Exhibit 10.18
Lease: ▇▇▇▇ ▇ ▇▇▇▇▇▇ Between American Intercontinental University, Inc., a
Georgia Corporation (Tenant) and a District of Columbia limited partnership
(Landlord)
-------------------------------------
-------------------------------------
LEASE AGREEMENT
between
THE ▇▇▇▇ ▇ ▇▇▇▇▇▇ LIMITED PARTNERSHIP
as Landlord
and
AMERICAN INTERCONTINENTAL UNIVERSITY, INC.
as Tenant
June 30, 1998
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-------------------------------------
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TABLE OF CONTENTS
-----------------
Page
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ARTICLE 1
THE PREMISES................................................................................................1
SECTION 1.1 Premises.............................................................................1
SECTION 1.2 Use of Common Areas..................................................................2
SECTION 1.3 Satellite Dishes.....................................................................2
ARTICLE 2
LEASE TERM..................................................................................................4
SECTION 2.1 Term.................................................................................4
SECTION 2.2 Lease Commencement Date..............................................................4
SECTION 2.3 Renewal..............................................................................5
ARTICLE 3
RENT........................................................................................................6
SECTION 3.1 Fixed Rent...........................................................................6
SECTION 3.2 Late Payment; Interest Charge........................................................7
SECTION 3.3 Rent Generally.......................................................................8
ARTICLE 4
ADDITIONAL RENT.............................................................................................8
SECTION 4.1 Increases in Annual Operating Charges and Increases in Real Estate
Taxes..............................................................................................8
SECTION 4.2 Annual Operating Charges Defined and Real Estate Taxes Defined.......................9
SECTION 4.3 Statement of Annual Operating Charges and Real Estate Taxes.........................13
SECTION 4.4 Installment Payments; Proration.....................................................13
SECTION 4.5 Additional Taxes or Governmental Charges............................................15
SECTION 4.6 Change In or Contest of Real Estate Taxes...........................................15
ARTICLE 5
SECURITY DEPOSIT...........................................................................................16
SECTION 5.1 Amount..............................................................................16
SECTION 5.2 Application.........................................................................16
SECTION 5.3 Third Parties.......................................................................17
SECTION 5.4 Letter of Credit....................................................................17
ARTICLE 6
USE........................................................................................................18
SECTION 6.1 Use.................................................................................18
SECTION 6.2 Compliance with Laws................................................................18
SECTION 6.3 Trash Sorting.......................................................................19
SECTION 6.4 Environmental Laws..................................................................19
i
Table of Contents (continued)
Page
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ARTICLE 7
PARKING....................................................................................................20
ARTICLE 8
ASSIGNMENT AND SUBLETTING..................................................................................20
SECTION 8.1 Landlord's Consent Required.........................................................20
SECTION 8.2 Transfers of Interests in Tenant....................................................22
ARTICLE 9
MAINTENANCE AND REPAIRS....................................................................................22
SECTION 9.1 Maintenance and Repairs.............................................................22
SECTION 9.2 Landlord's Maintenance and Repairs..................................................23
SECTION 9.3 Damage Caused by Tenant.............................................................23
ARTICLE 10
ALTERATIONS................................................................................................23
SECTION 10.1 As-Is Condition of Premises.........................................................23
SECTION 10.2 Tenant's Improvements...............................................................23
SECTION 10.3 Indemnification for Improvements....................................................25
ARTICLE 11
SIGNS......................................................................................................25
ARTICLE 12
TENANT'S EQUIPMENT.........................................................................................26
SECTION 12.1 Electrical Capacity.................................................................26
SECTION 12.2 Other Infrastructure................................................................26
ARTICLE 13
INSPECTIONS BY LANDLORD...................................................................................26
ARTICLE 14
INSURANCE..................................................................................................27
SECTION 14.1 Insurance To be Carried.............................................................27
SECTION 14.2 Indemnity ..........................................................................28
SECTION 14.3 Increases in Insurance Rates........................................................29
SECTION 14.4 Notice of Accidents.................................................................29
SECTION 14.5 Waiver of Subrogation...............................................................30
ii
Table of Contents (continued)
Page
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ARTICLE 15
SERVICES AND UTILITIES.....................................................................................30
SECTION 15.1 Services and Utilities..............................................................30
SECTION 15.2 Interruption of Services and Utilities..............................................32
SECTION 15.3 Conservation Controls...............................................................32
ARTICLE 16
LIABILITY OF LANDLORD......................................................................................33
SECTION 16.1 No Liability of Landlord............................................................33
SECTION 16.2 Transfer by Landlord................................................................33
SECTION 16.3 Disputed Payments...................................................................33
SECTION 16.4 Extent of Landlord's Liability......................................................34
ARTICLE 17
RULES AND REGULATIONS......................................................................................34
ARTICLE 18
DAMAGE OR DESTRUCTION......................................................................................35
SECTION 18.1 Casualty............................................................................35
SECTION 18.2 Limitations on Landlord's Obligations...............................................36
SECTION 18.3 Right to Terminate..................................................................36
ARTICLE 19
CONDEMNATION...............................................................................................36
SECTION 19.1 Termination for Condemnation........................................................36
SECTION 19.2 Award...............................................................................36
ARTICLE 20
DEFAULT ...................................................................................................37
SECTION 20.1 Defaults by Tenant..................................................................37
SECTION 20.2 Landlord's Rights...................................................................38
SECTION 20.3 Liquidated Damages..................................................................38
SECTION 20.4 Landlord's Rights Cumulative........................................................39
SECTION 20.5 No Waiver By Landlord...............................................................39
SECTION 20.6 Landlord's Right to Cure............................................................40
SECTION 20.7 Default by Landlord.................................................................40
SECTION 20.8 Attorney's Fees.....................................................................41
ARTICLE 21
SUBORDINATION AND ATTORNMENT...............................................................................41
SECTION 21.1 Subordination.......................................................................41
SECTION 21.2 Attornment..........................................................................42
iii
Table of Contents (continued)
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Page
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ARTICLE 22
DELIVERY AT END OF LEASE TERM..............................................................................42
SECTION 22.1 Surrender of Premises...............................................................42
SECTION 22.2 Holding Over........................................................................42
ARTICLE 23
COVENANTS OF LANDLORD AND RESERVATION OF RIGHTS............................................................43
SECTION 23.1 Covenants of Landlord...............................................................43
SECTION 23.2 Landlord's Reservation of Rights....................................................43
ARTICLE 24
GENERAL PROVISIONS.........................................................................................44
SECTION 24.1 Representations by Landlord.........................................................44
SECTION 24.2 No Partnership......................................................................45
SECTION 24.3 Brokers.............................................................................45
SECTION 24.4 Tenant Estoppel Certificates........................................................45
SECTION 24.5 Waiver of Jury Trial................................................................46
SECTION 24.6 Notices.............................................................................46
SECTION 24.7 Partial Invalidity..................................................................47
SECTION 24.8 Pronouns............................................................................47
SECTION 24.9 Successors and Assigns..............................................................47
SECTION 24.10 Entire Agreement....................................................................47
SECTION 24.11 Governing Law.......................................................................47
SECTION 24.12 Section Headings....................................................................48
SECTION 24.13 No Offer............................................................................48
SECTION 24.14 Multiple Counterparts...............................................................48
SECTION 24.15 Time of Essence.....................................................................48
SECTION 24.16 Conflict............................................................................48
SECTION 24.17 [Intentionally Omitted].............................................................48
SECTION 24.18 Joint and Several Liability.........................................................48
SECTION 24.19 Force Majeure.......................................................................48
SECTION 24.20 No Construction of Lease Against Drafter............................................49
EXHIBITS
A-1 - The Phase I Premises
A-2 - The Permanent Premises
B - Certificate of Lease Commencement Date
C - Building Rules and Regulations
D - Janitorial Services
iv
E - Contractor Rules and Regulations
F - Work Agreement
G - Form of Letter of Credit
H - Sample Form of Subordination, Nondisturbance and Attornment
Agreement
v
LEASE AGREEMENT
---------------
THIS LEASE AGREEMENT (the "Lease") is made as of the ____ day of
______________, 1998, by and between THE ▇▇▇▇ ▇ ▇▇▇▇▇▇ LIMITED PARTNERSHIP, a
District of Columbia limited partnership ("Landlord"), and AMERICAN
INTERCONTINENTAL UNIVERSITY, INC., a Georgia corporation ("Tenant").
RECITALS:
---------
A. Landlord is the owner of an office and retail building (the
"Building"), located at ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. The land on which
the Building is located is known as ▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇ in the District of
Columbia ("Land"). The Land, the Building and all other improvements thereon and
the common areas and appurtenances thereto are collectively referred to herein
as the "Property".
B. Tenant desires to hire and lease space in the Building and Landlord
is willing to demise and lease space in the Building to Tenant, upon the terms,
conditions, covenants and agreements set forth herein.
NOW, THEREFORE, in consideration of the foregoing, One Dollar ($1.00),
the covenants and agreements herein set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending legally to be bound, hereby covenant and agree as set
forth below.
ARTICLE 1
THE PREMISES
------------
SECTION 1.1 Premises
(a) Landlord hereby demises and leases to Tenant and Tenant hereby
hires and leases from Landlord, for the term and upon the terms, conditions,
covenants and agreements herein provided, space located on the lower level of
the Building as follows:
(i) Approximately 13,758 rentable square feet, measured in
accordance with the 1995 GWCAR Standard Method of Measurement, as shown on
Exhibit A-1 attached hereto (the "Phase I Premises").
(ii) Approximately 32,632 rentable square feet (which includes
the Phase I Premises), measured in accordance with the 1995 GWCAR Standard
Method of Measurement, as shown on Exhibit A-2 attached hereto (the "Permanent
Premises"). (The portion of the Permanent Premises that is not part of the Phase
I Premises is the "Phase II Premises").
Whichever of the Phase I Premises or the Permanent Premises is then leased by
Tenant is hereinafter sometimes referred to as the "Premises". (The number of
rentable square feet of area in the Premises shall be subject to Tenant's right
to make a written request for a final measurement of the Premises before this
Lease is executed. If Tenant request a final measurement, such measurement shall
be conducted jointly by Landlord's architect and Tenant's architect or design
specialist before this Lease is executed and such measurement shall be based
upon the 1995 GWCAR Standard Method of Measurement.)
(b) Tenant shall not commence making Improvements in, or otherwise use
or occupy, the Phase II Premises until December 1, 1998; from and after December
1, 1998, all obligations thereafter arising under this Lease relating to the
Premises shall apply to both the Phase I Premises and the Phase II Premises, and
Tenant's rent obligations shall apply to both the Phase I Premises and the Phase
II Premises (subject to any abatement period applicable to the latter). Such
rent obligations include the obligation to pay additional rent under Article 4
below on both the Phase I Premises and the Phase II Premises.
SECTION 1.2 Use of Common Areas
The lease of the Premises includes the right, together with other
tenants of the Building and members of the public, to use the common public
areas of the Property but includes no other rights not specifically set forth
herein.
SECTION 1.3 Satellite Dishes
(a) Subject to the terms of this Section, Tenant may install, or
request Landlord to install at Tenant's expense and risk, one or more antenna(e)
or satellite communications dishes and appurtenant equipment (each, a "Satellite
Dish") on the roof of the Building. A Satellite Dish may be installed by Tenant
only for purposes incident to Tenant's use of the Premises, and not as a
separate business or for use by third parties other than permitted subtenants.
(b) Tenant shall bear all of the cost and expense of designing,
purchasing, installing, operating, maintaining, repairing, removing and
replacing any Satellite Dish, and for repairing and restoring any damage to the
Property or to Landlord's or any other tenant's property arising therefrom. No
Satellite Dish shall be permitted if its installation will void or adversely
affect any warranty of the roof or if its installation and/or operation would
otherwise materially adversely affect the Building. Landlord may require that
any Satellite Dish be installed at Tenant's expense by Landlord's contractors,
or that Tenant utilize contractors approved by Landlord for such purpose.
Provided that Landlord's personnel are available to escort Tenant and its
contractors (except in an emergency, when no escort shall be required), Tenant
and its contractors shall have access to the roof of the Building, subject to
Article 17 below and Exhibit C hereof, for the foregoing purposes.
(c) Tenant shall be responsible for obtaining any and all governmental
permits, approvals, licenses and certificates necessary for the installation and
operation of a Satellite Dish, and shall comply with all laws, statutes,
ordinances, codes, rules and regulations, and insurance requirements relating
thereto, including (without limitation) building and zoning codes. Without
2
limiting Tenant's obligations under the preceding sentence, Tenant acknowledges
that the permission of the United States Commission on Fine Arts is required for
the installation of a Satellite Dish on the Building. Landlord shall cooperate
with Tenant in such efforts. All expenses shall be borne by Tenant.
(d) No Satellite Dish shall be permitted if it interferes with
transmissions to or from any other satellite communications dish, antenna, other
transmitting equipment, telecommunications system, or other computer or
electronic equipment then on, in or near the Building. Tenant shall be afforded
a reasonable opportunity to avoid, ameliorate or cure any such interference
problem, but shall be solely liable for any damage incurred by a third party as
a result of interference from any Satellite Dish. Landlord shall use reasonable
efforts, at Tenant's expense, to prevent any third party who installs a
Satellite Dish after Tenant has done so from interfering with transmissions to
or from any previously-installed Satellite Dish used by Tenant.
(e) Each Satellite Dish shall be installed in a manner reasonably
acceptable to Landlord. In addition to other factors set forth elsewhere in this
Section, Landlord may consider the quality of the proposed physical installation
and its safety, and the size, shape and appearance of each Satellite Dish and
its effect on the Building's appearance.
(f) Tenant shall pay Landlord, as additional rent, the sum of One
Thousand Five Hundred Dollars ($1,500) per month per Satellite Dish, such amount
to be increased at the commencement of each Lease Year by the rate of increase
between the last CPI published before the date of this Lease and the last CPI
published before the start of the then-applicable Lease Year. As used herein,
"CPI" means the Consumer Price Index for Washington, D.C.-Maryland-Virginia-West
Virginia (November 1996 = 100) as published from time to time by the United
States Bureau of Labor Statistics or, if such index is discontinued, a
comparable index selected by Landlord in its reasonable discretion and an
appropriate conversion factor shall be used to accommodate the transition
between the two indices.
(g) Notwithstanding any provision of this Lease to the contrary, in the
event Tenant breaches any of the provisions of this Section beyond the
expiration of any applicable notice and/or cure periods under Section 20.1
below, then, as an additional remedy, Landlord may require Tenant to remove the
offending Satellite Dish and, if Tenant does not promptly do so, Landlord may do
so at Tenant's expense as additional rent.
(h) Notwithstanding any provision of this Lease to the contrary, unless
agreed to by Landlord and Tenant at the time Tenant receives permission to
install a Satellite Dish, all Satellite Dishes shall remain the property of
Tenant during and after installation and shall be removed by Tenant at its
expense at the expiration or earlier termination of the Lease Term as if Section
22.1 below applied thereto. If Tenant does not promptly do so, Landlord may do
so at Tenant's expense as additional rent.
(i) Tenant's rights under this Section are non-exclusive.
3
ARTICLE 2
LEASE TERM
----------
SECTION 2.1 Term
The term of this Lease ("Lease Term") shall commence on the Lease
Commencement Date (hereinafter defined) as determined pursuant to Section 2.2
hereof, and shall end on (a) the day preceding the one hundred twenty-seventh
(127th) monthly anniversary of the Lease Commencement Date, if the Lease
Commencement Date occurs on the first day of a month, or (b) the last day of the
month which includes the one hundred twenty-seventh (127th) monthly anniversary
of the Lease Commencement Date, if the Lease Commencement Date occurs on a day
which is other than on the first day of a month, unless the Lease Term is
terminated earlier in accordance with the provisions of this Lease. Except as
may otherwise be specified, if there is any renewal or extension of the Lease
Term, then the defined term "Lease Term" shall include any renewal or extension
term.
SECTION 2.2 Lease Commencement Date
(a) The Lease Commencement Date shall be July 1, 1998 or such later
date on which Landlord delivers possession of the Phase I Premises to Tenant
("Lease Commencement Date").
