 degrees F water to the AHU's.
4) Valved and capped condenser water
supply and return taps will be
provided at each floor within the
AHU room for future use.
5) Valved and capped condenser water
supply and return taps will be
provided within the retail spaces.
The tenants will provide the HVAC
system(s) within the retail spaces
downstream of these taps.
k. Building Heat:
1) Typical office areas will be heated
by electric heating coils located
in the terminal devices.
2) Building MEP equipment rooms will
be heated by electric unit heaters
and ventilated as required.
3) Floor heating: occupied areas above
unconditioned spaces exposed to
atmospheric temperatures will be
located above enclosed insulated
plenums served by electric unit
heaters
l. Energy Management and Control System:
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Controls will be of the electronic direct
digital control (DDC] type. The system will
provide complete automatic monitoring and
control of HVAC system equipment.
m. Ventilation and Exhaust:
Toilet exhaust at each floor will be
exhausted through ductwork by means of an
exhaust fan located at the penthouse level.
Relief air is included in the toilet exhaust
air quantities.
n. Building Air Balance:
The outside air supply air volume and toilet
exhaust relief air volume will be designed
to achieve an overall positively pressured
building to minimize infiltration.
o. Smoke Control Systems:
Refer to "Life Safety System" section.
p. Acoustical Design:
The building MEP system as integrated with
the building architecture will be designed
to achieve the following noise criteria (NC)
levels:
1) Typical office space: NC 40
2) Areas adjacent to AHU rooms and
other equipment areas: NC 45
q. Delineation between typical floor base
building and tenant systems:
1) HVAC: All equipment downstream of
the typical floor primary loop
ductwork will be considered tenant
systems. FPTD's and other VAV boxes
will be provided stacked on the
tenant floors. FPTD's and other VAV
boxes will be installed by the
tenant under the tenant scope of
work. All equipment downstream of
the condenser water taps will be
provided by the tenant.
2) Electrical: All equipment
downstream of the panel boards will
be considered tenant systems.
3) Plumbing: All equipment downstream
of future plumbing taps will be
considered tenant systems.
H. ELECTRICAL
1. Service Entrance and Main Distribution:
a. The 6000 amp electrical service will be
supplied through the utility vault
transformer(s) located at the first level
below grade. Service entrance feeders from
the transformer(s) will serve two main 3000
amp switchboards with 277/480 volt, 3 phase
power.
b. The main switch gear will include heavy duty
switches with high capacity current limiting
fuses, surge suppression, and ground fault
protection.
c. Electrical service to the typical floors
will be fed from the main building bus
riser.
d. The electrical systems will be designed to
receive a Underwriters Laboratory (UL)
master label
2. Typical Floor Distribution:
a. Bus plug taps at each typical floor
electrical closet will serve the high and
low voltage distribution components.
b. Two 42 pole 277/480 volt panels will serve
the fluorescent lighting, fan powered
terminal devices, and other high voltage
loads.
c. One t 12.5 KVA dry type transformer per
floor will feed two 42 pole 120/208 volt
panels serving incandescent lighting and
receptacle loads.
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d. Dedicated power risers extending from the
main switchgear will serve typical floor
AHU's and elevator equipment. This method of
distribution will help isolate large motor
loads and the associated "noise" from the
tenant electrical distribution systems.
3. Lighting:
Fluorescent and incandescent lighting will be
provided in "base building" areas only. Tenant space
lighting will be provided by the tenant.
4. Raceways:
All power wiring will be in conduit or EMT.
5. Emergency Lighting:
Refer to "Life Safety System" section.
6. Emergency Power:
Refer to "Life Safety System" section,
7. Electrical System Capacities Available for Tenant
Use:
a. Lighting 277/480V
Typical office space 1.5 WATTS/SF
b. Receptacles: 120/208V
Typical office space 5.0 WATTS/SF
c. These capacities are in addition to electric
power needed for the building MEP systems.
I. FIRE/LIFE SAFETY
1. Building Fire Control Station:
a. The building central fire control station
will be a room protected by a two-hour
fire-rated occupancy separation located at
the lobby level. The central fire control
station shall contain:
b. Addressable multiplex fire alarm and
detection system including:
1) Voice alarm and signaling system.
2) Audible fire alarm and public
address system.
3) Control systems.
4) Fireman's voice communication
system.
5) Fire detection and alarm
annunciator panel.
c. Standby generator status and auxiliary
controls.
d. Elevator status and position indicator.
e. Public telephone.
f. Status indicators and controls for HVAC
systems.
g. Controls for manual selective operation of
one 'firemans' elevator in each bank.
2. Audible Fire Alarm and Public Address System:
Public address system announcements and audible fire
alarm signals will be initiated on a selected floor
or general alarm basis from the main fire alarm and
communication panel by the fire alarm system,
building management or the fire department. Speaker
horns will be located on each floor at stairwell
entrances, in the elevator lobby, and at selected
places throughout the core and tenant space. Speaker
horns will alert the occupants and give emergency
evacuation instructions.
3. Fireman's Voice Communication System:
A separate communication system utilizing hand-held
phone sets will provide two-way communication between
the building fire command station and
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remote stations located at each level in the
stairwells, elevator lobbies and elevator cars.
Hand-held phone set will also be provided at the fire
pump and security office.
4. ADA Compliance:
Alarm initiation device selection and layout,
including strobe and speaker horns, will comply with
applicable ADA requirements.
5. Fire Detection System:
a. Manual Fire Alarm:
A manual fire alarm box or "pull station"
will be located adjacent to each entry door
to stairway shafts and building exits.
b. Smoke Detectors:
Ionization type products of combustion
detectors will be located as follows:
1) Air handling unit rooms.
2) Electrical equipment rooms.
3) Elevator equipment rooms.
4) Penthouse equipment rooms.
5) Lower level equipment rooms.
6) Fire control station.
7) Telephone equipment rooms.
8) Each elevator lobby - one detector
to initiate elevator recall
controls.
9) Smoke detectors downstream and
upstream of selected supply and
exhaust fans as required by code.
10) At each duct connection to a riser
serving 2 or more floors.
11) In the corridor at the entrance to
each stairwell.
c. Rate of Rise Defectors - one rate of rise
detector for each 500 sq. ft. wilt be
located in the standby generator room.
d. Sprinkler system and fire pump flow switches
with supervised valves will be provided,
6. Fire Pumps:
There will be one electric motor driven fire pump
with associated jockey pump to serve the combination
standpipe sprinkler system. Electric power for the
fire pump will have automatic transfer to the standby
power generator.
7. Fire Suppression System:
a. The facility will be covered by a
combination automatic sprinkler standpipe
system throughout the building. The fire
suppression system wilt consist of the
following:
1) One fire pump and one jockey pump.
2) Wet type sprinkler system
throughout the building with floor
control valves connected to the
combination standpipes at all
levels. Non-freeze dry-pipe
sprinkler systems will be provided
in areas subject to freezing
conditions such as the garage
areas.
3) Fireman's fire hose valve
connections within each stairwell
at each level.
8. Smoke Control:
a. Each stairwell will be pressurized with
outside air via pressurization fans and
vertical riser distribution ducts. The fans
will be activated automatically by the fire
alarm and/or smoke detection system.
b. Floor penetrations will be filled with UL
listed fire sating material.
