The Trustees of the Corcoran Gallery of Art v. The District of Columbia

The Corcoran’s court motion comes under the ancient legal doctrine of “cy près,” by which a court can modify restrictions placed on a charity when the charitable purpose becomes impossible to achieve. The gallery’s lawyers argue in the legal filing that chronic deficits and competition from free museums — notably the National Gallery — have doomed the Corcoran in its current form.

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

The Trustees of the Corcoran Gallery of
Art,
Petitioner,

Civil Action No. 2014 CA 003745 B
Initial Conference Date: Sept. 23, 2014
9:30 AM

v.
The District of Columbia,
Respondent

MOTION FOR ENTRY OF PROPOSED ORDER
COMES NOW the Petitioner, The Trustees of the Corcoran Gallery of Art, and move
the Court for the entry of an order, approving under the doctrine of cy près, the Trustees’
entry into and implementation of certain agreements with the National Gallery of Art and The
George Washington University, related to the Corcoran Gallery of Art and the Corcoran
College of Art + Design.
The grounds for the Motion, as more fully set forth in the Memorandum of Law in
Support and the Declaration of Lauren Stack filed concurrently herewith, are that under DC
Code §9-1304.13, it is impracticable or impossible for the operations of the Corcoran to
continue in their current form, and the agreements with the National Gallery of Art and The
George Washington University present the best method of continuing to implement the
charitable intent at the formation of the Corcoran.
The form of order is attached. The Trustees have discussed the proposed form of
order with the Office of the Attorney General of the District of Columbia, and believe that
Attorney General will support the form of order.

The Trustees understand that the Motion will be heard at 2:30 in the afternoon of July
18, 2014.
Respectfully submitted,
/s/ Charles A. Patrizia (D.C. Bar No. 228999)
Paul Hastings LLP
875 15th St., NW
Washington, DC 20005
Telephone: (202) 551-1700
Fax: (202) 551-1705
Email: charlespatrizia@paulhastings.com
Counsel for Petitioners

June 25, 2014

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CERTIFICATE OF SERVICE

I hereby certify that on this 25th day of June, 2014, a copy of Petitioner’s Motion for
Entry of Proposed Order with Memorandum in Support and Exhibits was sent by first class,
postage prepaid U.S. Mail and electronic mail to:

Bennett Rushkoff
Chief, Public Advocacy Section
D.C. Office of the Attorney General
441 4th St., NW, Suite 600 South
Washington, D.C. 20001
Bennett.Rushkoff@dc.gov
(202) 727-5173

/s/Charles A. Patrizia
Charles A. Patrizia

LEGAL_US_E # 110695107.1

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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

The Trustees of the Corcoran Gallery of
Art,
Petitioner,
v.

Civil Action No. 2014 CA 003745 B
Initial Conference Date: Sept. 26, 2014
9:30 AM

The District of Columbia,
Respondent

PROPOSED FORM OF ORDER GRANTING CY PRÈS
The Petitioner, The Trustees of the Corcoran Gallery of Art, has brought on a petition
seeking the Court’s grant of cy près with regard to its entry into and performance of certain
agreements with National Gallery of Art and The George Washington University. The Court,
having considered the Petition, the record before it, and having received the views of the
Attorney General of the District of Columbia,
FINDS AND DETERMINES:
1.

The Petitioner is a non-profit institution, initially established under a Deed of

Trust given and made in the District of Columbia. The petitioner is a federally chartered nonprofit corporation, but is subject to District of Columbia law. The Petitioner currently operates
the Corcoran Gallery of Art and the Corcoran College of Art + Design. Since its founding under
the Deed of Trust of William Corcoran, the Petitioner has received other gifts and contributions,
some of which have included conditions and restrictions. These gifts and contributions include
works of art, other physical objects, and monies. The Petitioner owns and operates the Corcoran
Building, a designated national historic landmark located in the District of Columbia, and which
houses its Gallery and the College.

2.

The current financial circumstances of the Petitioner do not permit the assured,

continued, long term operation of the Corcoran Gallery of Art and the Corcoran College of Art +
Design as they have been operated in the contemplation and intent of the Deed of Trust. The
current financial circumstances of the Petitioner do not permit the renovation and rehabilitation
of the Corcoran Building.
3.

If required to continue to operate in the current mode, the Petitioner would

exhaust its available financial resources, and would be required to sell portions of its collection
to maintain its operations. Doing so would result in the loss of its accreditation as a museum and
would result in significant harm to the institution, its reputation, its ability to attract and retain
curatorial staff and faculty, and otherwise undermine its ability to continue in proper operation.
4.

As a result of its financial circumstances, the purposes for which the petitioner

was established have become impracticable or impossible to achieve as a matter of continuing
operation, within the meaning of DC Code Section 19-1304.13.
5.

Seeking to address the financial circumstances and to continue to implement the

underlying intent of the Deed of Trust, the petitioner has negotiated and, subject to the order of
this Court, executed agreements with the National Gallery of Art and The George Washington
University. If implemented the agreements will:
a.

assure a long-term, sustainable future for the Gallery and the College;

b.

assure the rehabilitation and renovation of the Corcoran Building that houses the
Gallery and the College;

c.

assure the preservation and display of the Corcoran’s valuable collection of art
and its retention, to the extent reasonably possible, within the District of
Columbia;

d.

assure the continued use of space within the Corcoran Building for the display of
art; and

e.

assure the continuing fulfillment of the charitable intent of the original grantor
and subsequent contributors.
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5.

It is therefore appropriate that the Court modify the terms of the Deed of Trust

and related instruments, to allow the distribution and use of the Petitioner’s property and assets
in a manner consistent with the grantor’s intent.
THEREFORE, IT IS HEREBY ORDERED AND DECREED:
A.

The entry of the Trustees of the Corcoran Gallery of Art into the following

Agreements (the “Agreements”), is hereby approved and the Corcoran Deed of Trust and any
other applicable instrument is deemed to be revised to the extent necessary to permit the entry of
the Trustees of the Corcoran Gallery of Art into the following Agreements:
1.

The Accession and Custodial Transfer Agreement between the Trustees

and the National Gallery of Art, dated as of May 15, 2014.
2.