(b) It is presently anticipated that the Phase I Premises will be made
available to Tenant for occupancy on July 1, 1998 and the Phase II Premises will
be made available on December 1, 1998; provided, however, if Landlord is unable
for any reason to deliver possession of the Premises by such dates, Landlord
shall not have any liability whatsoever to Tenant on account of Landlord's
inability to deliver possession of the Premises to Tenant and this Lease shall
not be rendered void or voidable as a result of such delay except as provided
below. If Landlord fails, for any reason, to deliver exclusive possession of the
Phase I Premises to Tenant on or before October 31, 1998, then in addition to
any other remedies available to Tenant at law or in equity, Tenant may elect to
cancel this Lease by written notice to Landlord delivered at any time prior to
Landlord's delivery of exclusive possession of the Phase I Premises. If Landlord
fails, for any reason, to deliver exclusive possession of the Phase II Premises
to Tenant on or before March 31, 1999, then, in addition to any other remedies
available to Tenant at law or in equity, Tenant may elect to cancel this Lease
by written notice to Landlord delivered at any time prior to the first to occur
of April 30, 1999 or Landlord's delivery of exclusive possession of the Phase II
Premises. Landlord agrees to use diligent efforts to obtain possession of the
Phase I and Phase II Premises from the current tenant. Any Lease provision which
excuses delays for events of force majeure shall have no applicability to this
paragraph.
(c) Promptly after the Lease Commencement Date, Landlord and Tenant,
upon the request of either, shall execute a certificate in the form attached
hereto as Exhibit B setting forth the Lease Commencement Date and the date on
which the Lease Term shall expire.
4
SECTION 2.3 Renewal
(a) Provided (i) no default under this Lease exists at the time notice
is given or at the expiration of the initial Lease Term and (ii) that Tenant or
an assignee permitted pursuant to Article 8 hereof is in occupancy of at least
seventy-five percent (75%) of the Premises at the expiration of the initial
Lease Term, Tenant shall have the right and option, exercisable by giving
written notice thereof at least twelve (12) months but not more than fifteen
(15) months prior to the expiration of the initial Lease Term, to extend the
Lease Term for one (1) period of five (5) years, and, upon the giving of such
notice, this Lease shall automatically be extended for such five (5) year period
and no instrument of extension need be executed. In the event that Tenant fails
to give such notice to Landlord as herein provided, this Lease shall
automatically terminate at the end of the initial Lease Term and Tenant shall
have no further right or option to extend this Lease.
(b) The extended Lease Term shall be upon the same covenants,
agreements, provisions, terms and conditions as the original Lease Term, except
that Tenant shall have no further options to renew or extend the Lease Term and
that fixed annual rent during the extended Lease Term shall equal the fair
market rental value of the Premises as of the commencement date of the extended
Lease Term. The fair market rental value shall be determined by comparison to
transactions involving other renewal, not new, tenants. If the parties cannot
agree on the fair market rental value within thirty (30) days after Tenant gives
notice of extension, the fair market rental value shall be determined by the
Three Broker Method (as defined below); provided, however, that if the fair
market rental is determined pursuant to the Three Broker Method, then upon the
rendering of such decision, Tenant shall be entitled to rescind its exercise of
its extension option provided such rescission is exercised by an irrevocable
written notice given to Landlord not more than ten (10) days after the fair
market rental has been determined and the parties have been notified thereof. No
such rescission shall be effective unless Tenant pays Landlord's reasonable
out-of-pocket expenses incurred in connection with such option, including,
without limitation, all costs incurred with respect to the determination of fair
market rental.
(c) The "Three Broker Method" used to determine fair market rental
value shall be applied as follows. Either Landlord or Tenant (the "First Party")
may initiate a determination of the fair market rental value by delivering
written notice to the other (the "Second Party") of the name of a real estate
broker or salesman who has at least ten (10) years of experience as a broker or
salesman for the leasing of office space in downtown Washington, D.C. Within ten
(10) days after receipt of such notice, the Second Party shall name a real
estate broker or salesman who meets the same criteria by written notice to the
First Party. If the Second Party fails to name such a broker or salesman within
such period, then the fair market rental value established by the broker or
salesman named by the First Party shall be the rental. If the Second Party does
name such a broker or salesman, then within fifteen (15) days the two brokers or
salesmen shall together appoint a third broker or salesman who meets the same
criteria and within an additional fifteen (15) days the three brokers or
salesmen shall jointly determine the fair market rental value, which shall be
the rental. Each broker or salesman shall consider all components of this Lease.
Fair market rental value shall be determined with reference to the average or
normal value being achieved by landlords in lease renewals entered into with
private sector tenants for comparable space in comparable buildings in equally
desirable locations within downtown
5
Washington, D.C. assuming operating expense and real estate tax pass-throughs
and consumer price index or fixed increases corresponding to those contained in
this Lease (if any). If the three brokers or salesmen cannot agree to a fair
market rental value, the average of the determinations of the brokers or
salesmen who are closest to each other shall be binding and conclusive (or, if
the middle broker or salesman is exactly midway between the other two, the
middle determination shall be binding and conclusive). Each party shall pay all
costs, fees and expenses of the broker or salesman selected by it and the
parties shall equally share the costs, fees and expenses of the third broker or
salesman.
ARTICLE 3
RENT
----
SECTION 3.1 Fixed Rent
Tenant shall pay to Landlord as "fixed annual rent" for each Lease Year
for the Premises, without notice, set-off, counterclaim, deduction or demand
except as specifically provided for in this Lease, the following amounts:
Lease Year Fixed Annual Rent Per Rentable Square Foot
---------- ------------------------------------------
1 $23.25
2 23.72
3 24.19
4 24.67
5 25.17
6 27.42
7 27.96
8 28.52
9 29.09
10 29.68
11 30.27
(partial Lease Year)
The foregoing amounts are subject to increase under Section 15.1(d) below. Fixed
annual rent shall be payable in equal monthly installments beginning on the
Lease Commencement Date and thereafter monthly, in advance, on the first day of
each month during the Lease Term (each such monthly installment being referred
to herein as "fixed monthly rent"); provided, however, that fixed monthly rent
shall be abated as follows:
6
Fixed Monthly Rent Is Abated/Payable
------------------------------------
Month* Phase I Premises Phase II Premises
------ ---------------- -----------------
July 1998 payable n/a
August 1998 payable n/a
September 1998 abated n/a
October 1998 abated n/a
November 1998 abated n/a
December 1998 abated abated
January 1999 payable abated
February 1999 payable abated
March 1999 payable abated
April 1999 payable abated
May 1999 payable abated
*These dates assume a Lease Commencement Date of July 1, 1998 and delivery of
the Phase II Premises to Tenant on December 1, 1998. If the foregoing
assumption(s) proves to be incorrect, then the abatement shall be appropriately
adjusted to provide Tenant with the same economic benefit.
Commencing June 1, 1999 (or such later date as shall be applicable if the above
schedule is revised as set forth above), fixed monthly rent shall be due and
payable on the entire Premises. If rent should ▇▇▇▇▇ pursuant to the terms of
the Lease (for any reason other than foregoing "free rent" periods) at any time
when Tenant is intended to receive the economic benefits of "free rent," then
such abatement shall be continued for so long as is necessary for Tenant to
receive the economic benefits of the foregoing "free rent" period. Concurrently
with the signing of this Lease, Tenant shall pay to Landlord a sum equal to one
(1) month's fixed monthly rent for the Permanent Premises, forty-one percent
(41%) of which sum shall be credited by Landlord against the fixed monthly rent
due for the first full calendar month of the Lease Term, and fifty-nine percent
(59%) of which shall be credited by Landlord against the fixed monthly rent due
for the month of June 1999 (or such later date as shall be applicable if the
above schedule is revised as set forth above). If the Lease Commencement Date is
a date other than the first day of a month, rent from such date until the first
day of the following month shall be prorated at the rate of one-thirtieth
(1/30th) of the fixed monthly rent for each day. As used herein, the first
"Lease Year" shall mean the period commencing on the Lease Commencement Date and
continuing for any partial calendar month in which the Lease Commencement Date
occurs and for twelve (12) full calendar months thereafter. Each successive
twelve (12) month period thereafter during the Term shall constitute a
subsequent "Lease Year", except that the last Lease Year shall end on the
expiration of this Lease.
SECTION 3.2 Late Payment; Interest Charge
If Tenant fails to make any payment of rent within ten (10) days after
the date such payment is due and payable, as evidenced, with respect to fixed
annual rent, by a schedule to be provided by Landlord to Tenant (such schedule
to be subject to revision from time to time
7
including, without limitation, if the Lease Commencement Date is other than July
1, 1998 and/or if the Phase II Premises are delivered to Tenant on a date after
December 1, 1998), Tenant shall pay to Landlord a late charge of five percent
(5%) of the amount of such payment, together with interest on said overdue
amount from the due date until paid at the Default Rate (as defined below). Such
late charges and interest shall constitute additional rent due hereunder, shall
be paid within five (5) days after demand therefor by Landlord and shall be in
addition to all other rights and remedies provided to Landlord in this Lease.
Past due amounts owed by Landlord to Tenant shall also accrue interest at the
Default Rate. For purposes of this Lease, the "Default Rate" shall mean the
"prime rate" published from time to time by The Wall Street Journal in its
"money rates" section plus two percentage points, but in no event at a rate
which is higher than the legal limit. The provisions of this Section are
separate from, and Landlord's rights and remedies are in addition to, the
provisions of Article 20 below.
SECTION 3.3 Rent Generally
As used in this Lease, "rent" includes all fixed annual rent, fixed
monthly rent, all sums payable under Article 4 below, all additional rent and
all other sums due to Landlord under this Lease, however called. All rent
payable by Tenant shall be paid to Landlord in lawful money of the United States
of America at the office of Landlord or to such other party or to such other
address as Landlord may designate from time to time by written notice to Tenant.
Unless specifically stated otherwise in this Lease, all rent payable under this
Lease shall be paid in full by Tenant, in advance, without notice or demand and
without set-off, deduction, recoupment, abatement, counterclaim or adjustment of
any kind; additional rent for which no due date is otherwise specified in this
Lease is due and payable as aforesaid but within ten (10) days after demand is
made (instead of in advance). Tenant's covenant to pay rent is an independent
covenant. If Landlord shall at any time or times accept rent to which Landlord
is entitled hereunder after the same shall become due and payable, such
acceptance shall not excuse a delay upon subsequent occasions, or constitute, or
be construed as, a waiver of any or all of Landlord's rights hereunder. Tenant's
obligation for the payment of rent shall survive the expiration or sooner
termination of this Lease.
ARTICLE 4
ADDITIONAL RENT
---------------
SECTION 4.1 Increases in Annual Operating Charges and Increases in Real Estate
Taxes
(a) From and after January 1, 2000, Tenant shall pay to Landlord
Tenant's proportionate share of the amount by which the Annual Operating Charges
(as hereinafter defined) incurred by Landlord in the operation of the Property
during each operating year falling entirely or partly within the Lease Term
exceed the Annual Operating Charges incurred by Landlord in the operation of the
Property during calendar year 1999 ("Operating Charges Base Year"). For purposes
of this Section 4.1(a), Tenant's proportionate share of such increase shall be a
percentage equal to the rentable square footage of the Premises divided by the
rentable square footage of the Building, excluding any retail space and storage
space. As used in this
8
Lease, an "operating year" is the period beginning on January 1 and ending on
the next December 31, both dates inclusive, or any portion of such period.
(b) From and after January 1, 2000, Tenant shall pay to Landlord
Tenant's proportionate share of the amount by which the Real Estate Taxes (as
hereinafter defined) actually paid by Landlord during each operating year
falling entirely or partly within the Lease Term exceed the Real Estate Taxes
actually paid by Landlord during calendar year 1999 ("Real Estate Taxes Base
Year"). For purposes of this Section 4.1(b), Tenant's proportionate share of
such increase shall be a percentage equal to the rentable square footage of the
Premises divided by the rentable square footage of the Building, excluding
storage space.
SECTION 4.2 Annual Operating Charges Defined and Real Estate Taxes Defined
(a) The "Annual Operating Charges" are defined as the sum of all costs
and expenses incurred by or on behalf of Landlord in operating, owning,
managing, insuring, securing and maintaining the Property or any part thereof,
including, without limitation, all costs and expenses of: operating, equipping,
maintaining, repairing, replacing, policing, painting and cleaning, lighting,
heating, ventilating and air-conditioning equipment, signage and access control
for or of the Property; salaries, fringe benefits and other compensation,
however denominated, of all personnel engaged in operating and maintenance of
the Property (including, but not limited to, health, accident and group life
insurance and the cost of uniforms, equipment and employment taxes); alarm
systems; elevators and escalators; all insurance whatsoever, including, without
limitation, liability insurance for personal injury, death and property damage
(including, without limitation, to Landlord's personal property), insurance
against fire, extended coverage, theft or other casualties, worker's
compensation insurance covering personnel, fidelity bonds for personnel,
insurance against liability for defamation and claims of false arrest occurring
in the Building, or on and about the Property, rent loss insurance, sprinkler
leakage insurance, and plate glass insurance for glass serving the common areas
of the Property; all supplies and materials; maintenance, repair and replacement
of all exterior glass; storage, removal and other costs associated with debris;
the costs of any capital improvements or other costs (i) which are intended as a
labor-saving device or to effect other economies in the operation or maintenance
of the Property, or (ii) incurred after the date hereof that are required under
any governmental law or regulation enacted after the date hereof (provided,
however, that if any such costs described in (i) or (ii) above is a capital
expenditure, such costs shall be amortized [including interest on the
unamortized costs] over its useful life as Landlord shall reasonably determine);
coordination and use of any loading dock serving the Building; repair or
replacement of awnings, paving, curbs, walkways, interior and exterior
landscaping, drainage, pipes, ducts, conduits and similar items, lighting
facilities and the roof; the rental of music program services and loudspeaker
systems, and the maintenance and repair of such equipment; all costs and
expenses associated with Landlord's management office, Landlord's storage areas
and other management facilities in the Building and the equipment therein; lobby
attendant (if any) and concierge (if any); energy management services,
maintenance contracts, window cleaning, snow removal, elevator maintenance, char
and janitorial service and trash removal; personal property taxes on equipment
and supplies used in connection with the Property; costs of continuing education
and professional and trade association dues for Building management staff;
recycling expenses; the costs of any additional services not provided to the
Property at the Lease
9
Commencement Date but thereafter provided by Landlord; cost of water and sewer
services; parcel pick-up and delivery services; any costs and expenses of
compliance with legal requirements; legal fees not recovered from other parties;
accounting fees; management fees and costs paid to the management company
managing the Property; fulfillment of Landlord's obligations under one or more
vault space or public space agreements with the District of Columbia and under
easements, covenants and cost-sharing agreements; and any costs, charges and
expenses, in addition to those set forth in this definition, which according to
generally accepted accounting principles and practice would be regarded as costs
to operate, own, manage, insure, secure or maintain the Property.
(b) If the Building is less than ninety-five percent (95%) occupied
during any operating year (including the Operating Charges Base Year) or part
thereof, Annual Operating Charges shall include all additional costs and
expenses of operation, management, insuring, securing and maintenance of the
Property which Landlord reasonably determines that it would have paid or
incurred during such operating year if the Building had been ninety-five percent
(95%) occupied.
(c) Annual Operating Charges shall not include the following:
(A) The cost of the original construction or any capital
addition made to the Building, including the cost to prepare space for
occupancy by a new tenant, except as specifically set forth above.
(B) Repairs or other work occasioned by fire, windstorm or
other insured casualty or hazard to the extent that Landlord receives
proceeds of such insurance to be used for such purpose.
(C) Leasing commissions, marketing and advertising expenses
and other costs incurred in leasing or procuring renewal or new
tenants, including (without limitation) attorney's fees and space
planning costs.
(D) Repairs or rebuilding necessitated by condemnation to the
extent that Landlord receives an award.
(E) Depreciation and amortization of the Building and its
equipment.
(F) Any ground or underlying lease rental.
(G) Debt expenses and interest, principal, points and fees on
debts, or amortization on any mortgage or other debt instrument
encumbering the Building or the Land.
(H) Rentals for items (except when needed in connection with
normal repairs and maintenance of permanent systems) which if
purchased, rather than
10
rented, would constitute a capital improvement which is not
specifically included in Annual Operating Charges.
(I) Advertising and promotional expenditures, and costs of
signs in or on the Building identifying the owner of the Building or
other tenants' signs.
(J) Costs, including permit, license and inspection costs,
incurred with respect to the installation of improvements made for
tenants or other occupants in the Building or incurred in renovating or
otherwise improving, decorating, painting or redecorating vacant space
for tenants or other occupants of the Building.
(K) Expenses in connection with services or other benefits
which are not offered to Tenant or for which Tenant is charged directly
but which are provided to another tenant or occupant of the Building
without charge.
(L) Costs incurred by Landlord due to the violation by
Landlord or any tenant of the terms and conditions of any lease of
space in the Building.
(M) The amount of the management fee paid or charged by
Landlord in connection with the management of the Building to the
extent such management fee is in excess of the management fee
customarily paid or charged by landlords of first-class buildings in
downtown Washington, D.C.