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c. All ducts which penetrate floors or
fire-rated partitions will contain fire
dampers or be enclosed in fire-rated
enclosures.
9. Standby Power Generation System:
a. An engine-driven standby power generator
with automatic controls and a three-hour
fuel supply will be provided.
b. Standby generator will supply power to:
1) Audible fire alarm and public
address system.
2) Fire detection system.
3) Exitway and other emergency
lighting.
4) Automatic sprinkler flow detection
system.
5) Fireman's elevators (manual
selective operation of one elevator
in each bank).
6) Sump pumps and sewage ejectors (if
required).
7) Fire pumps.
8) Selected supply and ventilation
fans.
9) Building security systems.
10) Stairwell pressurization fans.
10. Elevators:
a. Emergency Signage:
Graphics will be provided in the elevator
lobbies to show exit paths and exit stair
door locations.
b. Emergency Elevator Operation:
1) The elevator doors on the floor of
alarm wilt remain closed.
2) In the event of power failure, all
elevators can be returned to the
main floor on a manual selective
basis (one at a time) powered by
the standby power generator. If the
designated main floor is under an
alarm condition, the elevators will
return to a designated alternate
floor.
3) When the elevators return to the
main floor, the doors will open and
the elevator will shut down.
4) For fire fighting purposes, each
elevator will be capable of being
operated by the Fire Department
(one in each bank at a time)
through use of a "Fireman's Bypass
Key".
c. Emergency Power Pack:
Each elevator cab will be provided with an
emergency lighting power pack with capacity
for two-hour emergency operation.
J. PLUMBING
1. Domestic Hot Water: Electric water heaters will be
located within the janitor's closet at selected
levels of the building. One heater will typically
serve three floors.
2. Domestic Cold Water: Two stage domestic water up-feed
system with pumps and hydrocumulator tank located in
one of the below grade levels will be provided.
3. Sanitary Sewer: A complete system of sanitary
drainage will serve each plumbing fixture.
4. Storm Sewer: A complete system of roof and garage
drainage will be provided to tie into site drainage
system.
5. Future Capacity: The following stubouts will be
provided for future connection of tenant fixtures
from one set of connections at the core and two
wetstacks remotely located from the core.
a. 4" plugged waste connection.
b. 2" capped vent connection.
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c. 1" capped cold water.
d. 2" plugged condensate connection.
The Owner provides water for use in lavatories. Additionally, domestic
cold water, waste and vent lines are provided on each floor for
connection by the Tenant as part of the tenant work as allowed by the
lease terms and approved in writing in advance the Owner.
K. TELEPHONE SERVICE
1. A main telephone equipment room located at a level
below grade will be provided for the telephone
company service entrance. This room will be
ventilated and heated or air conditioned as required
by the service provider.
2. Three four-inch conduits will be provided from the
telephone utility connection point outside the
building to the main telephone room.
3. Three four-inch conduits will be provided from the
main telephone room to the first level "typical" core
telephone closet.
4. Six six-inch sleeves will be provided in the floor of
the typical core telephone closet. These sleeves are
intended for the tenant's use.
5. The typical core telephone room is sized for vertical
connectivity of the telephone system. It is not sized
to serve as an "equipment" room. All telephone, data
and LAN rooms will be located within the tenant's
space.
L. DRINKING FOUNTAINS
A drinking fountain will be provided on each typical floor, near the
toilet rooms of each typical floor.
M. WINDOW COVERINGS
"Building Standard" mini-blinds will be installed on ail window
surfaces. The color of these blinds will match the adjacent window
frames.
N. KEYING
All keying shall be coordinated through the Building Manager. Keys
shall be provided according to the lease terms. A schedule for lock
systems should be coordinated with the Building Manager well in advance
of the actual ordering of lock systems. All keying will be done in
accordance to Bethesda Place I.
O. MAIL FACILITIES
United States Postal Service deliveries and pickups will be made to the
building's mail room on the P1 Level. Outgoing mail may be dropped in
the mail room.
P. SIGNAGE
As required to comply with all governing codes.
- END OF INFORMATION MANUAL -
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EXHIBIT "F-2"
JANITORIAL SERVICE SPECIFICATIONS
SPECIFICATIONS FOR 7700 WISCONSIN AVENUE
BETHESDA, MARYLAND 20814
BIDS DUE by JULY 25, 1997
START TIME: 6:00 P.M.
I. OFFICES AND CONFERENCE ROOMS- ( Daily 5 DAYS PERWEEK)
a. Carpeting and rugs (Traffic Areas) vacuumed.
b. Furniture and furnishing dusted.
c. Ashtrays emptied and wiped clean.
d. Empty trash receptacles and remove to designated areas,
replace bags as needed.
e. Spot clean hard surface floors (spillage, tracking, etc.)
f. Spot clean walls, doors (around door handles and switch
plates).
g. Dust telephone, damp wipe and disinfect.
h.. Dust file cabinets and furniture.
i. Spot clean partitions, ledges and entrance glass.
j. Dust mop tile floors.
k. Spot clean rugs and clean carpets.
l. Damp wipe counter surfaces and clean sinks.
m. Partition glass washed daily.
II. OFFICES AND CONFERENCE ROOMS-PERIODIC
a. Detail-vacuuming each week (carpeting and rugs).
b. Door flames, window frames and sills dusted each month.
c. Venetian blinds dusted quarterly.
d. High ledges and molding dusted each week.
e. Composition floors cleaned and polished each week.
f. Low ledges, molding and sills dusted each week.
g. Rugs and carpet clean annually.
h. Exterior lighting fixtures dusted each month.
i. Vacuum upholstered furniture each month.
j. Doors and walls dusted
k. Trash receptacles damp cleaned each month.
III. LOBBIES & CORRIDORS-Daily (5 DAYS PER WEEK)
a. Furniture and furnishings dusted
b. Carpeting and rugs vacuumed.
c. Walls around switch plates and door handles spot cleaned.
<PAGE>
d. Emergency cleaning (Spillage, tracking, etc.) On hard surfaced
floors.
e. Walls spot cleaned switch plates and door handles.
f. Drinking fountains cleaned, sanitized and dry polished.
g. Cigarette urns emptied, cleaned and dry polished.
h. Trash receptacles emptied, damp cleaned and trash removed to
designated area.
i. Metal work spot cleaned and dry polished.
j. Entrance glass spot-cleaned.
k. Rugs and carpeting spot cleaned.
IV. LOBBIES AND CORRIDORS-PERIODIC
a. Molding and high ledges dusted each month.
b. Walls and doors dusted each month.
c. Lighting fixtures (exterior) dusted each month.
d. Composition tile floors cleaned and polished each week.
e. Composition tile floors stripped, scaled and refinished each
year.
f. Carpeting cleaned annually.
g. Vacuum upholstered furniture each week.
h. Vents and diffuses dusted each week.
V. RESTROOMS AND COMMON AREAS-Daily (5-DAYS PER WEEK)
a. Clean and disinfect commodes, urinals and basins.
b. Clean and dry. polish mirrors.
c. Clean and dry polish metal work.
d. Sweep, mop and rinse floors.
e. Dust and spot clean partitions.
f. Spot-clean doors and walls.
g. Dust molding and low ledges
h. Furniture and furnishings dusted.
i. Ashtrays and cigarette urns emptied and wiped clean.
j. Replenish expendable rest room supplies into dispensers.
k. Empty trash receptacles and trash removed to designated areas.
