EXHIBIT 10.1
XXXXXXXXX MANAGEMENT CORPORATION
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000
COMMERCIAL LEASE
THIS LEASE AGREEMENT made this 22nd day of December, 1997, by and between
Columbia Realty Venture, a District of Columbia Limited Partnership, hereinafter
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referred to as "Landlord," and National Capital Reciprocal Insurance Company,
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Inc., a District of Columbia Corporation hereinafter referred to as "Tenant,"
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and Xxxxxxxxx Management Corporation, hereinafter referred to as "Agent."
WITNESSETH, that for and in consideration of the rent hereafter reserved,
and the covenants contained herein, the parties hereby agree as follows:
1. LEASE PREMISES.
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord for
the term, at the rental and upon the conditions set forth herein, those certain
premises described on EXHIBIT A attached hereto (the "Premises") located at that
certain building known as 0000 00xx Xxxxxxx, XX, Xxxxxxxxxx, X.X. 00000 (the
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"Building"). The Building is part of a project commonly known as Georgetown
Place located at 0000-0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X., consisting of
the real property described on EXHIBIT A-1 together with the Building and other
improvements thereon, owned by Landlord (collectively the "Property"). The
Premises do not include exterior faces of exterior walls and exterior window
glass; anything beyond the interior face of demising walls; and pipes, ducts,
conduits, wires and fixtures serving other parts of the Building, except for
Tenant-specific pipes, ducts, conduits, wires and fixtures, and measurement will
be based on the GWCAR standard of measurement dated June 13, 1995. Tenant may
use the Common Areas in common with other tenants. The Common Areas include the
Building's common lobbies, corridors, stairways, and elevators, the common
walkways and driveways necessary for access to the Building, the common toilets,
corridors and elevator lobbies of any multi-tenant floor, the parking area for
the Building, off-street loading areas, truck accessways and other facilities
which serve the Building. All use of the Common Areas shall be only upon the
terms reasonably set forth at any time by Landlord.
2. TERM AND POSSESSION.
2.1 Term. The term of this Lease shall be for ten (10) years, commencing
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on the sooner of occupancy or the 15th day of April, 1998, or such later date as
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provided herein (the "Commencement Date"), and ending on the 30th day of April,
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2008.
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2.2 Possession. Landlord shall reasonably attempt to have Premises ready
for occupancy on the date of commencement. If Landlord should be unable to give
possession of Premises on the date of commencement of the term hereof for any
reason, Landlord shall not be subject to any liability for failure to give
possession on said date. Should tender of possession of the premises be later or
earlier than the beginning date named, then, and in that event, the term shall
not be adjusted and the ending date of this Lease shall remain as stated in
Section 2.1. Except as provided in 2.3 below, permission is given to the Tenant
to enter into possession of the Premises, or to occupy space other than the
Premises prior to the date specified as the commencement of the term of this
Lease, Tenant covenants and agrees that such occupancy shall be deemed to be
under all the terms, covenants and conditions of the provisions of this Lease,
and that the rent shall commence from and after such date. Notwithstanding the
foregoing, the rent obligation shall commence even if Premises are not ready for
occupation if due to the action, inaction or delay of Tenant, its agents or
employees.
2.3 Early Possession for Tenant Fit-Up. Tenant shall be given access to
the Premises by January 15, 1998 for the purpose of building out the Premises,
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installing special equipment, telephone equipment, etc. Tenant shall indemnify
Landlord for damage to the Building and shall present Landlord with satisfactory
certificates of insurance. If for any reason Tenant has not been given access to
the Premises for the purposes of this section by January 15, 1998, the
Commencement Date shall be postponed by one day for each day of delay, and
furthermore, if Tenant has not been given access to the Premises for the
purposes of this section by February 28, 1998, Tenant may, at its option,
terminate this Lease without further obligation to Landlord.
3. RENT.
3.1 Basic Monthly Rent. Upon Tenant's execution of the Lease, Tenant shall
prepay the first month's rent in an amount equal to one full month of Basic
Monthly Rent. Thereafter, Tenant shall pay to Landlord for the Premises the
Basic Monthly Rent without deduction or demand or set off whatsoever, in advance
on the first day of each calendar month during the term hereof, to and at the
office of Xxxxxxxxx Management Corporation, 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx
000, Xxxxxxxxxx, X.X., 00000, or at such other place as Landlord may from time
to time designate to Tenant in writing. In addition to the Basic Monthly Rent,
Tenant shall pay all Additional Rent, Rental Adjustments and other amounts
payable hereunder provided herein, each without set-off, deduction, offset or
counterclaim. Except as specified elsewhere in this Lease, Additional Rent shall
be paid by Tenant with the next monthly installment of Basic Monthly Rent
falling due. Rent checks shall be made payable to Xxxxxxxxx Management
Corporation. Should the term of this Lease commence on a day other than the
first of a calendar month, the parties agree that rental for the first month in
which rent is due shall be pro-rated and rent for the remaining months shall be
due and payable on the first of the month as provided above. The Basic Monthly
Rent is payable monthly as follows:
Office Space
Floors 1-3 4th Floor Lower Level Total Basic
16,376 RSF 785 RSF 995 RSF Monthly Rent
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April 15, 1998 - April 30, 1998 $16,376 $ 605 $ 580 $17,561
May 1, 1998 - April 30, 1999 $32,752 $1,210 $1,161 $35,123
The Basic Monthly Rent shall increase by two percent (2%)upon May 1st of each
lease year thereafter, except for the beginning of the sixth lease year when the
Basic Monthly Rent of the Office
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Space (Floors 1-3) and Fourth Floor Space shall increase by $2.00 per rentable
square foot as detailed on EXHIBIT A attached.
3.2 Additional Rent.
3.2.1 Tenant shall pay Landlord, as Additional Rent, Tenant's Share (as
hereinafter defined) of any increase in Landlord's Costs (as hereinafter
defined) above the Base Costs (as hereinafter defined).
3.2.2 For purposes of this Lease:
(i) "Tenant's Share" shall consist of Tenant's Separate Services
and Tenant's Pro Rata Share of Landlord's Costs in excess of Base Costs.
(ii) "Tenant's Separate Services" shall mean all Operating
Expenses which are attributable solely to Tenant's use and occupancy of the
Premises, such as the cost of electricity consumed in the Premises as measured
by sub-meters, special janitorial services or other services provided by
Landlord at Tenant's request. Normal electric consumption shall be included in
Base Costs (as hereinafter defined).
(iii) "Tenant's Pro Rata Share" shall mean 16.114%, representing
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the ratio that the rentable area of the Premises ( 17,838 square feet) bears to
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the total rentable area in the Property (110,699 square feet).
(iv) "Landlord's Costs" shall mean Taxes and Assessments and
Operating Expenses.
(v) "Taxes and Assessments" shall mean all taxes and assessments
and governmental charges (including personal property and real estate taxes),
whether federal, state, county or municipal, and whether they be by taxing
districts or authorities presently taxing the Property or by others subsequently
created, and any other taxes and assessments (including franchise taxes)
attributable to the Property or its operation, whether or not directly paid by
Landlord, excluding, however, federal and state taxes on income, unless such
income taxes replace real estate taxes. The Tenant shall be responsible for ad
valorem taxes on its personal property.
(vi) "Operating Expenses" shall mean all of the costs and
expenses incurred in operating and maintaining the Property, as determined by
Landlord in accordance with accounting practices consistently applied, whether
paid to employees of Landlord or independent contractors engaged by Landlord,
and shall include the following costs by way of illustration, but not
limitation: water and sewer charges, insurance premiums, utilities, janitorial
services, labor, including direct labor overhead, air conditioning and heating,
landscaping, elevator maintenance, supplies, costs and upkeep of all parking and
common areas, supply and cleaning of uniforms and work clothes, security of the
Property, fees incurred for the management of the Property including legal,
inspection,
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consultation and accounting fees, and a property management fee equal to the
generally prevailing market rate in arm's length transactions consistent with
the type of occupancy and the services rendered. Operating Expenses shall not
include depreciation of the buildings of which the Premises are a part or
equipment therein, loan payments, executive salaries and any brokerage
commissions but shall include amortization, with reasonable interest, of capital
items which reduce Operating Expenses or are required by governmental authority.