(N) Salaries and other benefits paid to the employees of
Landlord to the extent customarily included in or covered by a
management fee paid or charged by landlords of first-class buildings in
downtown Washington, D.C. in connection with the management of such
properties, provided that in no event shall Annual Operating Charges
include salaries and/or benefits attributable to personnel above the
level of Building manager.
(O) The amount of rent for any office space occupied by
Building management personnel to the extent the size or fair market
rental value of such office space exceeds the size or fair market
rental value of office space occupied by management personnel of
first-class buildings in downtown Washington, D.C. (If any such office
space is used to manage more than one building, then the rent charged
hereunder shall be equitably apportioned.)
(P) Amounts paid to Landlord or to subsidiaries or affiliates
of Landlord for goods and/or services in the Building to the extent the
same exceeds the costs of such goods and/or services rendered by
unaffiliated third parties on a competitive basis.
(Q) Landlord's general corporate overhead and general and
administrative expenses.
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(R) Any compensation paid to clerks, attendants or other
persons in commercial concessions operated by Landlord unless made a
part of Tenant's base.
(S) Costs incurred in connection with upgrading the Building's
Common Areas to comply with laws, rules, regulations and codes in
effect and applicable to the Building's Common Areas prior to the date
hereof, including (without limitation) the Americans With Disabilities
Act.
(T) Tax penalties incurred as a result of Landlord's
negligence, inability or unwillingness to make payments and/or to file
any income tax or informational returns when due.
(U) Costs arising from Landlord's charitable or political
contributions.
(V) Costs arising from earthquake insurance unless landlords
of first-class buildings in downtown Washington, D.C. also carry it.
(W) Costs arising from latent defects in the base Building.
(X) Costs (including in connection therewith all attorneys'
fees and costs of settlement, judgments and payments in lieu thereof)
arising from claims, disputes, litigation or arbitration pertaining to
Landlord.
(Y) Costs associated with the operation of the business of the
partnership or entity which constitutes Landlord as the same are
distinguished from the costs of operation of the Building, including
partnership accounting and legal matters, costs of defending any
lawsuits with any mortgagee (except as the actions of Tenant may be in
issue), and costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord's interest in the Building.
(Z) Any costs expressly excluded from Annual Operating Charges
elsewhere in this Lease.
(AA) Any Real Estate Taxes and any costs or taxes expressly
excluded from Real Estate Taxes in this Lease.
(BB) Any other costs not customarily included in Annual
Operating Charges (or the definitional equivalents) for other
first-class office buildings in downtown Washington, D.C.
(d) "Real Estate Taxes" means the total of all real estate taxes,
business improvement district assessments, ad valorem taxes, transit taxes and
other assessments and charges (including payments in lieu of taxes), general and
special, ordinary and extraordinary, foreseen or unforeseen, assessed, levied,
or imposed upon the Building or the Land which are
12
actually paid during the operating year in question; provided, however, if any
assessment is payable in installments, Real Estate Taxes for any operating year
shall include only the installments payable in such operating year. Real Estate
Taxes shall also include legal costs and other costs and expenses incurred in
any appeal of the tax assessment upon which such Real Estate Taxes are based,
whether or not such appeal is successful. Such costs and expenses shall be
included in Real Estate Taxes for the operating year for which appeal is made
without regard to the date such costs are actually incurred. Real Estate Taxes
shall not include (i) franchise taxes, gift taxes, capital stock taxes,
inheritance taxes, estate taxes, federal and state net income taxes, and other
taxes attributable to Landlord's net income (as opposed to rents, receipts or
income attributable to the Building or Property), (ii) any items accounted for
in Annual Operating Expenses, (iii) any taxes paid directly to the taxing
authority by Tenant, and (iv) penalties, interest or late fees levied if
Landlord fails to timely pay its Real Estate Taxes if Tenant has paid its
proportionate share thereof.
SECTION 4.3 Statement of Annual Operating Charges and Real Estate Taxes
Except as provided in Section 4.4 below, Landlord shall submit to
Tenant each year a statement in reasonable detail setting forth the respective
amounts payable by Tenant pursuant to this Article for the preceding operating
year for increases in Annual Operating Charges and for increases in Real Estate
Taxes. Within thirty (30) days after receipt of such statement, Tenant shall pay
to Landlord the amount shown thereon. For all purposes under this Article,
Tenant's liability for increases in Annual Operating Charges and Tenant's
liability for increases in Real Estate Taxes shall each be calculated
separately.
SECTION 4.4 Installment Payments; Proration
(a) In lieu of accepting from Tenant one annual payment for Tenant's
proportionate share of the increase in the Annual Operating Charges and one
annual payment for Tenant's proportionate share of the increase in Real Estate
Taxes, Landlord shall have the right, from time to time, to require Tenant to
make estimated monthly payments on account of the respective amounts Tenant will
be obligated to pay pursuant to this Article for each operating year falling
entirely or partly within the Lease Term. If Landlord exercises such right,
Landlord shall submit to Tenant a statement setting forth Landlord's reasonable
estimate of each of the respective amounts Tenant will be obligated to pay
pursuant to this Article for the operating year in question, which estimates may
be revised by Landlord from time to time during the operating year, and Tenant
shall pay to Landlord on the first (1st) day of each month following receipt of
such statement during such operating year an amount (separately calculated and
payable for each of the estimated increase in Annual Operating Charges and the
estimated increase in Real Estate Taxes) equal to such respective estimated
amount multiplied by a fraction, the numerator of which is 1 and denominator of
which is the number of months during such operating year which fall within the
Lease Term and follow the date of the foregoing statement. After the expiration
of such operating year, Landlord shall submit to Tenant a statement showing
Tenant's proportionate share of the increase in the Annual Operating Charges
incurred during such operating year and Tenant's proportionate share of the
increase in Real Estate Taxes for such operating year, and the respective
aggregate amount of the estimated payments made by Tenant on account of each of
the increase in Annual Operating Charges and the increase in Real Estate Taxes.
13
If the aggregate amount of such estimated payments paid by Tenant for the
increase in Annual Operating Charges exceeds Tenant's actual liability for such
increase, Landlord shall credit such excess to Tenant's account, subject to
Section 4.4(d) below. If Tenant's actual liability for such increase in the
Annual Operating Charges exceeds the estimated payments made by Tenant on
account thereof, then Tenant shall pay to Landlord the total amount of such
deficiency within thirty (30) days after demand. If the aggregate amount of such
estimated payments paid by Tenant for the increase in Real Estate Taxes exceeds
Tenant's actual liability for such increase, Landlord shall credit such excess
to Tenant's account, subject to Section 4.4(d) below. If Tenant's actual
liability for such increase in Real Estate Taxes exceeds the estimated payments
made by Tenant on account thereof, then Tenant shall pay to Landlord the total
amount of such deficiency within thirty (30) days after demand.
(b) In the event the Lease Term commences or expires during an
operating year, then each of the increase in the Annual Operating Charges to be
paid by Tenant for such operating year and the increase in Real Estate Taxes to
be paid by Tenant for such operating year shall be determined by multiplying the
amount of Tenant's proportionate share thereof for the full operating year by a
fraction, the numerator of which is the number of days during such operating
year falling within the Lease Term, and the denominator of which is 365. At
least thirty (30) days prior to the end of the Lease Term, Landlord may present
to Tenant a written statement containing a reasonable estimate of the amounts
Tenant would be obligated to pay under this Article if the actual Annual
Operating Charges and the actual Real Estate Taxes for the operating year had
been determined. Tenant shall be required to pay such estimated amounts on or
before the last day of the Lease Term, and if all or any portion of the payments
are not made, Landlord shall be entitled to deduct such amount from the Security
Deposit, if any. Once the Annual Operating Charges and the Real Estate Taxes for
the last operating year of the Lease Term have been determined, Landlord shall
provide Tenant with a statement of the actual increase in Annual Operating
Charges and the actual increase in Real Estate Taxes for which Tenant is liable.
If Tenant owes an additional amount, such amount is due on or before sixty (60)
days after receipt of the statement. If Tenant is entitled to a refund, Landlord
shall have sixty (60) days from the date of the statement within which to remit
payment to Tenant, subject to Section 4.4(d) below.
(c) The parties' obligation to reconcile increases in Annual Operating
Charges and Real Estate Taxes shall survive the expiration or termination of
this Lease, and shall be applicable even if no estimated statement is provided
under Section 4.4(a) above. Notwithstanding any dispute which may arise in
connection with the computation or estimate of the amount due under this
Article, Tenant shall be obligated to pay the amount specified by Landlord,
without set-off, recoupment, abatement, counterclaim, adjustment or deduction of
any kind, pending the resolution of any dispute.
(d) In the event Tenant is in default under this Lease at the time any
credit or payment is otherwise to be made to Tenant under this Section, Landlord
may offset against such credit or payment to compensate it for any amount owed
by Tenant or for damage incurred or that may be incurred by Landlord as a
consequence of said default.
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SECTION 4.5 Additional Taxes or Governmental Charges
In the event that any business, rent, or other taxes, or any
governmental charges (including mandates for energy savings) that are now or
hereafter levied upon Tenant's use or occupancy of the Premises or Tenant's
business at the Premises are charged, enacted, changed, or altered so that any
of such taxes are levied against Landlord, or the mode of collection of such
taxes is changed so that Landlord is responsible for collection or payment of
such taxes, Tenant shall pay any and all such taxes to Landlord upon written
demand from Landlord.
SECTION 4.6 Change In or Contest of Real Estate Taxes
In the event of any change by any taxing body in the period or manner
in which any of the Real Estate Taxes are levied, assessed or imposed, Landlord
shall have the right, in its sole discretion, to make equitable adjustments with
respect to computing increases in Real Estate Taxes. Real Estate Taxes which are
being contested by Landlord shall be included in computing Tenant's
proportionate share of the increases in Real Estate Taxes under this Article,
but if Tenant shall have paid additional rent on account of contested Real
Estate Taxes and Landlord thereafter receives a refund of such taxes, Tenant
shall receive a credit toward subsequent rent payments in an amount equal to
Tenant's proportionate share of such refund.
SECTION 4.7 Tenant Audit Right
Landlord shall maintain reasonably complete and accurate records of
matters relating to the calculation of the Annual Operating Charges and Real
Estate Taxes and Tenant's share thereof for a period of at least one (1) year.
Within sixty (60) days after receipt by Tenant of Landlord's annual
reconciliation statement (the "Statement"), Tenant shall advise Landlord whether
Tenant desires to conduct an audit of such Statement. If Tenant so advises
Landlord, a "Big Four" independent certified public accounting firm, designated
and paid for by Tenant, may, after reasonable notice to Landlord and at
reasonable times, inspect Landlord's records with respect to the Statement at
Landlord's offices, provided that Tenant's disputing or confirming a Statement
shall not relieve Tenant from paying the Additional Rent set forth in the
Statement during the pendency of the dispute. Tenant's failure to advise
Landlord of its intent to conduct such an audit within the aforesaid sixty (60)
day period or, in the event Tenant timely gives notice of its intent to conduct
such an audit, to dispute in writing with reasonable detail the amount of
Additional Rent set forth in any Statement within six (6) months of the date of
such Statement, shall be deemed to be Tenant's approval of such Statement and
Tenant thereafter waives the right or ability to dispute the amounts set forth
in such Statement. Tenant shall bear the expense of any audit or review
conducted; provided, however, that in the event that it is ultimately determined
that Landlord's Statement is overstated by eight percent (8%) or more, then
Landlord shall pay Tenant's reasonable audit or review expenses. Any overcharges
shown by any such inspection shall be credited against the next installment(s)
of Rent or other charges due from Tenant, or if none, shall be refunded to
Tenant. Any undercharges shown by any such inspection shall be paid by Tenant
within ten (10) days.
15
ARTICLE 5
SECURITY DEPOSIT
----------------
SECTION 5.1 Amount
(a) Simultaneously with the execution of this Lease, Tenant shall
deposit with Landlord the sum of Six Hundred Forty-Three Thousand Dollars
($643,000.00) as a security deposit (the "Security Deposit").
(b) Provided Tenant has not failed to make any payment of rent within
five (5) days after the due date under this Lease (except that Tenant may fail
to make up to two (2) payments of rent per calendar year within ten (10) days
after their due dates under this Lease before the foregoing five-day proviso
goes into effect), regardless of any other applicable notice and/or cure period,
or otherwise been in default hereunder beyond the expiration of any applicable
notice and/or cure period, then, at the beginning of the second (2nd) and third
(3rd) Lease Years, Landlord shall reduce the amount of the then-outstanding
Security Deposit by one-third (1/3rd) at the beginning of each such Lease Year.
Provided Tenant has not failed to make any payment of rent within five (5) days
after the due date under this Lease (except that Tenant may fail to make up to
two (2) payments of rent per calendar year within ten (10) days after their due
dates under this Lease before the foregoing five-day proviso goes into effect),
regardless of any other applicable notice and/or cure period, or otherwise been
in default hereunder beyond the expiration of any applicable notice and/or cure
period, then, at the beginning of the fourth (4th) Lease Year, Landlord shall
reduce the Security Deposit to an amount equal to two (2) months' fixed monthly
rent. Provided Tenant has not failed to make any payment of rent within five (5)
days after the due date under this Lease (except that Tenant may fail to make up
to two (2) payments of rent per calendar year within ten (10) days after their
due dates under this Lease before the foregoing five-day proviso goes into
effect), regardless of any other applicable notice and/or cure period, or
otherwise been in default hereunder beyond the expiration of any applicable
notice and/or cure period, and Tenant renews the Lease Term in accordance with
the terms of this Lease, then, at the beginning of the renewal Lease Term,
Landlord shall refund the Security Deposit to Tenant.
(c) Landlord shall not be required to maintain the Security Deposit in
a separate account. The Security Deposit shall not earn interest unless required
by applicable law. The Security Deposit shall be security for the performance by
Tenant of all of Tenant's obligations, covenants, conditions and agreements
under this Lease.
SECTION 5.2 Application
In the event of any default by Tenant hereunder during the Lease Term,
Landlord shall have the right, but shall not be obligated, to use, apply, or
retain all or any portion of the Security Deposit for (a) the payment of any
rent as to which Tenant is in default, or (b) the payment of any amount which
Tenant may be obligated to pay to repair physical damage to the Premises or the
Building pursuant to this Lease, or (c) the payment of any amount which Tenant
may be obligated to pay for the compensation to Landlord for any losses incurred
by reason of Tenant's default, including, but not limited to, any damage or
deficiency arising in connection with the
16
reletting of the Premises. If any portion of the Security Deposit is so used or
applied, then within ten (10) business days after written notice to Tenant of
such use or application, Tenant shall deposit with Landlord cash in an amount
sufficient to restore the Security Deposit to its original amount, and Tenant's
failure to do so shall constitute a default under this Lease. The Security
Deposit is not a measure of damages or liquidated damages, and Landlord's use of
the Security Deposit is not a waiver of its other rights and remedies. Provided
Tenant is not in default hereunder, Landlord shall return the Security Deposit
to Tenant, less such portion thereof as Landlord shall have applied or be
entitled to apply to satisfy any default by Tenant hereunder, after the last to
occur of the making of the payment of the final operating year's increase in
Annual Operating Charges and/or Real Estate Taxes under Section 4.4(b) above, or
within forty-five (45) days following the later to occur of the expiration of
the Lease Term or the vacating and surrendering of the Premises by Tenant to
Landlord.
SECTION 5.3 Third Parties
In the event of the sale or transfer of Landlord's interest in the
Building, Landlord shall have the right to transfer the Security Deposit to the
transferee of Landlord's interest, in which event Tenant shall look only to the
new landlord for the return of the security deposit, and the transferor Landlord
shall thereupon be released from all liability to Tenant for the return of the
Security Deposit.
SECTION 5.4 Letter of Credit
(a) Tenant shall have the right to deposit and maintain the Security
Deposit as an irrevocable commercial letter of credit in form and substance
reasonably acceptable to Landlord. (A letter of credit meeting the terms of this
Section is referred to as the "Letter of Credit.") The Letter of Credit must be
issued by NationsBank, N.A. or another commercial bank (the "Issuer") reasonably
acceptable to Landlord and must be presentable in the Washington, D.C.
metropolitan area. The Letter of Credit must also be payable at sight without
presentation of any other documents, statements, or authorizations (except for
the draw request form attached thereto), must allow for partial draws, and must
have a term of not less than one (1) year from the Commencement Date. The Letter
of Credit must also provide for its automatic renewal on a year-to-year basis
unless the Issuer gives Landlord at least two (2) months written notice of
nonrenewal, and the final expiration date of the Letter of Credit may not be any
earlier than the date which is three (3) months after the scheduled initial
Lease Term expiration date (or, in the case of a renewal when the Security
Deposit has not been refunded to Tenant, three (3) months after the scheduled
expiration date of the renewal Lease Term).