VI. RESTROOMS AND COMMON AREAS-PERIODIC
a. Lighting fixtures (exterior surface) dusted each three months.
b. Vents and diffusers dusted each three months.
c. Ceramic walls washed each two months.
d. Metal partitions washed each six months.
<PAGE>
e. Scrub floors each quarter.
f. Carpet shampooed annually.
g. Lighting fixtures and ceilings dusted each week.
h. Metal work cleaned and polished each week.
VII. EMPLOYEE (BREAK ROOMS)-Daily (5 DAYS PER WEEK)
a. Clean sinks and counter tops.
b. spot-clean doors and walls.
c. Spot-clean doors, walls and exterior surfaces of appliances.
d. Empty trash receptacles-replace plastic liners.
e. Empty ashtrays and wipe clean.
f. Damp clean table tops.
g. Dust, mop and damp mop floors.
VIII. EMPLOYEE,(BREAK ROOMS)-PERIODIC
a. Doors and walls dusted each week.
b. Trash receptacles washed each week.
c. Composition floors cleaned and polished each week.
d. Damp clean appliances (exterior surfaces each week).
e. Molding and high ledges dusted each month.
f. Composition floors stopped, sealed and refinished as needed..
* DAY PORTER SHALL BE PROVIDED FIVE DAYS PER WEEK, EIGHT HOURS PER DAY, HOURS TO
BE SELECTED BY MANAGEMENT INCLUDED IN THE BID.
<PAGE>
EXHIBIT "G"
SCHEDULE OF BASE BUILDING PLANS AND SPECIFICATIONS
Architectural Design Development Progress Set dated May 13, 1998, prepared by
Kishimoto Gordon PC, Comprised of Pages 100,400, 401-410, 501,510 & 511.
<PAGE>
EXHIBIT "1"
TITLE INSURANCE POLICY AND COMMITMENT ON PROPERTY
<PAGE>
EXHIBIT "J"
CONSTRUCTION SCHEDULE
[To be attached per Section 28.C]
<PAGE>
EXHIBIT "K"
SCHEDULE OF BASE RENTAL
[To be attached per Section 4.B]
<PAGE>
EXHIBIT "L"
SCHEDULE OF INSURANCE DEDUCTIBLES
TYPE DEDUCTIBLE
---- ----------
Property $10,000
Boiler $10,000
General Liability -0-
Excess General Liability -0-
Real Estate Managers
Errors / Omissions $10,000
<PAGE>
EXHIBIT M
WORK LETTER
This Work Letter (the "Work Letter") is attached to and made a part of that
certain Office Lease Agreement dated _____________, 1998 (the "Lease") by and
between Bethesda Place II Limited Partnership, a Maryland limited partnership
("Landlord"), and U.S. Generating Company, a California general partnership
("Tenant") for approximately 197,017 rentable square feet of floor space (the
"Premises") in the office building located at 7600 Wisconsin Avenue, Bethesda,
Maryland 20814, commonly known as Bethesda Place II (the "Building").
In order to induce Tenant to enter into the Lease and in consideration of the
mutual covenants hereinafter contained, Landlord and Tenant mutually agree as
follows:
1. TERMS: The capitalized terms herein shall have the same meanings as
ascribed thereto in the Lease unless otherwise expressly provided
herein to the contrary. The provisions of this Work Letter are intended
to supplement the Lease and are specifically subject to the provisions
thereof. In the event of any conflict between the provisions of the
Lease and the provisions of this Work Letter, the provisions of this
Work Letter shall control.
2. AUTHORIZED REPRESENTATIVES: Tenant designates Sandra Penn ("Tenant's
Agent") as the person authorized to initial all plans, drawings and
change orders and grant approvals on Tenant's behalf pursuant to
Article 28 of the Lease and this Work Letter. Landlord designates
Elliot Schnitzer ("Landlord's Agent") as the person authorized to
initial all plans, drawings and change orders and grant approvals on
Landlord's behalf pursuant to Article 28 of the Lease and this Work
Letter. Either Tenant Or Landlord shall have the right to designate a
new Agent at any time by written notice delivered to the other party at
least two (2) Business Days in advance.
3. COST OF BASE BUILDING UPGRADES: Supplementing Section 28.A of the
Lease, the cost to Tenant of design of the Base Building Upgrades shall
be the amount charged by the architect of the Base Building for such
design services, at the hourly rate set forth in Landlord's contract
with such architect and approved by Tenant. Landlord shall require all
general contractors who bid on the Base Building to include in their
bids (i) unit prices for all labor and materials for which it is
customary in the construction industry to give unit prices for a
project of the size of the Base Building, and (ii) unit prices for each
of a list of possible Base Building Upgrades supplied by Tenant. The
cost to Tenant of construction of each Base Building Upgrade shall be
the amount charged by the applicable Base Building subcontractor for
such Base Building Upgrade (which amount, if a unit price rate is shown
in Landlord's Contractor's bid for such Base Building Upgrade, shall be
at such unit price rate, and which amount shall include a credit for
labor and materials, if any, not used in the construction of the Base
Building as a result of the construction of such Base Building Upgrade,
which credit shall be at the unit price rate for such labor and
materials shown on Landlord's Contractor's bid, if unit prices for such
labor and materials are shown on Landlord's Contractor's bid) plus fees
to the Landlord's Contractor not to exceed (i) five percent (5%) of the
amount charged by the subcontractor, for general conditions and
overhead, and (ii) five percent (5%) of the sum of the amount charged
by the subcontractor and the five percent (5%) general conditions and
overhead, as a contractor's fee. Landlord's Contractor shall give
Tenant fixed price bids for each Base Building Upgrade, and Tenant
shall have the right to negotiate value engineering changes to the
plans for each Base Building Upgrade with Landlord's Contractor.
Notwithstanding the foregoing, for any Base Building Upgrades estimated
to cost in excess of Thirty Thousand Dollars ($30,000.00), for which it
would be practicable to use a subcontractor other than Landlord's
Contractor's subcontractor for the Base Building, Landlord's Contractor
shall obtain bids from at least three (3) subcontractors (one of which
<PAGE>
shall be Landlord's Contractor's subcontractor for the Base Building)
and, after analyzing such bids, shall deliver such bids to Landlord,
Landlord's architect and Tenant. Tenant will then determine, subject to
the reasonable objection of Landlord and Landlord's architect, which
bid will be accepted. Tenant or Tenant's Agent may designate specific
subcontractors from whom the Landlord's Contractor may obtain bids. No
Base Building Upgrade shall be constructed at Tenant's expense until
Tenant has agreed in writing to the cost of such Base Building Upgrade.
