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Exhibit 10.15
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (this "Lease") is dated as of the 17
day of June 1996, by and between 0000 XXXXXXXXX XXXXXX LIMITED
PARTNERSHIP, a District of Columbia limited partnership ("Landlord"), and
XXXXXXX COLLEGE, INC., a Maryland Corporation ("Tenant").
ARTICLE I
DEFINITIONS
1.1 Building: a twelve (12) story building containing
approximately one hundred eighty-six thousand eight hundred eighty six
(186,886) square feet of office rentable area and one hundred ninety thousand
seven hundred nineteen (190,719) square feet of total rentable area as of the
date hereof and located at 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
1.2 Premises: approximately six thousand six hundred
ninety-six (6,696) square feet of rentable area located on the first (1st)
floor of the Building, as more particularly designated on Exhibit A.
1.3 Lease Term: one hundred twenty (120) months.
1.4 Anticipated Delivery Date: twenty (20) days after
the earliest to occur of the day (a) Landlord receives written notice from
Tenant that the Permits (as defined in Section 3.3(b)) have been obtained, or
(b) Landlord receives written notice that Tenant waives the conditions
described in Section 3.3(b)), or (c) the termination period set forth in
Section 3.3(b) expires without Tenant having terminated the Lease in accordance
therewith.
1.5 Base Rent: the amount set forth in Section 4. 1(a).
1.6 [Intentionally Deleted].
1.7 Operating Charges Base Year: calendar year 1996.
1.8 Real Estate Taxes Base Year: calendar year 1996.
1.9 Security Deposit Amount: ten thousand dollars
($10,000.00).
1.10 Brokers: CB Commercial Real Estate Group, Inc., 0000
Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000-0000 and Smithy Braedon
Company, 0000 Xxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
1.11 Tenant Notice Address: 0000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, Attn: Xxx X. Xxxxxx.
1.12 Landlord Notice Address; x/x Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxx 000, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000,
Attention: Property Manager: 0000 Xxxxxxxxx Xxxxxx, with a copy to Xxxxx
Enterprises, Inc., 15th Floor, 0000 Xxx Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000-0000, Attention: Xx. Xxxxxxxx X. Xxxxxxxx.
1.13 Building Hours: 8:00 am to 8:00 p.m. on Monday
through Friday (excluding legal public holidays) and 9:00 a.m. to 6:90 p.m. on
Saturday (excluding legal public holidays), and such other hours, if any, as
Landlord from time to time determines.
1.14 Guarantor(s): None.
ARTICLE II
PREMISES
2.1 Tenant leases the Premises from Landlord for the term
and upon the conditions and covenants set forth in this Lease. Tenant will have
the non-exclusive right to use the common and public areas of the Building.
Except as may otherwise be expressly provided in this Lease, the lease of the
Premises does not include the right to use the roof, mechanical rooms,
electrical closets, janitorial closets, telephone rooms, parking areas or other
non-common or non-public areas of the Building.
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ARTICLE III
TERM
3.1 All of the provisions of this Lease shall be in full
force and effect from and after the date first above written. The Lease Term
shall commence on the Lease Commencement Date specified in Section 3.2. If the
Lease Commencement Date is not the first day of a month, then the Lease Term
shall be the period set forth in Section 1.3 plus the partial month in which the
Lease Commencement Date occurs. The Lease Term shall also include any properly
exercised renewal or extension of the term of this Lease.
3.2 The "Lease Commencement Date" shall be the earliest
to occur of (a) sixty-nine (69) days (plus that number of days remaining prior
to the Permit Termination Date after tenant notifies landlord that Permits have
been received by tenant) after the date the Premises are delivered to Tenant,
or (b) the date on which the work and materials to be provided pursuant to
Exhibit B are substantially complete as determined pursuant to Exhibit B, or
(c) the date on which Tenant commences operations in the Premises. Promptly
after the Lease Commencement Date is ascertained, Landlord and Tenant shall
execute the certificate confirming the Lease Commencement Date attached to this
Lease as Exhibit D.
3.3 (a) It is presently anticipated that the Premises
will be delivered to Tenant on or about the Anticipated Delivery Date. However,
Tenant acknowledges that (1) approximately six hundred fifty (650) square feet
of the Premises (the "Mayflower Space") currently are leased to Mayflower Valet
("Mayflower") pursuant to a lease between Landlord and Mayflower (the
"Mayflower Lease"); (2) certain other square feet of the Premises (the "DCC
Space") currently are leased to DeLeuw, Xxxxxx & Company ("DCC") pursuant to a
storage space lease between Landlord and DCC (the "DCC Lease"); and (3) certain
other square feet of the Premises (the "EAWS Space") currently are leased to
Europ Assistance Worldwide Services, Inc. ("EAWS") pursuant to a storage space
lease between Landlord and EAWS (the "EAWS Lease"). The Mayflower Space, DCC
Space and EAWS Space shall hereinafter be referred to collectively as the
"Occupied Space." Mayflower, DCC and EAWS have each entered into an agreement
with Landlord (collectively, the "Termination Agreements"), which provides that
the Mayflower Lease shall terminate and that DCC and EAWS will surrender and
vacate the DCC Space and EAWS Space, respectively, effective as of the
fifteenth (15th) day after Landlord notifies Mayflower, DCC and EAWS that this
Lease has been fully executed and the termination period set forth in Section
3.3(b) shall have expired without Tenant having terminated this Lease. Landlord
shall notify Mayflower, DCC and EAWS promptly after the same has occurred.
Notwithstanding the foregoing, if Mayflower, DCC or EAWS fail to vacate all or
any portion of the Occupied Space on or before the Occupied Space Termination
Date (as defined below), then Landlord shall not have any liability whatsoever,
and this Lease shall not be rendered void or voidable as a result thereof,
provided, however, that, if Mayflower, DCC or EAWS fail to vacate all or any
portion of the Occupied Space on or before the one hundred twentieth (120th)
day after the date this Lease is fully executed (the "Occupied Space
Termination Date"), then Tenant shall have the right to terminate this Lease as
set forth below. If Tenant desires to so terminate this Lease, such termination
right shall be exercised by providing written notice to Landlord thereof only
during the period commencing on the one hundred twenty-first (121st) day and
ending on the one hundred twenty-fifth (125th) day after the date this Lease is
fully executed and if Tenant does not so exercise its termination right during
such period, then Tenant shall be deemed to have waived its right to terminate
this Lease under thin Section 3.3(a).
(b) From and after the date Tenant executes this
Lease, Tenant shall use all due diligence and good faith efforts to obtain as
expeditiously as possible all permits, certificates of occupancy and other
approvals and documents required in connection with the commencement and
completion of Tenant's Work (as defined in Exhibit B) and the use and occupancy
of the Premises, including, but not limited to, the building permit for
Tenant's Work (the "Building Permit") and any necessary license from the
District of Columbia educational authorities (the "Education License")
(collectively, the "Permits"). If minor modifications are at any time required
by governmental authorities to any plans or specifications which are prepared
and submitted by Tenant, then, Tenant shall be obligated to make such
modifications. At Landlord's request, Tenant shall permit Landlord to assist
Tenant in obtaining all such permits and other items.
(i) Promptly after this Lease is fully executed,
Tenant shall submit all necessary applications to all
appropriate governmental authorities in order to obtain the
Education License. As soon as practicable following Landlord's
approval of the Final Construction Documents (as defined in
Paragraph 4(c) of Exhibit B), Tenant shall submit all necessary
applications to all appropriate governmental authorities in
order to obtain the Building Permit. Tenant shall be
responsible for all fees in connection therewith and shall
diligently and in
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good faith pursue the applications so that the Permits can be
issued as soon as practicable. Tenant shall keep Landlord
informed of all developments regarding the status of the permit
process and shall, at a minimum, provide weekly reports to
Landlord. Tenant shall consult with Landlord regarding any
problems or issues encountered during the permit process and
will seek Landlord's advice with respect thereto. Tenant shall
notify Landlord of, and afford Landlord the right to attend and
participate in, all conferences (telephonic or otherwise)
involving Tenant and/or any representative of the local
governmental authorities during the permit process. Tenant
shall cause Landlord to receive copies of all correspondence
relating to the permit process. Tenant shall advise Landlord in
writing of the issuance of each Permit not later than the first
business day immediately following issuance thereof.
(ii) If, after using all due diligence and good faith
efforts, Tenant is unable to secure the Building Permit and
the Education License within twenty-one (21) days after the
date this Lease is fully executed (the "Permit Termination
Date") and provided no default then exists under this Lease,
then Tenant shall have the right to terminate this Lease by
giving written notice to Landlord not later than the second
business day after the Permit Termination Date. If this Lease
is not terminated timely as aforesaid, then Tenant's
termination rights set forth above shall immediately lapse
and be of no further force or effect and this Lease shall
remain in full force and effect. If Tenant terminates this
Lease in accordance with this Section 3.3(b), then Tenant
shall deliver to Landlord, together with the termination
notice, and as a condition precedent to the effectiveness
thereof, a termination fee equal to the costs incurred by
Landlord in connection with this Lease and Tenant's
anticipated occupancy of the Premises, including, but not
limited to, legal fees related to the Lease and the
Termination Agreements and review of Tenant's plans.
Notwithstanding anything herein to the contrary, the Permit
Termination Date shall not be delayed in accordance with
Section 25.21.
3.4 "Lease Year" shall mean a period of twelve (12)
consecutive months commencing on the Lease Commencement Date, and each
successive twelve (12) month period thereafter; provided, however, that if the
Lease Commencement Date is not the first day of a month, then the second Lease
Year shall commence on the first day of the month immediately succeeding the
month in which the first anniversary of the Lease Commencement Date occurs.
3.5 (a) Subject to and in accordance with the terms and
conditions of this Section, Tenant shall have the right to terminate this Lease
as of the last day of the seventh (7th) Lease Year (the "Termination Date").
Tenant may exercise such right only by giving Landlord written notice thereof
("Termination Notice") not later than nine (9) months prior to the Termination
Date (the "Termination Deadline"). If Tenant timely exercises such right, and as
a condition precedent to the effectiveness thereof, Tenant shall deliver to
Landlord, with the Termination Notice, a termination payment equal to the sum of
(1) one-half ( 1/2) of the Base Rent payable during the seventh (7th) Lease Year
, plus (2) one-half ( 1/2) of any additional rent payable during the seventh
(7th) Lease Year (including, but not limited to, Tenant's proportionate share of
Operating Charges and Real Estate Taxes), plus (3) the Unamortized Loan Amount
(as determined in Section 3.5(b) below). Such termination payment shall be in
addition to, and not in lieu of, the rental payments due through the Termination
Date. If the amount of the termination payment cannot be finally determined as
of the Termination Deadline, then Tenant shall pay to Landlord, not later than
the Termination Deadline, Landlord's reasonable estimate of the amount of such
payment, and any reconciliation necessary shall be made by Landlord, and any
resulting amount due shall be paid by Tenant or refunded by Landlord, as
applicable, not later than ten (10) business days after Landlord finally
determines such sums and sends Tenant written notice thereof. Notwithstanding
anything to the contrary herein, in the event that an Event of Default has
occurred at any time during the Lease Term (whether before or after the date of
the Termination Notice) or an event exists at the time the Termination Notice is
delivered (or at any time prior to the Termination Date) which event with notice
and/or the passage of time would constitute an Event of Default if not cured
within the applicable cure period, then, at Landlord's sole option, the
Termination Notice shall be deemed void and of no further force and effect. If
Landlord elects to void Tenant's Termination Notice in accordance with the
immediately preceding sentence, this Lease shall continue in full force and
effect and Landlord shall promptly return the Termination Payment to Tenant. If
Tenant does not timely exercise its right of termination pursuant to this
Section, then such right shall immediately lapse and be of no further force or
effect.
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(b) The Unamortized Loan Amount shall be the
then-current balance of the Assumed Loan as of the Termination Date. The
Assumed Loan shall be a hypothetical loan made by Landlord to Tenant as of the
Lease Commencement Date. The original principal amount of the Assumed Loan
shall be deemed to be all costs and expenses incurred by Landlord in connection
with this Lease and any amendments hereto as reasonably calculated by Landlord,
including, but not limited to, the Improvements Allowance (as defined in
Exhibit B hereto), brokerage commissions, legal fees and costs of any other
abatement, allowance or concession. Interest shall be deemed to accrue from
time to time on the outstanding principal balance of the Assumed Loan at an
annual rate of ten percent (10%) compounded quarterly. For each full monthly
payment of Base Rent paid by Tenant to Landlord, Tenant shall be deemed to have
paid concurrently with such monthly payment to Landlord that amount which, in
one hundred twenty (120) equal consecutive monthly installments of such amount,
would fully amortize the original principal amount of the Assumed Loan and all
interest earned thereon.
ARTICLE IV
BASE RENT
4.1 (a) From and after the Lease Commencement Date,
Tenant shall pay the Base Rent as follows:
ANNUAL BASE RENTAL RATE PER
LEASE YEAR BASE RENT SQUARE FOOT
1 $ 133,920 $ 20.00
2 136,598.40 20.40
3 139,343,76 20.81
4 142,089.12 21.22
5 144,968.40 21.65
6 161,507.52 24.12
7 164,721.60 24.60
8 168,069.60 25.10
9 171,417.60 25.60
10 174,832.56 26.11
4.2 The Base Rent shall be due and payable in equal
monthly installments in advance on the first day of each month during each
Lease Year. Concurrently with Tenant's execution of this Lease, Tenant shall
pay an amount equal to one (1) monthly installment of the Base Rent payable
during the first Lease Year, which amount shall be credited toward the monthly
installment of the Base Rent payable for the first full calendar month of the
Lease Term. If the Lease Commencement Date is not the first day of a month,
then the Base Rent from the Lease Commencement Date until the first day of the
following month shall be prorated on a per diem basis at the rate of
one-thirtieth (1/30th) of the monthly installment of the Base Rent payable
during the first Lease Year, and Tenant shall pay such prorated installment of
the Base Rent on the Lease Commencement Date.