(b) The Letter of Credit must also be subject to being drawn upon in
the event of any default by Tenant under this Lease, or if the Issuer gives
notice of nonrenewal to Landlord and a replacement Letter of Credit (or the cash
equivalent) is not delivered to Landlord at least thirty (30) days prior to the
non-renewed Letter of Credit's expiration date, or if there is a dispute between
Landlord and Tenant on the date which is thirty (30) days prior to the stated
expiration date of the Letter of Credit over whether Landlord may draw on the
Letter of Credit, or if Landlord assigns this Lease to a third party and the
Issuer does not consent to the transfer of the Letter of Credit to the successor
Landlord, or if the Issuer is not solvent or the Issuer has been put
17
into conservatorship or receivership (or any similar program) by any
governmental authority having regulatory oversight over the Issuer.
Notwithstanding any implication to the contrary contained in the foregoing, it
is understood and agreed that Landlord's willingness to accept a Letter of
Credit as the Security Deposit in lieu of cash is an accommodation to Tenant and
that Tenant bears all risk of the Issuer failing, refusing or being unable to
honor a proper draw thereon. If the Issuer fails, refuses or is unable to honor
a proper presentment of the Letter of Credit, Tenant shall be obligated to
immediately deliver a replacement Letter of Credit meeting the terms of this
paragraph (or the cash equivalent) to serve as the Security Deposit. A letter of
credit in the form attached hereto as Exhibit G meets the technical requirements
of this Section.
(c) In the event the Security Deposit is to be reduced pursuant to
Section 5.1 above, Landlord shall return the Letter of Credit it then possesses
upon delivery to it of cash or a replacement Letter of Credit in the appropriate
amount.
ARTICLE 6
USE
---
SECTION 6.1 Use
Tenant shall use and occupy the Premises solely for an accredited
academic institution providing educational instruction to adults, and for
ancillary purposes including general office or professional support service uses
in connection therewith, but for no other use or purpose other than general
office or back room support services. Tenant shall not use or occupy the
Premises for any unlawful purpose or in any manner that will constitute waste,
nuisance or unreasonable annoyance to Landlord or other tenants of the Building.
Notwithstanding anything contained in this Lease to the contrary, Tenant shall
have no obligation to occupy the Premises during the Lease Term; provided,
however, that Tenant's ceasing to occupy the Premises shall not relieve Tenant
from its obligation to pay the rent pursuant to the terms of this Lease.
SECTION 6.2 Compliance with Laws
Tenant shall comply with all present and future laws, ordinances
(including zoning ordinances and land use requirements), regulations, and orders
of the United States of America, the District of Columbia, and any other public
or quasi-public authority having jurisdiction over the Premises concerning the
use, occupancy, facilities in and condition of the Premises and all machinery,
equipment, facilities, entrances thereto, exits therefrom and furnishings
therein (excluding any requirements for structural changes or matters affecting
the restrooms or base building systems, the responsibility for which shall
remain with Landlord, who shall comply with all applicable laws relating
thereto). It is expressly understood that Tenant, at Tenant's cost and expense,
will obtain an occupancy permit for the Premises. If any future law, ordinance,
regulation, or order requires another occupancy permit or other permit for the
Premises, Tenant will obtain such permit at Tenant's sole expense. Tenant shall
pay all costs, expenses, liabilities, losses, damages, fines, penalties, claims,
and demands, including reasonable counsel fees, that may in any manner arise out
of or be imposed because of the failure of Tenant to comply with the covenants
of this Section.
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SECTION 6.3 Trash Sorting
Tenant covenants and agrees, at its sole cost and expense: (a) to
comply with all present and future laws, orders, and regulations of the District
of Columbia, federal, municipal, and local governments, departments,
commissions, agencies and boards regarding the collection, sorting, separation,
and recycling of garbage, trash, rubbish and other refuse (collectively,
"trash"); (b) to sort and separate its trash into such categories as are
provided by law; (c) that each separately sorted category of trash shall be
placed in separate receptacles as directed by Landlord; (d) that Landlord
reserves the right to refuse to collect or accept from Tenant any trash that is
not separated and sorted as required by law, and to require Tenant to arrange
for such collection at Tenant's sole cost and expense, utilizing a contractor
satisfactory to Landlord; and (e) that Tenant shall pay all costs, expenses,
fines, penalties, or damages that may be imposed on Landlord or Tenant by reason
of Tenant's failure to comply with the provisions of this Section.
SECTION 6.4 Environmental Laws
(a) This Section shall survive the expiration or termination of this
Lease.
(b) Except as otherwise expressly permitted by this Lease, Tenant shall
not use any portion or all of the Property for the use, generation, treatment,
storage or disposal of "toxic substances," "contaminants," "pollutants,"
"hazardous materials", "hazardous waste", "hazardous substances" or "oil"
(collectively, "Materials") as such terms are defined under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601
et seq., as amended, the Resource Conservation and Recovery Act of 1976, 42
U.S.C. 6901 et seq., as amended, and any and all other environmental statutes
which regulate the use of hazardous and/or dangerous substances, and the
regulations promulgated thereunder and any and all state and local laws,
statutes, codes, ordinances, rules and regulations, without the express prior
written consent of Landlord, and then only to extent that the presence and/or
discharge of the Materials is (i) properly licensed and approved by all
appropriate governmental officials and in accordance with all applicable laws
and regulations and (ii) in compliance with any terms and conditions stated in
said prior written approval by Landlord. Tenant may use such Materials as are
used for ordinary office purposes in the ordinary course of Tenant's business,
provided that such use is in accordance with all applicable statutes, laws,
codes, ordinances, rules and regulations, and any manufacturer's instructions;
and provided further that Tenant may not discharge any Materials except as
provided by applicable statutes, laws, codes, ordinances, rules and/or
regulations, and specifically may not discharge any Materials in any public
sewer or any drain and/or drainpipe leading or connected thereto. Tenant shall
promptly give written notice to Landlord of any communication received by Tenant
from any governmental authority or other person or entity concerning any
complaint, investigation or inquiry regarding any use, generation, treatment,
storage or disposal (or alleged use, generation, treatment, storage or disposal)
by Tenant of any Materials in or about the Premises or Property. Landlord shall
have the right (but not the obligation) to conduct such investigations or tests
(or both) as Landlord shall reasonably deem necessary with respect to any such
complaint, investigation or inquiry, and Tenant, at its expense, shall take such
action (or refrain from taking such action) as Landlord may request in
connection with such investigations and tests by Landlord.
19
(c) Notwithstanding anything in this Lease to the contrary, Tenant
shall not materially adversely affect (as reasonably determined by Landlord) the
indoor air quality of the Premises or the Building; without limiting the
preceding clause, it shall apply to (and take precedence over any other
provision of this Lease concerning) the use of the Premises, the type of
equipment, furniture, furnishings, fixtures and personal property that may be
brought into the Premises, the construction materials used in Improvements, the
standard of maintenance required for the Premises, and compliance with any
smoking policy now or hereafter adopted for the Building by Landlord or required
by law.
(d) Tenant shall be responsible at its own cost for complying with the
provisions of the Americans with Disabilities Act or any similar federal or
District of Columbia statute, law, ordinance, or code, as they may be amended
from time to time, and the rules and regulations which may be adopted thereunder
from time to time, as the same may be applicable to the Premises. Landlord's
approval of any Improvement or other act by Tenant shall not be deemed to be a
representation by Landlord that said Improvement or act complies with applicable
law, and Tenant shall remain solely responsible for said compliance.
ARTICLE 7
PARKING
-------
Tenant shall have the right to purchase one (1) unreserved parking
contract in the Building's garage for every 1,500 square feet leased. Tenant
must exercise the foregoing right within thirty (30) days after the Lease
Commencement Date (or, with respect to any expansion of the Premises, within
thirty (30) days after the date such space is added to the Premises) or the
right shall expire with respect to any unexercised contracts. All parking
contracts and arrangements must be handled by Tenant directly with the operator
of the Building's garage and Landlord bears no responsibility or liability with
respect thereto (unless and to the extent Landlord self-manages the garage).
Parking contracts will be made available on a month-to-month basis and Tenant
agrees to pay prevailing prices therefor, as said prices may change from time to
time. Tenant agrees to abide by, and to cause anyone acquiring a parking
contract through Tenant to abide by, all rules and regulations now or thereafter
applicable to the garage. Tenant further agrees that, without limiting any other
right or remedy provided by this Lease or by applicable law, its rights under
this Article may be revoked in the event of any default under this Lease or
under the terms of any parking contract.
ARTICLE 8
ASSIGNMENT AND SUBLETTING
-------------------------
SECTION 8.1 Landlord's Consent Required
(a) Tenant shall not sell, assign, transfer, mortgage, or otherwise
encumber this Lease or its interest therein (collectively "assign" or
"assignment") or sublet, rent or permit anyone to occupy the Premises, or any
part thereof (collectively "sublet"), without obtaining the prior written
consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or
20
delayed; provided, however, that Landlord shall also have the rights set forth
in Section 8.1(b) below. Notwithstanding the foregoing to the contrary, Tenant
may assign this Lease or sublease the Premises to any partner, subsidiary, or
affiliated corporation of Tenant, to any corporation or person to whom Tenant
sells substantially all of its assets, or to any corporation with which Tenant
merges or consolidates, provided the resulting entity has a net worth equal to
or greater than the assignor Tenant's prior to such merger of consolidation. In
no event may this Lease be assigned in part. No assignment or sublet may be
effectuated by operation of law or otherwise without the prior written consent
of Landlord as aforesaid. The consent of Landlord to any assignment or
subletting shall not be construed as a waiver or release of Tenant from
liability for the performance of all covenants and obligations to be performed
by Tenant under this Lease, nor shall the collection or acceptance of rent from
any assignee or subtenant constitute a waiver or release of Tenant from any of
its liabilities or obligations under this Lease and the assignor Tenant shall
remain jointly and severally liable for the continued performance of Tenant's
obligations (all suretyship and similar technical defenses being waived by
Tenant). Landlord's consent to any assignment or subletting shall not be
construed as relieving Tenant from the obligation of obtaining Landlord's prior
written consent to any subsequent assignment or subletting. If Tenant is in
default hereunder beyond the expiration of any applicable notice and cure
period, Tenant hereby assigns to Landlord the rent due from any subtenant of
Tenant and hereby authorizes each such subtenant to pay said rent directly to
Landlord.
(b) In all cases where Tenant seeks to sublease the Premises or assign
this Lease and Landlord's consent is required under Section 8.1(a), Tenant first
shall give Landlord fifteen (15) days prior written notice of its intent to do
so. For fifteen (15) days following receipt of said notice, Landlord shall have
the right, exercisable by sending notice to Tenant, to retake from Tenant: (i)
all of the Premises for the balance of the Term in the event Tenant notified
Landlord of its intention to assign or transfer this Lease; or (ii) only so much
of the Premises for so much of the Term as Tenant intends to sublet in the event
Tenant notified Landlord of its intention to sublet the Premises or a portion
thereof. In either of the events described in clause (i) or (ii) above, this
Lease shall be terminated as of the date specified for such termination in
Landlord's notice aforesaid as to the portion or all of the Premises so retaken;
provided that any and all liabilities of Tenant which accrued and remained
unsatisfied prior to the date of such termination shall survive such
termination. In the event Landlord does not exercise its aforesaid right within
fifteen (15) days of receipt of said notice, Tenant then may assign or sublet,
as the case may be, provided Tenant has obtained the prior written consent of
Landlord, which may be given or withheld according to the standard set forth in
Section 8.1(a) above.
(c) Anything herein to the contrary notwithstanding, if Landlord shall
not elect to exercise the right set forth in the immediately preceding
paragraph, such election shall not under any circumstances be deemed a consent
to the proposed subletting or assignment of Tenant's interest in and to this
Lease and/or the Premises and it is expressly understood that any determination
by Landlord not to exercise such right shall not preclude Landlord from
withholding its consent to such proposed subletting or assignment.
(d) In the event of any assignment or sublet, then half (1/2) of any
purchase price, assignment fee, furniture or equipment purchase or rental
payment, incremental monthly rent or other payment due to Tenant, if any, net of
Tenant's reasonable third-party expenses in
21
connection with such assignment or sublet, as the result of any such assignment
or sublease which is in excess of the rent (or pro rata portion thereof) then
payable by Tenant under this Lease shall be paid by Tenant to Landlord as
additional rent as and when received by Tenant.
(e) Tenant shall be responsible for and agrees to pay any costs and
expenses, including (without limitation) reasonable legal fees, incurred by
Landlord in connection with any actual, proposed or purported assignment or
sublease, whether or not Landlord consents thereto.
SECTION 8.2 Transfers of Interests in Tenant
If Tenant is a partnership, a withdrawal or change, whether voluntary,
involuntary or by operation of law, of partners owning a controlling or majority
interest in Tenant shall be deemed a voluntary assignment of this Lease and
subject to the provisions of Section 8.1. If Tenant is a corporation, any
dissolution, merger, consolidation or other reorganization of Tenant, or the
sale or transfer (whether by way of one or more sales or transfers) of a
controlling interest of the capital stock of Tenant shall be deemed a voluntary
assignment of this Lease and subject to the provisions of Section 8.1. However,
the preceding sentence shall not apply to corporations the stock of which is
traded through a national or regional exchange or over-the-counter. It is
understood and agreed that a controlling interest for purposes of this Article
may be less than a majority interest.
ARTICLE 9
MAINTENANCE AND REPAIRS
-----------------------
SECTION 9.1 Maintenance and Repairs
Subject to Landlord's obligations, Tenant will keep and maintain the
Premises and all fixtures and equipment located therein in a clean, safe and
sanitary condition, will take good care thereof and make all required repairs
and replacements thereto (whether structural or non-structural, foreseen or
unforeseen), will suffer no waste or injury thereto, and will, at the expiration
or other termination of the Lease Term, surrender the Premises, broom clean, in
the same order and condition they were in on the Lease Commencement Date (unless
otherwise directed by Landlord), ordinary wear and tear and insured damage by
the elements excepted. Landlord shall provide and install all original tubes for
Building standard lighting fixtures within the Premises (standard lighting
fixtures include four foot fluorescent and two foot horseshoe fluorescent
fixtures consistent with existing lighting) and all replacement tubes for such
lighting as an Annual Operating Charge; all other bulbs, tubes, and lighting
fixtures for the Premises (including, without limitation, incandescent bulbs)
shall be provided and installed by Tenant at Tenant's cost and expense. Tenant
is responsible for providing its own janitorial service to the Premises at its
own expense in accordance with the standard set forth above, at least five (5)
days per week, on a schedule approved by Landlord.
22
SECTION 9.2 Landlord's Maintenance and Repairs
Subject to Section 9.3 below, Landlord shall (a) maintain and keep in
good order and repair the roof, foundation, exterior walls and other structural
elements of the Building, the building-standard restrooms, and the Building
heating, ventilating and air-conditioning, plumbing, electrical, elevator, life
safety and other base building systems, and shall make such repairs as become
necessary after obtaining actual knowledge of the need for such repairs, and (b)
make (i) repairs which are required as a result of latent defects present in the
Premises, (iii) repairs to the Premises covered by insurance carried by Landlord
and (iii) repairs reasonably required with respect to common areas of the
Building which Tenant is entitled to use hereunder.
SECTION 9.3 Damage Caused by Tenant
All injury, breakage and damage to the Premises and to any other part
of the Building caused by any act or omission of Tenant or any agent, employee,
subtenant, licensee, contractor, customer, client, family member, or invitee of
Tenant, shall be repaired by and at the sole expense of Tenant, except that
Landlord shall have the right, at its sole option, to make such repairs and to
charge Tenant for all costs and expenses incurred in connection therewith as
additional rent hereunder. The liability of Tenant for such costs and expenses
shall be reduced by the amount of any insurance proceeds received by Landlord on
account of such injury, breakage, or damage.