4. CHANGES AND CHANGE ORDERS:
A. Supplementing Sections 28.A, 28.F and 28.G of the Lease,
construction of the Base Building, Base Building Upgrades and Initial
Leasehold Improvements shall be subject to such modifications which are
required (i) to correct architectural or engineering errors or
omissions, or to comport with good design, engineering, and
construction practices, (ii) due to field conditions, (iii) to comply
with applicable laws, regulations and codes ("Code") and/or to obtain
or to comply with any required permit (including, but not limited to,
the construction permits for the Base Building and the Initial
Leasehold Improvements) (such modifications being hereinafter referred
to as "Necessary Modifications"). In the event that any such Necessary
Modification to Landlord's Work (i) will materially impact the design
of the Building or the Premises, or (ii) will result in a material
change to the Initial Leasehold Improvements, or (iii) will increase
the cost of any Base Building Upgrade, alone or together with all prior
modifications to such Base Building Upgrade, by more than ten percent
(10%) of the original estimated cost of such Base Building Upgrade, or
(iv) will increase the cost of the Initial Leasehold Improvements by
more than Five Thousand Dollars ($5,000.00) by itself, or more than
Twenty-five Thousand Dollars ($25,000.00) in the aggregate with all
prior modifications to the Initial Leasehold Improvements (each a
"Tenant Impact Change"), Landlord agrees to notify Tenant of such
Tenant Impact Change within three (3) Business Days after learning of
the same. In addition, if there is more than one practical alternative
for the performance of such Tenant Impact Change, Landlord agrees to
consult in good faith with Tenant regarding the appropriate means of
implementing such Tenant Impact Change. Landlord agrees to implement
any reasonable alternative solution proposed by Tenant for such change,
to the extent that such alternative will not increase the cost to be
borne by Landlord or delay the completion of the Landlord's Work
(unless Tenant agrees to accept such risks, in which event any such
delay shall constitute a Tenant Caused Delay), or adversely impact the
structure of or systems serving the Building.
B. If Tenant requests any change or addition to the Base Building or
Base Building Upgrades, which is not a Necessary Modification, after
Tenant's approval of the Base Building Plans and Specifications, or if
Landlord's Contractor constructs the Initial Leasehold Improvements and
Tenant requests any change or addition to the Initial Leasehold
Improvements after Tenant's approval of the Leasehold Improvement Plans
and Specifications, Landlord shall not be obligated to perform such
change or addition, unless Tenant agrees in writing to accept any and
all delays and increases in design and construction costs occasioned by
such change or addition (it being understood and agreed that any such
delays shall constitute Tenant Caused Delays). All additional expenses
attributable to any change order (which is not a Necessary Modification
to the Base Building or Base Building Upgrades) requested by Tenant and
approved by Landlord and Tenant with respect to Landlord's Work shall
be deducted from the Improvement Allowance or the Improvement Loan, if
any (or, if the Improvement Allowance and the Improvement Loan, if any,
are exhausted, shall be payable by Tenant in accordance with Section
28.F(4) of the Lease).
Tenant shall submit all change order proposals to Landlord's Contractor
on AIA Document G709. Within a reasonable time under the circumstances,
not to
2
<PAGE>
exceed ten (10) Business Days, after receipt of any such change order
proposal, Landlord shall notify Tenant in writing of the cost and delay
associated with any Tenant-requested change order which is not a
Necessary Modification to the Base Building or Base Building Upgrades
(it being understood that the estimates thereof provided by Landlord
shall be binding), and shall supply Tenant upon request with reasonable
documentation supporting any additional expenses charged to Tenant with
respect to change orders (which are not Necessary Modifications to the
Base Building or Base: Building Upgrades) requested by Tenant to
Landlord's Work. The cost to Tenant for construction of any change
orders (which are not Necessary Modifications to the Base Building or
Base Building Upgrades) shall be the amount charged by the applicable
subcontractor for construction of such change order (which amount shall
include a credit for labor and materials, if any, not used in the
construction of the Building as a result of the construction of such
change order, which credit shall be at the unit price rate for such
labor and materials shown on Landlord's Contractor's bid, if unit
prices for such labor and materials are shown on Landlord's
Contractor's bid) plus fees to the Landlord's Contractor not to exceed
(i) five percent (5%) of the amount charged by the subcontractor, for
general conditions and overhead, and (ii) five percent (5%) of the sum
of the amount charged by the subcontractor and the five percent (5%)
general conditions and overhead, as a contractor's fee. Landlord's
Contractor shall give Tenant fixed price bids for each change order,
and Tenant shall have the right to negotiate value engineering changes
to the plans for each change order with Landlord's Contractor.
Notwithstanding the foregoing, for any change order the construction of
which is estimated to cost in excess of Thirty Thousand Dollars
($30,000.00), for which it would be practicable to use a subcontractor
other than Landlord's Contractor's subcontractor, Landlord's Contractor
shall obtain bids from at least three (3) subcontractors (one of which
shall be Landlord's Contractor's subcontractor) and, after analyzing
such bids, shall deliver such bids to Landlord, Landlord's architect
and Tenant. Tenant will then determine, subject to the reasonable
objection of Landlord and Landlord's architect, which bid will be
accepted. Tenant or Tenant's Agent may designate specific
subcontractors from whom the Landlord's Contractor may obtain bids. In
no event shall any change order for the Base Building or Base Building
Upgrades, which is a Necessary Modification, be implemented at Tenant's
expense, nor shall the delay occasioned by any change order for the
Base Building or Base Building Upgrades, which is a Necessary
Modification, be a Tenant Caused Delay, except as otherwise set forth
in Paragraph 4.A with respect to Tenant Impact Changes.
C. All change orders shall be in writing in substantially the same form
as the AIA standard change order form (AIA Document G701), and shall
identify any change in the cost or time for completion of the
Landlord's Work which is attributable to such change order. No change
order chargeable to Tenant under this Paragraph 4 shall be implemented
unless and until Tenant shall agree in writing to such change order,
the cost thereof and the amount of Tenant Caused Delay occasioned
thereby.
D. Tenant and Tenant's Architect shall have the right to rely upon the
Base Building Plans and Specifications (i) being free of architectural
and engineering errors and omissions, (ii) comporting with the design,
engineering and construction practices prevailing in the Washington,
D.C. area, and (iii) complying with Code and any required permits
(collectively, being "Accurate"). If Tenant incurs any costs in
connection with the preparation or revision of the Leasehold
Improvement Plans and Specifications or the construction of Tenant's
Work as a result of a failure of the Base Building Plans and
Specifications, in any respect, to be Accurate, then Landlord shall
reimburse Tenant for any such reasonable and documented costs within
fifteen (15) days after Tenant's submission to Landlord of an invoice
therefor. If Tenant is delayed in the completion of Tenant's Work as a
result of a failure of the Base Building Plans and Specifications, in
any respect, to be Accurate, then the time allotted to Tenant, in
Section 1.A (4) of the Lease,
3
<PAGE>
for the completion of Tenant's Work shall be increased by the number of
days of such delay. In no event shall any delay in design or
construction, which arises from a failure of the Base Building Plans
and Specifications to be Accurate in any respect, be a Tenant Caused
Delay. Tenant agrees to give Landlord written notice of any failure of
the Base Building Plans and Specifications to be Accurate as soon as
reasonably practicable after Tenant's discovery of such failure. Tenant
further agrees to use reasonable efforts to mitigate its damages
arising from any failure of the Base Building Plans and Specifications
to be Accurate.