4.3 All sums payable by Tenant under this Lease, whether
or not stated to be Base Rent, additional rent or otherwise, shall be paid to
Landlord in legal tender of the United States, without setoff, deduction or
demand, at the Landlord Payment Address, or to such other party or such other
address as Landlord may designate in writing. Landlord's acceptance of rent
after it shall have become due and payable shall not excuse a delay upon any
subsequent occasion or constitute a waiver of any of Landlord's rights
hereunder. If any sum payable by Tenant under this Lease is paid by check which
is returned due to insufficient funds, stop payment order, or otherwise, then:
(a) such event shall be treated as a failure to pay such sum when due; and (b)
in addition to all other rights and remedies of Landlord hereunder, Landlord
shall be entitled (i) to impose a returned check charge of Fifty Dollars
($50.00) to cover Landlord's administrative expenses and overhead for
processing, and (ii) to require that all future payments be remitted by wire
transfer, money order, or cashier's or certified check.
ARTICLE V
INCREASES IN OPERATING CHARGES AND REAL ESTATE TAXES
5.1 For the purposes of this Article V, the term
"Building" shall be deemed to include the site upon which the Building is
constructed (which site is sometimes referred to herein as the "Land").
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If the Building is operated as a part of a complex of buildings or in
conjunction with other buildings or parcels of land, then Landlord shall prorate
the common expenses and costs with respect to each such building or parcel of
land in such manner as Landlord, in its sole but not arbitrary judgment, shall
determine.
5.2 (a) From and after the Lease Commencement Date,
Tenant shall pay as additional rent Tenant's proportionate share of the amount
by which Operating Charges (as defined in Section 5.2(b)) for each calendar
year falling entirely or partly within the Lease Term exceed a base amount (the
"Operating Charges Base Amount") equal to the Operating Charges incurred during
the Operating Charges Base Year. Tenant's proportionate share with respect to
Operating Charges shall be that percentage which is equal to a fraction, the
numerator of which is the number of square feet of rentable area in the
Premises, and the denominator of which is the number of square feet of total
rentable area from time to time in the Building (excluding storage, roof and
garage space).
(b) "Operating Charges" shall mean the sum of all
expenses incurred by Landlord in the ownership, operation, maintenance, repair
and cleaning of the Building, including, but not limited to, the following:
(i) charges for electricity and HVAC services supplied to the public and common
areas and facilities of the Building, as reasonably estimated by Landlord, and
all gas, water, sewer and other utility charges of every type and nature
supplied to all or any portion of the entire Building (excluding electricity
supplied to the areas of the Building leased (or leaseable) to tenants); (2)
premiums and other charges for insurance; (3) management fees and personnel
costs of the Building; (4) costs of service and maintenance contracts relating
to the Building as a whole; (5) maintenance, repair and replacement expenses
and supplies which are deducted by Landlord in computing its federal income tax
liability; (6) depreciation for capital expenditures made by Landlord to reduce
operating expenses or to comply with legal or insurance requirements applicable
to the Building after the date hereof or to replace existing equipment or
machinery used in connection with the operation or maintenance of the Building,
such capital costs to be amortized over such reasonable period as Landlord
shall determine, together with interest at the rate paid by Landlord on any
funds borrowed for such expenditures; (7) charges for janitorial and cleaning
services and supplies furnished to the public and common areas and facilities
of the Building; (8) any business, professional and occupational license tax
payable by Landlord with respect to the Building; (9) reasonable reserves for
replacements, repairs and contingencies; (10) costs of snow removal; and (11)
except as otherwise specifically set forth in this Section 5.2(b), any other
expenses incurred by Landlord in maintaining, repairing, operating or cleaning
the Building. Operating Charges shall not include: (i) principal or interest
payments on any Mortgages (as defined in Section 21.1); (ii) leasing
commissions or legal fees with respect to the negotiation of leases; (iii)
capital expenditures, except as specified above; (iv) the costs of special
services and utilities separately paid by particular tenants of the Building;
(v) costs which are reimbursed to Landlord by insurers or by governmental
authorities in eminent domain proceedings; (vi) advertising for vacant space in
the Building: (vii) the cost of tenant improvements; and (viii) costs and
expenses directly and solely relating to the management, operation, cleaning,
repairing and maintenance of the Garage.
(c) If the average occupancy rate for the Building
during any calendar year (including the Operating Charges Base Year) is less
than one hundred percent (100%), then Operating Charges for such year shall be
deemed to include all additional expenses, as reasonably estimated by Landlord,
which would have been incurred during such year if such average occupancy rate
had been one hundred percent (100%).
(d) Tenant shall make estimated monthly payments to
Landlord on account of the amount by which Operating Charges that are expected
to be incurred during each calendar year (or portion thereof) would exceed the
Operating Charges Base Amount. At the beginning of the Lease Term and at the
beginning of each calendar year thereafter, Landlord may submit a statement
setting forth Landlord's reasonable estimate of such excess and Tenant's
proportionate share thereof. Tenant shall pay to Landlord on the first day of
each month following receipt of such statement, until Tenant's receipt of the
succeeding annual statement, an amount equal to one-twelfth (1/12) of each such
share (estimated on an annual basis without proration pursuant to Section 5.4).
From time to time during any calendar year, Landlord may revise Landlord's
estimate and adjust Tenant's monthly payments to reflect Landlord's revised
estimate. Within approximately one hundred twenty (120) days after the end of
each calendar year, or as soon thereafter as is feasible, Landlord shall submit
a statement showing (1) Tenant's proportionate share of the amount by which
Operating Charges incurred during the preceding calendar year exceeded the
Operating Charges Base Amount, and (2) the aggregate amount of Tenant's
estimated payments made on account of Operating Charges during such year. If
such statement indicates that the aggregate amount of such estimated payments
exceeds Tenant's actual liability, then Landlord shall credit the net
overpayment toward Tenant's next estimated payment(s) pursuant to this Section.
If such statement indicates that Tenant's actual liability exceeds the
aggregate amount of such estimated payments, then Tenant shall pay the amount
of such excess as additional rent.
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(e) For a period of ninety (90) days after Tenant's
receipt of such statement, Tenant, or an independent, certified public
accountant who is hired by Tenant on a noncontingent fee basis and who offers a
full range of accounting services and is reasonably acceptable to Landlord,
shall have the right, during regular business hours and after giving at least
ten (10) days' advance written notice to Landlord, to inspect and complete an
audit of Landlord's books and records relating to Operating Charges for the
immediately preceding calendar year; or, at Landlord's sole discretion and in
lieu of such audit, Landlord will provide Tenant with an audited statement
prepared by an independent, certified public accountant or certified by an
officer of Landlord as being true, complete and correct. Tenant shall (and
shall cause its employees, agents and consultants to) keep the results of any
such audit or audited statement strictly confidential. If such audit or audited
statement shows that the amounts paid by Tenant to Landlord on account of
increases in Operating Charges exceed the amounts to which Landlord is entitled
hereunder, Landlord shall credit the amount of such excess toward the next
monthly payments of Operating Charges due hereunder. All costs and expenses of
any such audit or audited statement shall be paid by Tenant. If Tenant does not
notify Landlord in writing of any objection to any statement within ninety (90)
days after receipt thereof then Tenant shall be deemed to have waived such
objection.
5.3 (a) Tenant shall pay as additional rent Tenant's
proportionate share of the amount by which Real Estate Taxes (as defined in
Section 5.3(b)) for each calendar year falling entirely or partly within the
Lease Term exceed a base amount (the "Real Estate Taxes Base Amount") equal to
the Real Estate Taxes incurred during the Real Estate Taxes Base Year, as
finally determined. Tenant's proportionate share with respect to Real Estate
Taxes shall be that percentage which is equal to a fraction, the numerator of
which is the number of square feet of rentable area in the Premises, and the
denominator of which is the number of square feet of total rentable area from
time to time in the Building (excluding storage, roof and garage space).
(b) "Real Estate Taxes" shall mean (1) all real
estate taxes, vault and/or public space rentals, business district or arena
taxes, special user fees, rates, and assessments (including general and special
assessments, if any), ordinary and extraordinary, foreseen and unforeseen,
which are imposed upon Landlord or assessed against the Building or the Land or
Landlord's personal property used in connection therewith, (2) any other
present or future taxes or governmental charges that are imposed upon Landlord
or assessed against the Building or the Land which are in the nature of or in
substitution for real estate taxes, including any tax levied on or measured by
the rents payable by tenants of the Building, and (3) expenses (including,
without limitation, reasonable attorneys' and consultants' fees and court
costs) incurred in reviewing, protesting or seeking a reduction of real estate
taxes, whether or not such protest or reduction is ultimately successful.
Subject to the foregoing, Real Estate Taxes shall not include any inheritance,
estate, gift, franchise, corporation, net income or net profits tax assessed
against Landlord from the operation of the Building.
(c) If during any calendar year (including the Real
Estate Taxes Base Year) the Building is not fully assessed for tax purposes
because the Building is less than fully occupied, then Real Estate Taxes for
such year shall be deemed to include all additional taxes, as reasonably
estimated by Landlord, which would have been incurred during such year if the
Building had been fully assessed.
(d) Tenant shall make estimated monthly payments to
Landlord on account of the amount by which Real Estate Taxes that are expected
be incurred during each calendar year would exceed the Real Estate Taxes Base
Amount. At the beginning of the Lease Term and at the beginning of each
calendar year thereafter, Landlord may submit a statement setting forth
Landlord's reasonable estimate of such amount and Tenant's proportionate share
thereof. Tenant shall pay to Landlord on the first day of each month following
receipt of such statement, until Tenant's receipt of the succeeding annual
statement, an amount equal to one-twelfth (1/12) of such share (estimated on an
annual basis without proration pursuant to Section 5.4). From time to time
during any calendar year, Landlord may revise Landlord's estimate and adjust
Tenant's monthly payments to reflect Landlord's revised estimate. Within
approximately one hundred twenty (120) days after the end of each calendar
year, or as soon thereafter as is feasible, Landlord shall submit a statement
showing (1) Tenant's proportionate share of the amount by which Real Estate
Taxes incurred during the preceding calendar year exceeded the Real Estate
Taxes Base Amount, and (2) the aggregate amount of Tenant's estimated payments
made during such year. If such statement indicates that the aggregate amount of
such estimated payments exceeds Tenant's actual liability, then Landlord shall
credit the net overpayment toward Tenant's next estimated payment(s) pursuant
to this Section. If such statement indicates that Tenant's actual liability
exceeds the aggregate amount of such estimated payments, then Tenant shall pay
the amount of such excess as additional rent.
5.4 If the Lease Term commences or expires on a day other
than the first day or the last day of a calendar year, respectively, then
Tenant's liabilities pursuant to this Article for such calendar year shall be
apportioned by multiplying the respective amount of Tenant's proportionate
share thereof for
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the full calendar year by a fraction, the numerator of which is the number of
days during such calendar year falling within the Lease Term, and the
denominator of which is three hundred sixty-five (365).
ARTICLE VI
USE OF PREMISES
6.1 (a) Tenant shall use and occupy the Premises solely
for general (non-medical and non-governmental) classroom purposes and ancillary
administrative office space compatible with first class office buildings in the
jurisdiction in which the Building is located, and for no other use or purpose.
Tenant shall not use or occupy the Premises for any unlawful purpose, or in any
manner that will violate the certificate of occupancy for the Premises or the
Building or that will constitute waste, nuisance or unreasonable annoyance to
Landlord or any other tenant or user of the Building, or in any manner that
will increase the number of parking spaces required for the Building or its full
occupancy as required by law. Tenant shall comply with all present and future
laws (including, without limitation, the Americans with Disabilities Act (the
"ADA") and the regulations promulgated thereunder, as the same may be amended
from time to time), ordinances (including without limitation, zoning ordinances
and land use requirements), regulations, orders and recommendations (including,
without limitation, those made by any public or private agency having authority
over insurance rates) (collectively, "Laws") concerning the use, occupancy and
condition of the Premises and all machinery, equipment, furnishings, fixtures
and improvements therein, all of which shall be complied with in a timely manner
at Tenant's sole expense. If any such Law requires an occupancy or use permit or
license for the Premises or the operation of the business conducted therein,
then Tenant shall obtain and keep current such permit or license at Tenant's
expense and shall promptly deliver a copy thereof to Landlord. Use of the
Premises is subject to all covenants, conditions and restrictions of record.
Tenant shall not use any space in the Building for the sale of goods to the
public at large or for the sale at auction of goods or property of any kind.
Tenant shall not conduct any operations, sales, promotions, advertising or
special events outside the Premises.
(b) Tenant shall keep that portion of the Premises
designated on Exhibit A as the lobby area (i) lighted twenty-four (24) hours a
day, and attended by a lobby attendant during any hours that Tenant may be
using the Premises, and (ii) fully furnished so as to give the appearance that
the Premises are in operation, as reasonably determined by Landlord.