ARTICLE 10
ALTERATIONS
-----------
SECTION 10.1 As-Is Condition of Premises
The improvements, if any, to be made to the Premises by Landlord to
make the Premises ready for Tenant's use and occupancy or, in lieu thereof, the
allowance, if any, to be provided by Landlord toward such improvements to the
Premises to be performed by Tenant, shall be solely to the extent and subject to
the conditions set forth in Exhibit F (the "Work Agreement") attached to this
Lease. Except as so provided in Section 24.1 below and in the Work Agreement,
Tenant agrees to and shall lease the Premises in its "AS IS" condition as of the
date of this Lease, and it is understood and agreed that Landlord will not make
or pay for, and is under no obligation to make or pay for, any structural or
other alterations, decorations, additions, or improvements in or to the
Premises. Notwithstanding the foregoing, however, Landlord shall furnish one (1)
submeter (not read by the local utility provider, PEPCO) to monitor Tenant's
electrical usage. The cost to install such submeter shall be at Tenant's expense
as part of the Tenant Improvement Allowance.
SECTION 10.2 Tenant's Improvements
(a) Tenant's obligations with respect to the improvements necessary to
make the Premises ready for Tenant's use and occupancy shall be as set forth in
the Work Agreement.
23
Both as to such work, if any, by Tenant pursuant to the Work Agreement and as to
any Improvements (as hereinafter defined) thereafter, Tenant and Tenant's
contractors shall abide by Landlord's "Contractor Rules and Regulations"
attached hereto as Exhibit E and any reasonable modifications thereto by
Landlord.
(b) Except for the work, if any, to be performed by Tenant pursuant to
the Work Agreement (as to which the Work Agreement shall be controlling), Tenant
will not make or permit anyone to make any alterations, decorations, additions,
or improvements (hereinafter referred to collectively as "Improvements"),
structural or otherwise, in or to the Premises or the Building without the prior
written consent of Landlord; provided, however, that Tenant may make cosmetic
alterations, such as recarpeting and repairing, not costing more than Fifteen
Thousand Dollars ($15,000) for any individual cosmetic alterations (or series of
contemporaneous cosmetic alterations) without the necessity of obtaining
Landlord's consent. When granting its consent, Landlord may impose any
conditions it deems appropriate, including without limitation, the approval of
plans and specifications, approval of the contractor or other persons to perform
the work, and the obtaining of a performance bond in an amount specified by
Landlord and specified insurance. All Improvements permitted by Landlord must
conform to all rules and regulations established from time to time by the Board
of Fire Underwriters having jurisdiction or any similar body exercising similar
functions, and to all laws, statutes, ordinances, codes, rules, regulations, and
requirements of the Federal and/or District of Columbia governments.
(c) As a condition precedent to such written consent of Landlord,
Tenant agrees to obtain and deliver to Landlord written, unconditional waivers
of mechanic's and materialmen's liens against the Building and the Land from all
work, labor, and services to be performed and materials to be furnished in
connection with Improvements. It is further understood and agreed that any
Improvements, other than those made by Landlord directly, shall be conducted on
behalf of Tenant and not on behalf of Landlord, and that Tenant shall not be
deemed to be the agent of Landlord. It is further understood and agreed that in
the event Landlord shall give its written consent to the making of any
Improvements, such written consent shall not be deemed to be an agreement or
consent by Landlord to subject its interest in the Premises, or any leasehold or
other interest of Tenant in the Premises, the Building or the Land, to any
mechanic's or materialmen's liens which may be filed in connection therewith.
If, notwithstanding the foregoing, any mechanic's or materialmen's lien is filed
against the Premises, Tenant's interest therein, the Building, and/or the Land
for work claimed to have been done for, or materials claimed to have been
furnished to, the Premises or to Tenant, such lien shall be discharged by Tenant
within fifteen (15) days after notice, at Tenant's sole cost and expense, by the
payment thereof or by the filing of a bond. If Tenant shall fail to discharge
any such mechanic's or materialmen's lien, Landlord may, at its sole option,
discharge such lien and treat the cost thereof (including attorney's fees
incurred in connection therewith) as additional rent payable with the next fixed
monthly rent payment falling due. It is expressly agreed that such discharge by
Landlord shall not be deemed to waive or release the default of Tenant in not
discharging such lien.
24
SECTION 10.3 Indemnification for Improvements
Tenant shall defend, indemnify and hold Landlord harmless from and
against any and all expenses, suits, actions, proceedings, costs, losses, liens,
claims, liabilities, judgments, and damages based on or arising directly or
indirectly by reason of the making of any Improvements. If any Improvements are
made without the prior written consent of Landlord, Landlord shall have the
right to remove and correct such Improvements and restore the Premises and the
Building to their condition immediately prior thereto and Tenant shall be liable
for all expenses incurred by Landlord in connection therewith. All Improvements
to the Premises or the Building made by either party shall remain upon and be
surrendered with the Premises as part thereof at the end of the Lease Term
except that (a) if Tenant is not in default under this Lease, Tenant shall have
the right to remove, prior to the expiration of the Lease Term, all movable
furniture, furnishings and equipment installed in the Premises solely at the
expense of Tenant, and (b) Landlord shall have the right to require Tenant to
remove all Improvements and fixtures at the end of the Lease Term at the sole
cost of Tenant but only if such Improvement differs materially from typical
tenant improvements for office use and Landlord has stated in writing, at or
prior to the time Tenant requests the right to make such Improvement that such
item must be removed by Tenant at the expiration or early termination of the
Term. All damage and injury to the Premises or the Building caused by such
removal shall be repaired by Tenant, at Tenant's sole expense. If such property
of Tenant is not removed by Tenant prior to the expiration or termination of
this Lease, the same shall be deemed to have been abandoned by Tenant and to
have become the property of Landlord and shall be surrendered with the Premises
as a part thereof, which property may be retained by Landlord or disposed of at
Tenant's expense. Tenant's obligation to pay for any costs incurred by Landlord
for the disposal of such abandoned property shall survive the expiration or
earlier termination of this Lease.
ARTICLE 11
SIGNS
-----
No sign, advertisement, or notice shall be inscribed, painted, affixed,
or otherwise displayed by Tenant on any part of the exterior or the interior (if
visible from the exterior) of the Premises or the Building except on the
directories and the doors of offices and such other areas as are designated by
Landlord. All signage, advertisements or notices on the exterior or, if visible
from the exterior, the interior of the Premises or the Building must be only in
such place, number, size, color, and style as are approved by Landlord in its
sole and absolute discretion. Landlord acknowledges that Tenant may install a
sign at the ▇▇▇▇ ▇▇▇▇▇▇ entrance to the Permanent Premises and that, if Tenant
uses Building-standard signage in doing so, Landlord will not unreasonably
withhold, condition or delay its consent to such sign. However, in no event are
any free-standing sidewalk signs allowed. All of Tenant's signs that are
approved by Landlord shall be obtained by Tenant at its sole cost and expense
and installed by Landlord at Tenant's sole cost and expense. Tenant shall
reimburse Landlord for such amount upon written demand from Landlord. If any
sign, advertisement or notice that has not been approved by Landlord is
exhibited or installed by Tenant, Landlord shall have the right to remove the
same at Tenant's expense. Landlord shall have the right to prohibit any
advertisement of or by Tenant which in Landlord's reasonable opinion tends to
impair the reputation of the Building or its
25
desirability as a high-quality office building and, upon written notice from
Landlord, Tenant shall immediately refrain from and discontinue any such
advertisement. Landlord reserves the right to affix, install, and display signs,
advertisements, and notices on any part of the exterior or interior of the
Building except in the Premises.
ARTICLE 12
TENANT'S EQUIPMENT
------------------
SECTION 12.1 Electrical Capacity
Tenant will not install or operate in the Premises any electrically
operated equipment or machinery that operates on greater than 110 volt power or
anything other than normal office equipment, computers and appliances, without
first obtaining the prior written consent of Landlord, which consent may be
withheld in Landlord's reasonable discretion. Without limitation, Landlord may
condition such consent upon the payment by Tenant of the cost of any base
building upgrades or other Improvements, including additional wiring or
apparatus, that may be occasioned by the installation or operation of such
equipment or machinery.
SECTION 12.2 Other Infrastructure
Tenant shall not install any equipment of any type or nature that will
or may necessitate any changes, replacement or additions to, or in the use of,
the water system, heating system, plumbing system, air-conditioning system or
electrical system of the Premises or in the Building, without first obtaining
the prior written consent of Landlord, which consent may be withheld in
Landlord's reasonable discretion. Without limitation, Landlord may condition
such consent upon the payment by Tenant of the cost of any base building
upgrades or other Improvements that may be occasioned by the installation or
operation of such equipment or machinery. Any machines and mechanical equipment
belonging to Tenant which causes noise or vibrations that may be transmitted to
the structure of the Building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenant in the Building shall be installed
and maintained by Tenant, at Tenant's expense, on vibration eliminators or other
devices sufficient to reduce such noise and vibration to a level satisfactory to
Landlord.
ARTICLE 13
INSPECTIONS BY LANDLORD
Tenant shall permit Landlord or its agents or representatives to enter
the Premises, at any time and from time to time, without charge therefor to
Landlord and without diminution of the rent payable by Tenant, to examine,
inspect, and protect the Premises and the Building, to make such alterations
and/or repairs as in Landlord's sole judgment may be deemed necessary, or to
exhibit the same to prospective purchasers and mortgagees and, during the last
twelve (12) months of the Lease Term or at any time following the initiation of
any eviction proceeding, to exhibit the same to prospective tenants. In
connection with any such entry, Landlord shall endeavor to minimize the
disruption to Tenant's use of the Premises, but Landlord shall not be
26
required to perform any alterations or repairs or make any entry at a time other
than normal working hours unless Tenant has agreed to pay for the incremental
cost increase incurred for overtime work. Landlord shall give reasonable prior
notice to Tenant before making an entry pursuant to this Article, which notice
may be written or oral; provided, however, in situations reasonably determined
by Landlord to be emergencies, no such prior notice shall be required.
ARTICLE 14
INSURANCE
---------
SECTION 14.1 Insurance To be Carried
(a) Tenant covenants and agrees to procure at its expense on or before
the Lease Commencement Date and to keep in force during the Lease Term the
following insurance naming Tenant as insured party and Landlord and its
management agent for the Property (the "Agent") as additional insureds:
(i) a commercial general liability insurance policy or such
successor comparable form of coverage in the broadest form then available (a
"Liability Policy") written on an "occurrence basis" including, without
limitation, blanket contractual liability coverage, business interruption,
automobile, broad form property damage, independent contractor's coverage and
personal injury coverage, protecting Landlord, the Agent and Tenant against any
liability whatsoever occasioned by any occurrence on or about the Premises or
any appurtenances thereto;
(ii) a fire and other casualty policy (a "Fire Policy")
insuring the full replacement value of Tenant's leasehold improvements,
regardless of by whom installed, and all of the furniture, trade fixtures and
other personal property of Tenant located in the Premises against loss or damage
by fire, theft and such other risks or hazard; and
(iii) a policy of insurance against loss or damage to the
major components of the air-conditioning and heating system, flywheels, steam
pipes, steam turbines, steam engine, steam boilers, and other pressure vessels,
high pressure piping and machinery, if any, such as are installed by or on
behalf of Tenant in the Premises.
Such policies shall also insure against physical damage to the Premises arising
out of an accident covered thereunder; such policies are to be written by good
and solvent insurance companies licensed to do business in the District of
Columbia satisfactory to Landlord, shall have not less than a Best's A+ 10
rating and shall be in such limits and with such maximum deductibles as Landlord
may reasonably require. As of the date of this Lease, Landlord reasonably
requires limits of liability under: (x) the Liability Policy of not less than
$3,000,000 combined single limit per occurrence for bodily or personal injury
(including death) and property damage combined; (y) the Fire Policy equal to the
value of Tenant's leasehold improvements, furniture, trade fixtures and other
personal property with a deductible of no more than $1,000.00; and (z) machinery
insurance for full replacement cost of equipment with a deductible of no more
than $1,000.00. Tenant will furnish Landlord with such information as Landlord
may reasonably request from time to time as to the value of the items specified
in clause (y) above within thirty
27
(30) days after request therefor. Such insurance may be carried under a blanket
policy covering the Premises and other locations of Tenant, if any, provided
that each such policy shall in all respects comply with this Article and shall
specify (I) that the portion of the total coverage of such policy that is
allocated to the Premises is in the amounts required pursuant to this Section
and (II) any sublimits in such blanket policy and such policy shall also
specify, or Tenant shall furnish Landlord a written statement from the insurer
under such policy, that the protection afforded Tenant under any such blanket
policy shall be no less than that which would have been afforded under a
separate policy relating only to the Premises. Prior to the time insurance under
this Section is first required to be carried by Tenant, and thereafter at least
fifteen (15) days prior to the expiration date of any such policy, Tenant agrees
to deliver to Landlord a certificate evidencing such insurance and payment of
the premium therefor. Said certificate shall contain an endorsement that such
insurance may not be canceled or amended except upon thirty (30) days' prior
written notice to Landlord. Subject to all applicable notice and cure rights,
Tenant's failure to provide and keep in force the aforementioned insurance shall
be regarded as a material default hereunder entitling Landlord to exercise any
or all of the remedies provided in this Lease in the event of Tenant's default.
Notwithstanding anything to the contrary contained in this Lease, the carrying
of insurance by Tenant in compliance with this Section shall not modify, reduce,
limit or impair Tenant's obligations and liabilities under any and every
indemnity by Tenant to Landlord set forth in this Lease.
(b) Landlord shall carry, at its expense (which expense is includable
in Annual Operating Charges), all risk insurance (including coverage against
boiler related damages), comprehensive general commercial liability insurance
insuring Landlord against liability for injury to or death of a person or
persons and for damage to property occasioned by or arising out of the
maintenance, operation and/or management of the Property by Landlord, or its
equivalent, insuring the Building (exclusive of any component thereof which
Tenant is required to insure pursuant to the terms of this Lease). The all risk
insurance coverage shall be in an amount equal to one hundred percent (100%) of
the replacement cost of the Building, as such may increase from time to time,
not including footers or foundations. Landlord's liability policy shall have
limits that are not less than those required of Tenant under this Lease. All
said insurance policies shall be carried with companies licensed to do business
in the District of Columbia. Upon Tenant's request from time to time, duly
executed certificates of such insurance shall be delivered to Tenant.
SECTION 14.2 Indemnity
(a) To the extent Landlord's waiver of subrogation under Section 14.5
does not apply, Tenant shall indemnify and defend Landlord and save it harmless
from and against any and all claims, suits, actions, proceedings, liabilities,
damages, losses, costs or expenses, including attorneys' fees, arising (i) from
any act, omission, or negligence of Tenant or its officers, contractors,
licensees, agents, employees, guests, invitees, or visitors in or about the
Property, (ii) from Tenant's use or occupancy of the Premises or the business
conducted by Tenant therein, (iii) from any breach or default under this Lease
by Tenant, (iv) from, or relating to, the enforcement by Landlord of the
provisions of this Lease as against Tenant, or (v) from any accident, injury, or
damage, howsoever and by whomsoever caused, to any person or property, occurring
in or about the Premises. This provision shall not be construed to make Tenant
responsible for loss, damage,
28
liability or expense resulting from injuries (or death) to third parties to the
extent caused by the negligence of Landlord or its officers, contractors,
licensees, agents, employees, or invitees. The provisions of this Section shall
survive the expiration or termination of this Lease.
(b) To the extent Tenant's waiver of subrogation in Section 14.5 does
not apply, and to the extent Landlord's insurance covers the same, Landlord
shall indemnify and hold harmless Tenant from and against any and all
liabilities, damages, obligations, losses, costs and expenses (including
attorneys' fees) incurred or imposed upon Tenant (i) in connection with or based
upon any breach by Landlord of any of the covenants, representation or
warranties of Landlord contained in this Lease; (ii) arising out of any act or
omission of Landlord, Landlord's employees, agents, or representatives; or (iii)
as a result of any injury to or death of any person or persons or any damage to
property in any way arising out of or in connection with the condition, use or
occupancy of any of the Property outside the Premises. This provision shall not
be construed to make Landlord responsible for loss, damage, liability or expense
resulting from injuries (or death) to third parties or damage to property to the
extent caused by the negligence of Tenant or its officers, contractors,
licensees, agents, employees or invitees.