5. BIDDING PROCESS FOR INITIAL LEASEHOLD IMPROVEMENTS:
Supplementing Section 28.F of the Lease, the bid packages that are
delivered to the general contractors who are invited to bid on the
Initial Leasehold Improvements shall contain a fixed deadline for the
completion of the Initial Leasehold Improvements. Such contractors may
be asked for a lump sum bid or for a guaranteed maximum price, at
Tenant's option.
Tenant shall have the right to negotiate value engineering changes to
the Leasehold Improvement Plans and Specifications with the general
contractor it selects to construct the Initial Leasehold Improvements.
The Construction Schedule will give Tenant thirty (30) days after
receipt of the bids within which to submit to Landlord in writing any
requests for approval of value engineering changes to the Leasehold
Improvement Plans and Specifications. Landlord's approval of such
changes shall not be unreasonably withheld, conditioned or delayed.
Landlord and Tenant shall require that each contractor bidding to
perform the Initial Leasehold Improvements to identify and deliver to
Landlord and Tenant a list of any "long lead time" items of the Initial
Leasehold Improvements, as well as any reasonable non-long lead time
substitutes therefor which are routinely designated by such bidder. No
item of the Initial Leasehold Improvements shall be considered a "long
lead time" item under the Lease unless designated as such in connection
with the bidding of the Initial Leasehold Improvements as aforesaid (or
in the case of a change order chargeable to Tenant under Paragraph 4,
designated as a "long lead time" item at or prior to the time the
change order is approved by Tenant).
6. INSPECTIONS: The architect retained by Tenant to design the Initial
Leasehold Improvements ("Tenant's Architect"), Tenant's Agent and other
representatives of Tenant shall have the right, from time to time, to
observe the progress of Landlord's Work, to inspect Landlord's Work,
and to reject any Landlord's Work not in conformance with the Base
Building Plans and Specifications or Leasehold Improvement Plans and
Specifications, as applicable; however, no such observation shall
create liability or responsibility on the part of the Tenant with
respect to the nature or quality of Landlord's Work. Landlord shall be
available, and cause Landlord's Contractor to be available, to Tenant's
Architect, Agent and/or other representatives from time to time upon
reasonable prior notice when necessary or desirable for the purpose of
reviewing Landlord's Work. Landlord shall keep Tenant informed as to
all material governmental inspections of Landlord's Work and shall
permit Tenant's Architect, Agent and/or other representatives to be
present thereat.
7. CORRECTION OF WORK: Landlord's Contractor shall promptly correct any
item of Landlord's Work rejected by Tenant's Architect or other
authorized representative for failing to conform to the requirements of
the Base Building Plans and Specifications or the Leasehold Improvement
Plans and Specifications, as applicable, to the extent such item of
Landlord's Work in fact fails to conform to such plans and
specifications. Upon completion of correction of any such rejected item
of Landlord's Work, Landlord's contractor shall arrange with Tenant's
Architect or other authorized representative to reinspect such item.
4
<PAGE>
8. PROGRESS MEETINGS: Landlord's Agent, Tenant's Agent, Landlord's
Contractor and Tenant's Contractor, if any, will conduct progress
meetings during the construction process. Until the commencement of
construction of the Initial Leasehold Improvements, such progress
meetings shall be held, at least once every two weeks, at the office of
Landlord's Contractor. Throughout the period during which the Initial
Leasehold Improvements are being constructed, such progress meetings
shall be held weekly at the office of the general contractor
constructing the Initial Leasehold improvements (Landlord's Contractor
or Tenant's Contractor, as applicable). Tenant's Architect shall be
given reasonable prior notice of, and shall be entitled to attend, all
such progress meetings.
9. CONSTRUCTION SCHEDULE REVISIONS. Landlord shall promptly deliver to
Tenant all revisions of the Construction Schedule.
10. TENANT'S RIGHT TO WORK COST INFORMATION:
A. The cost of the Base Building Upgrades and, if Landlord's Contractor
constructs the Initial Leasehold Improvements, the cost of the Initial
Leasehold Improvements are sometimes hereinafter referred to as the
"Work Costs". Landlord shall submit to Tenant monthly during the
performance of Landlord's Work a report setting forth in detail:
i. A computation of the total Work Costs incurred during the
prior month (including all change orders chargeable to Tenant
under Paragraph 4 hereof); and
ii. The cumulative Work Costs incurred through the end of such
month.
Such report shall be submitted by the twentieth (20th) day of each
month and, until Tenant is obligated to make Progress Payments pursuant
to Section 28.F(4) of the Lease, shall be accompanied by AIA Document
G702, certified by Landlord that all Work Costs due Landlord's
Contractor and subcontractors have been duly paid, and by final lien
waivers from all subcontractors with subcontracts in excess of Fifty
Thousand Dollars ($50,000.00), who have fully performed their
respective subcontracts.
When (and if) Tenant is obligated to make Progress Payments pursuant to
Section 28.F(4) of the Lease, said report shall accompany each of
Landlord's monthly invoices to Tenant for Progress Payments, and such
invoices shall also be accompanied by AIA Document G702, certified by
Landlord that all Work Costs due Landlord's Contractor and
subcontractors for work covered by the last monthly Progress Payment
invoice (if any) have been duly paid, and by final lien waivers from
all subcontractors with subcontracts in excess of Fifty Thousand
Dollars ($50,000.00), who have fully performed their respective
subcontracts.
B. All Work Costs and the portion (if any) thereof to be paid by Tenant
shall be subject to audit, verification, and correction, if necessary,
by Tenant and/or its authorized representatives (who shall have access
to the relevant portions of the Landlord's books and records for such
purpose) without either party being prejudiced by any payment thereof.
11. COORDINATION OF LANDLORD'S WORK AND TENANT'S WORK:
A. Supplementing Section 28.G of the Lease, if Tenant elects to have
the Initial Leasehold Improvements constructed by Tenant's Contractor,
then for at least fifteen (15) days before substantial completion of
the Base Building and Base Building Upgrades for any floor of the
Building, Tenant's Contractor shall be given access to such floor for
the purpose of constructing Initial Leasehold Improvements, provided
that (i) Tenant's Contractor shall coordinate any construction it
performs on such floor with Landlord's Contractor, (ii) Tenant's
5
<PAGE>
Contractor's construction shall not unreasonably impede, hinder or
delay Landlord's completion of the Base Building or the Base Building
Upgrades, (iii) Tenant shall maintain the liability insurance coverage
required by this Lease, and (iv) Tenant shall indemnify Landlord
against any and all damages sustained in connection with Tenant's
Contractor's construction work, unless such damage is caused by the
negligence or willful misconduct of Landlord, its agents, employees or
contractors. Landlord shall require Landlord's Contractor to Coordinate
with Tenant's Contractor so as to permit Tenant's Contractor to
commence construction of the Initial Leasehold Improvements on a floor
as soon as reasonably practicable prior to substantial completion of
the Base Building and Base Building Upgrades for such floor. After
substantial completion of the Base Building and Base Building Upgrades
on such floor, (i) Landlord's Contractor shall coordinate any
construction it performs on such floor with Tenant's Contractor, (ii)
Landlord's Contractor's construction shall not unreasonably impede,
hinder or delay Tenant's Contractor's completion of the Initial
Leasehold Improvements, and (iii) Landlord shall indemnify Tenant
against any and all damages sustained in connection with Landlord's
Contractor's construction work, unless such damage is caused by the
negligence or willful misconduct of Tenant, its agents, employees or
contractors.