(vii) "Base Costs" shall mean Landlord's Costs incurred for or
attributable to the 1998 calendar year.
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(viii) Beginning May 1 , 1992, and continuing for each subsequent
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calendar year or portion thereof during the Term, Landlord's Costs shall be
passed through to Tenant based on the actual increase over Base Costs.
3.2.3 Landlord's Statement. Landlord shall endeavor to give to Tenant on
or before the first (1st) day of April of each year a statement of the increase
in the Additional Rent payable by Tenant hereunder, but failure by Landlord to
give such statement by said date shall not constitute a waiver by Landlord of
its right to require an increase in the Additional Rent. Such statement shall be
in reasonable detail. Upon receipt of the statement Tenant shall pay the total
amount of the increase relating to the period prior to the date of the statement
in full. For the then current year, an amount equal to one hundred five percent
(105%) of any such increase shall be used as an estimate for said current year
and this amount shall be divided into twelve (12) equal monthly installments and
Tenant shall pay to Landlord concurrently with the regular Basic Monthly Rent
payment next due following the receipt of such statement, an amount equal to one
(1) monthly installment multiplied by the number of months from January in the
calendar year which said statement is submitted to the month of such payment,
both months inclusive. Subsequent installments shall be payable concurrently
with the regular Basic Monthly Rent payments for the balance of that calendar
year and shall continue until the next year's statement is rendered. If the next
or any succeeding year results in a greater increase in Landlord's Costs, then
upon receipt of a statement from Landlord, Tenant shall pay a lump sum equal to
such total increase over the Base Costs, less the total of the monthly
installments of estimated increases paid in the previous calendar year for which
comparison is then being made; and the estimated monthly installments to be paid
for the next year, following said comparison year, shall be adjusted to reflect
one hundred five percent (105%) of such increase in the manner set forth above.
If in any year Tenant's Share shall be less than the preceding year, then upon
receipt of Landlord's statement, any other payments in respect of Landlord's
Costs made by Tenant on the monthly installment basis provided above shall be
credited toward the next installment of Basic Monthly Rent falling due and the
estimated monthly installments of Landlord's Costs to be paid shall be adjusted
to reflect such lower Taxes and Assessments and Operating Expenses for the most
recent comparison year, but not less than the Base Costs. Upon termination of
this Lease, any money owed by one party to the other shall be promptly paid.
3.2.4 Pro-Rata Calculation. Should this Lease commence or terminate at any
time other than the first (1st) day of a calendar year, the cost adjustment
referred to in Subsections 3.2.1, 3.2.2 and
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3.2.3 shall be calculated for the commencement or termination year on a pro rata
basis, based upon the number of calendar days during which Tenant leases the
Demised Premises.
3.2.5 Tenant's Right to Audit. Each statement provided by Landlord
pursuant to this Subsection shall be conclusive and binding upon Tenant unless
forty-five (45) days after receipt of the statement, Tenant shall notify
Landlord that it disputes the correctness of the statement, specifying the
respects in which the statement is claimed to be incorrect. If Landlord and
Tenant are unable to resolve the dispute, Tenant shall then have the right to
request that Landlord provide, at tenant's expense, an audit of its books and
records relating to the statement. Pending determination of the dispute, Tenant
shall pay within ten (10) days from notice any amounts due from Tenant in
accordance with the statement, but such payment shall be without prejudice to
Tenant's position. If Landlord's cost shall have been overstated by more than
ten percent (10%), Landlord shall reimburse Tenant for the reasonable cost of
such audit not to exceed $1,500.
3.2.6 Adjustments to Costs. Notwithstanding any other provisions herein to
the contrary: (i) in the event the Property is not fully occupied during the
year, an adjustment shall be made in computing the Landlord's Costs for such
year so that the costs shall be computed for such year as though the Property
had been fully occupied during such a year; and (ii) the Landlord shall have the
right, in its reasonable judgment (and upon reasonable substantiation of such
allocation to the Tenant), to allocate Landlord's Costs to the Tenant, or to
other tenants of the Property, in a manner which deviates from the exact
Tenant's Pro Rata Share, or those of such other tenants, as may be necessary to
more accurately reflect accountability for unusual or extra costs resulting from
excessive usage, the manner of layout or finishes requiring special maintenance,
or the like. The terms of this Subsection shall be solely for the benefit of the
Landlord and may not be relied upon nor construed for the benefit of the Tenant,
other tenants in the building, or any other person.
3.3 Late Charge. Tenant hereby recognizes and acknowledges that if
rental payments are not received when due, Landlord will suffer damages and
additional expenses thereby and Tenant therefore agrees that ten (10) days after
Tenant's receipt of written notice from Landlord of such late payment, a late
charge equal to five percent (5%) of the Basic Monthly Rent and any additional
rent or payments hereunder may be assessed by Landlord or Agent as additional
rental. Notwithstanding the above, Landlord shall only need to give Tenant
written notice once in any consecutive twelve (12) month period. Furthermore,
Landlord or Agent shall have the right to require that rental payments be made
by certified or cashier's check, in the event Tenant monetarily defaults once in
any twelve-month period.
4. SECURITY DEPOSIT/LETTER OF CREDIT.
4.1 Delivery of Security Deposit. Tenant shall deposit with Landlord,
upon execution hereof, either (i) a Security Deposit equal to two (2) months
rent, equivalent to $70,246.00 or (ii) an irrevocable Letter of Credit in favor
of the Landlord for a similar amount, as security for the faithful performance
of Tenant's obligation hereunder. At the commencement of the fourth (4th) lease
year, provided that this Lease is in full force and effect, and provided that
Tenant is not in default under
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the Lease, Landlord shall reduce the Security Deposit/Letter of Credit to an
amount equal to the then one month Basic Monthly Rent plus Additional Rent. This
amount shall be held by Landlord for the duration of the Lease Term. If Tenant
provides a Security Deposit, Landlord shall place said Security Deposit in an
interest bearing account with interest accruing to Tenant. During the Term of
this Lease, Landlord shall also have the right to proceed with any other legal
or equitable remedies available to it.
4.2 Use of Security Deposit. The Security Deposit shall be held by
Landlord as security for the faithful performance and observance by Tenant of
the terms, provisions and conditions of this Lease. If any Event of Default
exists with respect to any provision of this Lease, Landlord may use, apply or
retain all or any portion of the Security Deposit for the payment of any Rent in
Default or for the payment of any other sum to which Landlord may become
entitled under this Lease or by law by reason of Tenant's default or to
compensate Landlord for any direct 1088 or damage which Landlord may suffer
thereby. If Landlord so uses or applies all or any portion of the Security
Deposit, Tenant shall within ten (10) days after written demand therefor,
deposit cash with Landlord in the amount sufficient to restore the Security
Deposit to the full amount of the Security Deposit and Tenant's failure to do 80
shall be a material breach of this Lease. The Security Deposit (or so much
thereof as has not theretofore been applied by Landlord or returned to Tenant),
shall be returned to Tenant within forty-five (45) days after the expiration of
the Term and after Tenant has vacated the Premises.