A License Agreement between the Trustees and the National Gallery of

Art, in a form substantially similar to that attached to the Accession and Custodial
Transfer Agreement as Exhibit B.
3.

The Asset Contribution Agreement between the Trustees and The George

Washington University, dated as of May 15, 2014
4.

A License Agreement between the Trustees and The George Washington

University, in a form substantially similar to that attached to the Asset
Contribution Agreement as Exhibit B.
5.

A side letter dated as of June 17, 2014, between the Trustees and The

George Washington University, relating to the continued use of space in the
Corcoran Building as exhibition and gallery space.
6.

The letter dated as of June 17, 2014, between the Trustees and the

National Gallery of Art, relating to the policy for the distribution of Custodial Art
that is not accessioned by the National Gallery of Art.
B.

The actions necessary by the Trustees of the Corcoran Gallery of Art to perform

and implement the Agreements listed in Paragraph A, above according to their terms, are hereby
3

approved and the Corcoran Deed of Trust and any other applicable instrument is deemed to be
revised to the extent necessary to permit the Trustees to perform and implement the Agreements
according to their terms. The Trustees, and their employees and agents, shall have no liability to
any person as a result of their actions to enter into, and to perform and implement the
Agreements.
C.

Pending the closing of the Agreements, the Trustees of the Corcoran shall

continue to operate the Corcoran Gallery of Art and the Corcoran College of Art + Design in a
manner consistent with the restrictions applicable to the assets, as they have been understood and
implemented by the Trustees previously.
D.

The National Gallery of Art shall take and hold the Corcoran’s collection of art, in

the manner and for the purposes described in the Accession and Custodial Transfer Agreement,
and shall adhere to the restrictions as otherwise applicable to the collection, as those restrictions
have been understood and implemented by the Trustees previously.
E.

The George Washington University shall take and hold the assets as described in

the Asset Contribution Agreement, in the manner and for the purposes described therein and in
the letter of June 17 described in subparagraph A.5 above, and shall adhere to the restrictions
applicable to such assets as those restrictions have been understood and implemented by the
Trustees previously.
F.

As and to the extent that elements of the Corcoran’s collection of art are not

accessioned by the National Gallery of Art into its collection, in the manner and for the purposes
set forth in the Accession and Custodial Transfer Agreement, the Trustees of the Corcoran
Gallery of Art shall, in conjunction with the National Gallery of Art, implement the policy and
plan for the distribution of the remaining collection, as described in the letter of June 17
identified in subparagraph A.6 above, in accordance with its terms and subject to its provisions.
G.

The Trustees of the Corcoran Gallery of Art, following the closing of the

Agreements, shall hold and retain the existing federal charter, and shall continue to operate as a
non-profit entity, dedicated to “encouraging American genius,” as set forth in the Corcoran Deed
of Trust.

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H.

The implementation of the Agreements shall be subject to District of Columbia

law.
SO ORDERED, this __day of ____, 2014:
________________________________________
Robert D. Okun, Judge
Superior Court of the District of Columbia

Distribution to:
Charles A. Patrizia (D.C. Bar No. 228999)
Paul Hastings LLP
875 15th St., NW
Washington, DC 20005
Telephone: (202) 551-1710
Fax: (202) 551-1705
Email: charlespatrizia@paulhastings.com
David S. Julyan (D.C. Bar No. 495153)
Julyan and Julyan
1100 G St., NW; Suite 655
Washington, DC 20005
Telephone: (202) 367-0800
Email: julandjul@aol.com
Bennett Rushkoff
Chief, Public Advocacy Section
D.C. Office of the Attorney General
One Judiciary Square
441 4th St., NW, Suite 600 South
Washington, DC 20001
Telephone: (202) 727-5173
Fax: (202) 741-0599
Email: Bennett.Rushkoff@dc.gov

5

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

The Trustees of the Corcoran Gallery of
Art,

Civil Action No. 2014 CA 003745 B

Petitioners,
v.
The District of Columbia,
Respondent,

MEMORANDUM OF LAW IN SUPPORT OF THE TRUSTEES’
MOTION FOR ENTRY OF A PROPOSED FORM OF
ORDER GRANTING CY PRÈS DETERMINATION
INTRODUCTION
Petitioner The Trustees of the Corcoran Gallery of Art (the “Trustees”) have filed a
petition seek a determination under DC Code § 19-1304.13, approving under the doctrine of cy
près, the Trustees’ entry into and implementation of certain transactions regarding the Corcoran
Gallery of Art (the “Gallery”) and the Corcoran College of Art + Design (the “College”). The
Trustees have filed a Motion seeking the entry of an order granting the cy près, in the form and
on the conditions set forth in a Proposed Form of Order, filed concurrently with the Motion. For
the reasons set forth in the Petition and this Memorandum in Support, and in the Declaration of
Lauren Stack filed with the Motion, the Court should grant the motion, and enter the order in the
form proposed.
It is financially impracticable, and indeed in the medium- and longer-term, financially
impossible, to continue the operations of the Gallery and College in their current form. To
resolve the financial distress, the Trustees have negotiated and seek approval to implement
arrangements that will (a) assure a long term, sustainable future for the Gallery and College, (b)
assure the rehabilitation and renovation of the Corcoran building that houses the Gallery and

LEGAL_US_E # 110669512.5

College, (c) assure the preservation of the Corcoran’s valuable collection of art, while at the
same time assuring that the works will be available for exhibition to the public, primarily in the
District of Columbia; and (d) assure the continuing fulfillment of the charitable intent of the
Corcoran’s original grantor.

FACTUAL BACKGROUND
The Trustees of the Corcoran Gallery of Art is a federally chartered non-profit institution,
initially established under a Deed of Trust by William Corcoran in 1869, and chartered by Act of
Congress of May 24, 1870. A copy of the Corcoran Deed of Trust (the “Deed of Trust”) and a
copy of the federal statute incorporating the Trustees of the Corcoran Gallery of Art are attached
to the Affidavit of Lauren Stack. The Trustees have elected to be subject to the DC Non-profit
Act.
Mr. Corcoran, a successful and wealthy businessman, by the Deed of Trust, established
the first art museum in the District of Columbia, and indeed one of the first art museums in the
United States. Upon the formation of the Trust, and thereafter the grant of the Charter,1 the
initial Trustees took possession of the Renwick building and the collection of art, and
implemented the purposes of the Trust. Over the succeeding years, the Trustees added to and
enhanced the collection.