B. Supplementing Sections 23.F(3) and 28.G of the Lease, during any
period when Landlord's Contractor and contractors employed by Tenant
are both working on a floor of the Premises, and Tenant or its
contractors are required to coordinate their work with Landlord's
Contractor, Landlord shall require Landlord's Contractor and
subcontractors to cooperate with Tenant's contractors to provide for
the safe storage in the Building of the Tenant's building equipment for
such floor.
12. PERMITS AND INSPECTIONS: Landlord shall maintain for inspection by
Tenant copies of all approvals, permits, inspection reports, and other
governmental consents required of Landlord or Landlord's Contractor in
connection with Landlord's Work. Tenant shall maintain for inspection
by Landlord copies of all approvals, permits, inspection reports, and
other governmental consents required of Tenant or Tenant's Contractor
in connection with Tenant's Work. Each party will cooperate with the
other in obtaining any necessary approvals, permits, inspections or
other governmental consents.
13. ENVIRONMENTAL CERTIFICATIONS: The contracts for the general contractor
for the Base Building and Base Building Upgrades and for the Initial
Leasehold Improvements shall obligate the Landlord's Contractor and the
Tenant's Contractor, if any, to provide written environmental
certifications to Landlord and Tenant, substantially in the form set
forth as Exhibit "M-2", within thirty (30) days after the Commencement
Date.
14. TENANT CAUSED DELAYS: Notwithstanding anything to the contrary in the
Lease or in this Work Letter, no Tenant Caused Delay shall be deemed to
have occurred unless Landlord gives Tenant prior written notice or
written notice within ten (10) days of Landlord's receipt of notice of
the occurrence, specifying the claimed reasons for such Tenant Caused
Delay. There shall be excluded from the number of days of any Tenant
Caused Delay the period from the beginning date of any claimed delay to
the date on which Landlord's notice is given to Tenant, as well as any
days of delay which are primarily caused by any act or omission of
Landlord, its agents, or contractors. No event shall be deemed a Tenant
Caused Delay which does not, in fact, delay the completion of
construction.
15. PUNCH LISTS:
A. If Tenant's Contractor constructs the Initial Leasehold
Improvements, then on or within five (5) Business Days after Landlord
delivers each floor of the
6
<PAGE>
Premises to Tenant with all Base Building items and Base Building
Upgrades substantially complete, Landlord and Tenant shall make a
preliminary walkthrough inspection of such floor and prepare a punch
list of defective and incomplete work requiring correction or
completion by Landlord. Any disputes as to the nature or existence of
any punch list item shall be resolved by the Arbitrator described in
Paragraph 17 hereof. Subject to Force Majeure, Landlord shall correct
or complete all items on such punch list within thirty (30) days after
delivering such floor to Tenant.
B. If Landlord's Contractor constructs the Initial Leasehold
Improvements, then on or within five (5) Business Days after the date
the Lease Term commences for each floor of the Premises, Landlord and
Tenant shall make a preliminary walk-through inspection of such floor
and prepare a punch list of defective and incomplete work requiring
correction or completion by Landlord. Any disputes as to the nature or
existence of any punch list item shall be resolved by the Arbitrator
described in Paragraph 17 hereof. Subject to Force Majeure, Landlord
shall correct or complete all items on such punch list within thirty
(30) days after the date the Lease Term commences for such floor.
16. LANDLORD'S WARRANTY: In addition to (and not in lieu of) Landlord's
obligations under the Lease with respect to repairs, Landlord warrants
to Tenant that Landlord's Work will be free from defects in workmanship
and materials for a period of one (1) year from the Commencement Date.
Therefore, if prior to the first anniversary of the Commencement Date,
Tenant shall reasonably determine that any of the workmanship or
material used in Landlord's Work is defective, and Tenant shall, prior
to such first anniversary of the Commencement Date, notify the Landlord
in writing that such workmanship or material is defective, Landlord
shall cause such defective workmanship or material to be appropriately
corrected, repaired or replaced, without cost or expense to Tenant.
Such correction, repair, or replacement shall be performed as promptly
as practical and in such manner so as to minimize interference with
Tenant's business operations in the Premises.
17. DISPUTE RESOLUTION: Except as otherwise set forth herein, any dispute
between the parties arising out of the construction, interpretation or
performance of Article 28 of the Lease or this Work Letter shall be
resolved exclusively by ________________ (the "Arbitrator"), who shall
as promptly as possible make a determination as to the matters in
dispute. The time and place of all meetings and hearings relating to
the dispute resolution shall be mutually convenient to the parties, who
shall each be given reasonable advance notice thereof. The parties
shall each be entitled to present evidence to the Arbitrator, whose
opinion shall be final and binding. The determination of the Arbitrator
shall be given in writing and signed by the Arbitrator and a copy shall
be given to each party.
79063002.23E
7
<PAGE>
EXHIBIT M-2
FORM OF CONTRACTOR'S ENVIRONMENTAL CERTIFICATION
In the construction of the building known as 7600 Wisconsin Avenue,
Bethesda, Maryland (the "Building"), the undersigned contractor (the
"Contractor") and its subcontractors and materialmen did not, in violation of
any Environmental Law (defined below), place in the Building or on the land upon
which it is built (the "Land") any Hazardous Materials (as defined below) and
did not use the Building or the Land for the manufacture, generation,
processing, treatment, storage or disposal of any Hazardous Materials; the
Contractor has not received notice and has no reason to anticipate the receipt
of (i) notice of any pending claim, or threatened action or proceeding (and the
Building and/or the Contractor is/are not subject to any environmentally related
consent order or other judicial order or mandate) relating to the condition of
the Building, or (ii) any alleged violation of federal, state or local
environmental, health or safety statute, ordinance or regulation, including, by
way of example and not of limitation, the Comprehensive Environmental Response
Compensation and Liability Act ("Superfund" or "CERCLA"), 42 U.S.C. Subsection
9601 et seq., the Superfund Amendments and Reauthorization Act of 1986 ("SARA"),
42 U.S.C. Subsection 9601 (20)(D), the Resource Conservation and Recovery Act
(the "Solid Waste Disposal Act" or "RCRA"), 42 U.S.C. Subsection 6901 et seq.,
the Federal Water Pollution Control Act, as amended by the Clean Water Act of
1977 ("CWA"), 33 U.S.C. Subsection 1251 et seq., the Clean Air Act of 1966
("CAA"), as amended, 42 U.S.C. Subsection 7401 et seq., the Federal Insecticide,
Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. Subsection 136 et seq., the
Occupational Safety and Health Act ("OSHA"), 29 U.S.C. Subsection 651 et seq.,
the Safe Drinking Water Act ("SDWA"), 42 U.S.C. Subsection 399f et seq., the
Toxic Substances Control Act ("TSCA"), 15 U.S.C. Subsection 2601 et seq., and
any and all state, county and local environmental laws, regulations and
ordinances (collectively, the "Environmental Laws"). To the best of Contractor's
knowledge, the Building and the Contractor are in compliance with the
Environmental Laws, including all reporting, licensing, permitting and
registration requirements imposed or otherwise required by the Environmental
Laws. As used herein, the term "Hazardous Material" shall include (i) asbestos
or asbestos containing materials, whether or not friable and whether or not the
asbestos or asbestos containing materials are encapsulated or otherwise deemed
not to constitute a present health hazard if left undisturbed; (ii)
ureaformaldehyde foam insulation; (iii) petroleum, petroleum distillates, oil,
or petroleum products and their by-products; (iv) any lead-based paint; (v) any
electrical transformers, transducers, capacitors or other similar electrical
transmission equipment containing dielectric fluids with detectible levels of
polychlorinated or polybrominated biphenyls ("PCBs" and "PBBs," respectively);
(vi) leaded solders or fluxes, lead-containing plumbing fixtures, drinking water
coolers, piping and conduits; or (vii) any substance or combination of
substances defined as "hazardous substances," "hazardous wastes," "extremely
hazardous waste," "hazardous materials," "toxic substances," or any other
category of similar import in any Environmental Law or any regulation
promulgated pursuant thereto, and any containers currently or previously
containing the same.