4.3 Security in Modular Furniture. In order to further secure Tenant's
obligations under this Lease, Tenant hereby grants a security interest in the
Modular Furniture that Tenant shall purchase for its Premises, as part of the
Construction Allowance per Section 7.1 and any and all replacements,
substitutions or proceeds thereof. Upon any default under this Lease, in
addition to any other remedies Landlord may be entitled, but only after
application of the security deposit, Landlord may exercise any rights or
remedies to which it may be entitled under the Uniform Commercial Code with
respect to such Modular Furniture. Upon Landlord's request Tenant shall execute
and deliver to Landlord for filing any and all documents required by Landlord to
protect and perfect Landlord's interest in the Modular Furniture. Tenant shall
not grant any other lien or encumbrance on the Modular Furniture.
5. USE.
The Premises shall be used and occupied by the Tenant only for office use
under the business name of National Capital Reciprocal Insurance Company, Inc.
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5.1 Prohibited Uses. Tenant shall not use, or permit the use of, all or
any part of the Premises for any disorderly, illegal or hazardous purpose and
will not manufacture any commodity therein other than computer software. Tenant
shall not use, or permit the use of, all or any part of the Premises for any
purpose that interferes with the use or enjoyment by other tenants of any
portion of the Building or the Property, nor which, in Landlord's reasonable
opinion, impairs, or might impair, the reputation of the Property. Tenant shall
not use utility services in excess of amounts
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within the normal range of demand for general office use. Tenant shall not
obstruct any of the Common Areas or any portion of the Property outside the
Premises, and shall not place or permit any signs, curtains, blinds, shades,
awnings, aerials or flagpoles, or the like, visible from outside the Premises
which are not approved in writing by Landlord.
5.2 Floor Load; Prevention of Vibration and Noise. Tenant shall not place
a load upon the floor of the Premises exceeding the 100 pounds per square foot
such floor was designed to carry, as determined by Landlord or its structural
engineer. Partitions shall be considered as part of the load. Landlord may
prescribe the weight and position of all safes, files and heavy equipment that
Tenant desires to place in the Premises, so as properly to distribute their
weight. Tenant's business machines and mechanical equipment shall be installed
and maintained so as not to transmit noise or vibration to the Building or the
Property structure or to any other space in the Building. Tenant shall be
responsible for the cost of all structural engineering required to determine
structural load and all acoustical engineering required to address any noise or
vibration caused by Tenant.
6. Services Furnished by Landlord.
Landlord shall furnish services, utilities, facilities and supplies as
shown on the Building Services list attached as Exhibit B. If Landlord furnishes
any additional services at Tenant's request, such services shall be charged at
reasonable rates established by Landlord, which shall be considered additional
rent.
6.1 Repairs and Maintenance. Landlord shall repair and maintain the Common
Areas and structural portions of the Building and the basic plumbing,
electrical, mechanical and heating, ventilating, and air-conditioning systems
therein, including the roof and windows, consistent with similar properties in
the Washington, D.C. metropolitan area. Landlord shall use reasonable efforts to
remove any accumulated snow, ice, refuse and unlawful obstructions.
6.2 Quiet Enjoyment. Upon Tenant's paying the rent and performing its
other obligations, Landlord shall permit Tenant to peacefully and quietly hold
and enjoy Premises, subject to the provisions hereof.
6.3 Insurance. Landlord shall insure the Property, including the Building
at replacement cost (exclusive of foundation and excavation costs) against
damage by fire and standard extended coverage perils, and shall carry public
liability insurance, all in such reasonable amounts with such reasonable
deductibles as would be carried by a prudent owner of a similar building in the
area. Landlord may carry any other forms of insurance as it or its mortgagee may
deem advisable. Tenant shall have no right to any proceeds from such policies.
Landlord shall not carry any insurance on any of Tenant's property, and shall
not be obligated to repair or replace any of it.
6.4 Changes by Landlord. Landlord may at any time make any changes,
additions, improvements, repairs or replacements to the Property, including the
Common Areas, that it considers desirable. In so doing, Landlord may use or
temporarily close any of the Common Areas,
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or permanently change their configuration. Landlord shall use reasonable efforts
to minimize interference with Tenant's normal activities. If these changes
impact Tenant's business, Landlord must obtain Tenant's approval, such approval
not to be unreasonably withheld. Landlord may also discontinue any facilities or
services provided as part of the Common Areas or as common facilities if such
areas or facilities are not described in Building Services in Exhibit B.
6.5 Access to Premises; Utility Suspension. Landlord shall have reasonable
access to the Premises to inspect Tenant's performance hereunder and--subject to
reasonable advance notice--(except in an emergency situation) to perform any
acts required of or permitted to Landlord herein, and may temporarily stop any
service or utility system in conjunction therewith. Landlord shall use
reasonable efforts to minimize interference with Tenant's normal activities, but
no such interference shall constitute constructive eviction or give rise to any
abatement of rent or liability of Landlord to Tenant.
6.6 Failure to Provide Services and Repairs. Landlord shall not be liable
for any failure to perform any act or provide any service required hereunder
unless Tenant shall have given Landlord written notice of such failure, and it
is in Landlord's reasonable control to cure such failure, and such failure
continues for at least thirty days thereafter. Notwithstanding the foregoing, if
any such failure is caused by factors beyond Landlord's reasonable control, then
Landlord shall not be liable to Tenant in any event, and such failure shall not
constitute constructive eviction or give rise to any rental abatement or
reduction. Tenant hereby waives any right to make repairs or provide maintenance
at Landlord's expense under any law or ordinance. If all or a material portion
of the Premises remain untenantable for reasons other than force majeure for a
continuous and uninterrupted period of more than ten (10) business days, rent
shall xxxxx during the period of untenantability.
7. ALTERATIONS.
7.1 Landlord's Construction Allowance. The Premises shall be provided to
Tenant in its "as-is" condition. Landlord shall provide Tenant with a
construction allowance equal to Seventeen Dollars and Fifty Cents ($17.50) per
rentable square foot of Office Space on Floors 1-3 (16,376 rentable square
feet), or a total of Two Hundred Eighty-Six Thousand, Five Hundred Eighty
Dollars ($286,580). Ten Dollars ($10.00) per rentable square foot, or a total of
One Hundred Sixty-Three Thousand, Seven Hundred Sixty Dollars ($163,760) shall
be applied towards the cost of modular furniture which shall be considered as
additional collateral during the Term of the Lease (See Section 4.3). All
architectural/engineering services, permits, and construction management fees
shall be a part of the Construction Allowance. Tenant has the right to retain
its own general contractor and/or subcontractor subject to Section 7.2 below. In
the event Landlord manages the construction, Landlord shall (i) receive a
construction management fee equal to four percent (4%) of the construction costs
and fees; and (ii) competitively bid the work to a minimum of two (2) general
contractors. Tenant shall have the right to select at least one of the general
contractors, which general contractor shall be reasonably acceptable to
Landlord. Landlord and Tenant shall not unduly delay the design and construction
process.
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7.2 Landlord's Consent. Tenant shall not make any alterations, additions,
modifications or improvements to the Premises without the prior written consent
of Landlord, which consent will not be unreasonably withheld, provided that such
alterations, additions, modifications or improvements are not structural or
involve building systems. If Tenant desires to make any such alterations, etc.,
plans for same shall first be submitted to and approved by Landlord, and same
shall be done by Tenant, at its own expense, and Tenant agrees that all such
work shall be done in a good and workmanlike manner (Landlord having the right
to approve all contractors), that the structural integrity of the building shall
not be impaired, that no liens shall attach to the Premises by reason therefor,
and that Tenant will secure all necessary permits pertaining to the
aforementioned alterations, etc. Tenant has no authority or power, express or
implied, to create or cause to be created or to consent to any lien, charge or
encumbrance of any kind against the Premises, the Building, or the Property.