(c) The common areas of the Building are accessible
from the Premises only through the emergency exit door located at the rear of
the Premises. Tenant shall install, at its sole cost and subject to Landlord's
approval as required in this Lease, an alarm on such door which shall be
connected to the Building alarm system and shall be activated on the opening of
such door. Tenant shall post a warning sign at the door stating that the door
is only to be used for emergency exit and that the alarm will sound if opened.
Tenant shall use best efforts to prohibit students and other Invitees access
through such emergency exit to any part of the Building. Tenant and its
Invitees shall have the same rights of access to the Building lobby area
through the front door of the Building as the general public.
6.2 Tenant shall pay before delinquency any business,
rent or other taxes or fees that are now or hereafter levied, assessed or
imposed upon Tenant's use or occupancy of the Premises, the conduct of Tenant's
business at the Premises, or Tenant's equipment, fixtures, furnishings,
inventory or personal property. If any such tax or fee is enacted or altered so
that such tax or fee is levied against Landlord or so that Landlord is
responsible for collection or payment thereof, then Tenant shall pay as
additional rent the amount of such tax or fee.
6.3 (a) Tenant shall not cause or permit any Hazardous
Materials to be generated, used, released, stored or disposed of in or about
the Building, provided that Tenant may use and store reasonable quantities of
standard cleaning materials as may be reasonably necessary for Tenant to
conduct normal general office use operations in the Premises. Tenant hereby
acknowledges receipt of that certain letter dated May 13, 1996 from Applied
Environmental, Inc., which discloses the presence of asbestos and/or certain
asbestos-containing materials in the Premises. At the expiration or earlier
termination of this Lease, Tenant shall surrender the Premises to Landlord free
of Hazardous Materials and in compliance with all Environmental Laws; provided,
however, that Tenant shall have no obligation to remove any Hazardous Materials
which were present in the Premises prior to Tenant's execution of this Lease
(and not brought onto the Premises by Tenant or any of its employees, agents or
contractors) unless removal thereof would not otherwise be required by law, but
is required in order for Tenant to complete Alterations in accordance with this
Lease or to complete the initial improvements in accordance with Exhibit B.
Notwithstanding anything contained in this Lease to the contrary, if Tenant
removes or attempts to remove any asbestos, or asbestos-containing materials
for any reason whatsoever, Tenant shall do so strictly in accordance with this
Lease and all Environmental Laws and any other applicable Laws and Tenant shall
employ qualified asbestos contractors approved by Landlord to perform the
removal, and only after notifying Landlord in writing of the location of the
Hazardous Materials Tenant proposes to
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remove prior to such removal. "Hazardous Materials" means (a) asbestos and any
asbestos containing material and any substance that is then defined or listed
in, or otherwise classified pursuant to, any Environmental Law or any other
applicable Law as a "hazardous substance," "hazardous material," "hazardous
waste," "infectious waste," "toxic substance," "toxic pollutant" or any other
formulation intended to define, list, or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, or Toxicity Characteristic
Leaching Procedure (TCLP) toxicity, (b) any petroleum and drilling fluids,
produced waters, and other wastes associated with the exploration, development
or production of crude oil, natural gas, or geothermal resources, and (c) any
petroleum product, polychlorinated biphenyls, urea formaldehyde, radon gas,
radioactive material (including any source, special nuclear, or by-product
material), medical waste, chlorofluorocarbon, lead or lead-based product, and
any other substance whose presence could be detrimental to the Building or the
Land or hazardous to health or the environment. "Environmental Law" means any
present and future Law and any amendments (whether common law, statute, rule,
order, regulation or otherwise), permits and other requirements or guidelines of
governmental authorities applicable to the Building or the Land and relating to
the environment and environmental conditions or to any Hazardous Material
(including, without limitation, CERCLA, 42 U.S.C. Section 9601 et seq., the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.,
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., the
Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq., the Clean
Air Act, 33 U.S.C. Section 7401 et seq., the Toxic Substances Control Act, 15
U.S.C. Section 2601 et seq., the Safe Drinking Water Act, 42 U.S.C. Section 300f
et seq., the Emergency Planning and Community Right-To-Know Act, 42 U.S.C.
Section 1101 et seq., the Occupational Safety and Health Act, 29 U.S.C. Section
651 et seq., and any so-called "Super Fund" or "Super Lien" law, any Law
requiring the filing of reports and notices relating to hazardous substances,
environmental laws administered by the Environmental Protection Agency, and any
similar state and local Laws, all amendments thereto and all regulations,
orders, decisions, and decrees now or hereafter promulgated thereunder
concerning the environment, industrial hygiene or public health or safety).
(b) Notwithstanding any termination of this Lease,
Tenant shall indemnify and hold Landlord, its employees and agents harmless
from and against any damage, injury, loss, liability, charge, demand or claim
based on or arising out of the presence or removal of, or failure to remove,
Hazardous Materials generated, used, released, stored or disposed of by Tenant
or any Invitee in or about the Building, whether before or after Lease
Commencement Date. In addition, Tenant shall give Landlord immediate verbal and
follow-up written notice of any actual or threatened Environmental Default,
which Environmental Default Tenant shall cure in accordance with all
Environmental Laws and to the satisfaction of Landlord and only after Tenant
has obtained Landlord's prior written consent, which shall not be unreasonably
withheld. An "Environmental Default" means any of the following by Tenant or
any Invitee: a violation of an Environmental Law; a release, spill or
discharge of a Hazardous Material on or from the Premises, the Land or the
Building; an environmental condition requiring responsive action; or an
emergency environmental condition. Upon any Environmental Default, in addition
to all other rights available to Landlord under this Lease, at law or in
equity, Landlord shall have the right but not the obligation to immediately
enter the Premises, to supervise and approve any actions taken by Tenant to
address the Environmental Default, and, if Tenant fails to immediately address
same to Landlord's satisfaction, to perform, at Tenant's sole cost and expense,
any lawful action necessary to address same. If any lender or governmental
agency shall require testing to ascertain whether an Environmental Default is
pending or threatened, then Tenant shall pay the reasonable costs therefor as
additional rent. Promptly upon request, Tenant shall execute from time to time
affidavits, representations and similar documents concerning Tenant's best
knowledge and belief regarding the presence of Hazardous Materials at or in the
Building, the Land or the Premises.
6.4 Landlord at its expense (subject to reimbursement
pursuant to Article V to the extent permitted thereby) shall take steps
necessary to comply with Title III of the ADA to the extent same applies
directly to the common areas of the Building as a whole; provided, however, that
to the extent any non-compliance is a result of the use or occupancy of the
Premises or any action or inaction of Tenant or any Invitee, or if any
improvements made by Landlord to comply with the ADA benefit solely the
Premises, then such compliance shall be at Tenant's cost. Tenant at its sole
cost and expense shall be solely responsible for taking any and all measures
which are required to comply with the ADA concerning the Premises (including
means of ingress and egress thereto) and the business conducted therein. Any
Alterations made or constructed by Tenant for the purpose of complying with the
ADA, or which otherwise require compliance with the ADA shall be done in
accordance with this Lease; provided, that Landlord's consent to such
Alterations shall not constitute either Landlord's assumption, in whole or in
part, of Tenant's responsibility for compliance with the ADA, or representation
or confirmation by Landlord that such Alterations comply with the provisions of
the ADA.
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ARTICLE VII
ASSIGNMENT AND SUBLETTING
7.1 Tenant shall not assign, transfer or otherwise
encumber (collectively, "assign") this Lease or all or any of Tenant's rights
hereunder or interest herein, or sublet or permit anyone to use or occupy
(collectively, "sublet") the Premises or any part thereof, without obtaining
the prior written consent of Landlord, which consent may be withheld or granted
in Landlord's sole and absolute discretion. Notwithstanding any of the
foregoing to the contrary, provided Tenant is not in default hereunder this
Lease, and subject to Landlord's rights and Tenant's obligations pursuant to
Section 7.5 below, Landlord shall not unreasonably withhold its consent to any
proposed subletting of the Premises. For purposes of the immediately preceding
sentence, it shall be reasonable for Landlord to withhold its consent if, for
example: (i) the proposed subtenant is engaged in a business, or the Premises
will be used in a manner, that is inconsistent with the first-class image of
the Building; or (ii) Landlord is not satisfied with the financial condition of
the proposed subtenant; or (iii) the initial Tenant does not remain fully
liable as a primary obligor for the payment of all rent and other charges
payable by Tenant hereunder and for the performance of all other obligations of
Tenant hereunder; or (iv) the proposed subtenant is a governmental or
quasi-governmental agency. No assignment or right of occupancy hereunder may be
effectuated by operation of law or otherwise without the prior written consent
of Landlord. Any assignment or subletting, Landlord's consent thereto, or
Landlord's collection or acceptance of rent from any assignee or subtenant
shall not be construed either as waiving or releasing Tenant from any of its
liabilities or obligations under this Lease as a principal and not as a
guarantor or surety, or as relieving Tenant or any assignee or subtenant from
the obligation of obtaining Landlord's prior written consent to any subsequent
assignment or subletting. As security for this Lease, Tenant hereby assigns to
Landlord the rent due from any assignee or subtenant of Tenant. For any period
during which Tenant is in default hereunder, Tenant hereby authorizes each such
assignee or subtenant to pay said rent directly to Landlord upon receipt of
notice from Landlord specifying same. Landlord's collection of such rent shall
not be construed as an acceptance of such assignee or subtenant as a tenant.
Tenant shall not mortgage, pledge, hypothecate or encumber (collectively
"mortgage") this Lease without Landlord's prior written consent, which consent
may be granted or withheld in Landlord's sole and absolute discretion. Tenant
shall pay to Landlord all expenses (including attorneys' fees and accounting
costs) incurred by Landlord in connection with Tenant's request for Landlord to
give its consent to any assignment, subletting, or mortgage. Tenant shall
notify Landlord prior to engaging a real estate broker in connection with any
proposed assignment or sublease. Any sublease, assignment or mortgage shall, at
Landlord's option, be effected on forms approved by Landlord. Tenant shall
deliver to Landlord a fully-executed copy of each agreement evidencing a
sublease, assignment or mortgage within ten (10) days after Tenant's execution
thereof.
7.2 If Tenant is a partnership, then any event (whether
voluntary, concurrent or related) resulting in a dissolution of Tenant, any
withdrawal or change (whether voluntary, involuntary or by operation of law) of
partners owning a controlling interest in Tenant (including each general
partner), or any structural or other change having the effect of limiting the
liability of the partners shall be deemed a voluntary assignment of this Lease
subject to the provisions of this Article. If Tenant is a corporation (or a
partnership with a corporate general partner), then any event (whether
voluntary, concurrent or related) resulting in a dissolution, merger,
consolidation or other reorganization of Tenant (or such corporate general
partner), or the sale or transfer or relinquishment of the interest of
shareholders who, as of the date of this Lease, own a controlling interest of
the capital stock of Tenant (or such corporate general partner), shall be deemed
a voluntary assignment of this Lease subject to the provisions of this Article;
provided, however, that the foregoing portion of this sentence shall not apply
to corporations whose stock is traded through a national or regional exchange or
over-the-counter market. If Tenant is a limited liability company, then any
dissolution of Tenant r a withdrawal or change, whether voluntary, involuntary
or by operation of law, of members owning a controlling interest in Tenant shall
be deemed a voluntary assignment of this Lease. In addition, a transfer of all
or substantially all of the assets of Tenant, either by merger, consolidation,
or otherwise shall be deemed to be an assignment under this Article VII.
7.3 If at any time during the Lease Term Tenant desires
to assign, sublet or mortgage all or part of this Lease or the Premises, then
in connection with Tenant's request to Landlord for Landlord's consent thereto,
Tenant shall give notice to Landlord in writing ("Tenant's Request Notice")
containing: the identity of the proposed assignee, subtenant or other party
and a description of its business; the terms of the proposed assignment,
subletting or other transaction; the commencement date of the proposed
assignment, subletting or other transaction (the "Proposed Sublease
Commencement Date"); the area proposed to be assigned, sublet or otherwise
encumbered (the "Proposed Sublet Space"); the most recent financial statement
or other evidence of financial responsibility of such proposed assignee,
subtenant or other party; and a certification executed by Tenant and such party
stating whether or not any premium or other consideration is being paid for the
assignment, sublease or other transaction.
7.4 Intentionally Deleted.
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7.5 If any sublease or assignment (whether by operation
of law or otherwise, including without limitation an assignment pursuant to the
provisions of the Bankruptcy Code or any other Insolvency Law) provides that
the subtenant or assignee thereunder is to pay any amount in excess of the
rental and other charges due under this Lease, then whether such excess be in
the form of an increased monthly or annual rental, a lump sum payment, payment
for the sale, transfer or lease of Tenant's fixtures, leasehold improvements,
furniture and other personal property, or any other form (and if the subleased
or assigned space does not constitute the entire Premises, the existence of
such excess shall be determined on a pro-rata basis), Tenant shall pay to
Landlord fifty percent (50%) of any such excess or other premium applicable to
the sublease or assignment, which amount shall be paid by Tenant to Landlord as
additional rent upon such terms as shall be reasonably specified by Landlord
and in no event later than ten (10) days after any receipt thereof by Tenant.