CONTRACTOR:
________________________________
By:_____________________________
8
<PAGE>
EXHIBIT B
FLOOR PLAN OF SUBLEASED PREMISES
[WHEREAS #2]
[GRAPHIC OMITTED]
<PAGE>
[GRAPHIC OMITTED]
<PAGE>
EXHIBIT C
COMMENCEMENT LETTER
[Paragraph 1 (B)]
Date: __________________________________
Subtenant: __________________________________
Address: __________________________________
Re: Commencement Letter with respect to that certain
Sublease dated __________________ by and between PG&E
GENERATING COMPANY, as Sublandlord, and INFORMAX,
INC., as Subtenant, for premises in the Building
located at 7600 Wisconsin Avenue, Bethesda, Maryland.
Dear __________________:
In accordance with the terms and conditions of the above referenced
Lease, Tenant hereby accepts possession of the Premises and agrees as follows:
1. The Rent Commencement Date of the Sublease is __________________;
2. The Termination Date of the Sublease is _____________________.
3. The rentable area of the Subleased Premises is ________ square feet.
4. The Base Rental is $_________ per year.
5. Subtenant's Share is ________%.
Please acknowledge your acceptance of possession and agreement to the
terms set forth above by signing all three (3) copies of this Commencement
Letter in the space provided and returning two (2) fully executed copies of the
same to my attention.
Sincerely,
PG&E GENERATING COMPANY
By: __________________________
Agreed and Accepted:
Tenant: _______________________________
By: _______________________________
Name: _______________________________
Title: _______________________________
Date: _______________________________
<PAGE>
EXHIBIT D
BASE BUILDING IMPROVEMENTS
[Paragraph 2(a)]
BETHESDA PLACE II
7600 WISCONSIN AVENUE
BASE BUILDING - SUB-TENANT WORK DELINEATION
<TABLE>
<CAPTION>
DESCRIPTION BASE BUILDING SUB-TENANT
----------- ------------- ----------
<S> <C> <C>
ARCHITECTURAL
Concrete Floor in Tenant Area x
Concrete Floors in Mech./Elec./Tel./Jan. x
Gypsum Board Partitions or Surfaces (taped and spackled
suitable for paint finishes)
- Perimeter (Including Columns) x
- Columns (interior) x
- Core x
Toilet Rooms (all finishes) x
MEP Rooms (all finishes) x
Exit Stairs (all finishes) x
Janitor Closets (all finishes) x
Main Lobbies (all finishes) x
Security/Concierge desks x
Typical elevator lobby finishes, Floor (6-11)
- Single Tenant Floors x
Painting/Wallcoverings in Tenant Areas x
Ceiling System
- Toilet Rooms x
- Tenant Area x
- MEP Rooms N/A
- Janitor Closets N/A
- Elevator Lobby - Single Tenant Floor x
Floor Covering w/base
- Tenant Area x
- Elevator Lobby - Single Tenant Floor x
Window Blinds x
Doors & Hardware
- Core x
- Tenant Area x
Mullion Adapters x
ADA Code Requirements
- Parking Garage x
- Site x
- Building Entries x
- Main Lobby x
- Elevators x
- Exit Stairs x
- Toilet Rooms - core areas only x
- Tenant Area x
Exterior Signage
- Directional Site Signage x
- Exterior Signage/Retail x
<FN>
x - Sub-Tenant Standards
</FN>
<PAGE>
<CAPTION>
DESCRIPTION BASE BUILDING SUB-TENANT
----------- ------------- ----------
<S> <C> <C>
Interior Signage
- Building Directories x
- Core Areas x
- Tenant Areas x
STRUCTURAL
Loading Capacity (per code/base building specifications) x
Additional Loading Capacity x
ELECTRICAL
Incoming Service Amps Total x
Switchgear x
Distribution to Closets x
- Low Voltage Power Panels x
- High Voltage Lighting Panels x
- Transformers x
Emergency Lighting
- Core Area x
- Tenant Area psf x
Light Fixtures
- Core Area x
- Tenant Area psf x
- Elevator Lobby - Single Tenant Floor x
- Main Lobby x
Convenience Outlets
- Core Area x
- Tenant Area x
Surge Protection
- Main Switchgear x
- Floor Panels - Harmonic Filters x
Strobe Lighting
- Core Areas x
- Tenant Areas x
- Panel Contacts x
Telephone/Data Core Drills in Core Closets x
Voice/Data Distribution
- Incoming Service x
- Vertical Backbone x
- Horizontal Distribution x
- Grounding System x
- Outlets x
Telephone Switch x
UPS System x
Automatic Transfer Switch (for UPS) x
Emergency Generator (per code) x
Tenant Emergency Generator x
Battery Back-Up x
MECHANICAL
Air Handling Units (1 per floor) x
Perimeter Fan Powered VAV Boxes (Zone 15' from glass)
- VAV Boxes provided; not installed (1 per 550 rsf) x
- Thermostats/Controls/Power/Balancing x
Exhaust/Ventiliation
- MEP Rooms x
<FN>
x - Sub-Tenant Standards
</FN>
<PAGE>
<CAPTION>
DESCRIPTION BASE BUILDING SUB-TENANT
----------- ------------- ----------
<S> <C> <C>
- Toilet Rooms x
- Elevator x
- Stairs x
Medium Pressure Trunk Duct x
Low Pressure Trunk Duct x
Duct Runouts x
Diffusers (Perimete slot and interior) x
Interior VAV boxes (Provided; not installed; 1 per 1,350 rsf) x
- Thermostats/Controls/Power/Balancing x
Supplemental A/C Units
- Extra System Capacity x
- Units (power, piping, controls) x
FIRE PROTECTION
Standpipes x
Distribution to main loop x
- Valved Connections x
- Flow & Tamper Switches x
Branches, drops and heades (percode)
- Core x
- Tenant Area (code minimum, 1 PER 225 rsf) x
- Additional or Relocated Heads per Tenant Plan x
- Main Lobbies x
Extinguisher Cabinets/Extinguishers
- Core x
- Tenant Area x
Local Fire Alarm x
- For Tenant Tie-in; every other floor x
Fire phones (per code)
- Fire Control Room x
- Elevators x
- Stairways x
Annunciator Panels (per code/specifications) x
PLUMBING
Wet Columns (2 per floor) x
Core Fixtures x
Electric Water Coolers x
Supplemental A/C Piping x
Janitors Sink x
Pantries (typical floor) x
SECURITY
Garage Control Gates x
Card readers (including power & conduit)
- Garage Gates x
- Building Entries x
- Elevators x
- Typical Floors - Suite Entry x
Cable TV (Service to Building) x
- Tenant Connection x
<FN>
x - Sub-Tenant Standards
</FN>
</TABLE>
<PAGE>
EXHIBIT E
SUBTENANT'S SPACE PLAN
[Paragraph 2(c)]
<PAGE>
EXHIBIT F
CONSTRUCTION SCHEDULE
[Paragraph 2(d)]