As of the current time, the Corcoran Gallery’s collection of art and

other pieces numbers more than 18,000 individual pieces and is recognized nationally for the
significance of certain works and for certain aspects of the collection.2
By 1890, the Corcoran Gallery and College had outgrown the limited space available in
the Renwick building. In order to meet the needs for space, the Trustees acquired then vacant
land at the corner of 17th Street, NW and New York Avenue, across from the White House
grounds. On that land, they built a new building, designed by William Flagg and known as the
1

2

The need for a federal charter arose because the District of Columbia followed the rule in Trustees of
Philadelphia Baptist Association v. Hart’s Executors, 17 U.S. 1 regarding the failure of a charitable trust
as a result of Virginia’s repeal of the English Statute of Charitable Uses. Hart was reversed in Vidal v.
Girard in the District (following Maryland and Virginia law), a charitable trust, in order to be outside the
Rule against Perpetuities, was required to incorporate.
The Gallery’s collection includes not only traditional works of art (paintings, works on paper, and
sculpture), but also a nationally important collection of photography, ceramics, lace, stained glass, and
other objects.

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Flagg building.

The building is listed on the National Register of Historic Places and is

generally considered a prime example of Beaux Arts architecture. Since its completion in 1897,
it has housed the Gallery and major aspects of the College.
In the early decades of the 20th Century, Senator William Clark became associated with
the Gallery, through the urgings of the then-Chairman of the Board of the Trustees. Upon
Senator Clark’s death, he bequeathed a significant portion of his collection to the Corcoran3 and
his widow and heirs donated the funds to construct an addition to the Flagg Building, now
known as the Clark Wing, to house and display the Clark Collection. Since the completion of
the Clark Wing, the Corcoran building (the Flagg Building and the Clark Wing) has housed the
Gallery and major operations of the College.
THE FINANCIAL CONDITION OF THE CORCORAN
From inception, the operations of the Gallery and College depended on a combination of
support from donated funds, including the funds originally given by Mr. Corcoran and donations
from others, and support from revenues received, e.g., as admissions fees, college tuition and
fees, and similar revenues. Over time, given inflation and other sources of cost increases, the
dependency on donated funds became greater. Because the Corcoran is an accredited museum,
the Trustees have adhered to guidelines published by the American Association of Museums and
the Association of Museum Directors, under which proceeds from the sale of art are directed by
the Trustees to an account maintained within the overall financial assets of the Corcoran
dedicated to acquisition of additional works. That is, proceeds from the sale of art have not been
allocated by the Board to maintenance or operation of the Building, or the Gallery or the College,
but have been separately maintained to be used for acquisition of additional pieces to the
collection. Adherence to these guidelines assures the Corcoran remains accredited and therefore
qualified to receive loans of art from other museums, attract qualified staff, participate in special

3

The Clark Will bequeathed the collection to the Metropolitan Museum of Art in New York City, where
Senator Clark had moved following the end of his Senate term. The Metropolitan declined to receive the
collection under the conditions Clark had included in his will, and under the terms of the will, the collection
was then bequeathed to the Corcoran. The Corcoran trustees, after consideration of the conditions and
discussion of the terms with the Clark family to assure a mutual understanding, accepted the bequest.

-3LEGAL_US_E # 110669512.5

and traveling exhibitions, and to maintain relationships with other museums.4 A determination
by the Corcoran not to adhere to the guidelines would dramatically undermine the Corcoran’s
reputation within the museum field, and would likely substantially undermine its ability to recruit
and retain qualified curatorial and other key museum staff, undercut its ability to raise funds, and
substantially hinder if not eliminate its ability to participate in significant traveling exhibitions.
As is true of virtually all such institutions, the Trustees have maintained a staff and
conducted programs seeking financial contributions from individuals, foundations and corporate
sponsors.

These programs range from specific campaigns for capital purposes (e.g., the

construction of the Flagg Building or the Clark Wing, or their maintenance), campaigns for
general purposes, campaigns in support of the College specifically, and campaigns to support
specific exhibitions or shows.
While the fundraising financial campaigns have produced support that has varied in
amount from year-to-year and purpose-to-purpose, the overall financial situation of the Corcoran
has for several decades deteriorated. This deterioration is due to several factors. In 1939, at the
urging of Andrew Mellon, the Congress created the National Gallery of Art (“NGA”). The NGA
as a national institution receives federal funding support (while also seeking donations), and is
open free of charge all year. Its location on the National Mall, its prestige as a national
institution and its greater funding resources have undercut the Corcoran’s separate role as a
museum within the District. This effect has been compounded by the establishment of other
national galleries and museums related to the Smithsonian Institution or the National Gallery,
and that are located on or close to the National Mall and in the area between the White House
and the Capitol, thus establishing a major tourism nexus away from the Corcoran’s location west
of the White House.

Because those museums and galleries are open free of charge, the

Corcoran’s model of depending in part on admission fees from patrons has been deeply undercut,
as has been seen in many galleries across the country. While the Corcoran has benefitted from
the close relationship between the Gallery and the College, the fundraising for each has been
4

For example, the Delaware Art Museum, faced with substantial debt issues, recently determined to deaccession works from its collection, in order to sell the works and use the proceeds to retire debt and
similar purposes. The American Association of Museums in response voted to decertify the Delaware Art
Museum as an accredited museum. See http://www.aam-us.org/about-us/media-room/2014/delawareaccreditation-status (last visited, June 23, 2014).

-4LEGAL_US_E # 110669512.5

hampered by the lack of a unique identity for either.
In the face of the limited financial resources available from the endowment and the
amounts available from contribution campaigns, the Corcoran Trustees over the last several
decades had prioritized expenditures to maintain the collection, keep open the Gallery and
support the operations of the College.