Tenant shall pay before delinquency all costs for work done or caused to be done
by Tenant in the Premises which could result in any lien or encumbrance on
Landlord's interest in the Building or any part thereof, shall keep the title to
the building and every part thereof free and clear of any lien or encumbrance
with respect to such work and shall indemnify and hold harmless Landlord against
any claim, loss, cost, demand or legal or other expense, whether in respect of
any lien or otherwise, arising out of the supply of material, services or labor
for such work. Notwithstanding the foregoing, provided Tenant is not in default,
Tenant shall not be responsible for the removal of any lien arising solely as a
result of Landlord's failure to pay any amounts required to be paid by Landlord
pursuant to Section 7.1. Tenant shall immediately notify Landlord of any such
lien, claim of lien or other action of which it has knowledge and which affects
the title to the building or any part thereof and shall cause the same to be
removed within ten (10) days, failing which Landlord may take such action as
Landlord deems necessary to remove the same and the cost thereof (including
reasonable attorneys' fees) shall be immediately due and payable by Tenant to
Landlord. All alterations, additions, improvements and fixtures (other than
Tenant's Personal Property, provided the same are installed at no cost or
expense to Landlord) which may be made or installed by either party upon the
Premises shall be and remain the property of Landlord and shall remain upon and
be surrendered with the Premises, unless Landlord requests their removal, in
which event Tenant shall remove the same and restore the Premises to its
original condition, taking into account normal wear and tear, at Tenant's sole
cost and expense and Tenant-shall pay the entire cost of such removal to
Landlord upon Tenant's receipt of Landlord's written demand therefor. If Tenant
fails to remove such property and restore the Premises as aforesaid, Landlord
may do so and Tenant shall pay the entire cost thereof to Landlord within ten
(10) days after Tenant's receipt of Landlord's written demand therefore.
7.3 Code Compliance. Tenant shall be responsible for ensuring that the
Premises meet all Americans with Disabilities Act of 1990 requirements, and all
Fire/Life and Safety regulations. Landlord shall have no responsibility for such
modifications, if any.
8. HAZARDOUS SUBSTANCES AND ENVIRONMENTAL ISSUES.
8.1 Hazardous Substances. Tenant (a) shall not use, process, release,
discharge, generate, treat, store or dispose of any Hazardous Substances on the
Premises, in the Building or on the
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Property (other than substances necessary for the proper operation of business
machines (e.g., photocopying machines and printers), and (b) shall prohibit its
employees, licensees, subtenants and third party contractors from using,
processing, releasing, discharging, generating, treating, storing or disposing
of any Hazardous Substances on the Premises, in the Building or on the Property,
in either case in quantities or concentrations or in a manner which would
violate any applicable law, ordinance, rule or regulation or any insurance
policy in force with respect to the Premises, the Building or the Property. In
addition to any other obligation or liability that Tenant may have hereunder or
under applicable law, if Tenant or any of Tenant's employees, licensees,
subtenants or third party contractors uses, processes, releases, discharges,
treats, generates, stores or disposes of any Hazardous Substance on the
Premises, in the Building or on the Property in violation of the terms of this
Lease or applicable law, then Tenant upon discovering same shall immediately
remove such Hazardous Substance from the Premises, the Building, and the
Property in accordance with the requirements of all governmental authorities
having jurisdiction.
8.2 Conservation and Environmental Policies and Programs. Tenant shall
comply with all conservation and environmental protection programs and policies
implemented by Landlord to comply with any mandatory or reasonable voluntary
conservation or environmental protection program or policy promulgated by any
governmental or quasi-governmental authority. Notwithstanding any provision in
this Lease to the contrary, Landlord shall have no liability to Tenant and
Tenant shall not be entitled to any rebate or offset against Rent if Landlord is
unable to provide any of the services provided for in Article 6 because of
Landlord's compliance with any such mandatory program or policy; provided,
however, that such compliance does not render the Premises untenantable as set
forth in Section 6.6.
9. INSURANCE.
9.1 Fire Insurance. Tenant agrees, in addition to the provisions of
Article 8, that it will not do anything that will cause Landlord's insurance
against loss by fire or other hazards, as well as public liability insurance, to
be canceled or that will prevent Landlord from procuring same in acceptable
companies and at standard rates. Tenant will further do everything reasonably
possible and consistent with the conduct of Tenant's business to obtain the
lowest possible rates for insurance on the Premises. If, however, the cost to
Landlord of obtaining insurance on the Premises (or the building in which the
Premises are located) is increased due to the Tenant's occupancy thereof, Tenant
agrees to pay, promptly upon demand, as additional rental, any such increase.
9.2 Tenant's Insurance. During the Term, Tenant shall obtain and
maintain in force at Tenant's sole cost and expense the following insurance:
9.2.1 Casualty Insurance. Fire and Extended Coverage in the form of an
"All Risk of Physical Loss" policy with extended coverage endorsement, including
vandalism, malicious mischief, water damage, sprinkler damage, earthquake and
flood coverage, and any other endorsement required by the holder of any fee or
leasehold mortgage, in an amount equal to full replacement value, at the time of
loss, of Tenant's personal property and trade fixtures located at the
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Premises from time to time. Such amount shall provide for replacement cost and
shall be subject to a deductible amount no greater than that reasonably
acceptable to Landlord. Landlord agrees that a deductible amount of Ten Thousand
Dollars ($10,000) is acceptable to Landlord. Notwithstanding the foregoing,
Tenant shall not be required to carry earthquake or flood insurance unless any
lender holding a mortgage or deed of trust on the Property requires earthquake
or flood insurance or such insurance is generally being required by landlords
leasing space in the Washington, D.C. metropolitan area.
9.2.2 Liability Insurance. Comprehensive General Liability Insurance on an
"occurrence" basis for the benefit of Landlord as an additional insured against
claims for personal injury liability, including (without limitation) bodily
injury, death or property damage liability with a limit of not less than Three
Million Dollars ($3,000,000) in the event of "personal injury" to any number of
persons or of damage to property arising out of any one "occurrence"; any such
insurance may be furnished under an "umbrella" policy with Landlord's prior
written consent, which shall not be unreasonably withheld. The policy shall
insure performance by Tenant of the indemnity provisions of Section 9.5. The
limits of that insurance shall not, however, limit the liability of Tenant under
this Lease.
9.2.3 Worker's Compensation. Worker's compensation insurance (including
employees' liability insurance) in the amount covering all employees of Tenant
employed at or performing services at the Premises, in order to provide the
statutory benefits required by the laws of the District of Columbia.
9.2.4 Business Interruption. Business interruption insurance, providing in
the event of damage or destruction of the Premises an amount sufficient to
sustain Tenant for a period of not less than one year for: (a) the net profit
that would have been realized had the business continued; and (b) such fixed
charges and expenses as must necessarily continue during a total or partial
suspension of business to the extent to which they would have been incurred had
no business interruption occurred, including, but not limited to, interest on
indebtedness, charges under noncancellable contracts, charges for advertising,
legal or other professional services, taxes and rents that may still continue,
trade association dues, insurance premiums and depreciation.