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
Act Orig Early Early JUL AUG SEP
ID Description Dur Start Finish 24 31 07 14 21 28 04 11 18
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Pre-Construction
------------------------------------------------------------------------------------------------------------------------------------
10 Preparation of C.D.'s 20 01AUG00 28AUG00 ###########Preparation of C.D.'s
------------------------------------------------------------------------------------------------------------------------------------
20 C.D.'s Issued For Pricing 0 28AUG00 o C.D.'s Issued For Pricing
------------------------------------------------------------------------------------------------------------------------------------
30 File For Permit 0 28AUG00 o File For Permit
------------------------------------------------------------------------------------------------------------------------------------
40 Subcontractor Pricing 8 29AUG00 08SEP00 #####Subcontractor Pricing
------------------------------------------------------------------------------------------------------------------------------------
50 Submit Price To Owner 0 11SEP00 o Submit Price To Owner
------------------------------------------------------------------------------------------------------------------------------------
60 Owner Review & Approve Pricing 6 11SEP00 18SEP00 ####Owner Review & Approve Pricing
------------------------------------------------------------------------------------------------------------------------------------
70 Notice To Proceed 0 18SEP00 o Notice To Proceed
------------------------------------------------------------------------------------------------------------------------------------
80 GC To Purchase Subcontractors 5 19SEP00 25SEP00 ####GC To Purchase Subcontractors
------------------------------------------------------------------------------------------------------------------------------------
90 Submittals 21 25SEP00 23OCT00 #####Submittals
------------------------------------------------------------------------------------------------------------------------------------
100 Review & Approve Submittals 21 02OCT00 30OCT00 ####Review & Approve Submittals
------------------------------------------------------------------------------------------------------------------------------------
110 Receive Building Permit 0 25SEP00 o Receive Building Permit
------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
2000
OCT NOV
25 02 09 16 23 30 06 13 20 27
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Construction
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<CAPTION>
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2001
DEC JAN FEB
04 11 18 25 01 08 15 22 29 05 1
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
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120 Floors 10 & 11 63 19SEP00 15DEC00 ######Floors 10 & 11
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Substantial Completion
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130 Final Inspections 5 11DEC00 15DEC00 ##Final Inspections
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140 Substantial Completion 0 15DEC00 o Substantial Completion
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Owner Outfitting/FFE
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150 Outfitting 10 18DEC00 01JAN01 ###Outfitting
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160 Occupancy 0 01JAN01 o Occupancy
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</TABLE>
INFORMAX
The Clark Construction Group, Inc. BETHESDA PLACE II
BETHESDA, MARYLAND
10TH & 11TH FLOORS
<PAGE>
EXHIBIT G
SUBLANDLORD SUPPLIED MATERIALS
[PARAGRAPH 2(g)]
<TABLE>
<CAPTION>
NEW ORIG. ILLEGIBLE
FLOOR FLOOR DEVISE CFM LABEL KW SIZE RH\LH MODEL CFM-IN SIZE
----- ----- ------ --- ----- -- ---- ----- ----- ----- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
10 10 1 FTPD 1190 C 8 4 R D35SEST 1047 10
10 10 2 FTPD 1120 C 8 4 L D35SEST 986 10
10 10 3 FTPD 480 A 3 2 L D35SE 422 8
10 10 4 FTPD 855 B 6 4 R D35SEST 752 8
10 10 5 FTPD 1215 C 8 4 L D35SEST 1069 10
10 10 6 FTPD 1115 C 8 4 R D35SEST 981 10
10 10 7 FTPD 1290 C 8 4 L D35SEST 1135 10
10 10 8 FTPD 1045 C 8 4 R D35SEST 920 10
10 10 9 FTPD 670 B 5 3 L D35SE 590 8
10 10 10 FTPD 1115 C 8 3 R D355EST 981 10
10 10 11 FTPD 1190 C 8 4 R D35SEST 1047 10
10 10 12 FTPD 1225 C 8 4 R D35SEST 1078 10
10 10 13 FTPD 1050 C 8 4 L D35SEST 924 10
10 10 14 FTPD 1170 C 8 4 R D35SEST 1030 10
10 10 15 FTPD 1050 C NA 4 R D35SST 924 10
10 10 16 FTPD 1150 C NA 4 R D35SST 1012 10
10 10 17 FTPD 1300 C NA 4 R D35SST 1144 10
10 10 18 FTPD 1190 C NA 4 R D35SST 1047 10
10 10 19 FTPD 795 B NA 3 R D35S 700 8
10 10 20 FTPD 1160 C NA 4 L D35SST 1021 10
10 10 21 FTPD 1130 C NA 4 R D35SST 994 10
10 10 22 FTPD 1130 C NA 4 R D35SST 994 10
10 10 23 FTPD 1055 C NA 4 L D35SST 928 10 24690 190
11 11 4 FTPD 965 C 8 4 L D35SEST 849 10
11 11 5 FTPD 910 C 8 4 R D35SEST 801 8
11 11 8 FTPD 900 C 8 4 R D35SEST 792 8
11 11 9 FTPD 730 B 5 3 L D35SE 642 8
11 11 12 FTPD 1280 C 8 4 R D35SEST 1126 10
11 11 14 FTPD 1280 C 8 4 R D355EST 1126 10
11 11 16 FTPD 700 B 5 4 R D35SE 616 8
11 11 17 FTPD 640 B 8 4 R D35SE 563 8
11 11 18 FTPD 590 B 8 4 L D35SE 519 8
11 11 19 FTPD 1220 C 8 4 R D35SEST 1074 10
11 11 20 FTPD 945 C 8 4 R D35SEST 832 8
11 11 21 FTPD 770 B 5 4 L D35SE 678 8
11 11 22 FTPD 1225 C 8 4 R D35SEST 1078 10
11 11 23 FTPD 850 C 8 4 R D35SEST 748 8
11 2 18 FPTD 480 A 3 3 R D35SE 422 8
11 5 3 FPTD 480 A 3 3 R D35SE 422 8
11 4 17 FPTD 910 C 8 D35SEST 801 8
11 3 3 FPTD 440 A 4 3 L D35SE 387 6
11 3 10 FPTD 520 B 4 3 R D35SE 458 8
11 3 12 FPTD 1180 C 8 4 L D35SES 1038 10
11 3 14 FPTD 1050 B 5 4 L D35SES 748 8
11 6 3 FPTD 480 A 3 3 R D35SE 422 8
11 6 22 FPTD 1285 C N/A 4 R D35SEST 1131 10 19830 226
</TABLE>