They deferred some major expenses, including

maintenance of the Flagg Building and Clark Wing, but still operated at a deficit on a current
accounting basis. A chart showing the annual deficits in the Corcoran’s finances for 20 years
from 1990 to 2010 is attached to the Declaration of Lauren Stack.
In effect, the ongoing operations of the Corcoran resulted in an increase in the likelihood
and amount of future capital needs (to overcome deferred maintenance) and a decrease in the
endowment funds available to support the ongoing operations and capital needs, in order to meet
current obligations. Recent reviews of the condition of the Corcoran Building have confirmed
that the Building is in need of substantial rehabilitation and replacement of key systems. Some
of that is urgent, to address deterioration in electrical, heating and ventilation, plumbing and
other systems. The work is estimated to require more than $ $70 to $100Million and to require
several years of construction or similar activities. Those funds are simply not available in the
existing financial circumstances of the Corcoran, and the amounts would exceed any reasonable
expectations of a capital fund raising campaign.
THE DEVELOPMENT OF FUTURE OPTIONS
For several years, the Trustees and administration have focused on the fundamental
issues that would define finding a sustainable future for the gallery and the college, recognizing
that the continuing annual deficits were not a sustainable long term path, and the endowment
could not foreseeably support operations at the expected levels for the long term. To meet their
obligations as Trustees, in 2011 the Corcoran Board retained consultants with expertise in
operations, museum and college management and engaged in a concerted review of operations
and options that would allow them to identify and implement a sustainable future.
As a result of the review, the Board determined that the proper priorities remained:
(a)

Preservation and continued display of the Corcoran collection (sale of

works to fund operations was not a preferred course of action, and would result in
-5LEGAL_US_E # 110669512.5

significant harm to the Corcoran’s reputation and role within the Museum community
nationally and internationally);
(b)

Rehabilitation and renovation of the iconic Corcoran building to allow its

continued use as a gallery and college; and
(c)

continued operation of the Corcoran College of Art + Design, which

remained one of the very few national professional art schools directly associated with a
museum and its collection, with a national reputation for training contemporary artists
and in training designers of exhibitions and exhibition spaces.
The Board was specifically concerned that the Gallery and the College be placed on a
sustainable, long-term path, that would avoid the uncertainty and risks that had become well
known in the last few years.
In 2012, the Board considered a full range of options, including consideration of a sale of
the iconic Corcoran Building, a move to other space or locations within the District of Columbia
or in the immediate environs, reductions in the operations of the Gallery or College, separating
the Gallery and the College, and other measures. They also reviewed whether there was a
reasonable likelihood of success in a renewed fundraising campaign. By December 2012, the
Board had sufficient potential alternatives that included keeping the gallery in the building that
only those alternatives were still being considered. In an effort to meet these priorities, the Board
initiated discussions with several parties, seeking an overall arrangement that would best fulfill
the objectives. In 2013, the Trustees more fully explored collaboration proposals with other
academic and museum institutions and by the end of the year began the discussions with The
George Washington University (GW) and National Gallery of Art (NGA).
THE NGA/GW ARRANGEMENTS
In an effort to meet the priorities it had established, the Board initiated discussions with
several parties, seeking an overall arrangement that would best fulfill the objectives. By January
2014, discussions among GW, NGA and representatives of the Trustees identified an option that
called for a cooperative relationship among the three institutions that would meet all the
priorities, and created opportunities to enhance the ongoing dedication of the Corcoran to
contemporary arts and encouraging of American Genius.
-6LEGAL_US_E # 110669512.5

On the basis of an analysis of the risks and benefits of the proposals the Trustees
determined that the NGA/GW arrangement offered the path forward which was most closely
aligned with the original intent of Mr. Corcoran, and provided the best option for the long term
sustainability of the Corcoran College and Gallery. The three institutions entered into letters of
intent, and conducted diligence and negotiations to achieve a definitive arrangement. On May
15, 2014, NGA, GW and the Trustees approved the definitive documents, and executed the
agreements. The agreements are subject, inter alia, to a condition precedent that the Trustees
seek and obtain cy près approval from this court.
Copies of the following agreements and forms are attached to the Declaration of Lauren
Stack:
1.

The Transfer Agreement between NGA and the Trustees

2.

The form of License Agreement under which NGA will be permitted limited use
of the Corcoran name and marks

3.

The Transfer Agreement between GW and the Trustees.

4.

The License Agreement under which GW will be permitted specified use of the
Corcoran name and marks

5.

The License Agreement under which NGA will operate exhibition and gallery
space in the Corcoran Building.

6.

The side letter dated as of June 17, 2014, describing the plan and policy by which
art that is not accessioned by NGA into its collection will be distributed by the
Corcoran.

7.

The side letter dated as of June 17, 2014 under which GW confirms the continued
devotion of space in the Corcoran Building to exhibition of art, should the
NGA/GW agreement terminate.