9.3 Insurance Policies and Insurers. All insurance policies required to
be obtained and maintained by Tenant under this Lease shall be issued by
insurance companies authorized to do business in the District of Columbia and
with a rating of at least A+ in A.M. Best's Key Rating Guide and at least "X" in
A.M. Best's Financial Rating Guide, shall be written as primary policies and not
contributing with or excess of any coverage which Landlord may carry, shall
provide that the policy may not be canceled or materially amended or the
coverage thereunder reduced unless Landlord and each other party designated as
an additional insured thereunder shall have received thirty (30) days prior
written notice and shall contain a provision that Landlord and any other parties
in interest shall be entitled to recover under those policies for any covered
loss occasioned to them, notwithstanding any act or omission of Tenant or any
other named insured. Tenant shall furnish to Landlord, prior to the commencement
Date, and within thirty (30) days prior to the expiration of each such policy,
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a certificate of insurance issued by the insurance carrier of each policy of
insurance carried by Tenant pursuant hereto, reflecting the coverages required
by this Article 9, and a copy of each insurance policy. Landlord, its successors
and assigns, and each nominee of Landlord holding any interest in the Premises
shall be designated as an additional insured and as a 1088 payee, as applicable,
under each policy of insurance (other than those for worker's compensation)
maintained by Tenant pursuant to this Article 9. The premiums on any policy
which Tenant is required to carry pursuant to this Article 9 shall be paid when
due. Upon payment of such premiums, reasonable evidence of payment shall be
provided to Landlord. Tenant shall immediately notify Landlord in the event that
any of its insurance carriers cancel or modify any policy of insurance and shall
also notify Landlord at least thirty (30) days prior to changing insurance
carriers or the modification or cancellation of any policy; provided, however,
that the notification hereinabove required shall not relieve Tenant of its
obligation to maintain continuously in effect the types and amounts of insurance
specified in this Article 9. If Tenant fails to provide evidence reasonably
satisfactory to Landlord of Tenant's timely compliance with the requirements of
this Article 9, Landlord shall have the right, after written notice to Tenant,
to place any and all of the insurance coverages set forth above and Tenant
agrees to reimburse Landlord, as Additional Rent, Landlord's cost of such
coverages. From time to time, but in no event more frequently than once in any
twelve month period, Landlord shall have the right to adjust the dollar limits
of coverage set forth in this Article 9 to reflect increases, if any, in the
Consumer Price Index.
9.4 WAIVER OF SUBROGATION.
9.4.1 Release. Subject to the provisions of Subsection 9.4.2, Landlord and
Tenant (on behalf of themselves and their respective agents, employees, third
party contractors, subtenants, licensees, invitees and assignees) each release
the other with respect to and agree that the other shall not be liable for any
business interruption or any loss or damage to property or injury to or death of
persons occurring on the Premises, in the Building, on the Property, or on
adjoining property or in any manner arising out of or connected with Tenant's
use of the Premises, whether or not caused by the negligence or other fault of
Landlord or Tenant or any of their respective agents, employees, third party
contractors, subtenants, licensees, invitees or assignees.
9.4.2 Insurance Coverage. The release and waiver contained in Subsection
9.4.1 shall apply only to the extent that such business interruption, 1088 or
damage to property, or injury to or death of persons is covered by insurance,
regardless of whether such insurance is payable or protects the Landlord or
Tenant or both. Nothing in this Section 9.4 shall be construed to impose any
other or greater liability upon either the Landlord or Tenant then would have
existed in absence of this Subsection.
9.4.3 No Affect. The release and waiver contained in Subsection 9.4.1
shall be in effect only so long as the applicable insurance policies contain a
clause to the effect that such release and waiver will not affect the right of
the insured to recover under such policies. Such clauses shall be obtained by
the parties in policies to be obtained by them whenever possible.
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9.5 Indemnity. Tenant shall indemnify, hold harmless and defend Landlord
from and against any and all claims, demands, causes of action, 1088, liability,
costs or expenses (including, without limitation, reasonable attorneys' fees and
costs) arising out of, connected with or incidental to: Tenant's use and
occupancy of the Premises or the business conducted by Tenant therein; any act
or omission by Tenant or any of Tenant's agents, employees, third party
contractors, subtenants, licensees, invitees or assignees; and any Default by
Tenant under this Lease. Tenant's obligations under this Section 9.5 shall not
apply to claims, demands, causes of action, 1088, liability, costs or expenses
to the extent resulting from the gross negligence or intentional misconduct of
Landlord's agents, employees or third party contractors.
10. PERMITS - COMPLIANCE WITH LAWS.
10.1 Permits. Tenant shall, at its own expense, promptly-obtain from the
appropriate governmental authorities any and all permits, licenses and the like
required to permit Tenant to occupy the Premises and conduct its business for
the purposes herein stated. This requirement shall not relieve the Tenant of its
liability for rent from the commencement date hereinabove set forth. Landlord
will cooperate with reasonable requests of Tenant to obtain permits at Tenant's
sole expense provided Landlord shall have no liability in such regard. Landlord
shall not take any action which would impede Tenant's ability to obtain
certificates of occupancy.
10.2 Compliance with Laws. Tenant shall thereafter promptly comply with
all statutes, laws, ordinances, orders, rules, regulations and requirements of
the Federal, State and local governments and of the Board of Fire Underwriters
applicable to Tenant's use of the Premises, for the correction, prevention and
abatement of nuisances or violations in, upon or connected with the Premises
during the term of this Lease.
11. ASSIGNMENT AND SUBLETTING.
Tenant agrees that it will not transfer, assign, sublet or encumber the
Premises, in whole or in part, without Landlord's prior written consent, which
will be based upon, among other factors, the credit-worthiness, use, and
reputation of assignees or sublessees. Landlord agrees that its consent will not
be unreasonably withheld, and if such consent is given, Tenant shall not be
relieved from any liability under this Lease. Tenant further agrees that if it
intends to assign or sublet the entire Premises, it will first notify Landlord
in writing and Landlord shall have fifteen (15) days to notify Tenant that
Landlord, at its option may accept a surrender of the Premises, in which event
Landlord shall release Tenant from any further liability under this Lease. Any
transfer, assignment, subletting or encumbrance without Landlord's prior written
consent shall be void. If Landlord does not accept a surrender of the Premises,
any rent that Tenant receives in excess of the Rent per Article 3 shall be split
50/50 between Landlord and Tenant.
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12. SUBORDINATION.
Tenant accepts this Lease, and the tenancy created hereunder, subject and
subordinate to any leases, mortgages, deeds of trust, leasehold mortgages or
other security interests now or hereafter a lien upon or affecting the Building
or the Property or any part thereof ("Lienholders"). Tenant shall, at any time
hereafter, on reasonable request, execute any instruments, leases or other
documents that may be required by any mortgage, mortgagee, deed of trust,
trustee or underlying owner or Landlord hereunder to subordinate Tenant's
interest hereunder to the lien of any such mortgage or mortgages, deed or deeds
of trust or underlying lease, and the failure of Tenant to execute any such
instruments, leases or documents shall constitute a default hereunder.
Notwithstanding the foregoing, Landlord shall request that its Lienholders enter
into a nondisturbance and subordination agreement in a form reasonably
acceptable to Tenant and Lienholders within thirty (30) days of the date of this
Lease.
13. ATTORNMENT.
Tenant agrees that upon any termination of Landlord's interest in the
Premises, Tenant will, upon request, attorn to the person or organization then
holding title to the reversion of the Premises (the "Successor'(S)) and to all
subsequent Successors, and shall pay to the Successor all rents and other monies
required to be paid by the Tenant hereunder and perform all of the other terms,
covenants, conditions and obligations contained in this Lease, and Tenant will
execute and deliver to Landlord (and Landlord's mortgagee), confirming same.
14. PROPERTY LOSS OR DAMAGE.
14.1 Landlord's Responsibility. Tenant hereby expressly agrees that
Landlord shall not be responsible in any manner for any damage or injury to the
person or property of Tenant or any other person or business directly or
indirectly caused by (i) dampness or water, whether due to a break or leak in
any part of the roof, heating, or plumbing within the Premises, or in the
building in which the Premises are located; (ii) theft; (iii) fire or other
casualty; (iv) any other cause whatsoever, unless as a result of Landlord's
gross negligence or intentional misconduct.
14.2 Landlord's Liability for Damages. Subject to the provisions of
Section 14.1, Landlord shall not be liable for damage or injury to person or
property of Tenant or of any other person or business unless notice in writing
of any defect (i) which Landlord has under the terms of this Lease the duty to
correct and (ii) which has caused such damage or injury, shall have been given
in sufficient time before the occurrence of such damage or injury reasonably to
have enabled Landlord to correct such defect, and even then only if such damage
or injury is due to Landlord's gross negligence or intentional misconduct.