SECTION 14.3 Increases in Insurance Rates
Tenant shall not do or permit to be done any act or thing upon or about
the Premises or the Property which will (i) result in the assertion of any
defense by the insurer to any claim under, (ii) invalidate, or (iii) be in
conflict with, the policies covering the Property, and fixtures and property
therein, or which would increase the rate of fire insurance applicable to the
Property to an amount higher than it otherwise would be; and Tenant shall
neither do nor permit to be done any act or thing, upon or about the Property
which shall or might subject Landlord to any liability or responsibility for
injury to any person or persons or to property; but nothing in this Section
shall prevent Tenant's use of the Premises for the purposes stated in this
Lease. If, as a result of any act or omission by or on the part of Tenant or
violation of this Lease by Tenant, whether or not Landlord has consented to the
same, the rate of "All Risk" or other type of insurance maintained by Landlord
on the Property shall be increased to an amount higher than it otherwise would
be, Tenant shall reimburse Landlord for all increases of Landlord's insurance
premiums so caused; such reimbursement to be additional rent payable within
thirty (30) days after demand therefor by Landlord. In any action or proceeding
wherein Landlord and Tenant are parties, a schedule or "make-up" of rates for
the Property or Premises issued by the body making fire insurance rates or
established by the insurance carrier providing coverage for the Property or
Premises shall be presumptive evidence of the facts stated therein, including
the items and charges taken into consideration in fixing the "All Risk"
insurance rate then applicable to the Building or Premises.
SECTION 14.4 Notice of Accidents
Tenant shall give Landlord notice in case of fire or other damage or
personal injury resulting from casualty events in the Premises promptly after
Tenant is aware of such event.
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SECTION 14.5 Waiver of Subrogation
Notwithstanding anything to the contrary contained in this Lease,
Tenant agrees that it will, at its sole cost and expense, include in its
property insurance policies appropriate clauses pursuant to which the insurance
companies (a) waive all right of subrogation against Landlord, and any tenant of
space in the Building, with respect to losses payable under such policies, and
(b) agree that such policies shall not be invalidated should the insured waive
in writing prior to a loss any or all right of recovery against any party for
losses covered by such policies. Tenant shall furnish Landlord evidence
satisfactory to Landlord evidencing the inclusion of said clauses in Tenant's
property insurance policies. Landlord hereby waives any and all right of
recovery which it might otherwise have against Tenant, its servants, agents and
employees, for loss or damage occurring to the Building and fixtures,
appurtenances and equipment therein to the extent to the same is covered by
Landlord's insurance, notwithstanding that such loss or damage may result from
the negligence or fault of Tenant, its servants, employees or agents. Landlord
warrants, represents and agrees that its insurance policies shall not be
invalidated by the foregoing waiver. Tenant hereby waives any and all right of
recovery which it might otherwise have against Landlord, its agents, servants
and employees, and against every other tenant in the Building which shall have
executed a similar waiver in favor of Landlord and other tenants as set forth in
this Section, for loss or damage to Tenant's furniture, furnishings, fixtures
and other property removable by Tenant under the provisions hereof to the extent
that same is covered by Tenant's insurance as required by this Lease whether or
not such insurance is maintained, notwithstanding that such loss or damage may
result from the negligence or fault of Landlord, its servants, agents or
employees, or such other tenant or the servants, agents or employees thereof.
ARTICLE 15
SERVICES AND UTILITIES
----------------------
SECTION 15.1 Services and Utilities
(a) Landlord shall furnish to the Premises (through the existing
Building system), during normal hours of operation of the Building,
air-conditioning and heat (as separately submetered) during the seasons when
they are required, as and to the extent determined in Landlord's reasonable
judgment. Landlord shall also provide separately metered electricity to the
Premises and water, 24 hours per day, for standard office equipment, as and to
the extent determined by Landlord. Landlord is not providing any janitorial
services to the Premises. Tenant shall have access to the Building and the
Premises twenty-four (24) hours per day, every day of the year, subject to
exclusion during emergencies or repairs if, in Landlord's sole judgment, such
exclusion is necessary; provided, however, that access through the Building's
main lobby shall be subject to security procedures (e.g. the presentation of
identification) as may be adopted by Landlord or the International Bank for
Reconstruction and Development (a/k/a The World Bank) from time to time and that
elevator access outside normal business hours may be restricted by requiring the
use of electronic access cards or similar means. All electronic access cards,
keys, or their equivalents will be provided at Tenant's expense. Landlord shall
have the right to remove elevators from service as may be required for moving
freight or for servicing or maintaining the elevators and/or the Building;
provided, however, that except in emergencies
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or following a casualty, Landlord will also provide at least one elevator
subject to call; and, provided further, that elevators shall be used for access
to the Permanent Premises only for disabled persons, when the staircase
identified in the following sentence is under repair, or as may otherwise be
required by law. In lieu of greater elevator access to the Permanent Premises,
Tenant shall be afforded access 24 hours per day, every day, except in
emergencies or when Landlord is performing repairs thereon, via a staircase that
leads from the Permanent Premises to the ▇▇▇▇ ▇▇▇▇▇▇ street entrance to the
Building.
(b) The normal hours of operation of the Building will be 7:00 a.m. to
7:00 p.m. on Monday through Friday (except legal holidays) and 9:00 a.m. to noon
on Saturday (except legal holidays), subject, however, to the right of the
International Bank for Reconstruction and Development (a/k/a The World Bank) to
change the same to be any consecutive twelve (12) hour period Monday-Friday and
any consecutive three (3) hour period on Saturdays. There will be no normal
hours of operation of the Building on Sundays or legal holidays and Landlord
shall not be obligated to maintain or operate the Building at such times unless
special arrangements are made by Tenant. Such special arrangements shall
include, but are not limited to, the activation of the air-conditioning units as
well as an additional hourly charge to activate the cooling towers; such charge
includes components for Landlord's electric charges, chemical treatment costs,
labor and overhead, and the cost of water, but does not include any profit to
Landlord. Landlord will furnish all services and utilities required by this
Lease only during the normal hours of operation of the Building unless otherwise
specified herein.
(c) Tenant shall also be responsible for and agrees to pay the cost of
all above-standard or non-standard uses of the utilities and services provided
to the Premises. The parties acknowledge and agree that the Premises is
separately metered for all electrical usage, and that the Premises' HVAC service
is powered by electrical consumption measured on such separate meter. Except (i)
for the electrical costs associated with the provision of HVAC service to the
Premises (which costs Tenant agrees to pay to Landlord promptly when billed), or
(ii) to the extent such charges are permitted to be included in the sums
constituting Annual Operating Charges, Landlord shall not charge Tenant for the
electrical portion of HVAC service to the Premises.
(d) Tenant shall pay Landlord as additional rent for all electrical
usage in the Premises as measured by the submeter installed therein. If such
submeter covers an area (e.g., the Permanent Premises) that is larger than the
area to which this Lease then applies (e.g., if possession of the Phase II
Premises has not yet been delivered to Tenant), then electrical usage for the
area covered by the submeter shall be equitably apportioned based on relative
square footage (unless usage differs widely so that such an apportionment would
itself be inequitable, in which event Landlord may make an allocation based upon
its own reasonable judgment of what would be equitable under the circumstances).
Prior to the installation of such submeter and the levying of additional rent
for the use of electricity under the preceding sentences, Tenant shall pay
Landlord, as additional rent for electric usage during normal hours of Building
operation and at a building-standard level, Seventeen Cents ($0.17) per year per
rentable square foot in any part of the Premises for which fixed monthly rent is
not then abated under Section 3.1 above, such rent to be payable in equal
monthly installments in advance on the Lease Commencement Date and thereafter on
the first day of each calendar month until the submeter is operational (with a
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per diem refund if the submeter becomes operational on a day other than the
first day of a calendar month); there shall be no charge for electrical usage
under this sentence for any part of the Premises for which fixed monthly rent is
abated under Section 3.1 above.
(e) Tenant shall provide, at its own cost and expense, janitorial
services in the Premises in compliance with the cleaning specifications attached
hereto as Exhibit D.
SECTION 15.2 Interruption of Services and Utilities
Unless resulting from the willful misconduct or gross negligence of
Landlord, it is understood and agreed that Landlord shall not have any liability
whatsoever to Tenant as a result of Landlord's failure or inability to furnish
any of the utilities or services required to be furnished by Landlord hereunder,
whether resulting from breakdown, removal from service for maintenance or
repairs, strikes, scarcity of labor or materials, acts of God, governmental
requirements or from any other cause whatsoever. In the event that Landlord
fails to provide services to Tenant or to make and complete any repair as
required by this Lease for a continuous period in excess of five (5) business
days after Landlord learns of such failure in the case of failures arising from
matters within Landlord's reasonable control, or in excess of ten (10) business
days after Landlord learns of such failure with respect to failures not arising
from matters within Landlord's reasonable control, and such failure materially
interferes with Tenant's use and enjoyment of all or a portion of the Premises
such that the same becomes untenantable and is, in fact, not utilized by the
Tenant, then, and in such event, Landlord shall provide Tenant a credit against
the fixed annual rent and additional rent under Article 4 next owing, in an
amount equal to the fixed annual rent and additional rent under Article 4 due
under the Lease (with the amount of such rent being prorated in the event such
failure does not affect Tenant's ability to use the entire Premises) from and
after the expiration of such five (5) or ten (10) business day period, as the
case may be, and until such time as the affected Premises becomes tenantable or
Tenant resumes utilization of the affected Premises, whichever is earlier.
Notwithstanding anything contained herein to the contrary, no abatement shall be
allowed (i) if the event which would otherwise give rise to abatement arises
from an act or omission of Tenant, its assignees or subtenants or any of their
respective contractors, agents, employees or invitees, or (ii) with respect to a
de minimis portion of the Premises (i.e., 100 rentable sq. ft. or less) or with
respect to areas not actively utilized by Tenant in the conduct of its business
(i.e., janitorial closets and similar spaces). In no event shall Landlord be
liable for incidental or consequential damages.
SECTION 15.3 Conservation Controls
The parties hereto agree to comply with all mandatory and voluntary
energy, water, or other conservation controls or requirements applicable to
office buildings required by the Federal or District of Columbia governments or
any public utility or insurance carrier including, without limitation, controls
on the permitted range of temperature settings in office buildings or
requirements necessitating curtailment of the volume of energy consumption or
the hours of operation of the Building. Any terms or conditions of this Lease
that conflict or interfere with compliance by Landlord with such controls or
requirements shall be suspended for the duration of such controls or
requirements. It is further agreed that compliance with such controls or
requirements shall not be considered an eviction, actual or constructive, of
Tenant from the
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Premises and shall not entitle Tenant to terminate this Lease or to an abatement
or reduction of any rent payable hereunder.
ARTICLE 16
LIABILITY OF LANDLORD
---------------------
SECTION 16.1 No Liability of Landlord
Except as provided in Section 15.2 above, Landlord shall not be liable
to Tenant, its employees, agents, business invitees, licensees, customers,
clients, family members or guests for any damage, injury (including death),
loss, compensation, or claim, including, but not limited to, claims for the
interruption or loss of Tenant's business, based on, arising out of, or
resulting from any cause whatsoever, including, but not limited to, the
following: repairs to any portion of the Premises or the Building; the
negligence of Landlord or any of its servants, agents, contractors or employees;
interruption in the use of the Premises; any accident or damage resulting from
the use or operation (by Landlord, Tenant, or any other person or persons) of
elevators, or of the heating, air-conditioning, electrical, or plumbing
equipment or apparatus; the termination of this Lease by reason of the
destruction of the Premises; any fire, explosion, falling plaster, steam, gas,
robbery, theft, mysterious disappearance, and/or any other casualty; the actions
of any other tenants of the Building or of any other person or persons; any
failure or inability to furnish any of the utilities or services required to be
furnished by Landlord hereunder; any leakage in any part or portion of the
Premises or the Building, or from water, rain or snow that may leak into, or
flow from, any part of the Premises or the Building, or from drains, pipes,
appliances or plumbing work in the Building or from the roof, street or
subsurface or resulting from dampness or from any other cause of whatsoever
nature. Except as provided in Section 15.2 above, the occurrence of any of the
foregoing items described in this Section shall not entitle Tenant to an
abatement, set-off, counterclaim against, or reduction of, any rent payable
hereunder. Any goods, property, or personal effects stored or placed by Tenant
or its employees in or about the Premises or Building shall be at the sole risk
of Tenant, and Landlord shall not in any manner be held responsible therefor. It
is understood that the employees of Landlord are prohibited from receiving any
packages or other articles delivered to the Building for Tenant, and if any such
employee receives any such package or articles, such employee shall be acting as
the agent of Tenant for such purposes and not as the employee or agent of
Landlord. In no event shall Tenant make any claim against Landlord for
consequential, indirect or special damages. Notwithstanding the foregoing
provisions of this Section, Landlord shall not be released from liability to
Tenant for any damage or injury caused by the willful misconduct of Landlord or
its employees.
SECTION 16.2 Transfer by Landlord
In the event that at any time Landlord shall sell or transfer the
Building, the transferor Landlord shall not be liable to Tenant for any
obligations or liabilities based on or arising out of events or conditions
occurring on or after the date of such sale or transfer.
SECTION 16.3 Disputed Payments
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In the event that at any time during the Lease Term Tenant shall have a
claim against Landlord, Tenant shall not have the right to deduct the amount
allegedly owed to Tenant from any rent payable to Landlord hereunder, it being
understood that Tenant's sole method for recovering upon such claim shall be to
institute an independent action against Landlord.
SECTION 16.4 Extent of Landlord's Liability
Notwithstanding any other provision of this Lease whatsoever, no
recourse shall be had on any of Landlord's obligations hereunder or for any
claim based thereon or otherwise in respect thereof against any incorporator,
subscriber to the capital stock, shareholder, officer or director, past, present
or future, of any corporation, or any partner or joint venturer of any
partnership or joint venture, or any member or manager of any limited liability
company, which shall be Landlord hereunder or included in the term "Landlord" or
of any successor of any such corporation, limited liability company, partnership
or joint venture, or against any principal, disclosed or undisclosed, or any
affiliate of any party which shall be Landlord or included in the term
"Landlord", whether directly or through Landlord or through any receiver,
assignee, trustee in bankruptcy or through any other person, firm or
corporation, whether by virtue of any constitution, statute or rule of law or by
enforcement of any assessment or penalty or otherwise, all such liability being
expressly waived and released by Tenant. Tenant shall look solely to Landlord's
estate and interest in the Property and all rent or other proceeds relating
thereto, or the lease of the Building or of the Property, and the Premises for
the satisfaction of any right or remedy of Tenant for the collection of a
judgment or other judicial process or arbitration award requiring the payment of
money by Landlord. No other property or assets of Landlord, Landlord's agents,
incorporators, shareholders, officers, directors, partners, members, managers,
principals (disclosed or undisclosed) or affiliates shall be subject to levy,
lien, execution, attachment, or other enforcement procedure for the satisfaction
of Tenant's rights and remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or under law, or Tenant's use and
occupancy of the Premises, or any other liability of Landlord to Tenant.
ARTICLE 17
RULES AND REGULATIONS
---------------------
Tenant and its agents, employees, invitees, licensees, customers,
clients, family members, guests and subtenants shall at all times abide by and
observe the rules and regulations promulgated by Landlord and attached hereto as
Exhibit C. In addition, Tenant and its agents, employees, invitees, licensees,
customers, clients, family members, guests and subtenants shall abide by and
observe all other rules or regulations that Landlord may reasonably promulgate
from time to time for the operation and maintenance of the Building, provided
that notice thereof is given to Tenant, that such rules and regulations are not
inconsistent with provisions of this Lease, and that such additional rules and
regulations are not enforced in a discriminatory manner against Tenant. Nothing
contained in this Lease shall be construed as imposing upon Landlord any duty or
obligation to enforce such rules and regulations or the terms, conditions, or
covenants contained in any other lease as against any other tenant, and Landlord
shall not be liable to Tenant for the violation of such rules or regulations or
lease by any other tenant or its
34
employees, agents, business invitees, licensees, customers, clients, family
members, guests or subtenants.