Acceptance by Landlord of any payments due under this Section shall not be
deemed to constitute approval by Landlord of any sublease or assignment, nor
shall such acceptance waive any rights of Landlord hereunder. Landlord shall
have the right to inspect and audit Tenant's books and records relating to any
sublease or assignment.
7.6 All restrictions and obligations imposed pursuant to
this Lease on Tenant shall be deemed to extend to any subtenant, assignee,
licensee, concessionaire or other occupant or transferee, and Tenant shall
cause such person to comply with such restrictions and obligations. Any
assignee shall be deemed to have assumed obligations as if such assignee had
originally executed this Lease and at Landlord's request shall execute promptly
a document confirming such assumption. Each sublease is subject to the
condition that if the Lease Term is terminated or Landlord succeeds to Tenant's
interest in the Premises by voluntary surrender or otherwise, at Landlord's
option the subtenant shall be bound to Landlord for the balance of the term of
such sublease and shall attorn to and recognize Landlord as its landlord under
the then executory terms of such sublease.
ARTICLE VIII
MAINTENANCE AND REPAIRS
8.1 Tenant, at Tenant's sole cost and expense, shall
promptly make all repairs, perform all maintenance, and make all replacements
in and to the Premises that are necessary or desirable to keep the Premises in
first class condition and repair, in a clean, safe and tenantable condition,
and otherwise in accordance with all Laws and the requirements of this Lease.
Tenant shall maintain all fixtures, furnishings and equipment located in, or
exclusively serving, the Premises in clean, safe and sanitary condition, shall
take good care thereof and make all required repairs and replacements thereto.
Tenant shall give Landlord written notice of any defects or damage to the
structure of, or equipment or fixtures in, the Building or any part thereof
promptly after Tenant becomes aware thereof. Tenant shall suffer no waste or
injury to any part of the Premises, and shall, at the expiration or earlier
termination of the Lease Term, surrender the Premises in an order and condition
equal to or better than their order and condition on the Lease Commencement
Date, except for ordinary wear and tear and as otherwise provided in Article
XVII. Except as otherwise provided in Article XVII, all injury, breakage and
damage to the Premises and to any other part of the Building or the Land caused
by any act or omission of any invitee, agent, employee, subtenant, assignee,
contractor, client, family member, licensee, customer or guest of Tenant
(collectively, "Invitees") or Tenant, shall be repaired by and at Tenant's
expense, except that Landlord shall have the right at Landlord's option to make
any such repair and to charge Tenant for all costs and expenses incurred in
connection therewith. Landlord shall provide and install replacement tubes for
Building standard fluorescent light fixtures (subject to reimbursement pursuant
to Article V); all other bulbs and tubes for the Premises shall be provided and
installed at Tenant's expense.
8.2 Except as otherwise provided in this Lease, Landlord
shall keep the exterior and demising walls, load bearing elements, foundations,
roof and common areas that form a part of the Building, and the building
standard mechanical, electrical, HVAC and plumbing systems, pipes and conduits
that are provided by Landlord in the operation of the Building (collectively,
the "Building Structure and Systems"), clean and in good operating condition
and, promptly after becoming aware of any item needing repair, will make
repairs thereto. Notwithstanding any of the foregoing to the contrary: (a)
maintenance and repair of special tenant areas, facilities, finishes and
equipment (including, but not limited to, HVAC systems serving the Premises,
any special fire protection equipment, telecommunications and computer
equipment, kitchen/galley equipment, air-conditioning equipment serving the
Premises only and all other furniture, furnishings and equipment of Tenant and
all Alterations) shall be the sole responsibility of Tenant and shall be deemed
not to be a part of the Building Structure and Systems; and (b) Landlord shall
have no obligation to make any repairs brought about by any act or neglect of
Tenant or any Invitee.
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ARTICLE IX
ALTERATIONS
9.1 The original improvement of the Premises shall be
accomplished by Tenant or its designated contractor(s) in accordance with
Exhibit B. Landlord is under no obligation to make any structural or other
alterations, decorations, additions, improvements or other changes
(collectively, "Alterations") in or to the Premises or the Building except as
otherwise expressly provided in this Lease.
9.2 Tenant shall not make or permit anyone to make any
Alterations in or to the Premises or the Building, without the prior written
consent of Landlord, which consent may be withheld or granted in Landlord's
sole and absolute discretion with respect to all structural Alterations and to
those non-structural Alterations which are visible from the exterior of the
Premises or for which a building permit is required, and which consent shall
not be unreasonably withheld with respect to all other non-structural
Alterations. Structural Alterations shall be deemed to include without
limitation any Alteration that will or may necessitate any changes,
replacements or additions to the walls, ceilings, partitions, columns or floor,
or to the water, electrical, mechanical, plumbing or HVAC systems, of the
Premises or the Building. Notwithstanding the foregoing, provided Tenant gives
Landlord prior written notice, Tenant may install in the Premises, without
obtaining Landlord's prior written consent, minor, nonstructural Alterations of
a decorative or cosmetic nature ("Cosmetic Alterations") whose aggregate value
(as reasonably determined by Landlord) is less than Five Thousand Dollars
($5,000) and which do not require a building permit, for example, the hanging
of artwork, the installation of carpeting or repainting; and further provided
that in connection with any repainting or recarpeting, if the paint and/or
carpet (as applicable) is of equal or better quality as the paint and/or carpet
then-existing in the Premises and is of a substantially similar color, then the
cost thereof shall not be included in calculating the Five Thousand Dollar
($5,000) threshold for Cosmetic Alterations. Any Alterations made by Tenant
shall be made: (a) in a good, workmanlike, first-class and prompt manner; (b)
using new materials only; (c) by a contractor, on days, at times and, except
for Cosmetic Alterations, under the supervision of an architect approved in
writing by Landlord; (d) in accordance with plans and specifications prepared
by an engineer or architect reasonably acceptable to Landlord, which plans and
specifications shall be approved in writing by Landlord at Landlord's standard
charge (except that the foregoing requirements of this clause (d) shall not
apply in the case of Cosmetic Alterations for which plans and specifications
are not generally prepared, as reasonably determined by Landlord); (e) in
accordance with all Laws and the requirements of any insurance company insuring
the Building or any portion thereof; (f) after having obtained any required
consent of the holder of any Mortgage; (g) after obtaining public liability and
worker's compensation insurance policies approved in writing by Landlord, which
policies shall cover every person who Xxxx perform any work with respect to
such Alteration; (h) after Tenant has obtained and delivered to Landlord
written, unconditional waivers of mechanics' and materialmen's liens against
the Premises and the Building from all proposed contractors, subcontractors,
laborers and material suppliers for all work, labor and services to be
performed and materials to be furnished in connection with Alterations; and (i)
upon request, after Tenant has delivered to Landlord documentation reasonably
satisfactory to Landlord evidencing Tenant's financial ability to complete the
Alteration in accordance with the provisions of this Lease. If any lien (or a
petition to establish such lien) is filed in connection with any Alteration,
such lien (or petition) shall be discharged by Tenant within ten (10) days
thereafter, at Tenant's sole cost and expense, by the payment thereof or by the
filing of a bond acceptable to Landlord. If Landlord gives its consent to the
making of any Alteration, such consent shall not be deemed to be an agreement
or consent by Landlord to subject its interest in the Premises or the Building
to any liens which may be filed in connection therewith. All Alterations
(including, without limitation, those involving structural, electrical,
mechanical or plumbing work, the heating, ventilation and air conditioning
system of the Premises or the Building, and the roof of the Building) shall, at
Landlord's election, be performed by Landlord's designated contractor or
subcontractor at Tenant's expense. If Landlord elects not to so perform such
work, then Landlord shall be paid a reasonable construction supervision fee
(not to exceed five percent (5%) of the cost of such work). Promptly after the
completion of an Alteration, Tenant at its expense shall deliver to Landlord
three (3) sets of accurate as-built drawings showing such Alteration in place.
9.3 If any Alterations are made without the prior written
consent of Landlord, Landlord shall have the right at Tenant's expense to
remove and correct such Alterations and restore the Premises and the Building
to their condition immediately prior thereto, or to require Tenant to do the
same. All Alterations to the Premises or the Building made by either party
shall immediately become the property of Landlord and shall remain upon and be
surrendered with the Premises as a part thereof at the expiration or earlier
termination of the Lease Term; provided, however, that (a) if Tenant is not in
default under this Lease, then Tenant shall have the right to remove, prior to
the expiration or earlier termination of the Lease Term, all movable furniture,
furnishings and equipment installed in the Premises solely at the expense of
Tenant, and (b) Tenant shall remove all Alterations and other items in the
Premises or the Building which Landlord designates in writing for removal.
Movable furniture, furnishings and trade
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fixtures shall be deemed to exclude without limitation any item the removal of
which might cause damage to the Premises or the Building or which would normally
be removed from the Premises with the assistance of any tool or machinery other
than a dolly. Landlord shall have the right at Tenant's expense to repair all
damage and injury to the Premises or the Building caused by such removal or to
require Tenant to do the same. If such furniture, furnishings and equipment are
not removed by Tenant prior to the expiration or earlier termination of the
Lease Term, the same shall at Landlord's option become the property of Landlord
and shall be surrendered with the Premises as a part thereof; provided,
however, that Landlord shall have the right at Tenant's expense to remove from
the Premises such furniture, furnishings and equipment and any Alteration which
Landlord designates in writing for removal or to require Tenant to do the same.
If Tenant fails to return the Premises to Landlord as required by this Section,
then Tenant shall pay to Landlord, as additional rent, all costs (including a
construction management fee) incurred by Landlord in effecting such return.
ARTICLE X
SIGNS
10.1 Landlord will list Tenant's name in the Building
directory, if any, and provide Building standard signage, subject to compliance
with all applicable Laws on the exterior entry door of the Premises. No other
sign, advertisement or notice referring to Tenant shall be inscribed, painted,
affixed or otherwise displayed on any part of the exterior or interior of the
Building (including windows and doors) without the prior written approval of
Landlord, which may be granted or withheld in Landlord's sole and absolute
discretion. If any such item that has not been approved by Landlord is so
displayed, then Landlord shall have the right to remove such item at Tenant's
expense or to require Tenant to do the same. Landlord reserves the right to
install and display signs, advertisements and notices on any part of the
exterior or interior of the Building; provided, however that Landlord shall
only affix, install, or display signs on the interior of the Premises which
pertain to the management or operation of the Building.
ARTICLE XI
SECURITY DEPOSIT
11.1 Simultaneously with Tenant's execution of this Lease,
Tenant shall deposit with Landlord the Security Deposit Amount (as defined in
Section 1.9) as a security deposit which shall be security for the performance
by Tenant of all of Tenant's obligations, covenants, conditions and agreements
under this Lease. Landlord shall not be required to maintain such security
deposit in a separate account. Except as may be required by law, Tenant shall
not be entitled to interest on the security deposit. Within approximately
thirty (30) days after the later of the expiration or earlier termination of
the Lease Term or Tenant's vacating the Premises, Landlord shall return such
security deposit to Tenant, less such portion thereof as Landlord shall have
appropriated to satisfy any of Tenant's obligations, or any default by Tenant,
under this Lease. If there shall be any default under this Lease by Tenant,
then Landlord shall have the right, but shall not be obligated, to use, apply
or retain all or any portion of the security deposit for the payment of any (a)
Base Rent, additional rent or any other sum as to which Tenant is in default,
or (b) amount Landlord may spend or become obligated to spend, or for the
compensation of 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 reletting of the Premises). If any portion of the security deposit is
so used or applied, then within three (3) business days after Landlord gives
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 the
original Security Deposit Amount, and Tenant's failure to do so shall
constitute an Event of Default under this Lease.
11.2 If Landlord transfers the security deposit to any
purchaser or other transferee of Landlord's interest in the Property, then
Tenant shall look only to such purchaser or transferee for the return of the
security deposit, and Landlord shall be released from all liability to Tenant
for the return of such security deposit. Tenant acknowledges that the holder of
any Mortgage shall not be liable for the return of any security deposit made by
Tenant hereunder unless such holder actually receives such security deposit.
Tenant shall not pledge, mortgage, assign or transfer the Security Deposit or
any interest therein.
ARTICLE XII
INSPECTION
12.1 Tenant shall permit Landlord, its agents and
representatives, and the holder of any Mortgage, to enter the Premises without
charge therefor and without diminution of the rent payable by Tenant in order
to examine, inspect or protect the Premises and the Building, to make such
alterations and/or repairs as in the sole and absolute judgment of Landlord may
be deemed necessary or desirable, or to exhibit the same to brokers,
prospective tenants, lenders, purchasers and others. Except in the event of
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an emergency, Landlord shall endeavor to minimize disruption to Tenant's normal
business operations in the Premises in connection with any such entry.
ARTICLE XIII
INSURANCE
13.1 Tenant shall not conduct or permit to be conducted
any activity, or place or permit to be placed any equipment or other item in or
about the Premises or the Building, which will in any way increase the rate of
fire insurance or other insurance on the Building. If any increase in the rate
of fire insurance or other insurance is due to any activity, equipment or other
item of Tenant, then (whether or not Landlord has consented to such activity,
equipment or other item) Tenant shall pay as additional rent due hereunder the
amount of such increase. The statement of any applicable insurance company or
insurance rating organization (or other organization exercising similar
functions in connection with the prevention of fire or the correction of
hazardous conditions) that an increase is to any such activity, equipment or
other item shall be conclusive evidence thereof.