15. TENANT'S FAILURE TO PERFORM.
In the event that Tenant fails, after fifteen (15) days' written notice
from Landlord, to do any act or make any payment or perform any term or covenant
on Tenant's part required under this Lease
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or otherwise fails to comply herewith, Landlord may (at its option, but without
being required to do so) immediately, or at any time thereafter and without
notice, perform the same on the account that Tenant has failed to do so, and if
Landlord makes any expenditures, or incurs any obligations for the payment of
money in connection therewith, including, but not limited to, attorneys' fees in
instituting prosecuting or defending any action or proceeding, such sums paid or
obligations incurred, with interest at the rate of twelve percent (12%) per
annum and costs, shall be deemed to be additional rent hereunder and shall be
paid by Tenant to Landlord within five (5) days of rendition of any xxxx or
statement to Tenant therefor. All rights given to Landlord in this Article shall
be in addition to any other right or remedy of Landlord herein contained or
otherwise available.
16. LANDLORD'S RIGHT TO SHOW PREMISES.
Tenant agrees that Landlord may, within the last nine (9) months of the
Lease term, display a "For Lease" or "For Sale" sign on the Premises and show
prospects through the Premises at any reasonable time, with twenty-four (24)
hours' prior notice to allow Tenant to arrange for escorted tours.
17. SURRENDER AT END OF TERM.
Except as otherwise provided, Tenant shall vacate the Premises at the
expiration or other termination of this Lease and shall remove all goods and
effects not belonging to Landlord and shall surrender possession of the Premises
and all fixtures and systems thereof in good repair, reasonable wear, tear and
damage by fire or other unavoidable casualty excepted. If Tenant shall fail to
perform any of the foregoing obligations, Landlord is hereby expressly
authorized to do 80 on Tenant's behalf and at Tenant's sole cost and expense,
and Landlord may sell such articles on the Premises as Landlord in its sole
discretion deems saleable, and may dispose of others in any manner which it
chooses. Tenant shall pay and be liable for any and all costs and expenses
incurred by Landlord hereunder. The proceeds of any such sale shall be applied
toward the expenses thus incurred and Tenant will receive net proceeds if any
and agrees to pay any remaining balance promptly.
18. HOLDING OVER.
If Tenant shall not immediately surrender possession of the Premises at the
termination of this Lease, Tenant shall become a month-to-month Tenant, at twice
the Basic Monthly Rental and Tenant's share of Landlord cost's just prior to
termination of this Lease, said rental to be payable in advance. Notwithstanding
the foregoing, the Landlord shall continue to be entitled to re-take possession
of the Premises immediately upon the expiration of the term hereof, and the
Tenant hereby agrees that all of the obligations of the Tenant and all rights of
the Landlord applicable during the term of this Lease shall be equally
applicable during such period of subsequent occupancy, whether or not a
month-to-month tenancy shall have been created as aforesaid. Tenant further
agrees that it shall be liable for any reasonable damages suffered by Landlord
by reason of Tenant's failure to immediately surrender the Premises.
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19. DESTRUCTION - FIRE OR OTHER CASUALTY.
In case of partial damage to the Premises by fire or other casualty,
insured against by Landlord, Tenant shall give immediate notice thereof to
Landlord, and Landlord, to the extent that insurance proceeds respecting such
damage are subject to and, in fact, are under the control and use of Landlord,
shall thereupon cause such damage to all property owned by Landlord to be
repaired with reasonable speed at the expense of Landlord, due allowance being
made for reasonable delay which may arise by reason of adjustment of loss under
insurance policies on the part of Landlord and/or Tenant, and for reasonable
delay on account of "labor troubles" or any other cause beyond Landlord's
control, and, to the extent that the Premises are rendered actually untenantable
by such damage, the rent shall proportionately xxxxx, unless Tenant cannot
materially conduct business, in which case the Premises shall be deemed
untenantable. In the event (a) the damage shall be so extensive to the whole
Building as to render it uneconomical, in Landlord's opinion, to restore for the
use of Tenant, as specified in Article 5 hereof, or Landlord shall decide not to
repair or rebuild the Building, then Landlord may elect to terminate this Lease
upon written notice to Tenant and this Lease shall expire by lapse of time upon
the third day after such notice is mailed, or (b) damage shall be so extensive
that the entire Premises shall be rendered actually untenantable and Landlord
shall not have caused the Premises to be restored within 180 days following the
occurrence of such damage (the "Restoration Period"), then, provided such damage
was not caused by the gross negligence or intentional act or omission of Tenant
or Tenant's servants, employees, agents, licensees, invitees or visitors, Tenant
may elect to terminate this Lease by written notice to Landlord received by
Landlord within the thirty (30) day period following the expiration of the
Restoration Period, and this Lease shall expire by lapse of time upon the third
day after such notice is timely received by Landlord. Tenant shall thereupon
vacate the Premises and surrender the same to Landlord, but such termination
shall not release Tenant from any liability to Landlord arising from such damage
or from any breach of the obligations imposed on Tenant hereunder.
20. EMINENT DOMAIN.
If the entire Premises shall be substantially taken (either temporarily or
permanently) for public purposes, or in the event Landlord shall convey or lease
the property to any public authority in settlement of a threat or condemnation
or taking, the rent shall be adjusted to the date of such taking or leasing or
conveyance, and this Lease shall thereupon terminate. If only a portion of the
Premises shall be so taken, leased or condemned as a result of such partial
taking, and Tenant is reasonably able to use the remainder of the Premises for
the purposes intended hereunder, then this Lease shall not terminate, but,
effective as of the date of such taking, leasing or condemnation, the rent
hereunder shall be abated in any amount thereof proportionate to the area of the
Premises so taken, leased or condemned. If, following such partial taking,
Tenant shall not be reasonably able to use the remainder of the Premises for the
purposes intended hereunder, then this Lease shall terminate as if the entire
Premises had been taken, leased or condemned. In the event of a taking, lease or
condemnation as described in this Article, whether or not there is a termination
hereunder, Tenant shall have no claim against Landlord other than an adjustment
of rent, to the date of taking
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lease or condemnation, and Tenant shall not be entitled to any portion of any
amount that may be awarded as damages or paid as a result or in settlement of
such proceedings or threat.
21. DEFAULTS - REMEDIES.
21.1 Tenant Defaults. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by Tenant:
21.1.1 Vacating. The vacating or abandonment of the Premises by Tenant for
more than sixty (60) days.
21.1.2 Payment. The failure by Tenant to make any payment of rent or any
other payment required to be made by Tenant hereunder, as and when due,
following written notice by Landlord, provided Landlord shall only be required
to provide notice once every twelve months.
21.1.3 Performance. The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Tenant other than described in Subsection 21.1.2 hereinabove, where such failure
shall continue for a period of ten (10) days after written notice thereof from
Landlord to Tenant; provided, however, that if the nature of the Tenant default
cannot be cured in such 10 day period if Tenant commences such cure within said
ten (10) day period and thereafter, diligently prosecutes such cure to
completion, provided that in any event, such default must be cured with sixty
(60) days of notice.
21.1.4 Assignment. The making by Tenant of any general assignment or
general arrangement for the benefit of creditors, filing by or against Tenant of
petition to have Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless in the case of a
petition filed against Tenant, the same is dismissed within sixty (60) days),
the appointment of a Trustee or receiver to take possession of substantially all
of the Tenant's assets located in the Premises or the Tenant's interest in this
Lease where possession is not restored to Tenant within thirty (30) days or the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or Tenant's interest in this Lease, where such
seizure is not discharged within thirty (30) days.
21.1.5 Execution or Attachment. Tenant's-interest in this Lease is taken
in execution or in attachment or a writ of execution is issued against Tenant.