ARTICLE 18
DAMAGE OR DESTRUCTION
---------------------
SECTION 18.1 Casualty
If during the Lease Term the Premises or the Building are totally or
partially damaged or destroyed by a casualty, thereby rendering the Premises
totally or partially inaccessible or unusable, Landlord shall diligently (taking
into account the time necessary to effectuate a satisfactory settlement with any
insurance company involved) restore and repair the Premises and the Building to
substantially the same condition they were in prior to such damage; provided,
however, if Landlord reasonably believes that the repairs and restoration cannot
be completed despite reasonable efforts within ninety (90) days after the
occurrence of such damage, Landlord shall promptly notify Tenant of the
estimated repair time and either Landlord or Tenant shall have the right, at its
sole option, to terminate this Lease by giving written notice of termination to
the other within forty-five (45) days after the occurrence of such damage. If
this Lease is terminated pursuant to the preceding sentence, all rent payable
hereunder shall be apportioned and paid to the date of the occurrence of such
damage. Until the repair and restoration of the Premises is completed Tenant
shall be required to pay rent only for that part of the Premises that Tenant is
able to use while repairs are being made, based on the ratio that the amount of
usable rentable area bears to the total rentable area in the Premises; provided
that if the damages result from the negligence or willful misconduct of Tenant
or its employees or contractors, Landlord shall only allow Tenant a proportional
abatement of rent to the extent Landlord is reimbursed from the proceeds of
rental interruption insurance purchased by Landlord. Landlord shall bear the
costs and expenses of repairing and restoring the Premises, except that if such
damage or destruction was caused by the act or omission of Tenant or any of its
employees, agents, licensees, subtenants, customers, clients, family members, or
guests, upon written demand from Landlord Tenant shall pay to Landlord the
amount by which such costs and expenses exceed the insurance proceeds, if any,
received by Landlord on account of such damage or destruction. Nothing in this
Lease shall be construed as requiring Landlord to spend more than the net
proceeds of any insurance available to it for any restoration, repair or
rebuilding. If Landlord fails to timely substantially complete such repair and
restoration within the longer of ninety (90) days or thirty (30) days after the
expiration of the repair time estimated by Landlord (notice to which was
provided to Tenant within thirty (30) days after the casualty), then Tenant
shall have the option, upon written notice to Landlord given before the first to
occur of such substantial completion or fourteen (14) days after the expiration
of the aforesaid period, to elect to terminate this Lease; Tenant's failure to
timely exercise such termination right shall be a conclusive waiver of such
right. Notwithstanding anything contained in this Section to the contrary, if
Tenant is deprived of the use of all or any portion of the Premises by reason of
such damage or destruction and such damage or destruction occurs during the last
twelve (12) months of the Lease Term (giving due consideration to any extension
thereof), and if, in Landlord's reasonable judgment, the time needed for such
repair and restoration is sixty (60) days or more, then either party shall have
the right to terminate this Lease, effective as of the date of such damage or
destruction, by
35
giving written notice of such election to the other party within sixty (60) days
after the occurrence of such damage or destruction and, if such notice of
termination is given, Landlord shall not be obligated to repair the damage and
restore the Property.
SECTION 18.2 Limitations on Landlord's Obligations
Notwithstanding anything in Section 18.1 or any other part of this
Lease, if Landlord is obligated to repair and restore the Premises as provided
in Section 18.1, Landlord shall not be required to repair or restore any
decorations, alterations, or improvements to the Premises (regardless of by whom
made) or any trade fixtures, furnishings, equipment, or personal property
belonging to Tenant. It shall be Tenant's sole responsibility to repair and
restore all such items.
SECTION 18.3 Right to Terminate
Notwithstanding anything to the contrary contained herein, if there is
a destruction of the Building that exceeds twenty-five percent (25%) of the
replacement value of the Building from any risk, whether or not the Premises are
damaged or destroyed, Landlord shall have the right to terminate this Lease by
written notice to Tenant.
ARTICLE 19
CONDEMNATION
------------
SECTION 19.1 Termination for Condemnation
If the whole or a substantial part (as hereinafter defined) of the
Premises and/or the Building or the use or occupancy of the Premises shall be
taken or condemned by any governmental or quasi-governmental authority for any
public or quasi-public use or purpose (including a sale thereof under threat of
such taking), then this Lease shall terminate on the date title thereto vests in
such governmental or quasi-governmental authority, and all rent payable
hereunder shall be apportioned as of such date. If less than a substantial part
of the Premises (or the use and occupancy thereof) is taken or condemned by any
governmental or quasi-governmental authority for any public or quasi public use
or purpose (including a sale thereof under threat of such a taking), this Lease
shall continue in full force and effect, but the rent thereafter payable
hereunder shall be equitably adjusted (on the basis of the ratio of the number
of square feet of rentable area taken to the total rentable area in the Premises
prior to such taking) as of the date title vests in the governmental or
quasi-governmental authority. For purposes of this Section, a substantial part
of the Premises or the Building shall be considered to have been taken if more
than twenty-five percent (25%) of the Premises or Building is rendered unusable
as a result of such taking.
SECTION 19.2 Award
All awards, damages, and other compensation paid by the condemning
authority on account of the taking or condemnation (or sale under threat of such
a taking) shall belong to Landlord, and Tenant hereby assigns to Landlord all
rights to such awards, damages and
36
compensation. Tenant agrees not to make any claim against Landlord or the
condemning authority for any portion of such award or compensation
attributable to damages to the Premises, the value of the unexpired term of
this Lease, the loss of profits or goodwill, leasehold improvements or
severance damages. Nothing contained herein, however, shall prevent Tenant
from pursuing a separate claim against the condemning authority for the value
of furnishings, equipment and trade fixtures installed in the Premises at
Tenant's expense and for relocation expenses, provided that such claim shall
in no way diminish the award or compensation payable to or recoverable by
Landlord in connection with such taking or condemnation.
ARTICLE 20
DEFAULT
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SECTION 20.1 Defaults by Tenant
The occurrence of any of the following shall constitute a default by
Tenant under this Lease:
(a) If Tenant fails to make any payment of fixed annual rent or other
rent (i) for which a due date is specified in this Lease up to two (2) times in
any calendar year within five (5) days after notice is given that such rent is
overdue and thereafter during that calendar year within five (5) days after the
date due (without notice) or, (ii) if no due date is specified in this Lease for
such payment, within ten (10) days after notice is given.
(b) If Tenant violates or fails to perform any obligation set forth in
Article 8, Section 10.2, Section 21.1, Section 24.2 or Section 24.5 of this
Lease beyond the expiration of any performance, notice or cure period set forth
therein.
(c) If Tenant violates or fails to perform any other term, condition,
covenant or agreement to be performed or observed by Tenant under this Lease
(other than as specified in this Section), and such violation or failure shall
continue for ten (10) days after written notice from Landlord to Tenant of such
violation or failure, however, if Tenant promptly commences to cure such
violation or failure and diligently prosecutes such cure, and if such violation
or failure is not reasonably curable in ten (10) days, Tenant shall have a
reasonable additional period, not to exceed an aggregate of twenty (20) days to
effect such cure, provided that Tenant must commence its cure within the
original ten (10) day period and thereafter diligently prosecute the cure to
completion.
(d) If Tenant or any guarantor (i) is voluntarily adjudicated a
bankrupt or insolvent, (ii) seeks or consents to the appointment of a receiver
or trustee for itself or for all or a part of its property, (iii) files a
petition seeking relief under the bankruptcy or similar laws of the United
States or any state or any other jurisdiction, (iv) makes a general assignment
for the benefit of creditors, or (v) admits in writing its inability to pay its
debts as they mature.
(e) If a petition is filed against Tenant or any guarantor seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any
37
present or future federal or state law or other statute, law, or regulation and
shall remain undismissed or unstayed for sixty (60) days, or if any trustee,
receiver or liquidator of Tenant or any guarantor, or of all or any substantial
part of its properties, shall be appointed without the consent or acquiescence
of Tenant or any guarantor and such appointment shall remain unvacated or
unstayed for sixty (60) days.
(f) If any attachment or execution of any type is issued against Tenant
or any guarantor, or Tenant's property located on the Premises, or Tenant's
rights or interest in the Lease, or guarantor's or Tenant's assets of any type
or nature whatsoever, including but not limited to federal, state, or municipal
tax liens, and such is not dismissed or released within ten (10) days
thereafter.
SECTION 20.2 Landlord's Rights
If Tenant shall be in default under this Lease, Landlord shall have the
right, at its sole option, to terminate this Lease. With or without terminating
this Lease, Landlord may re-enter and take possession of the Premises and the
provisions of this Article shall operate as a notice to quit, any other notice
to quit or notice of Landlord's intention to re-enter the Premises is hereby
expressly waived. If necessary, Landlord may proceed to recover possession of
the Premises under and by virtue of the laws of the District of Columbia, or by
such other proceedings, including re-entry and possession, as may be applicable.
If Landlord elects to terminate this Lease, everything contained in this Lease
on the part of the Landlord to be done and performed shall cease without
prejudice, subject, however, to the right of Landlord to recover from Tenant all
rent accrued up to the time of termination or recovery of possession by
Landlord, whichever is later. Whether or not this Lease is terminated by reason
of Tenant's default, the Premises may be relet by Landlord for such rent and
upon such terms as Landlord deems reasonable under the circumstances and, if the
full rent provided herein plus the costs, expenses, and damages described below
shall not be realized by Landlord, Tenant shall be liable for all damages
sustained by Landlord, including, without limitation, deficiency in fixed and
additional rent, reasonable attorneys' fees, brokerage fees, and the expenses of
placing the Premises in first-class rentable condition. Any damages or loss of
rent sustained by Landlord may be recovered by Landlord, at Landlord's option,
at the time of the reletting or in separate actions, from time to time, as said
damage shall have been made more easily ascertainable by successive relettings,
or, at Landlord's option, may be deferred until the expiration of the Lease
Term, in which event Tenant hereby agrees that the cause of action shall not be
deemed to have accrued until the date of expiration of the Lease Term. The
provisions contained in this Section shall be in addition to, and shall not
prevent the enforcement of, any claim Landlord may have against Tenant for
anticipatory breach of this Lease.
SECTION 20.3 Liquidated Damages
If Landlord recovers possession of the premises or terminates this
Lease pursuant to Section 20.2, Landlord shall forthwith upon such termination,
any other provisions of this Lease to the contrary notwithstanding, become
entitled to recover from Tenant as and for liquidated damages for Tenant's
default hereunder, the difference, discounted to present value by applying a
discount rate equal to eight percent (8%), between (a) the annual fixed rent
reserved hereunder
38
for what, but for such termination, would have been the unexpired portion of the
Lease Term, and (b) the cash rental value of the Premises for such unexpired
portion of the Lease Term (unless the statute that governs or shall govern the
proceedings in which such damages are to be proved limits the amount of such
claim capable of being so proved, in which case Landlord shall be entitled to
prove as and for liquidated damages an amount equal to that allowed by or under
any such statute). In calculating such liquidated damages, the then cash rental
value of the Premises shall be deemed prima facie to be the actual rent received
by Landlord for the Premises or, if not received, the estimated cash rental
value of the Premises upon any reletting, as determined by a broker or an
appraiser selected by Landlord and approved by Tenant, such approval not to be
unreasonably withheld, conditioned or delayed; if Tenant fails to object to a
proposed broker or nominee and give the reason for its objection within ten (10)
days after Landlord gives notice of a proposed broker or nominee, Tenant's
consent shall be deemed given. Tenant shall not be entitled to receive any
excess of any such rents collected from a third party over the rent reserved
herein. The provisions of this Section shall be without prejudice to Landlord's
right to prove and collect, in full, damages for all rent accrued prior to the
termination of this Lease but not paid. In the event of a default by Tenant
hereunder, if Landlord does not seek or obtain recovery in the nature of
liquidated damages pursuant to this Section 20.3, Landlord will act in such a
manner intended to reasonably mitigate the damages caused by Tenant's default.
In any judicial proceeding, the burden of proof shall be on Tenant to show by
clear and convincing evidence that Landlord failed to reasonably attempt to
mitigate its damages.
SECTION 20.4 Landlord's Rights Cumulative
All rights and remedies of Landlord set forth herein are in addition to
all other rights and remedies available to Landlord at law or in equity. All
rights and remedies available to Landlord hereunder or at law or in equity are
expressly declared to be cumulative. The exercise by Landlord of any such right
or remedy shall not prevent the concurrent or subsequent exercise of any other
right or remedy.
SECTION 20.5 No Waiver By Landlord
No delay in the enforcement or exercise of any right or remedy shall
constitute a waiver of any default by Tenant hereunder or of any of Landlord's
rights or remedies in connection therewith. Landlord shall not be deemed to have
waived any default by Tenant hereunder unless such waiver is set forth in a
written instrument signed by Landlord. If Landlord waives in writing any default
by Tenant, such waiver shall not be construed as a waiver of any covenant,
condition, or agreement set forth in this Lease except as to the specific
circumstances described in such written waiver. If Landlord institutes
proceedings against Tenant and a compromise or settlement thereof is made, the
same shall not constitute a waiver of the same or any other covenant, condition,
or agreement set forth herein or of any of Landlord's rights hereunder. Neither
the payment by Tenant of a lesser amount than the rent due hereunder nor any
endorsement or statement on any check or letter accompanying a check for payment
of rent shall be deemed an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance of
such rent or to pursue any other remedy available to Landlord. No reentry by
Landlord, and no acceptance by Landlord of keys from Tenant, shall be considered
an acceptance of a surrender of this Lease.
39
SECTION 20.6 Landlord's Right to Cure
If Tenant defaults in the making of any payment or in the doing of any
act herein required to be made or done by Tenant, then Landlord may, but shall
not be required to, make such payment or do such act. If Landlord elects to make
such payment or do such act, all costs and expenses incurred by Landlord, plus
interest thereon at the rate of eighteen percent (18%) per annum from the date
paid by Landlord to the date of payment thereof by Tenant, shall be immediately
paid by Tenant to Landlord upon demand; provided, however, that nothing
contained herein shall be construed as permitting Landlord to charge or receive
interest in excess of the maximum legal rate then allowed by law. The making of
any payment or the taking of such action by Landlord shall not be considered as
a cure of such default by Tenant or prevent Landlord from pursuing any remedy it
is otherwise entitled to pursue in connection with such default.
SECTION 20.7 Default by Landlord
(a) In the event Landlord shall default in the payment, when due, of
any monetary obligations to be paid by Landlord hereunder (including any
interest or Tenant Improvement Allowance [as defined in Exhibit F] due
hereunder), and Landlord has acknowledged the existence of its obligation to
make the payment and the actual amount due, and Landlord fails to cure said
default within fifteen (15) days after written notice thereof from Tenant, or if
Tenant has obtained a final, nonappealable judgment against Landlord for a
liquidated sum and Landlord fails to pay such amount within fifteen (15) days
after written notice thereof from Tenant, Tenant shall be entitled to offset the
amount owed by Landlord (including any interest due hereunder) against rent next
accruing hereunder. If Landlord shall default in performing any of the
covenants, terms or provisions of this Lease (other than the payment, when due,
of any of Landlord's monetary obligations hereunder to which the preceding
sentence applies), and fails to cure such default within fifteen (15) days after
written notice thereof from Tenant (or such longer period as may be reasonably
necessary to cure such default if such default is not reasonably susceptible to
being cured within such fifteen (15) day period and Landlord commences its
efforts promptly to cure the same and thereafter diligently, continuously and in
good faith pursues the curing of the same to completion as soon as possible and
in any event within forty-five (45) days), then, and in any of said events,
Tenant shall be entitled to exercise any other right or remedy available to
Tenant under law or equity, except for self-help or set-off. The remedies set
forth above are in addition to and cumulative with Tenant's rental abatement
rights set forth elsewhere in the Lease. Such rental abatement rights are
independent of any rights or remedies set forth above.
(b) No waiver of any provision of this Lease shall be implied by any
failure of Tenant to enforce any remedy on account of the violation of such
provision, even if such violation shall continue or be repeated subsequently,
any waiver by Tenant of any provision of this Lease may only be in writing, and
no express waiver shall affect any provision other than the one specified in
such waiver and that one only for the time and in the manner specifically
stated.
(c) In addition to and not in lieu of any cure rights given to Landlord
herein in the event that Landlord defaults under this Lease, each and every
mortgagee and ground lessor
40
having an interest in the Property shall have the right (but not the obligation)
to cure any such defaults on the part of Landlord hereunder in accordance with
and subject to the terms of any separate subordination, nondisturbance and
attornment between it and Tenant or, in the absence of such a separate
agreement, the following terms and conditions:
(i) The rights granted hereunder to a mortgagee or a ground
lessor shall be given to any mortgagee or ground lessor of which Tenant has
written notice prior to the occurrence of such default in accordance with the
notice provisions specified herein. Such notice shall specify the name and
address for such notice purposes of the mortgagee or ground lessor in question,
and the instrument or document from which the interest of the mortgagee or
ground lessor derives.
(ii) Tenant shall deliver to all such mortgagee or ground
lessors a copy of any notice of default or demand to perform on the part of
Landlord hereunder at the time such notice or demand is delivered to Landlord,
and no such notice shall be effective as to the mortgagee or ground lessor
unless and until it has been so delivered to such mortgagee or ground lessor;
(iii) The mortgagee or ground lessor in question shall have
the same amount of time from the date of default that Landlord has (without
duplication) to cure any default on the party of Landlord under this Lease; and
(iv) Tenant shall accept a cure of the mortgagee or the ground
lessor in question within any applicable cure period as if such cure were the
cure of Landlord.