Under the NGA Transfer Agreement, the Corcoran will transfer responsibility for its
collection of art to NGA, thus assuring the continued preservation, maintenance and
safeguarding of the entire collection. The NGA will review the collection and identify works
from the Corcoran collection that will be accessioned into the NGA’s collection and which will
thereafter be known and identified at the NGA as the “Corcoran Collection.” Certain works that
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are intrinsically identified with the iconic Corcoran facility and its legacy and the history of the
Gallery will be displayed in the Legacy Gallery to be established in that facility.
NGA, under an agreement with GW, will manage additional galleries at the Corcoran
Building (“Corcoran Contemporary, NGA.”) where NGA will exhibit modern and contemporary
works. In addition, certain works deeply associated with and affixed to the Corcoran Building,
e.g., the Salon Doré and the Canova lions, will remain with the Corcoran Building, continuing
the connection between the Corcoran, its art and the Building.
NGA and the Trustees will cooperate with each other to identify other museums or
institutions that would receive and display works that are not accessioned by the NGA, Pursuant
to discussions among representatives of the Corcoran, the NGA and the Attorney General, the
Corcoran has agreed to a plan and policy that will give preference to museums and institutions in
the District of Columbia to receive the works that the NGA does not accession, and to assure that
there is an opportunity for review prior to works being transferred out of the District of
Columbia.
Under the GW Transfer Agreement, GW will receive the Corcoran Building, and will
undertake its renovation and rehabilitation. GW and NGA will separately agree on the use of
significant space within the Building as gallery space, for the display of contemporary art,
including works from the Corcoran Collection, works from NGA’s collection and other works.
Thus, the building will remain in use as an active gallery, displaying contemporary art, and open
to the public for free. Pursuant to discussions among representatives of the Corcoran, GW and
the Attorney General, GW has confirmed that in the event its agreement with NGA terminates,
GW will continue to devote an equivalent amount of space in the Corcoran Building to
exhibition of art.
GW will also receive the Corcoran College of Art + Design, and continue to operate the
College having a separate identity under the GW umbrella, providing professional arts training
and other degree programs. The College will remain in its home in the renovated Corcoran
Building, as well as having classes and other space in other buildings in the area as determined
by GW.
As part of the transfers of art to NGA and the College and Building to GW, each of NGA
and GW have undertaken to comply with donor restrictions that are part of the transferred
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elements. The Trustees of the Corcoran Gallery of Art, as a federally chartered corporation, will
remain in existence, but no longer operating as a museum or College. The Trustees will devote
their efforts to the “encouraging of American Genius,” helping to assure coordination of the
NGA and GW work in the Corcoran name, and seeking opportunities to support contemporary
American art and artists
ARGUMENT
The doctrine of cy près is of ancient vintage and appears to predate the English chancery
courts. See Edith Fisch, The Cy Pres Doctrine in the United States (1950) at 3.

At least until

1943, there was a question whether the District of Columbia accepted the doctrine of cy près.
See Noel v. Olds, 138 F.2d 581 (D.C.Cir.1943), cert. denied, 321 US 773 (1944)(affirming the
application of cy près, and disregarding dicta in Graff v. Wallace, 32 F.2d 960 (DC Cir. 1929).
Subsequently, The District of Columbia has adopted the Uniform Trust Code, and under those
provisions, the court is granted specific power to modify restrictions imposed on trusts.

DC

Code § 19-1304.13. The code formally adopts the doctrine of cy près, an equitable doctrine of
venerable heritage, that allows a court of modify restrictions when a charitable purpose is or
becomes impracticable, impossible to achieve or wasteful.

The court’s determination is

equitable, and seeks to define continued activities and operations that most closely adhere to the
donor’s original charitable purpose.
The commentary on the Uniform Trust Code indicates that the equitable power under cy
près is broad – the power may applied to modify administrative or dispositive terms, in order to
vindicate the presumed charitable intent of the trust donor. Uniform Trust Code at Section 413,
commentary. Cy près has been used specifically in the context of an art museum, in order to
assure the viability of the overall intent. See In re Barnes Foundation, 2004 WL 2903655 (Pa.
Ct. Com. Pl. Dec. 13 2004)(allowing the Barnes Foundation museum to move to a new location
in Philadelphia).
Reported cases under the DC Code provisions relating to modifications of trusts are few
and not generally on point. See, e.g., In re Durosko Marital Trust, 862 A.2d 914 (DC 2004); In
re D.M.B., 979 A.2d 15 (D.C. 2009). Rather, such matters have been taken up in unreported
cases, with the involvement of the Office of the Attorney General.
-9LEGAL_US_E # 110669512.5

Under the code, two specific conditions must be met: the continued operation of the trust
as originally contemplated must be impracticable or impossible, and the revised conditions must
seek “as nearly as possible” to adhere to the original donor’s intent. D.C. Code §19-1304.134.
The Petition here meets both tests.
First, the current financial condition of the Corcoran makes it impracticable, indeed
financially impossible, for the Trustees to continue to operate the Gallery and College in their
current form and accomplish the necessary renovations and rehabilitation of the Building. As set
forth above and in the Declaration of Lauren Stack, the Corcoran has operated at a chronic
deficit, resulting in reductions in the endowment in order to fund continued operation of the
Gallery and the College, even as the Trustees deferred renovation or longer maintenance of the
building. The Corcoran’s finances are untenable for the longer term. Studies of the Corcoran
Building have established that it requires a major renovation. Even as the Trustees were able to
obtain funding for specific maintenance, e.g., a replacement of roof, rehabilitation of stonework
and replacement and upgrade of the heating and ventilation system, major work is still required.
Indeed the most recent studies have indicated that necessary renovations are estimated at least
$70 million and several years to complete. Once that work is initiated, it must be carried to
completion.
As the financial statements attached to the Stack Declaration show, the Corcoran lacks
the current financial resources to assure the Trustees’ ability to continue operation of the Gallery
and the College. This funding gap is compounded by the standards imposed by the Corcoran’s
status as a museum. It is a long-standing part of the ethical standards applicable to museums that
belong to the national association that proceeds of the sale of the art cannot be used to meet
operating or capital expenses, but must devoted only to acquisition and care of the art. This
standard is based on the understanding that the art acquired by or contributed to the museum is a
public trust. Adherence to the standard is essential to retaining accreditation as a museum, and
accreditation in turn is necessary for modern museum operations – without it, museums will not
loan works to one another, qualified staff could not be hired and retained, and the reputation of
the museum would decline. To adhere to that standard, the Corcoran Trustees have set aside the
proceeds of sales of works in a separate fund. That fund is now the largest liquid asset of the
-10LEGAL_US_E # 110669512.5

Corcoran, and, under the current circumstances, even given amounts that the Trustees reasonably
expect to receive, the Trustees would need to make determinations to invade the acquisition fund
to maintain operations for the coming academic year. Thus, the Corcoran cannot maintain its
operations without sacrificing the very status as a museum that is an essential part of its mission.
In response to the financial impracticability and impossibility of maintaining the current
operations for any more than the very near term, the Trustees have negotiated an arrangement
with GW and NGA, which will:
(a)

Assure a long term, sustainable future for the Gallery and College,

(b)

Assure the rehabilitation and renovation of the Corcoran building that houses the
Gallery and College,

(c)

Assure the preservation and display of the Corcoran’s valuable collection of art,
and

(d)

The continuing fulfillment of the charitable intent of the Corcoran’s founder.