21.1.6 Non-Payment of Debts. Tenant or any guarantor of Tenant's
obligations under this Lease generally does not pay its debts as they become due
unless such debts are the subject of a bona fide dispute or admits in writing
its inability to pay its debts.
21.2 Remedies. Upon the occurrence of an event of Default and at any
time thereafter, in addition to any other rights and remedies Landlord may have
under this Lease or at law or in equity, whether or not Tenant abandons the
Premises, Landlord shall have the option, in its sole discretion, to do any one
or more of the following:
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21.2.2 Reletting of Premises. Whether or not this Lease or Tenant's right
of possession is terminated following such event of Default, Landlord may relet
the Premises or any part thereof, alone or together with other premises, for
such term or terms (which may be greater or less than the period which otherwise
would have constituted the balance of the Term) and on such terms and conditions
(which may include concessions of free rent and alterations of the Premises) as
Landlord, in its sole 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 the Premises or any failure by Landlord to
collect any rent due upon such reletting; provided, however, that
notwithstanding the foregoing, in the event that Tenant presents one or more
prospective tenants to Landlord, Landlord shall consider in good faith reletting
the Premises or any portion thereof to any such prospective tenants, provided
such tenants are, among other things, of the kind, type, reputation,
creditworthiness and quality typically found in similar buildings.
21.2.2 Damages. Whether or not this Lease or Tenant's right of possession
is terminated following such event of Default, Tenant nevertheless shall remain
liable for:
(a) all Basic Monthly Rent and Additional- Rent (including, without
limitation, all damages sustained by Landlord by reason of the event of Default)
which have become due prior to such event of Default, and all costs, fees and
expenses (including, without limitation, reasonable attorneys' fees, brokerage
fees, and expenses incurred in placing the Premises in condition consistent with
buildings of a similar quality in the Washington, D.C. metropolitan area),
incurred by Landlord in pursuit of its remedies hereunder or in renting the
Premises to others from time to time (all such Basic Monthly Rent, Additional
Rent, damages, costs, fees and expenses are herein called "Termination
Damages"); and
(b) additional damages (herein called "Liquidated Damages", which,
------------------
at the election of Landlord, shall be either:
(i) An amount equal to the Basic Monthly Rent and
Additional Rent that would have become due during the
remainder or the Term, less the amount of rental, if any,
that Landlord receives during such period from others to
whom the Premises is 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),
in which case such Liquidated Damages 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 Term would have
expired but for Tenant's Default. Separate suits or actions
may be brought to collect any such Liquidated Damages for
any month or months, and such separate suits or action shall
not in any manner prejudice the right of Landlord to collect
any Liquidated Damages for any subsequent month or months by
similar proceedings, or Landlord may defer any suits or
actions until after the expiration of the Term; or
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(ii) The amount determined by subtracting (A) the present
value (as of the date of Tenant's default) of the fair
rental value of the Premises for the remainder of the Term
(in determining such fair rental value, the Basic Monthly
Rent and operating cost charges then being paid by tenants
for comparable space in comparable buildings in equally
desirable locations in the Washington, D.C. Metropolitan
area shall be considered), from (B) the present value (as of
the date of the Tenant's default) of all Basic Monthly Rent
and Additional Rent that would have become due during the
remainder of the Term (with such present values being
determined using a discount rate of eight percent (8%) per
annum), which Liquidated Damages shall be payable to
Landlord in one lump sum on demand. For this purpose,
Additional Rent shall be calculated on the basis that
Tenant's Proportionate Share of increases in Operating Costs
would increase at the rate such expenses have generally
increased in Washington, D.C. metropolitan area for
comparable buildings during the preceding five (5) years, as
reasonably determined by Landlord.
21.2.3 Possession of Premises. Whether or not this Lease is terminated by
reason of Tenant's Default, Landlord may immediately or at any time after the
occurrence of an event of Default reenter and take possession of the Premises,
either by summary dispossess proceedings, an action for ejectment or by any
other suitable action or proceeding at law or in equity, and the provisions of
this Article 21 shall operate as a notice to quit. Tenant hereby expressly
waives the right to receive any other notice to quit or of Landlord's intention
to reenter the Premises.
21.2.4 Cumulative Remedies. Each right and remedy of Landlord provided for
in this Lease and each right or remedy now or hereafter existing at law or in
equity or by statute or otherwise shall be cumulative. The exercise or beginning
the exercise of any one or more of the rights or remedies provided for in this
Lease or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise of any or all
other rights or remedies provided for in this Lease or now or hereafter existing
at or in equity or by statute or otherwise.
21.2.5 Eviction of Tenant. Tenant hereby expressly waives any and all
right of redemption granted by or under any present or future law if Tenant is
evicted or dispossessed for any cause or if Landlord obtains possession of the
Premises by reason of the violation by Tenant of any of the covenants or
conditions of this Lease or otherwise. In addition, Tenant hereby expressly
waives any and all rights to bring any action whatsoever against any tenant
taking possession after Tenant has been dispossessed or evicted hereunder or to
make any such tenant a party to any action brought by Tenant against Landlord.
21.3 Landlord Default. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but
in no event, sooner than ten (10) days after written notice by Tenant to
Landlord specifying wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of the Landlord's obligation is such that
more than
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ten (10) days is required for performance, then Landlord shall not be in default
if Landlord commences performance within such ten (10) days and thereafter
diligently prosecutes the same to completion.
21.4 Agent's Authority. While XXXXXXXXX MANAGEMENT CORPORATION shall be
collecting the rentals due from the Tenant, it is hereby authorized by the
Landlord to expend such sums as may be reasonably necessary in connection with
the enforcement of payment of rental and the securing or possession of the
Premises in case of Tenant's default and to reimburse itself from said rentals
to the extent that may be available therefore. The Landlord agrees to pay
XXXXXXXXX MANAGEMENT CORPORATION any of such expenses not 80 reimbursed promptly
upon demand.
22. SEVERAL LIABILITY.
If the Tenant shall be one or more individuals, corporations or other
entities, whether or not operating as a partnership or joint venture, then each
such individual corporation, entity, joint venture or partner shall be deemed to
be both jointly and severely liable for the payment of the entire rent and other
payments specified herein and all other duties and obligations hereunder.
23. ACCEPTANCE OF PREMISES.
Tenant's occupancy of the Premises shall constitute acceptance thereof as
complying with all requirements of Tenant and Landlord with respect to the
condition, order and repair thereof.
24. ESTOPPEL CERTIFICATES.
Tenant agrees at any time and from time to time upon not less than five (5)
days prior notice by Landlord to execute, acknowledge and deliver to Landlord
and/or Landlord's lender or mortgagee a statement in writing certifying that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications) and the dates to which the rent and other charges have been
paid in advance, if any, and stating whether or not, to the best knowledge of
the signer of such certificate, Landlord is in default in performance of any
covenant, agreement or condition contained in this Lease and, if so, specifying
each such default of which the signer may have knowledge, it being intended that
any such statement delivered hereunder may be relied upon by any third party to
this Lease and such other matters as Landlord may reasonably request.
25. NOTICES.
All notices, demands and requests required under this Lease shall be in
writing. All such notices shall be deemed to have been properly given if sent by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed to the Landlord at:
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Xxxxxxxxx Management Corporation
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
and to the Tenant at: Premises. Either party may designate a change of address
by written notice to the other party.
Notices, demands and requests which shall be served by registered or
certified mail in the manner aforesaid shall be deemed sufficiently served or
given for all purposes hereunder at the time such notice, demand or request
shall be mailed by United States registered or certified mail as aforesaid in
any Post Office or Branch Post Office regularly maintained by the United States
Government.
26. SEPARABILITY.
If any term or provision of this Lease or the application thereof to any
person or circumstances shall, to any extent, be invalid or unenforceable, the
remainder of this Lease or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term and provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.