13.2 (a) Throughout the Lease Term, Tenant shall obtain
and maintain (1) commercial general liability insurance (written on an
occurrence basis) including contractual liability coverage insuring the
obligations assumed by Tenant under this Lease (including those set forth in
Sections 6.3 and 15.2), premises and operations coverage, broad form property
damage coverage and independent contractors coverage, and containing an
endorsement for personal injury, (2) business interruption insurance, (3)
all-risk property insurance, (4) comprehensive automobile liability insurance
(covering automobiles owned by Tenant, if any), (5) worker's compensation
insurance, and (6) employer's liability insurance. Such commercial general
liability insurance shall be in minimum amounts typically carried by prudent
tenants engaged in similar operations, but in no event shall be in an amount
less than Two Million Dollars ($2,000,000) combined single limit per occurrence
with a Four Million Dollar ($4,000,000) annual aggregate. Such business
interruption insurance shall be in minimum amounts typically carried by prudent
tenants engaged in similar operations, but in no event shall be in an amount
less than the Base Rent then in effect during any Lease Year. Such property
insurance shall be in an amount not less than that required to replace all of
the original tenant improvements installed in the Premises pursuant to Exhibit
B (except for the Building Standard Allowances (as defined in Exhibit E)
provided by Landlord, to the extent the same were originally incorporated into
the Premises), all Alterations and all other contents of the Premises
(including, without limitation, Tenant's trade fixtures, decorations,
furnishings, equipment and personal property). Such automobile liability
insurance shall be in an amount not less than One Million Dollars ($1,000,000)
for each accident. Such worker's compensation insurance shall carry minimum
limits as defined by the law of the jurisdiction in which the Building is
located (as the same may be amended from time to time). Such employer's
liability insurance shall be in an amount not less than One Million Dollars
($1,000,000) for each accident, One Million Dollars ($1,000,000) disease-policy
limit, and One Million Dollars ($1,000,000) disease-each employee.
(b) All such insurance shall: (1) be issued by a
company that is licensed to do business in the jurisdiction in which the
Building is located, that has been approved in advance by Landlord and that has
a rating equal to or exceeding A:XI from Best's Insurance Guide; (2) name
Landlord, the managing agent of the Building and the holder of any Mortgage as
additional insureds and/or loss payees (as applicable); (3) contain an
endorsement that such policy shall remain in full force and effect
notwithstanding that the insured may have waived its right of action against any
party prior to the occurrence of a loss (Tenant hereby waiving its right of
action and recovery against and releasing Landlord and its employees and agents
from any and all liabilities, claims and losses for which they may otherwise be
liable to the extent Tenant is covered by insurance carried or required to be
carried under this Lease); (4) provide that the insurer thereunder waives all
right of recovery by way of subrogation against Landlord, its partners, agents,
employees, and representatives, in connection with any loss or damage covered by
such policy; (5) be acceptable in form and content to Landlord; (6) be primary
and non-contributory; and (7) contain an endorsement prohibiting cancellation,
failure to renew, reduction of amount of insurance or change in coverage without
the insurer first giving Landlord thirty (30) days' prior written notice (by
certified or registered mail, return receipt requested) of such proposed action.
No such policy shall contain any deductible provision except as otherwise
approved in writing by Landlord, which approval shall not be unreasonably
withheld. Landlord reserves the right from time to time to require Tenant to
obtain higher minimum amounts of insurance. Tenant shall deliver a certificate
of all such insurance and receipts evidencing payment therefor (and, upon
request, copies of all required insurance policies, including endorsements and
declarations) to Landlord on or before the Lease Commencement Date and at least
annually thereafter.
13.3 Landlord agrees to carry and maintain all-risk
property insurance (with replacement cost coverage) covering the Building and
Landlord's property therein in an amount required by its insurance company to
avoid the application of any coinsurance provision. Landlord hereby waives
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its right of recovery against Tenant and releases Tenant from any and all
liabilities, claims and losses for which Tenant may otherwise be liable to the
extent Landlord is covered by property insurance therefor. Landlord shall use
reasonable efforts to secure a waiver of subrogation endorsement from its
insurance carrier. Landlord also agrees to carry and maintain commercial general
liability insurance in limits it reasonably deems appropriate (but in no event
less than the limits required of Tenant pursuant to Section 13.2).
ARTICLE XIV
SERVICES AND UTILITIES
14.1 Subject to Tenant's obligations specified in this
Lease, Landlord will provide water, elevator service (with at least one (1)
elevator in operation at all times, except in the event of an emergency), and
exterior window-cleaning service. If Tenant requires air-conditioning or heat
beyond the Building Hours, then Landlord will furnish the water to operate
Tenant's HVAC system (up to 66 gallons of condenser water per minute). Tenant
shall pay for such extra water service in accordance with Section 14.3 below.
Notwithstanding anything above to the contrary, Tenant shall have access to the
Building twenty-four (24) hours per day each day of the year (except in the
event of an emergency).
14.2 Electricity furnished to the Premises shall be
measured by a separate meter installed by Tenant at Tenant's expense. Tenant
shall timely pay directly to the utility company all charges for all
electricity furnished to the Premises. If at any time during the Lease Term all
or any portion of the Premises or any equipment in or servicing the Premises
are not separately metered, then Landlord may install at Tenant's expense
submeters to ascertain Tenant's actual electricity consumption, and Tenant
shall thereafter pay for such consumption at the then-current price per
kilowatt hour charged Landlord by the utility. Tenant acknowledges that a 100
amp switch in the Premises is damaged and that Landlord shall not be obligated
to repair such switch unless the electric utility requires its use in
connection with providing electricity to the Premises.
14.3 Tenant shall reimburse Landlord for the cost of any
excess water, sewer and chiller usage in the Premises. Excess usage shall mean
the excess of the estimated usage in the Premises (per square foot of rentable
area) during any billing period over the average usage (per square foot of
rentable area) during the same period for the entire Building, as reasonably
calculated by Landlord.
ARTICLE XV
LIABILITY OF LANDLORD
15.1 Landlord, its employees and agents shall not
be liable to Tenant, any Invitee or any other person or entity for any damage
(including indirect and consequential damage), injury, loss or claim (including
claims for the interruption of or loss to business) based on or arising out of
any cause whatsoever (except as otherwise provided in this Section), including
without limitation the following: repair to any portion of the Premises or the
Building; interruption in the use of the Premises or any equipment therein; any
accident or damage resulting from any use or operation (by Landlord, Tenant or
any other person or entity) of elevators or heating, cooling, electrical,
sewerage or plumbing equipment or apparatus; termination of this Lease by
reason of damage to the Premises or the Building; any fire, robbery, theft,
vandalism, mysterious disappearance or any other casualty; actions of any other
tenant of the Building or of any other person or entity; failure or inability
to furnish any service specified in this Lease; and leakage in any part of the
Premises or the Building from water, rain, ice or snow that may leak into, or
flow from, any part of the Premises or the Building, or from drains, pipes or
plumbing fixtures in the Premises or the Building. If any condition exists
which may be the basis of a claim of constructive eviction, then Tenant shall
give Landlord written notice thereof and a reasonable opportunity to correct
such condition, and in the interim Tenant shall not claim that it has been
constructively evicted or is entitled to a rent abatement. Any property placed
by Tenant or any Invitee in or about the Premises or the Building shall be at
the sole risk of Tenant, and Landlord shall not in any manner be held
responsible therefor. Any person receiving an article delivered for Tenant
shall be acting as Tenant's agent for such purpose and not as Landlord's agent.
For purposes of this Article, the term "Building" shall be deemed to include
the Land. Notwithstanding the foregoing provisions of this Section, Landlord
shall not be released from liability to Tenant for any physical injury to any
natural person caused by Landlord's willful misconduct or gross negligence to
the extent such injury is not covered by insurance (a) carried by Tenant or
such person, or (b) required by this Lease to be carried by Tenant; provided,
however, that Landlord shall not under any circumstances be liable for any
consequential or indirect damages.
15.2 Tenant shall reimburse Landlord, its employees and
agents for (as additional rent), and shall indemnify, defend upon request and
hold them harmless from and against all costs, damages, claims, liabilities,
expenses including reasonable attorneys' fees), losses, penalties and court
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costs (collectively, "Damages") suffered by or claimed against them, directly
or indirectly, based on or arising out of, in whole or in part, (a) use and
occupancy of the Premises or the business conducted therein, (b) any act or
omission of Tenant or any Invitee, (c) any breach of Tenant's obligations under
this Lease, including failure to comply with Laws or surrender the Premises
upon the expiration or earlier termination of the Lease Term, or (d) any entry
by Tenant or any Invitee upon the Land prior to the Lease Commencement Date.
Notwithstanding the foregoing, Tenant shall not be liable pursuant to this
Section 15.2 to the extent Landlord receives insurance proceeds on account of
any such Damages.
15.3 No landlord hereunder shall be liable for any
obligation or liability based on or arising out of any event or condition
occurring during the period that such landlord was not the owner of the
Building or a landlord's interest therein. Within five (5) days after request,
Tenant shall attorn to such transferee and execute, acknowledge and deliver any
document submitted to Tenant confirming such attornment; provided, that, after
succeeding to Landlord's interest under this Lease, such transferee shall agree
to perform in accordance with the terms of this Lease all obligations of
Landlord arising after the date of transfer.
15.4 Tenant shall not have the right to set off or deduct
any amount allegedly owed to Tenant pursuant to any claim against Landlord from
any rent or other sum payable to Landlord. Tenant's sole remedy for recovering
upon such claim shall be to institute an independent action against Landlord,
which action shall not be consolidated with any action of Landlord.
15.5 If Tenant or any Invitee is awarded a money judgment
against Landlord, then recourse for satisfaction of such judgment shall be
limited to execution against Landlord's estate and interest in the Building. No
other asset of Landlord, any partner, director, member, officer or trustee of
Landlord (each, an "officer") or any other person or entity shall be available
to satisfy or be subject to such judgment, nor shall any officer or other person
or entity be held to have personal liability for satisfaction of any claim or
judgment against Landlord or any officer.
ARTICLE XVI
RULES
16.1 Tenant and Invitees shall at all times abide by and
observe the rules specified in Exhibit C. Tenant and Invitees shall also abide
by and observe any other rule that Landlord may promulgate from time to time
for the operation and maintenance of the Building, provided that notice thereof
is given and such rule is not inconsistent with the provisions of this Lease.
All rules shall be binding upon Tenant and enforceable by Landlord as if they
were contained herein. Nothing contained in this Lease shall be construed as
imposing upon Landlord any duty or obligation to enforce such rules, 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 by any other tenant or its employees, agents, assignees, subtenants,
invitees or licensees. Landlord shall use reasonable efforts not to enforce any
rule or regulation in a manner which unreasonably discriminates among similarly
situated tenants.
ARTICLE XVII
DAMAGE OR DESTRUCTION
17. 1 If the Premises or the Building are totally or
partially damaged or destroyed thereby rendering the Premises totally or
partially inaccessible or unusable, then Landlord shall diligently repair and
restore the Premises and the Building to substantially the same condition they
were in prior to such damage or destruction; provided, however, that if in
Landlord's judgment such repair and restoration cannot be completed within
ninety (90) days after the occurrence of such damage or destruction (taking
into account the time needed for effecting a satisfactory settlement with any
insurance company involved, removal of debris, preparation of plans and
issuance of all required governmental permits), then Landlord shall have the
right to terminate this Lease by giving written notice of termination within
sixty (60) days after the occurrence of such damage or destruction. If this
Lease is terminated pursuant to this Article, then rent shall be apportioned
(based on the portion of the Premises which is usable after such damage or
destruction) and paid to the date of termination. If this Lease is not
terminated as a result of such damage or destruction, then until such repair
and restoration of the Premises are substantially complete, Tenant shall be
required to pay rent only for the portion of the Premises that is usable while
such repair and restoration are being made; provided, however, that if such
damage or destruction was caused by the act or omission of Tenant or any
Invitee, then Tenant shall not be entitled to any such rent reduction. After
receipt of all insurance proceeds (including proceeds of insurance maintained
by Tenant), Landlord shall proceed with and bear the expenses of such repair
and restoration of the Premises and the Building; provided, however, that (a)
if such damage or destruction was caused by the act or omission of Tenant or
any Invitee, then Tenant shall pay Landlord's deductible and the amount by
which such expenses exceed
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the insurance proceeds, if any, actually received by Landlord on account of such
damage or destruction, (b) Tenant shall pay the amount by which the cost of
restoring any item which Landlord is required to restore and Tenant is required
to insure exceeds the insurance proceeds received with respect thereto, and (c)
Landlord shall not be required to repair or restore any of the original tenant
improvements installed pursuant to Exhibit B (except for the Building Standard
Allowance provided by Landlord, to the extent the same were originally
incorporated into the Premises), any Alterations or any other contents of the
Premises (including, without limitation, Tenant's trade fixtures, decorations,
furnishings, equipment or personal property). Notwithstanding anything herein to
the contrary, Landlord shall have the right to terminate this Lease if (1)
insurance proceeds are insufficient to pay the full cost of such repair and
restoration, (2) the holder of any Mortgage fails or refuses to make such
insurance proceeds available for such repair and restoration, (3) zoning or
other applicable Laws or regulations do not permit such repair and restoration,
or (4) the damage to the Building exceeds twenty-five percent (25%) of the
replacement value of the Building.