Thus, the arrangement as documented in the Transfer Agreements and Licenses is the
best available mechanism to assure the continued fulfillment of the underlying intent of Mr.
Corcoran. As described above and set forth in the agreements themselves, the arrangements
provide that the Corcoran’s collection of art will be preserved. Those elements which the NGA
does not itself accession, will be transferred to appropriate institutions and museums that will
agree to preserve them and exhibit them in accordance with relevant standards. Under the policy
and plan agreed with the Attorney General, institutions in the District of Columbia will be given
a preference, assuring that Mr. Corcoran’s intent regarding the exhibition of art in the District
will continue to be fulfilled.
Similarly, the Corcoran Building will be preserved and renovated, and continue to serve
both the College and as a gallery. Iconic pieces will remain exhibited in the building, and the
NGA will establish new exhibition space devoted to contemporary art.

The College will

continue under the larger umbrella of GW University, but maintaining a link to the Corcoran
collection.
Last, the Corcoran itself, now able to concentrate its limited resources on activities other
than continued operation of the Gallery and College, will renew its focus on the basic mission
-11LEGAL_US_E # 110669512.5

defined by Mr. Corcoran’s Deed – dedicated to art and encouraging American Genius.
For the reasons set forth in the petition and the Motion, the Court should grant the
petition and permit execution and implementation of the negotiated arrangements set forth in the
Transfer Agreements and License Agreements.

In the interim pending closing of those

arrangements, the Trustees will continue to operate the Corcoran consistent with current
restrictions.

Dated: June 25, 2014

By:

/s/ Charles A. Patrizia________________
Paul Hastings LLP
875 15th Street, N.W.
Washington, DC 20005
1(202) 551-1700

/s/ David S. Julyan________________
David Julyan
Julyan & Julyan
1100 G Street, NW Suite 655
Washington, DC 20005

-12LEGAL_US_E # 110669512.5

DECLARATION OF LAUREN STACK

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

The Trustees of the Corcoran Gallery of
Art,

Civil Action No. 2014 CA 003745 B

Petitioners,
v.
The District of Columbia,
Respondent.

DECLARATION OF LAUREN STACK
IN SUPPORT OF MOTION FOR ENTRY OF CY PRÈS
ss:

City of Washington
District of Columbia

:
:

1.

I, Lauren Stack, declare that I am the Chief Operating Officer of the Corcoran Gallery

of Art, a position I have held since 2011. As Chief Operating Officer, I am personally
familiar with the activities and operations of the Corcoran Gallery of Art and the Corcoran
College of Art + Design, and have access to their books and records. In this position, I report
to the Interim Director and President, and to the Board of Trustees. If called as a witness, I
could testify to the matters set forth herein of my personal knowledge, or to the best of my
information and belief based on the books and records of the Corcoran.

2.

The Corcoran was formed under a deed of gift, given by William Corcoran in 1869.

A copy of the Deed is attached to this Declaration as Exhibit 1. As contemplated by the
Deed, the Trustees designated in the Deed, sought a corporate charter, and Congress granted
the charter by statute in May 1870. A copy of the statute creating a “body corporate and
politic” known as the Trustees of the Corcoran Gallery of Art is attached as Exhibit 2.
3.

Under the Deed of Gift, the Trustees had received from Mr. Corcoran works of art, and a

building now known as the Renwick Gallery which housed the collection. Documents relating to
the history of the Corcoran indicate that within a few years of the Gallery's opening, it became
apparent to the Trustees that some visitors to the gallery were students who used the gallery
space to copy the works exhibited; and therefore consistent with the Deed's overarching intent to
"foster American genius in the arts", the Trustees determined to open a formal college of art.
Classes under The Corcoran College of Art began in 1878, and the College has operated
continuously since.
4.

An archived Corcoran Annual Report from the 1920's describes that by 1890 the gallery

had outgrown Renwick's red brick building. Stymied by neighbors who would not sell their
property to allow the gallery to expand at the original site, the Trustees bought a lot a few blocks
away at 17th Street and New York Avenue. There they had designed and constructed a new
building, known as the Flagg Building, after its architect. The Building is listed on the National
Register of Historic Places.

5.

In the early 1920's, the Corcoran received a substantial bequest from Senator William A.

Clark, a wealthy industrialist who had during his lifetime donated to the Corcoran, loaned it
works of art from his personal collection, and had been elected a Trustee. Upon his death, the
Corcoran received a significant number of works from Clark's personal collection, and his
widow and heirs donated the funds to add a wing to the Flagg Building (the "Clark Wing") to
house and exhibit the works.

6.

As a non-profit entity, the Corcoran has depended financially on its limited endowment,

fundraising campaigns, and revenues from visitors, College tuition and fees, and grants or other
similar sources for capital and operating expenses. The Corcoran Building, while a designated
19th Century national architectural treasure, is aging along with its systems, and needs substantial
maintenance and renovation.
7.

It is my understanding that in the face of the limited financial resources available from

the endowment and the amounts available from contribution campaigns, the Corcoran Trustees
over the last several decades had deferred some major expenses, including some maintenance of
the Flagg Building and Clark Wing. Recent reviews of the condition of the Corcoran Building

LEGAL_US_E# 110698640.4

have confirmed that the Building is in need of substantial rehabilitation and replacement of key
systems. Some of that is urgent, to address deterioration in electrical, heating and ventilation,
plumbing and other systems. The work is estimated to require at least $70Million and could be
more, and may require several years of construction or similar activities. Those funds are simply
not available in the existing financial circumstances of the Corcoran, and the amounts would
exceed any reasonable expectations of a capital fund raising campaign. The Corcoran's financial
situation does not allow it to undertake necessary and extensive capital expenses.
8.

A chart showing the annual deficits in the Corcoran's finances for the years 2001 through

2013 is attached hereto as Exhibit 3. The chart shows operating deficits for each year except
2007, and that year was an exception only because of a large grant received from the District of
Columbia to fund the repair and replacement of the roof of the Corcoran Building.

THE DEVELOPMENT OF FUTURE OPTIONS

9.