27. CAPTIONS.
All headings in this Lease are intended for convenience of reference only
and are not to be deemed or taken as a summary of the provisions to which they
pertain or as construction thereof.
28. SUCCESSORS AND ASSIGNS.
The covenants, conditions and agreements contained in this Lease shall bind
and inure to the benefit of Landlord and Tenant, and their respective heirs,
distributees, executors, administrators, successors and, except as otherwise
provided in this Lease, their assigns.
29. GOVERNING LAW.
This Lease was made in the District of Columbia and shall be governed by
and construed in all respects in accordance with the laws of the District of
Columbia.
30. INCORPORATION OF PRIOR AGREEMENTS.
This Lease contains all agreements of the parties with respect to any
matters contained herein. No prior agreement or understanding pertaining to any
such matter shall be affected. This Lease may be modified only in writing and
signed by the parties in interest at the time of the modification.
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31. CUMULATIVE REMEDY.
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
32. SIGNAGE.
Tenant covenants and agrees that it shall not inscribe, affix, or otherwise
display signs, advertisements or notices in, on, upon, or behind any windows or
on any door, partition or other part of the interior or exterior of the Building
or the Property without the prior written consent of the Landlord. If such
consent is given by Landlord, the cost of same shall be charged to and be paid
by Tenant, and Tenant agrees to pay same promptly and on demand. Any signs which
have been placed without approval may be removed by Landlord at Tenant's
expense.
33. RENEWAL OPTIONS.
Provided that this Lease is in full force and effect and provided that (a)
where this Lease expressly requires that Landlord deliver written notice of a
default, there exists no uncured default by Tenant for which written notice has
been given, and (b) in all other circumstances, Tenant is not in default
hereunder, the Tenant shall be entitled to renew this Lease for one (1)
additional term (this is hereinafter referred to as "Renewal Term" of five (5)
years, commencing on the date on which but for such renewal, the Term would have
expired, and terminating on the fifth (5th) anniversary of such date which
anniversary shall, if this Lease is so renewed, thereafter be the Termination
Date for all purposes of the provisions of the Lease as applicable thereafter),
by and only by giving to the Landlord express written notice of such renewal by
not less than three hundred sixty (360) days before the date on which the
Renewal Term is to commence (in which event the Term shall thereafter mean the
Term as so extended). All terms and conditions of the Lease shall continue in
full force and effect, except that: (1) upon commencement of the Renewal Term,
this Article shall be inapplicable, and (2) the Basic Monthly Rent during the
first year of the Renewal Term shall be the fair market rent for comparable
space in the Georgetown market in Washington, D.C. as reasonably determined by
Landlord.
34. MISCELLANEOUS.
34.1 Gender. As used in this Lease, and where the context requires: (a)
the masculine shall be deemed to include the feminine and neuter and vice versa;
and (b) the singular shall be deemed to include the plural and vice versa.
34.2 Waiver of Jury Trial. Landlord and Tenant do hereby waive trial by
jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Premises, and/or any claim of injury or damage, and any
emergency statutory or any other statutory remedy.
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34.3 Attachments to Building. Tenant covenants and agrees that it shall
not attach or place awnings, antennas or other projections to the outside walls
or any exterior portion of the Building or the Property. No curtains, blinds,
shades or screens shall be attached to or hung in, or used in connection with
any window or door of the Premises without the prior written consent of the
Landlord.
34.4 Storage Outside Premises. Tenant further covenants and agrees that it
shall not pile or place or permit to be placed any goods on the sidewalks or
parking lots in the front, rear or sides of the Building or the Property, or to
block said sidewalks, parking lots and loading areas and not to do anything that
directly or indirectly will take away any of the rights of ingress or egress or
of light from any other tenant of the Landlord.
34.5 Rules and Regulations. Tenant shall abide by and observe, and
Landlord shall not arbitrarily enforce, the rules and regulations promulgated by
Landlord for the operation and maintenance of the Building and the Property and
such changes thereto and such additional reasonable rules and regulations that
Landlord promulgates from time to time during the Term, so long as such changes
or additional rules and regulations are not inconsistent with this Lease, do not
restrict the use of the Premises by Tenant for the uses permitted by Article 5
and reasonable notice of the changes or additions is given to Tenant. Such rules
and regulations, together with any such changes and additions, are called the
"Rules and Regulations' in this Lease. The Rules and Regulations in effect on
the date of this Lease are set forth on EXHIBIT C.
34.6 Liability of Landlord. Except for insurance proceeds which Tenant may
be entitled to under this Lease, Tenant agrees to look solely to Landlord's
interest in the Property for the satisfaction of any right or remedy of Tenant
for the collection of a judgment (or other judicial process) requiring the
payment of money by Landlord in the event of any liability by Landlord. Except
as provided above, no other property or assets of Landlord shall be subject to
levy, execution, attachment, or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder, or Tenant' 8 use and occupancy of the Premises,
or any other liability of Landlord to Tenant. In no event shall any partner,
shareholder, director, officer, employee or agent of Landlord incur any personal
liability under this Lease and no such liability shall be sought, obtained or
enforced.
34.7 Time of Essence. Time is of the essence of this Lease and each and
every provision hereof.
34.8 Waivers. No failure by Landlord to insist upon the strict performance
of or compliance with any covenant or condition of this Lease or to exercise any
right or remedy consequent upon a breach thereof, and no acceptance of full or
partial Rent during the continuance of any such breach, regardless of any
notation to the contrary accompanying such payment, shall constitute a waiver of
any such breach or of such covenant or condition. No covenant or condition of
this Lease to be performed or complied with by either party, and no breach
thereof, shall be waived, altered or modified except by written instrument
executed by the other party and specifically consenting to the
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particular waiver, alteration or modification. No waiver of any breach shall
affect or alter this Lease, but each and every covenant and condition of this
Lease shall continue in full force and effect with respect to any other then
existing or subsequent breach thereof. Neither reentry by Landlord in accordance
with the provisions of this Lease nor acceptance by Landlord of keys from Tenant
shall be considered an acceptance of a surrender of this Lease and neither of
those events shall relieve Tenant of Tenant's obligations to pay Rent and to
perform and comply with all of the other covenants and conditions of this Lease
to be performed or complied with by Tenant.
34.9 Attorneys' Fees. If legal action is brought in a court of competent
jurisdiction by either party hereto arising out of or concerning this Lease or
the rights of any party hereto, the prevailing party in said action shall be
awarded reasonable attorneys' fees and court costs from the non-prevailing
party.
34.10 Parking. Tenant, Tenant's servants, its agent's invitees, employees
and licensees shall not park or store on, or otherwise utilize any parking or
loading areas on the Property, except as provided in writing by Landlord.
34.11 Waiver of Notice. Tenant waives statutory notice to quit prior to
commencement of an action for summary possession for non-payment of rent.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed
this Lease as of the day and year first above written.
WITNESS OR ATTEST: LANDLORD:
COLUMBIA REALTY VENTURE
/s/ /s/
_________________________ BY: _________________________
TENANT:
NATIONAL CAPITAL RECIPROCAL
INSURANCE COMPANY, INC.
/s/ Xxxxxxx X. Xxxxx BY: /s/ R. Xxx Xxxx, Xx.
------------------------- -------------------------
Agency Acceptance:
XXXXXXXXX MANAGEMENT CORPORATION, AGENT in the above-captioned Lease,
hereby agrees to act as Agent as set forth in the Lease Agreement.
XXXXXXXXX MANAGEMENT CORPORATION
/s/ /s/
_________________________ BY: _________________________(SEAL)
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LIST OF EXHIBITS
----------------
Exhibit A: Space Plan
Exhibit A-1: Description of Property
Exhibit B: Building Services
Exhibit C: Rules and Regulations