17.2 If Landlord proceeds to repair and restore the
Premises and the Building in accordance with this Lease, but does not complete
such repair and restoration of the Premises within one (1) year after the date
the damage or destruction occurred, then Tenant shall have the right to
terminate this Lease only by providing written notice to Landlord of the
exercise of such right only during the period commencing on the 366th day and
ending on the 370th day after the date of such damage or destruction. If Tenant
does not timely exercise its termination right during such period, then Tenant
shall be deemed to have waived its right to terminate this Lease in accordance
with this Section. Notwithstanding any of the foregoing to the contrary, Tenant
shall not have the right to terminate this Lease if any act or omission of
Tenant or any invitee of Tenant shall have caused or contributed to the damage
or destruction or the delay in repairing or restoring the same.
ARTICLE XVIII
CONDEMNATION
18.1 If one-third or more of the Premises, or the use or
occupancy thereof, shall be taken or condemned by any governmental or
quasi-governmental authority for any public or quasi-public use or purpose or
sold under threat of such a taking or condemnation (collectively, "condemned"),
then this Lease shall terminate on the day prior to the date title thereto
vests in such authority and rent shall be apportioned as of such date. If less
than one-third of the Premises or occupancy thereof is condemned, then this
Lease shall continue in full force and effect as to the part of the Premises
not so condemned, except that as of the date title vests in such authority
Tenant shall not be required to pay rent with respect to the part of the
Premises so condemned. Notwithstanding anything herein to the contrary, if
twenty-five percent (25%) or more of the Land or the Building is condemned,
then whether or not any portion of the Premises is condemned, Landlord shall
have the right to terminate this Lease as of the date title vests in such
authority.
18.2 All awards, damages and other compensation paid on
account of such condemnation shall belong to Landlord, and Tenant assigns to
Landlord all rights to such awards, damages and compensation. Tenant shall not
make any claim against Landlord or such authority for any portion of such award
damages or compensation attributable to damage to the Premises, value of the
unexpired portion of the Lease Term, loss of profits or goodwill, leasehold
improvements or severance damages. Nothing contained herein, however, shall
prevent Tenant from pursuing a separate claim against the authority for
relocation expenses and for the value of furnishings, equipment and trade
fixtures installed in the Premises at Tenant's expense and which Tenant is
entitled pursuant to this Lease to remove at the expiration or earlier
termination of the Lease Term, provided that such claim shall in no way
diminish the award, damages or compensation payable to or recoverable by
Landlord in connection with such condemnation.
ARTICLE XIX
DEFAULT
19.1 Each of the following shall constitute an "Event of
Default": (a) Tenant's failure to make when due any payment of the Base Rent,
additional rent or other sum; provided, however, that with respect to the first
such failure in any twelve (12) month period only, no Event of Default shall be
deemed to have occurred unless such failure continues for a period of five (5)
days after Landlord delivers written notice thereof to Tenant; (b) Tenant's
failure to perform or observe any covenant or condition of this Lease not
otherwise specifically described in this Section 19.1; provided, however, that
with respect to the first such failure as to any particular Article of this
Lease in any twelve (12) month period only, no Event of Default shall be deemed
to have occurred unless such failure continues for ten (10) days after Landlord
delivers written notice thereof to Tenant; (c) Tenant's failure to perform or
observe the
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obligations set forth in Section 6.1(b) of this Lease; provided, however, that
with respect to the first two (2) such failures in any twelve (12) month period
only, no Event of Default shall be deemed to have occurred unless such failure
continues for a period of twenty-four (24) hours after Landlord delivers written
notice thereof to Tenant; (d) an Event of Bankruptcy as specified in Article XX;
(e) Tenant's dissolution or liquidation; or (f) any Environmental Default as
specified in Section 6.3.
19.2 If there shall be an Event of Default (even if prior
to the Lease Commencement Date), then the provisions of this Section shall
apply. Landlord shall have the right, at its sole option, to terminate this
Lease. In addition, with or without terminating this Lease, Landlord may
re-enter, terminate Tenant's right of possession and take possession of the
Premises. The provisions of this Article shall operate as a notice to quit, and
Tenant hereby waives any other notice to quit or notice of Landlord's intention
to re-enter the Premises or terminate this Lease. If necessary, Landlord may
proceed to recover possession of the Premises under applicable Laws, or by such
other proceedings, including re-entry and possession, as may be applicable. If
Landlord elects to terminate this Lease and/or elects to terminate Tenant's
right of possession, everything contained in this Lease on the part of Landlord
to be done and performed shall cease without prejudice, however, to Tenant's
liability for all Base Rent, additional rent and other sums specified herein.
Whether or not this Lease and/or Tenant's right of possession is terminated,
Landlord shall have the right, at its sole option, to terminate any renewal or
expansion right contained in this Lease and to grant or withhold any consent or
approval pursuant to this Lease in its sole and absolute discretion. Landlord
may relet the Premises or any part thereof, alone or together with other
premises, for such term(s) (which may extend beyond the date on which the Lease
Term would have expired but for Tenant's default) and on such terms and
conditions (which may include any concessions or allowances granted by Landlord)
as Landlord, in its sole and absolute discretion, may determine, but Landlord
shall not be liable for, nor shall Tenant's obligations hereunder be diminished
by reason of, any failure by Landlord to relet all or any portion of the
Premises or to collect any rent due upon such reletting. If Tenant is in default
under this Lease and has vacated the Premises, then Landlord shall thereafter
use reasonable efforts to relet the Premises; provided, however, that Tenant
understands and agrees that Landlord's main priority will be the leasing of
space in the metropolitan Washington, D.C. area controlled by Landlord or any
affiliate of Landlord (and not then leased by Landlord or such affiliate), and
the reletting of the Premises will be of lower priority. Whether or not this
Lease and/or Tenant's right of possession is terminated or any suit is
instituted, Tenant shall be liable for any Base Rent, additional rent, damages
or other sum which may be due or sustained prior to such default, and for all
costs, fees and expenses (including, but not limited to, attorneys' fees and
costs, brokerage fees, expenses incurred in enforcing any of Tenant's
obligations under the Lease or in placing the Premises in first-class rentable
condition, advertising expenses, and any concessions or allowances granted by
Landlord) incurred by Landlord in pursuit of its remedies hereunder and/or in
recovering possession of the Premises and renting the Premises to others from
time to time plus other damages suffered or incurred by Landlord on account of
and to the extent caused by Tenant's default (including, but not limited to late
fees or other charges incurred by Landlord under any Mortgage). Tenant also
shall be liable for additional damages which at Landlord's election shall be
either one or a combination of the following: (a) an amount equal to the Base
Rent and additional rent due or which would leave become due from the date of
Tenant's default through the remainder of the Lease Term, less the amount of
rental, if any, which Landlord receives during such period from others to whom
the Premises may be rented (other than any additional rent received by Landlord
as a result of any failure of such other person to perform any of its
obligations to Landlord), which amount shall be computed and payable in monthly
installments, in advance, on the first day of each calendar month following
Tenant's default and continuing until the date on which the Lease Term would
have expired but for Tenant's default, it being understood that separate suits
may be brought from time to time to collect any such damages for any month(s)
(and any such separate suit shall not in any manner prejudice the right of
Landlord to collect any damages for any subsequent month(s)), or Landlord may
defer initiating any such suit until after the expiration of the Lease Term (in
which event such deferral shall not be construed as a waiver of Landlord's
rights as set forth herein and Landlord's cause of action shall be deemed not to
have accrued until the expiration of the Lease Term), and it being further
understood that if Landlord elects to bring suits from time to time prior to
reletting the Premises, Landlord shall be entitled to its full damages through
the date of the award of damages without regard to any Base Rent, additional
rent or other sums that are or may be projected to be received by Landlord upon
reletting of the Premises; or (b) an amount equal to the sum of(i) all Base
Rent, additional rent and other sums due or which would be due and payable under
this Lease as of the date of Tenant's default through the end of the scheduled
Lease Term, plus (ii) the all expenses (including broker and attorneys' fees)
and value of all vacancy periods projected by Landlord to be incurred in
connection with the reletting of the Premises, minus (iii) any Base Rent,
additional rent and other sums which Tenant proves by a preponderance of the
evidence would be received by Landlord upon reletting of the Premises from the
end of the vacancy period projected by Landlord through the expiration of the
scheduled Lease Term. Such amount shall be discounted using a discount factor
equal to the yield of the Treasury Note or Xxxx, as appropriate, having a
maturity period approximately commensurate to the remainder of the Term, and
such resulting amount shall be payable to Landlord in a lump sum on demand, it
being understood
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that upon payment of such liquidated and agreed final damages, Tenant shall be
released from further liability under this Lease with respect to the period
after the date of such payment, and that Landlord may bring suit to collect any
such damages at any time after an Event of Default shall have occurred. In the
event Landlord relets the Premises together with other premises or for a term
extending beyond the scheduled expiration of the Lease Term, it is understood
that Tenant will not be entitled to apply any base rent, additional rent or
other sums generated or projected to be generated by either such other premises
or in the period extending beyond the scheduled expiration of the Lease Term
(collectively, the "Extra Rent") against Landlord's damages. Similarly in
proving the amount that would be received by Landlord upon a reletting of the
Premises as set forth in clause (iii) above, Tenant shall not take into account
the Extra Rent. 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. Nothing herein shall be
construed to affect or prejudice Landlord's right to prove, and claim in full,
unpaid rent accrued prior to termination of this Lease. If Landlord is entitled,
or Tenant is required, pursuant to any provision hereof to take any action upon
the termination of the Lease Term, then Landlord shall be entitled, and Tenant
shall be required, to take much action also upon the termination of Tenant's
right of possession.
19.3 (a) Tenant hereby expressly waives, for itself and
all persons claiming by, through or under it, any right of redemption, re-entry
or restoration of the operation of this Lease under any present or future Law,
including without limitation any such right which Tenant would otherwise have
in case Tenant shall be dispossessed for any cause, or in case Landlord shall
obtain possession of the Premises as herein provided.
(b) All rights and remedies of Landlord set forth in
this Lease are cumulative and in addition to all other rights and remedies
available to Landlord at law or in equity, including those available as a
result of any anticipatory breach of this Lease. The exercise by Landlord of
any such right or remedy shall not prevent the concurrent or subsequent
exercise of any other right or remedy. No delay or failure by Landlord to
exercise or enforce any of Landlord's rights or remedies or Tenant's
obligations shall constitute a waiver of any such rights, remedies or
obligations. Landlord shall not be deemed to have waived any default by Tenant
unless such waiver expressly is set forth in a written instrument signed by
Landlord. If Landlord waives in writing any default by Tenant unless 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.
19.4 If Landlord shall institute proceedings against
Tenant and a compromise or settlement thereof shall be made, then the same
shall not constitute a waiver of the same or of any other covenant, condition
or agreement set forth herein, nor of any of Landlord's rights hereunder.
Neither the payment by Tenant of a lesser amount than the monthly installment of
Base Rent, additional rent or of any sums due hereunder nor any endorsement or
statement on any check or letter accompanying a check for payment of rent or
other sums payable hereunder shall be deemed an accord and satisfaction.
Landlord may accept the same without prejudice to Landlord's right to recover
the balance of such rent or other sums or to pursue any other remedy.
Notwithstanding any request or designation by Tenant, Landlord may apply any
payment received from Tenant to any payment then due. No re-entry by Landlord,
and no acceptance by Landlord of keys from Tenant, shall be considered an
acceptance of a surrender of this Lease.
19.5 If Tenant fails to make any payment to any third
party or to do 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.
The taking of such action by Landlord shall not be considered a cure of such
default by Tenant or prevent Landlord from pursuing any remedy it is otherwise
entitled to in connection with such default. If Landlord elects to make such
payment or do such act, then all expenses incurred by Landlord, plus interest
thereon at a rate (the "Default Rate") equal to the rate per annum which is
five (5) whole percentage points higher than the prime rate published in the
Money Rates section of the Wall Street Journal, from the date incurred by
Landlord to the date of payment thereof by Tenant, shall constitute additional
rent due hereunder: provided, however, that nothing contained herein shall be
construed as permitting Landlord to charge or receive interest in excess of the
maximum rate then allowed by law.
19.6 If Tenant fails to make any payment of Base Rent,
additional rent or any other sum on or before the date such payment is due and
payable (without regard to any grace period specified in Section 19.1), then
Tenant shall pay to Landlord a late charge of five percent (5%) of the amount
of such payment. In addition, such payment and such late fee shall bear
interest at the Default Rate from the date such payment or late xxx,
respectively, became due to the date of payment thereof by Tenant; provided,
however, that nothing contained herein shall be construed as permitting
Landlord to charge or receive interest in excess of the maximum rate then
allowed by law. Such late charge and interest shall
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constitute additional rent due hereunder without any notice or demand.
Notwithstanding the foregoing to the contrary, Landlord shall waive such late
fee (including the interest payable pursuant to the preceding sentence) the
first (1st) time in each calendar year that Tenant fails to make a payment when
due, provided such payment is made before the fifth (5th) day after the date
such payment was due (without regard to any applicable notice or cure period
specified in Section 19.1).