In the last several years, the Trustees and administration of the Corcoran focused

specifically on the Corcoran's financial condition, recognizing that the continuing annual deficits
were not a sustainable long term path, and the endowment could not foreseeably support
operations at the expected levels for the long term. To meet their obligations as Trustees, the
Corcoran Board retained consultants with expertise in operations, museum and college
management and engaged in a concerted review of operations and options that would allow them
to identify and implement a sustainable future. The Board considered a full range of options,
including separating the Gallery and the College, reducing the operations of the Gallery or
College, consideration of a sale of the iconic Corcoran Building and moving the Corcoran to
other space or locations within the District of Columbia or in the immediate environs, and other
measures.

They also reviewed whether there was a reasonable likelihood of success in a

renewed fundraising campaign outside of its ongoing development efforts.

10.

As a result of the review, the Board determined that the proper priorities remained:

(a)

preservation and continued display of the Corcoran collection (sale of

works to fund operations was not a preferred course of action, and would result in

LEGAL_US_E# 110698640.4

significant harm to the Corcoran's reputation and role within the Museum community
nationally and internationally);
(b)

rehabilitation and renovation of the iconic Corcoran building to allow its

continued use as a gallery and college; and
(c)

continued operation of the Corcoran College of Art + Design, which

remained one of the very few national professional art schools directly associated with a
museum and its collection, with a national reputation for training contemporary artists
and in training designers of exhibitions and exhibition spaces.
The Board was specifically concerned that the Gallery and the College be placed on a
sustainable, long-term path, that would avoid the uncertainty and risks that had become well
known in the last few years.

THE NGA/GW ARRANGEMENTS

11.

In an effort to meet these priorities, the Board initiated discussions with several parties,

seeking an overall arrangement that would best fulfill the objectives.

By January 2014,

discussions among GW, NGA and representatives of the Trustees identified an option that called
for a cooperative relationship among the three institutions that would meet all the priorities, and
created opportunities to enhance the ongoing dedication of the Corcoran to contemporary arts
and encouraging of American Genius.
12.

On the basis of an analysis of the risks and benefits of the proposals the Trustees

determined that the NGA/GW arrangement offered the path forward which was most closely
aligned with the original intent of Mr. Corcoran, and provided the best option for the long term
sustainability of the Corcoran College and Gallery. The three institutions entered into letters of
intent, dated February 18, 2014, and conducted diligence and negotiations to achieve a definitive
arrangement. On May 15, 2014, NGA, GW and the Trustees approved the definitive documents,
and executed the agreements. The agreements are subject, inter alia, to a condition precedent
that the Trustees seek and obtain cy pres approval from this Court.
13.

Copies of the following agreements and forms are attached hereto as Exhibit 4. These are

the agreements which have been or will be executed and the implementation of which is essential

LEGAL_US_E # 110698640.4

to accomplishing the proposed arrangements.
a.

the Transfer Agreement between NGA and the Trustees

b.

the form of License Agreement under which NGA will be permitted limited use

of the Corcoran name and marks
c.

the Asset Contribution Agreement between GW and the Trustees.

d.

the License Agreement under which GW will be permitted specified use of the

Corcoran name and marks
e.

the License Agreement under which NGA will operate exhibition and gallery

space in the Corcoran Building.
f.

The side letter dated as of June 17, 2014, describing the plan and policy by which

art that is not accessioned by NGA into its collection will be distributed by the Corcoran.
g.

The side letter dated as of June 17, 2014 under which GW confirms the continued

devotion of space in the Corcoran Building to exhibition of art, should the NGA/GW agreement
terminate.
14.

Pursuant to 28 U.S.C. § 1746, I declare under the penalty of perjury under the laws of the

United States of America that the foregoing is true and correct.

FURTHER DEPONENT SAYETH NOT.

Signed and subscribed, this 24th day of June 2014.

LCllLc__c v \ ·~C\---~
Lauren Stack

LEGAL_US_E# 110698640.4

EXHIBIT 1

DEED

·~.

DEED
DEED

Recorded
May 18, 1869 ..
This indenture made this tenth day of May,· in the
·y~ar of our Lord eighteen hundred and sixty~nine, by
andhetween William w. Corcoran, of the city Washington, District of c:olurnbia of the. fi~st part,· and J;und
M~ Carlisle,· James C Hall, George W. Riggs, Anthony
Hyde; James G. Berret,. James c,_ Kennedy, Henry I): .
Cooke, and James C. McGuire Of the city of Washing~
ton ·a:nd Georgeto~n, District oJ Columbia, and William
·f: Walters of the city of Baltimore, St~te of Maryland,
.
. of the secood .part. .
Witnesseth, where~s, th~ said William w.· Corcoran,
in the execution of. a lo:Ug cherished desire to establish an
institution in Washin~on City, to be "dedicated to Art,"
and used s_oWJr f~r !he~pU[p_?S~ (}! e_ncour~gi~~· ~e£~Can
works per'"
geni~s, .i~s~~;Prr.1Ld~stltciH~·a,l!~tPresel:"ation
has
objects,
kindred
.and.
·taining ''to 'fh~ ."~Ff'i:re~ ;Arts}'·
, determined to convey to a Board of Trustees the prop.erf& hereinafter' descdbed, to which he may;. hereafter,' •...
. make other gifts and ·donations, to be held by said board ..
and.used for the puipbses aforesaid: Now, therefore, .. · ·.
.'Corcoran, m ·con~ideration of' the ·.·.
the ~aid-wTIITam
premises, and of the sum of orie dollar ~:urrent money.
of the. United States to hiin in hand paid by th.e said·.