SECTION 20.8 Attorney's Fees
If, as the result of any alleged breach or default in the performance
of the other party's obligations under this Lease, either party uses the service
of an attorney in order to secure compliance with such provisions or to recover
damages therefor or possession of the Premises, or if either party is made a
party to an action as a result of any alleged act or failure to act of the other
party, then the prevailing party in any suit, action, proceeding, arbitration,
mediation or other dispute resolution mechanism shall be entitled to be paid the
reasonable attorneys' fees and costs incurred by it as a result of the foregoing
circumstances.
ARTICLE 21
SUBORDINATION AND ATTORNMENT
----------------------------
SECTION 21.1 Subordination
(a) This Lease and Tenant's interest hereunder is and shall remain
subject and subordinate to the lien of any and all current and future mortgages
and/or any ground leases (which term "mortgages" shall include both construction
and permanent financing and shall include deeds of trust, similar security
instruments, and ground leases) which may now or hereafter encumber the Building
and/or the Land, or any part thereof, and to all and any renewals, extensions,
modifications, recastings, or refinancings thereof, if the holder or beneficiary
thereof enters into a subordination, nondisturbance and attornment agreement on
41
terms reasonably acceptable to Tenant. Without limiting such holder's or
beneficiary's rights to request other terms or use a different form, Tenant
hereby agrees that the terms in the form attached hereto as Exhibit H are
reasonably acceptable to it. At any time after the execution of this Lease, the
holder of any mortgage to which this Lease is subordinate shall have the right
to declare this Lease to be superior to the lien of such mortgage and Tenant
agrees to execute all documents required by such holder in confirmation thereof.
(b) Landlord hereby subordinates its statutory lien rights, if any, as
landlord, in the personal property of Tenant located at the Premises to any bona
fide third party lender making financing available to Tenant and agrees to
execute an instrument reasonably acceptable to it confirming such subordination
upon the request of Tenant in connection with any such financing.
SECTION 21.2 Attornment
Tenant agrees that in the event any proceedings are brought for the
foreclosure of any mortgage encumbering the Building, the Land, or any part
thereof, or the termination of any ground lease affecting the Building, the
Land, or any part thereof, Tenant shall attorn to the purchaser at such
foreclosure sale or any ground lessor, as the case may be, if requested to do so
by such party, and shall recognize such party as Landlord under this Lease, and
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 any such foreclosure proceeding is prosecuted or completed.
ARTICLE 22
DELIVERY AT END OF LEASE TERM
-----------------------------
SECTION 22.1 Surrender of Premises
On the date of the expiration or termination of the Lease Term, Tenant
shall quit and surrender the Premises broom clean and in good condition and
repair (ordinary wear and tear and insured damage by fire or other casualty
excepted), together with all Improvements which may have been made in or
attached to the Premises, unless otherwise directed by Landlord pursuant to
Section 10.3 hereof.
SECTION 22.2 Holding Over
In the event that Tenant or any party claiming under Tenant shall not
immediately surrender the Premises on the date of the expiration or termination
of the Lease Term, Tenant shall become a tenant by the month at one hundred
fifty percent (150%) of the fixed monthly rent in effect during the last month
of the Lease Term, plus one hundred percent (100%) of all additional rent in
effect during the last month of the Lease Term (subject to increases thereafter
as determined by Landlord in accordance with the provisions of this Lease). Said
monthly tenancy shall commence on the first day following the expiration of the
Lease Term. As a monthly tenant, Tenant shall be subject to all the terms,
conditions, covenants, and agreements of this Lease, except as to the amount of
the monthly rent, which shall be in the amount specified in
42
this Section. As a monthly tenant, Tenant shall give to Landlord at least thirty
(30) days' written notice of any intention to quit the Premises, and Tenant
shall be entitled to thirty (30) days' written notice to quit the Premises,
unless Tenant is in default hereunder, in which event Tenant shall not be
entitled to any notice to quit, the usual thirty (30) days' notice to quit being
hereby expressly waived. Notwithstanding the foregoing provisions of this
Section, in the event Tenant shall hold over after the expiration of the Lease
Term and if Landlord shall desire to regain possession of the Premises promptly
at the expiration of the Lease Term, then at any time prior to Landlord's
acceptance of rent from Tenant as a monthly tenant hereunder Landlord, at its
option, may forthwith re-enter and take possession of the Premises by any legal
process in force in the District of Columbia. Landlord may accept rent in the
holdover amount and concurrently commence legal proceedings to regain possession
of the Premises. Tenant shall also pay to Landlord all damages sustained by
Landlord resulting from retention of possession by Tenant, including the loss of
any proposed subsequent tenant for all or any portion of the Premises. Force
majeure is not an excuse to holding over.
ARTICLE 23
COVENANTS OF LANDLORD AND RESERVATION OF RIGHTS
-----------------------------------------------
SECTION 23.1 Covenants of Landlord
Landlord covenants that it has the right to make this Lease for the
Lease Term and that if Tenant shall pay all rent when due and punctually perform
all of the covenants, terms, conditions, and agreements of this Lease to be
performed by Tenant, Tenant shall have the right, during the Lease Term, to
freely, peaceably, and quietly occupy and enjoy the full possession of the
Premises without molestation or hindrance by Landlord or any party claiming
through or under Landlord, subject to the provisions of this Lease.
SECTION 23.2 Landlord's Reservation of Rights
Landlord hereby reserves to itself and its successors and assigns the
following rights (all of which are hereby consented to by Tenant): (a) to change
the street address and/or name of the Building (provided, however, that Landlord
agrees to reimburse Tenant for is reasonable costs in printing change-of-address
notices and for replacing obsolete stationary, brochures or other similar
printed materials if such change is at Landlord's initiative and not the
initiative of the U.S. Postal Service or any other governmental authority),
and/or the arrangement and/or location of entrances, passageways, doors,
doorways, corridors, elevators, stairs, toilets, or other public parts of the
Building and to change the design or configuration of the Building; (b) to
erect, use, and maintain pipes and conduits in and through the Premises; and (c)
to grant to anyone the exclusive right to conduct any particular business or
undertaking in the Building. Landlord may exercise any or all of the foregoing
rights without being deemed to be guilty of an eviction, actual or constructive,
or a disturbance or interruption of the business of Tenant or of Tenant's use or
occupancy of the Premises.
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ARTICLE 24
GENERAL PROVISIONS
------------------
SECTION 24.1 Representations by Landlord
(a) Tenant acknowledges that neither Landlord nor any broker, agent, or
employee of Landlord has made any representations or promises with respect to
the Premises or the Property except as herein expressly set forth, and no
rights, privileges, easements, or licenses are acquired by Tenant except as
herein expressly set forth.
(b) Landlord hereby represents and warrants to Tenant that
(i) Landlord is the owner of the Premises in fee simple
absolute and the Premises are not subject to the lien of any deed of trust,
mortgage or other similar encumbering instrument except a deed of trust and
related security instrument benefitting G Street Funding Company, an affiliate
of ▇.▇. ▇▇▇▇▇▇ & Co.;
(ii) Landlord's title to the Premises is not subject to any
lien, easement, covenant or encumbrance which prohibits the use of the Premises
as contemplated in this Lease;
(iii) to the best of Landlord's knowledge and belief, no
existing zoning ordinance prevents the use of the Premises for the specific
purpose set forth in this Lease;
(iv) to the best of Landlord's knowledge and belief, no
Materials exist on, under or about the Premises as of the date hereof nor have
any Materials been transported to or from the Premises or used, generated,
manufactured, stored or disposed of on, under or about the Premises except in
compliance with all applicable laws;
(v) subject to the consent of G Street Funding Company,
Landlord has full authority to enter into this Lease;
(vi) subject to the consent of G Street Funding Company, no
joinder or approval of another party is required with respect to Landlord's
right and authority to enter into this Lease
(vii) to the best of Landlord's knowledge and belief, the
Building structure is in good condition and repair and has no structural defects
nor are there any defects affecting any base building systems;
(viii) to the best of Landlord's knowledge and belief, the
structure (specifically including without limitation all restrooms and other
base building items) has been (or as of the Lease Commencement Date will be)
constructed in accordance with, and is otherwise in full compliance with, all
applicable federal, state and local laws, statutes, ordinances, rules,
regulations and other requirements; and
(ix) a permanent certificate of occupancy has been issued for
the Building.
44
As used herein, "to the best of Landlord's knowledge and belief" means to the
best knowledge and belief of the general partner(s) therein.
SECTION 24.2 No Partnership
Nothing contained in this Lease shall be construed as creating a
partnership or joint venture of or between Landlord and Tenant, or to create any
other relationship between the parties hereto other than that of landlord and
tenant.
SECTION 24.3 Brokers
Landlord and Tenant recognize ▇▇▇▇▇▇▇ & Wakefield of Washington, D.C.,
Inc. as the sole broker procuring this Lease on behalf of Tenant and ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, Inc. as the sole broker procuring this Lease on behalf of Landlord.
Landlord shall pay said broker(s) a commission therefor pursuant to a separate
agreement between said broker(s) and Landlord. Landlord and Tenant each
represent and warrant to the other that, except as provided above, neither of
them has employed or dealt with any broker, agent, or finder in carrying on the
negotiations relating to this Lease. Landlord shall indemnify and hold Tenant
harmless, and Tenant shall indemnify and hold Landlord harmless, from and
against any claim or claims for brokerage or other commissions arising from or
out of any breach of the foregoing representation and warranty by the respective
indemnitor. No broker is a third party beneficiary of this Lease.
SECTION 24.4 Tenant Estoppel Certificates
Tenant agrees, at any time from time to time, upon not less than ten
(10) days' prior written notice by Landlord, to execute, acknowledge and deliver
to Landlord a statement in writing: (a) certifying 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);
(b) stating whether any rent abatements remain under this Lease and the dates to
which the rent has been paid by Tenant; (c) stating whether or not, to the best
knowledge of Tenant, Landlord is in default in the performance of any covenant,
agreement, or condition contained in this Lease and, if so, specifying the
nature of such default; (d) if any improvements are required to be performed by
Landlord under this Lease, stating that all such work has been satisfactorily
completed or, if not, providing a list of items excepted; (e) stating the
address to which notices to Tenant are to be sent; (f) stating the Lease
Commencement Date, the rent commencement date, and the scheduled expiration date
of the Lease Term; (g) stating whether any security deposit has been posted; (h)
stating whether Tenant has any knowledge of any environmental problem affecting
the Premises or the Property; (i) stating whether Tenant has any expansion,
contraction, renewal, or termination options of any sort or any right to
purchase the Building and/or the Land and, if Tenant does have any of the
foregoing, stating whether Tenant has exercised such option(s); and (j)
certifying as to such other matters as may reasonably be requested. Any such
statement delivered by Tenant may be relied upon by Landlord, any owner of the
Building or the Land, any prospective purchaser of the Building or Land, any
mortgagee or prospective mortgagee of the Building or Land or of Landlord's
interest therein, or any prospective assignee of any such mortgagee. Any failure
by Tenant to execute, acknowledge and deliver within the aforesaid ten (10) day
period any estoppel certificate shall be deemed a default
45
under this Lease. If Tenant fails to deliver such certificate within the ten
(10) day period described above and within the ten (10) day period following a
second notice from Landlord, then Tenant hereby irrevocably constitutes and
appoints Landlord as Tenant's attorney-in-fact to execute, acknowledge and
deliver any such certificate. Any such statement delivered by Landlord as
Tenant's attorney-in-fact may be relied upon as aforesaid.
SECTION 24.5 Waiver of Jury Trial
LANDLORD AND TENANT EACH HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST THE OTHER IN
CONNECTION WITH ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT HEREUNDER, TENANT'S USE OR
OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE.
SECTION 24.6 Notices
(a) Whenever any notice, demand or request is required or permitted
hereunder, such notice, demand or request shall be hand-delivered (which term
includes delivery by overnight courier services), sent by facsimile, or sent by
United States Mail, registered or certified, return receipt requested, postage
prepaid, to the addresses set forth below:
TENANT: American InterContinental University
Tower Place
Suite 2000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Suite 3100, Promenade II
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
LANDLORD: The ▇▇▇▇ ▇ ▇▇▇▇▇▇ Limited Partnership
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Tenant shall also send a copy of any notice to any mortgagee pursuant to Section
21.3 above.
46
(b) Either Landlord or Tenant shall have the right from time to time to
designate by written notice to the other party such other persons or places in
the United States as Landlord or Tenant may desire written notice to be
delivered or sent in accordance herewith; provided, however, at no time shall
either party be required to send more than an original and two copies of any
such notice, demand, or request required or permitted hereunder.
(c) Any notice, demand, or request which shall be served upon either of
the parties in the manner aforesaid shall be deemed sufficiently given for all
purposes hereunder (i) at the time such notice, demand, or request is
hand-delivered, or (ii) if first sent by facsimile before 5:00 pm (recipient's
local time) on a Monday-Friday (except federal holidays), upon receipt, or if
sent by facsimile at any other time, then on the first (1st) business day after
being sent, or (iii) on the third (3rd) day after the mailing of such notice,
demand, or request in accordance with the preceding portions of this Section.
SECTION 24.7 Partial Invalidity
If any provision of this Lease or the application thereof to any person
or circumstances shall to any extent be invalid or unenforceable, the remainder
of this Lease, or the application of such provision to persons or circumstances
other than those as to which it is invalid or unenforceable, shall not be
affected thereby, and each provision of this Lease shall be valid and enforced
to the fullest extent permitted by law.
SECTION 24.8 Pronouns
Feminine or neuter pronouns shall be substituted for those of masculine
form, and the plural shall be substituted for the singular number in any place
or places herein in which the context may require such substitution.
SECTION 24.9 Successors and Assigns
The provisions of this Lease shall be binding upon, and shall inure to
the benefit of, the parties hereto and each of their respective representatives,
successors, and assigns, subject to the provisions hereof prohibiting assignment
or subletting by Tenant.
SECTION 24.10 Entire Agreement
This Lease contains the entire agreement of the parties, and no
representations, inducements, or agreements, oral or otherwise, not contained in
this Lease shall be of any force or effect. This Lease may not be modified or
changed in whole or in part in any manner other than by an instrument in writing
duly signed by both parties hereto.
SECTION 24.11 Governing Law
This Lease shall be governed by and construed in accordance with the
laws of the District of Columbia without regard to conflicts of laws.
47
SECTION 24.12 Section Headings
Article and Section headings are used herein for the convenience of
reference and shall not be considered when construing or interpreting this
Lease.
SECTION 24.13 No Offer
The submission of an unsigned copy of this document to Tenant for
Tenant's consideration does not constitute an offer to lease the Premises or an
option to or for the Premises. This document shall become effective and binding
only upon the execution and delivery of this Lease by both Landlord and Tenant.
SECTION 24.14 Multiple Counterparts
This Lease may be executed in multiple counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document.
SECTION 24.15 Time of Essence
TIME IS OF THE ESSENCE WITH RESPECT TO THE CARRYING OUT BY EACH
PARTY HERETO OF EACH TERM OR PROVISION OF THIS LEASE TO BE PERFORMED
BY SUCH PARTY.
SECTION 24.16 Conflict
In the event of any conflict between the main text of this Lease and
any Exhibit hereto, the provisions of the main text of this Lease shall prevail.
SECTION 24.17 [Intentionally Omitted]
SECTION 24.18 Joint and Several Liability
If more than one person or entity signs this Lease as Tenant, the
liability of each such person and entity shall be joint and several.
SECTION 24.19 Force Majeure
Except with respect to Tenant's monetary obligations hereunder, in the
event that Landlord or Tenant shall be delayed or hindered in or prevented from
the performance of any act or obligation required of it hereunder by reason of a
labor strike, lockout, inability to procure materials, failure of power, riot,
insurrection, war, or other reason not within the reasonable control of the
party so affected, then performance of such act or obligation by the party so
affected shall be excused for a period equivalent to the period of such delay.
48
SECTION 24.20 No Construction of Lease Against Drafter
Should any provision of this Lease require judicial interpretation, it
is agreed that the court interpreting or considering same shall not apply the
presumption that the terms hereof shall be more strictly construed against a
party by reason of the rule or conclusion that a document should be construed
more strictly against the party who itself or through its agent prepared the
same, it being agreed that all parties hereto have participated in the
preparation of this Lease and that legal counsel was consulted by each party
hereto (or opportunity for such legal consultation afforded to each party)
before the execution of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under
seal as of the day and year first above written.
LANDLORD:
THE ▇▇▇▇ ▇ ▇▇▇▇▇▇ LIMITED
PARTNERSHIP
ATTEST: By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Company, general partner
▇▇▇▇▇ Shirsoc By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------- -------------------------
[Corporate Seal] Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: General Partner
TENANT:
ATTEST: AMERICAN INTERCONTINENTAL UNIVERSITY,
INC.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------- -------------------------
[Corporate Seal] Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
49