19.7 As security for the performance of Tenant's
obligations, Tenant grants to Landlord a lien upon and a security interest in
Tenant's existing or hereafter acquired personal property, inventory,
furniture, furnishings, fixtures, equipment, licenses, permits and all other
tangible and intangible property, assets and accounts, and all additions,
modifications, products and proceeds thereof, which has been used at the
Premises, purchased for use at the Premises, located at any time in the
Premises or used or to be used in connection with the business conducted or to
be conducted in the Premises, whether or not the same may thereafter be removed
from the Premises, and including, without limitation, all stock and partnership
interests now or hereafter owned by Tenant, legally or beneficially, in any
entity which manages, owns or operates the business to be conducted in or upon
the Premises; provided, however, that Landlord shall subordinate such lien and
security interest to any lien or security interest granted by Tenant in or to
any of its personal property or equipment as security for indebtedness incurred
for the purpose of financing the purchase or leasing of any such personal
property or equipment. Such lien shall be in addition to all rights of
distraint available under applicable law. Within five (5) days after request
from time to time, Tenant shall execute, acknowledge and deliver to Landlord a
financing statement and any other document evidencing or establishing such lien
and security interest which may be requested by Landlord. During the Lease
Term, Tenant shall not sell, transfer or remove from the Premises any of the
aforementioned tangible property without Landlord's prior written consent,
unless the same shall be promptly replaced with similar items of comparable
value. In order to further assure Tenant's performance of its obligations under
this Lease, Tenant covenants that during the Lease Term, it will not convey or
otherwise transfer its assets or permit its assets to be encumbered to the
extent that any such conveyance, transfer or encumbrance is not done in the
ordinary course of Tenant's business or would materially and adversely affect
the net worth of Tenant.
19.8 If more than one natural person or entity shall
constitute Tenant, then the liability of each such person or entity shall be
joint and several. If Tenant is a general partnership or other entity the
partners or members of which are subject to personal liability, then the
liability of each such partner or member shall be joint and several. No waiver,
release or modification of the obligations of any such person or entity shall
affect the obligations of any other such person or entity.
ARTICLE XX
BANKRUPTCY
20.1 An "Event of Bankruptcy" is the occurrence with
respect to any of Tenant, a Guarantor or any other person liable for Tenant's
obligations hereunder (including, without limitation, any general partner (or,
if Tenant is a limited liability company, any member of Tenant) of Tenant (a
"General Partner")) of any of the following: (a) such person becoming
insolvent, as that term is defined in Title 11 of the United States Code (the
"Bankruptcy Code") or under the insolvency laws of any state (the "Insolvency
Laws"); (b) appointment of a receiver or custodian for any property of such
person, or the institution of a foreclosure or attachment action upon any
property of such person; (c) filing by such person of a voluntary petition
under the provisions of the Bankruptcy Code or Insolvency Laws; (d) filing of
an involuntary petition against such person as the subject debtor under the
Bankruptcy Code or Insolvency Laws, which either (1) is not dismissed within
thirty (30) days after filing, or (2) results in the issuance of an order for
relief against the debtor; or (e) such person making or consenting to an
assignment for the benefit of creditors or a composition of creditors; (f) such
person submitting (either before or after execution hereof) to Landlord any
financial statement containing any material inaccuracy or omission; or (g) a
decrease by fifty percent (50%) or more of such person's net worth below the
net worth of such person as of the date hereof. At any time upon not less than
five (5) days' prior written notice, Tenant shall submit such information
concerning the financial condition of any such person as Landlord may request.
Tenant warrants that all such information heretofore and hereafter submitted is
and shall be correct and complete.
20.2 Upon occurrence of an Event of Bankruptcy, Landlord
shall have all rights and remedies available pursuant to Article XIX; provided,
however, that while a case (the "Case") in which Tenant is the subject debtor
under the Bankruptcy Code is pending, Landlord's right to terminate this Lease
shall be subject, to the extent required by the Bankruptcy Code, to any rights
of Tenant or its trustee in bankruptcy (collectively, "Trustee") to assume or
assume and assign this Lease pursuant to the Bankruptcy Code. After the
commencement of a Case: (i) Trustee shall perform all post-petition
obligations of Tenant under this Lease; and (ii) if Landlord is entitled to
damages (including, without limitation, unpaid rent) pursuant to the terms of
this Lease, then all such damages shall be entitled to
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administrative expense priority pursuant to the Bankruptcy Code. Any person or
entity to which this Lease is assigned pursuant to the Bankruptcy Code shall be
deemed without further act or deed to have assumed all of the obligations
arising under this Lease on and after the date of assignment, and any such
assignee shall upon request execute and deliver to Landlord an instrument
confirming such assumption. Trustee shall not have the right to assume or assume
and assign this Lease unless Trustee promptly (a) cures all defaults under this
Lease, (b) compensates Landlord for damages incurred as a result of such
defaults, (c) provides adequate assurance of future performance on the part of
Trustee as debtor in possession or Trustee's assignee, and (d) complies with all
other requirements of the Bankruptcy Code. If Trustee fails to assume or assume
and assign this Lease in accordance with the requirements of the Bankruptcy Code
within sixty (60) days after the initiation of the Case, then Trustee shall be
deemed to have rejected this Lease. If this Lease is rejected or deemed
rejected, then Landlord shall have all rights and remedies available to it
pursuant to Article XIX. Adequate assurance of future performance shall require,
among other things, that the following minimum criteria be met: (1) Tenant's
gross receipts in the ordinary course of business during the thirty (30) days
preceding the Case must be greater than ten (10) times the next monthly
installment of Base Rent and additional rent due; (2) Both the average and
median of Tenant's monthly gross receipts in the ordinary course of business
during the seven (7) months preceding the Case must be greater than the next
monthly installment of Base Rent and additional rent due; (3) Trustee must pay
its estimated pro-rata share of the cost of all services performed or provided
by Landlord (whether directly or through agents or contractors and whether or
not previously included as part of Base Rent) in advance of the performance or
provision of such services; (4) Trustee must agree that Tenant's business shall
be conducted in a first-class manner, and that no liquidating sale, auction or
other non-first-class business operation shall be conducted in the Premises; (5)
Trustee must agree that the use of the Premises as stated in this Lease shall
remain unchanged and that no prohibited use shall be permitted; (6) Trustee must
agree that the assumption or assumption and assignment of this Lease shall not
violate or affect the rights of other tenants of the Building; (7) Trustee must
pay at the time the next monthly installment of Base Rent is due, in addition to
such installment, an amount equal to the monthly installments of Base Rent, and
additional rent due for the next six (6) months thereafter, such amount to be
held as a security deposit; (8) Trustee must agree to pay, at any time Landlord
draws on such security deposit, the amount necessary to restore such security
deposit to its original amount; (9) Trustee must comply with all duties and
obligations of Tenant under this Lease; and (10) All assurances of future
performance specified in the Bankruptcy Code must be provided.
ARTICLE XXI
SUBORDINATION
21.1 This Lease is subject and subordinate to the lien,
provisions, operation and effect of all mortgages, deeds of trust, ground
leases or other security instruments which may now or hereafter encumber the
Building or the Land (collectively, "Mortgages"), to all funds and indebtedness
intended to be secured thereby, and to all renewals, extensions, modifications,
recastings or refinancings thereof. The holder of any Mortgage to which this
Lease is subordinate shall have the right (subject to any required approval of
the holders of any superior Mortgage) at any time to declare this Lease to be
superior to the lien, provisions, operation and effect of such Mortgage and
Tenant shall execute, acknowledge and deliver all documents required by such
holder in confirmation thereof.
21.2 Tenant shall at Landlord's request promptly execute
any requisite or appropriate document confirming such subordination. Tenant
appoints Landlord as Tenant's attorney-in-fact to execute any such document for
Tenant. 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 Tenant's obligations
hereunder in the event any foreclosure proceeding is prosecuted or completed or
in the event the Building, the Land or Landlord's interest therein is
transferred by foreclosure, by deed in lieu of foreclosure or otherwise. If
this Lease is not extinguished upon any such transfer or by the transferee
following such transfer, then, at the request of such transferee, Tenant shall
attorn to such transferee and shall recognize such transferee as the landlord
under this Lease. Tenant agrees that upon any such attornment, such transferee
shall not be (a) bound by any payment of the Base Rent or additional rent more
than one (1) month in advance, except prepayments in the nature of security for
the performance by Tenant of its obligations under this Lease, but only to the
extent such prepayments have been delivered to such transferee; provided,
however, that Tenant shall have no obligation to replace any portion of the
Security Deposit that is not delivered to such transferee (except to the extent
all or any portion thereof was applied in accordance with this Lease), (b)
bound by any amendment of this Lease made without the consent of the holder of
each Mortgage existing as of the date of such amendment, (c) liable for damages
for any breach, act or omission of any prior landlord, or (d) subject to any
offsets or defenses which Tenant might have against any prior landlord;
provided, however, that after succeeding to Landlord's interest under this
Lease, such transferee shall agree to perform in accordance with the terms of
this Lease all obligations of Landlord arising after the date of transfer.
Within five (5) days after the
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request of such transferee, Tenant shall execute, acknowledge and deliver any
requisite or appropriate document submitted to Tenant confirming such
attornment.
21.3 If any prospective or current holder of a Mortgage
requires that modifications to this Lease be obtained, and provided that such
modifications (a) are reasonable, (b) do not adversely affect in a material
manner Tenant's use of the Premises as herein permitted, and (c) do not increase
the rent and other sums to be paid by Tenant, then Landlord may submit to Tenant
an amendment to this Lease incorporating such required modifications, and Tenant
shall execute, acknowledge and deliver such amendment to Landlord within five
(5) days after Tenant's receipt thereof.
21.4 If (a) the Building or the Land, or both, are at any
time subject to a Mortgage, (ii) this Lease and rent payable hereunder is
assigned to the holder of the Mortgage, and (iii) the Tenant is given notice of
such assignment, including the name and address of the assignee, then, in that
event, Tenant shall not terminate this Lease or make any abatement in the rent
payable hereunder for any default on the part of the Landlord without first
giving notice, in the manner provided elsewhere in this Lease for the giving of
notices, to the holder of such Mortgage, specifying the default in reasonable
detail, and affording such holder a reasonable opportunity to make performance,
at its election, for and on behalf of the Landlord, except that (x) such holder
shall have at least 30 days to cure the default; (y) if such default cannot be
cured with reasonable diligence and continuity within 30 days, such holder
shall have any additional time as may be reasonably necessary to cure the
default with reasonable diligence and continuity; and (z) if the default cannot
reasonably be cured without such holder having obtained possession of the
Building, such holder shall have such additional time as may be reasonably
necessary under the circumstances to obtain possession of the Building and
thereafter to cure the default with reasonable diligence and continuity. If
more than one such holder makes a written request to Landlord to cure the
default, the holder making (lie request whose lien is the most senior shall
have such right.
ARTICLE XXII
HOLDING OVER
22.1 Tenant acknowledges that it is extremely important
that Landlord have substantial advance notice of the date on which Tenant will
vacate the Premises, because Landlord will require an extensive period to
locate a replacement tenant and because Landlord plans its entire leasing and
renovation program for the Building in reliance on its lease expiration dates.
Tenant also acknowledges that if Tenant fails to surrender the Premises or any
portion thereof at the expiration or earlier termination of the Lease Term,
then it will be conclusively presumed that the value to Tenant of remaining in
possession, and the loss that will be suffered by Landlord as a result thereof,
far exceed the Base Rent and additional rent that would have been payable had
the Lease Term continued during such holdover period. Therefore, if Tenant (or
anyone claiming through Tenant) does not immediately surrender the Premises or
any portion thereof upon the expiration or earlier termination of the Lease
Term, then Tenant shall automatically forfeit all rights to the security
deposit then being held by Landlord pursuant to this Lease and the rent payable
by Tenant hereunder shall be increased to equal the greater of (1) fair market
rent for the entire Premises, or (2) double the Base Rent, additional rent and
other sums that would have been payable pursuant to the provisions of this
Lease if the Lease Term had continued during such holdover period. Such rent
shall be computed by Landlord and paid by Tenant on a monthly basis and shall
be payable on the first day of such holdover period and the first day of each
calendar month thereafter during such holdover period until the Premises have
been vacated. Notwithstanding any other provision of this Lease, Landlord's
acceptance of such rent shall not in any manner adversely affect Landlord's
other rights and remedies, including Landlord's right to evict Tenant and to
recover all damages. Any such holdover shall be deemed to be a
tenancy-at-sufferance and not a tenancy-at-will or tenancy from month-to-month.
In no event shall any holdover be deemed a permitted extension or renewal of
the Lease Term, and nothing contained herein shall be construed to constitute
Landlord's consent to any holdover or to give Tenant any right with respect
thereto.
ARTICLE XXIII
COVENANTS OF LANDLORD
23.1 Landlord covenants that it has the right to enter
into this Lease, and that if Tenant shall perform timely all of its obligations
hereunder, then, subject to the provisions of this Lease, Tenant shall during
the Lease Term peaceably and quietly occupy and enjoy the full possession of
the Premises without hindrance by Landlord or any party claiming through or
under Landlord.
23.2 Landlord reserves the following rights:
(a) to change the street address and name of the Building; (b) to change the
arrangement and location of entrances, passageways, doors, doorways, corridors,
elevators, stairs, toilets or other public parts of the Building; (c) to erect,
use and maintain pipes,
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wires, structural supports, ducts and conduits in and through the Premises; (d)
to grant to anyone the exclusive right to conduct any particular business in the
Building not inconsistent with Tenant's permitted use of the Premises; (e) to
exclusively use and/or lease the roof areas, the sidewalks and other exterior
areas; (f) to resubdivide the Land or to combine the Land with other lands; (g)
to relocate any parking areas designated for Tenant's use; (h) if Tenant vacates
the Premises prior to the expiration of the Lease Term, to make Alterations to
or otherwise prepare the Premises for reoccupancy without relieving Tenant of
its obligation to pay all Base Rent, additional rent and other sums due under
this Lease through such expiration; (i) to construct improvements (including
kiosks) on the Land and in the public and common areas of the Building; (j) to
prohibit smoking in the entire Building or portions thereof (including the
Premises), so long as such prohibitions are in accordance with applicable law;
and (k) if any excavation or other substructure work shall be made or authorized
to be made upon land adjacent to the Building or the Land, to enter the Premises
for the purpose of doing such work as is required to preserve the walls of the
Building and to preserve the land from injury or damage and to support such
walls and land by proper foundations. 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 of Tenant's business or use or occupancy of the
Premises.
ARTICLE XXIV
PARKING
24.1 During the Lease Term, upon the request of Tenant,
Landlord agrees to make available to Tenant and its employees monthly parking
permits for the unreserved parking of standard-sized passenger automobiles in
the garage on the lower levels of the Building (the "Garage") in an amount
equal to one permit for each one thousand five hundred (1,500) square feet of
rentable area of the Premises. The charge for such permits shall be the
prevailing rate charged from time to time by Landlord or the operator of the
Garage. Notwithstanding the foregoing, Landlord does not guarantee the
availability of such monthly parking permits to Tenant during the second (2nd)
or any subsequent month of the Lease Term if and to the extent that Tenant does
not purchase such monthly parking permits during the first (1st) month and each
subsequent month of the Lease Term. Tenant shall notify Landlord at least 60
days before the anticipated Lease Commencement Date of the initial number of
monthly parking permits Tenant will require. Tenant shall notify Landlord at
least 30 days in advance of any change in the number of monthly parking
permits. Tenant shall not assign, sublet or transfer any parking permits.
Landlord reserves the right to institute either a valet parking system or a
self-parking system. Tenant and its employees shall observe reasonable safety
precautions in the use of the Garage and shall at all times abide by all rules
and regulations governing the use of the Garage promulgated by Landlord or the
Garage operator. The Garage will remain open on Monday through Friday
(excluding legal holidays) during the Building Hours on such days. Landlord
reserves the right to close the Garage during periods of unusually inclement
weather or for repairs. At all times when the Garage is closed, monthly permit
holders shall be afforded access to the Garage by means of a magnetic card or
other procedure provided by Landlord or the Garage operator. Landlord does not
assume any responsibility, and shall not be held liable, for any damage or loss
to any automobile or personal property in or about the Garage, or for any
injury sustained by any person in or about the Garage.
ARTICLE XXV
GENERAL PROVISIONS
25.1 Tenant acknowledges that neither Landlord nor any
broker, agent or employee of Landlord has made any representation or promise
with respect to the Premises or the Building except as herein expressly set
forth, and no right, privilege, easement or license is being acquired by Tenant
except as herein expressly set forth.
25.2 Nothing contained in this Lease shall be construed as
creating any relationship between Landlord and Tenant other than that of
landlord and tenant. Tenant shall not use the name of the Building for any
purpose other than as the address of the business to be conducted by Tenant in
the Premises, use the name of the Building as Tenant's business address after
Tenant vacates the Premises, or do or permit to be done anything in connection
with Tenant's business or advertising which in the reasonable judgment of
Landlord may reflect unfavorably on Landlord or the Building or confuse or
mislead the public as to any apparent connection or relationship between
Landlord, the Building and Tenant.
25.3 Landlord and Tenant each warrants to the other that
in connection with this Lease it has not employed or dealt with any broker,
agent or finder, other than the Broker(s). Landlord acknowledges that Landlord
shall pay any commission or fee due to the Broker(s) pursuant to a separate
agreement. Tenant shall indemnify and hold Landlord harmless from and against
any claim for brokerage
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or other commissions asserted by any broker, agent or finder employed by Tenant
or with whom Tenant has dealt, other than the Broker(s).
25.4 At any time and from time to time, upon not less than
five (5) days' prior written notice, Tenant and each subtenant, assignee,
licensee or concessionaire or occupant of Tenant shall execute, acknowledge and
deliver to Landlord and/or any other person or entity designated by Landlord, a
written statement certifying: (a) that this Lease is unmodified and in full
force and effect (or if there have been modifications, that this Lease is in
full force and effect as modified and stating the modifications); (b) the dates
to which the rent and any other charges have been paid; (c) whether or not
Landlord is in default in the performance of any obligation, and if so,
specifying the nature of such default; (d) the address to which notices to
Tenant are to be sent; (e) that this Lease is subject and subordinate to all
Mortgages encumbering the Building or the Land; (f) that Tenant has accepted
the Premises and that all work thereto has been completed (or if such work has
not been completed, specifying the incomplete work); and (g) such other matters
as Landlord may reasonably request. Any such statement may be relied upon by
any owner of the Building or the Land, any prospective purchaser of the
Building or the Land, any holder or prospective holder of a Mortgage or any
other person or entity. Tenant acknowledges that time is of the essence to the
delivery of such statements and that Tenant's failure to deliver timely such
statements may cause substantial damages resulting from, for example, delays in
obtaining financing secured by the Building. Tenant shall be liable for all
such damages. If any such statement is not delivered timely by Tenant, then all
matters contained in such statement shall be deemed true and accurate.
25.5 LANDLORD, TENANT, ALL GUARANTORS AND ALL GENERAL
PARTNERS EACH WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT 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. TENANT CONSENTS TO SERVICE OF PROCESS AND ANY PLEADING RELATING TO ANY
SUCH ACTION AT TENANT'S NOTICE ADDRESS (SO LONG AS SUCH NOTICE ADDRESS IS IN
THE DISTRICT OF COLUMBIA, AND IF NOT, AT THE PREMISES); PROVIDED, HOWEVER, THAT
NOTHING HEREIN SHALL BE CONSTRUED AS REQUIRING SUCH SERVICE AT THE PREMISES.
LANDLORD, TENANT, ALL GUARANTORS AND ALL GENERAL PARTNERS EACH WAIVES ANY
OBJECTION TO THE VENUE OF ANY ACTION FILED IN ANY COURT SITUATED IN TILE
JURISDICTION IN WHICH THE BUILDING IS LOCATED, AND WAIVES ANY RIGHT, CLAIM OR
POWER, UNDER THE DOCTRINE OF FORUM NON CONVENIENS OR OTHERWISE, TO TRANSFER ANY
SUCH ACTION TO ANY OTHER COURT.
25.6 All notices or other communications required under
this Lease shall be in writing and shall be deemed duly given and received when
delivered in person (with receipt therefor), on the next business day after
deposit with a recognized overnight delivery service, or on the second business
day after being sent by certified or registered mail, return receipt requested,
postage prepaid, to the following addresses: (a) if to Landlord, at each of
the Landlord Notice Addresses specified in Article I, with a copy to Shaw,
Pittman, Xxxxx & Xxxxxxxxxx, 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000,
Attention: Xxxx Xxxxx, Esq.; (b) if to Tenant, at the Tenant Notice Address
specified in Article I. Either party may change its address for the giving of
notices by notice given in accordance with this Section. If Landlord or the
holder of any Mortgage notifies Tenant that a copy of any notice to Landlord
shall be sent to such holder at a specified address, then Tenant shall send (in
the manner specified in this Section and at the same time such notice is sent to
Landlord) a copy of each such notice to such holder, and no such notice shall be
considered duly sent unless such copy is so sent to such holder. Any such holder
shall have thirty (30) days after receipt of such notice to cure any Landlord
default before Tenant may exercise any remedy. Any cure of Landlord's default by
such holder shall be treated as performance by Landlord.
25.7 Each provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law. If any provision of this
Lease or the application thereof to any person or circumstance shall to any
extent be invalid or unenforceable, then such provision shall be deemed to be
replaced by the valid and enforceable provision most substantively similar to
such invalid or unenforceable provision, and the remainder of this Lease and
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.
Nothing contained in this Lease shall be construed as permitting Landlord to
charge or receive interest in excess of the maximum rate allowed by law.
25.8 Feminine, masculine or neuter pronouns shall be
substituted for those of another form, and the plural or singular shall be
substituted for the other number, in any place in which the context may require
such substitution.
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25.9 The provisions of this Lease shall be binding upon
and inure to the benefit of the parties and each of their respective
representatives, successors and assigns, subject to the provisions herein
restricting assignment or subletting.
25.10 This Lease contains and embodies the entire agreement
of the parties hereto and supersedes all prior agreements, negotiations,
letters of intent, proposals, representations, warranties, understandings,
suggestions and discussions, whether written or oral, between the parties
hereto. Any representation, inducement, warranty, understanding or agreement
that is not expressly set forth in this Lease shall be of no force or effect.
This Lease may be modified or changed in any manner only by an instrument
signed by both parties. This Lease includes and incorporates all Exhibits
attached hereto.
25.11 This Lease shall be governed by the Laws of the
jurisdiction in which the Building is located. There shall be no presumption
that this Lease be construed more strictly against the party who itself or
though its agent prepared it, it being agreed that all parties hereto have
participated in the preparation of this Lease and that each party had the
opportunity to consult legal counsel before the execution of this Lease.
25. 12 Headings are used for convenience and shall not be
considered when construing this Lease.
25.13 The submission of an unsigned copy of this document
to Tenant shall not constitute an offer or option to lease the Premises. This
Lease shall become effective and binding only upon execution and delivery by
both Landlord and Tenant.
25.14 Time is of the essence with respect to each of
Tenant's and Landlord's obligations hereunder.
25.15 This Lease may be executed in multiple counterparts,
each of which shall be deemed an original and all of which together constitute
one and the same document. Faxed signatures shall have the same binding effect
as original signatures.
25.16 Neither this Lease nor a memorandum thereof shall be
recorded.
25.17 Landlord reserves the right to make reasonable
changes and modifications to the plans and specifications for the Building
without Tenant's consent, provided such changes or modifications do not
materially and adversely change the character of the Building or the Premises
or access to the Premises.
25.18 The rentable area in the Building and in the Premises
shall be determined by Landlord's architect in accordance with the Washington,
D.C. Association of Realtors, Inc. Standard Method of Measurement dated January
1, 1989.
25. 19 Except as otherwise provided in this Lease, any
additional rent or other sum owed by Tenant to Landlord, and any cost, expense,
damage or liability incurred by Landlord for which Tenant is liable, shall be
considered additional rent payable pursuant to this Lease to be paid by Tenant
no later than ten (10) days after the date Landlord notifies Tenant of the
amount thereof.
25.20 Tenant's liabilities and obligations with respect to
the period prior to the expiration or earlier termination of the Lease Term
shall survive such expiration or earlier termination.
25.21 If Landlord or Tenant is in any way delayed or
prevented from performing any obligation (except with respect to Tenant, the
obligations to pay rent and other sums due under this Lease) due to fire, act
of God, governmental act or failure to act, strike, labor dispute, inability to
procure materials, or any cause beyond Landlord's or Tenant's, as the case may
be, reasonable control (whether similar or dissimilar to the foregoing events),
then the time for performance of such obligation shall be excused for the
period of such delay or prevention and extended for a period equal to the
period of such delay, interruption or prevention.
25.22 Landlord's review, approval and consent powers
(including the right to review plans and specifications) are for its benefit
only. Such review, approval or consent (or conditions imposed in connection
therewith) shall be deemed not to constitute a representation concerning
legality, safety or any other matter.
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25.23 The deletion of any printed, typed or other portion
of this Lease shall not evidence the parties' intention to contradict such
deleted portion. Such deleted portion shall be deemed not to have been inserted
in this Lease.
25.24 At the expiration or earlier termination of the Lease
Term, Tenant shall deliver to Landlord all keys and security cards to the
Building and the Premises, whether such keys were furnished by Landlord or
otherwise procured by Tenant, and shall inform Landlord of the combination of
each lock, safe and vault, if any, in the Premises.
25.25 Tenant and Landlord and the persons executing and
delivering this Lease on Tenant's and Landlord's behalf each represents and
warrants that such person is duly authorized to so act; that Tenant or
Landlord, as applicable, is duly organized, is qualified to do business in the
jurisdiction in which the Building is located, is in good standing under the
Laws of the state of its organization and the Laws of the jurisdiction in which
the Building is located, and has the power and authority to enter into this
Lease; and that all action required to authorize Tenant or Landlord, as
applicable, and such person to enter into this Lease has been duly taken.
25.26 Any elimination or shutting off of light, air, or
view by any structure which may be erected on lands adjacent to the Building
shall in no way effect this Lease or impose any liability on Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease
under seal as of the day and year first above written.
WITNESS/ATTEST: LANDLORD:
0000 XXXXXXXXX XXXXXX LIMITED
PARTNERSHIP
By: Xxxxx Enterprises, Inc., General Partner
/s/ XXXXXX X. XXXXXX /s/ XXXXXXXX X. XXXXXXXX
-------------------------------- ---------------------------
By: Xxxxxxxx X. Xxxxxxxx
Executive Vice President
WITNESS/ATTEST: TENANT:
XXXXXXX COLLEGE, INC.
/s/ A. KAREY
-------------------------------- By: /s/ XXXXX X. XXXXXXX [SEAL]
------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Director of Finance
------------------------------------