of

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parti es of the second part, the receipt wher eof
is here by
acknowledged, hath gran ted, barg ained and sold,
aliened,
enfeoffed and conveyed,. and by these prese
nts doth
gran t, barg ain and sell, alien, enfeoff and conv
ey unto
the said Jame s M. Carlisle, Jame s C. Hall , Geor
ge W.
Riggs, Anth ony Hyd e, Jame s G. Berr et,
Jame s C.
Kennedy, Hen ry D. Cooke, Jame s C. McG
uire and
Will iam T. Walt ers, and the survivors and the
surVivor
of them, and the heirs and assigns of such
survivor,
lots numbered 5 (five) 6 (six) 7 (seve n) and
8 (eigh t)
in square numbered 167 (one hund red and sixty
-seven)
in the city of Was hing ton .imd~District of Colu
mbia, af,
the same are laid down,.,lJ.~§,disting'ijis.he4 ,p.pon
the public
plat of said city, fron tinii 'fb6 'i~~t 9inches, more
or less
on Pres iden t's square, and 160 17/1 00 feet,
more. or
less on Seventeenth stree t west., toge ther with
all· and
singular the buildings, improvements; here ditam
ents, and
. appurtenances there to appertaining, or·
in anywise
belonging, and all the estate, right, title and
inter est of
the said party of the first part in and to the same
.
.
.
To have and to. hold all and singular the
lots and
parc els of grou nd and premises afore said
with the
appurtenances unto, and to the use of them
the said
parti es of. the second part, and .the survivors
and surV-ivor of them, and the heirs and assigns of such
~urvivor.
In trust , nevertheless, and to and for the inten
ts and purposes here inaft er expressed and described, that
is to say:.
First, Tha t the said parti es of the second part
shall,
with out unnecessary delay, after the acceptance
· of this
trust , to be signified by their sign:ing and seali
ng the
memorandum to that effect;',hereuri.d~t wt1tten,
orga nize
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themselv:es i.n.t9<·a permanent Board· of· Trustees, with
srich ·o:ffi.cer~~ to; be ~ei~~ted ·from their ·owri number, as
to' thdffi; ·n:~y' ·seem necessary or convenient, for the
orderly rnariag-t:>:ment of this t':"11st.. and the more .efficient
att~inment ofthe end and o1ifects designed by the said
party of the first part, as indicated by his general intent
to be gathereci from this instrument; in a:ll its parts and
provisions, and with the same intent, and for ·the
same. ends and objects shall make and as often--as.
may be necess?7,Jrom time to time,, tn'lk.. ~.J!Jt~ 1menq:
repeal and ·rr>-en?.ct m whole or in part, all necessary by'-·t-aws: rules. and reg:llations., in the premises, in e:xecution
of .and -not inconsistent . with .·the provisions • arid true
intent of this instrument; in -all which they shall act by
the -concurrence of a majority of the whole number of
trustees.
· Secondly, That when the: number of the said original
Board of Trustees., being the said parties of the second
part,. shall, by death, resigi{ation, or ina'bility, to be
ascert;'tined.i,by:"t~.·r~s.olu~ion of the said board,, .acting<by
a inaj~~tJ'·:?fa}j(:;iwhtJle·number, shall have :been reduced
bel6\~rft:he: •number 1of nine members, the n~mainip.g members shall elect suitable persons, in their discretion,· from
time to time, as often as niay be necessary, so that the
board shall always be composed of nine meniliers..
Thirdly ... That in property,. real,_ personal · and
mixed, rights,· credits, chases in action, or other valuable
thing whatsoever, hereby conv~yed, or int~nded to be ··
-conveyed, or which may hereafter be conveyed, given or
transferred and assigned, and · delivered to the ..said
Board ofTrustees, whether composed of the said parties

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of the second part or of. their successors, chosen and
elected as hereinbefore provided; whether in ';"hole or in
part, shall be 'belcy managed, limited" used :ind ~vott><i
to executing the trusts, a~d giving effec-t: a~cord.inq to
the best judgment of the said Board of Trustees from
timeto time; and all legal rights and tides in the premises shall be t;J.ken and held in such manner, and with
such ·legal forms, as shall serve the trusts, intents; uses
. and piliposes :declared or plainly indicated or implied in .
.
_:'~nd, b:y thi! terms'' of this instrument.
· 'tFahr;hl/Theproperty so received and held, or which
may be _,. =.-:eiv~d anrl h~ld by the said. Boat--d-o£ Trustees, .
shall be 'he1~,\... sed~ managed iand 'dispos~d~ o-f by them,
and their successors ana assigns',-whether under . this
instrument alone Or under any act ofjnCOIJlbrati_~n. hereafter to be procured,- for i1le perp~tu)-]/establishment anrl
maintena!J.Ce of a Public Gallery and lVIUseum for the~
promotion and encouragement of the arts of painting and
sculpture, and the fine arts generally, upon such system,
and with such regulations and limitations as the Board
of Trustees may, from time to time, whether corporate·
o'r unincorporate, prescribe, limit and ordain: Provided1
always, that the Gallery and Museum shall be open to
visitors without any pecuniary charge whatever, atleast
two days in each week, for such convenient and customary hours as shall be, from time .to time;.prescribed.and
made public; and at such other times, not bei11g such
. public·· 'dayS')': as: aforesaid, such- moderate and re~sonable
:f.~~i lfhr: ':i'<ihiiss'?on D'lay _be_fl""escribed and reeeived, to
b~~ ;aoplied--'to the tu;rent e~~!lses of -orocuring and. ·
ke'eping in proper oroer the building and -its contents.

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Fifthly. While the officers nece~sacy or appropriate to
the organization . of the Board of Trust~es: shall be
elected from their own number, it is unde~stood that the
board shall and may, at. its discretion at all times, employ other persons to be officers, agents an~ servants of
. the board for the orderly and.efficient management and
conduct of the .institution.
Sixthly. The system and the appropriate measures· for
increasing the c01iection of pair1t1ngs; statues and kindred
works of art, o} wh.ich the priv:ategallery of the party of
the first part will form the nucleus, and such other vohmtary donations as the trustees may from time to time
receive, are confided to the discretio~ and judglnerit of
the Trustees, as·is also th~ m<l,nagement generally of the
institution.
Seventhly. The general intent ·of the..said party of the··
first patt being ,exf>re'ssed in general terms in tile premises··
and: i~:iHtaJ§I. Of/: this ih,strument, and further indicated;
with ~!!rtain specifications iri the foregoing artkU~s,
numbered from one to six, inClusive,. it is here,by declared
that all and. singular the gifts, grants, co~veyances, and
assignments, herein expressed and set forth are to and
. for the trusts, intents, and purposes so as. aforesaid
expressed, implied, set forth, or indicated, and to none
other whatsoever; and tha.t while it is the intention of
the grantor and donor herein that no merely technical
or formal breach of or departure from the. terms and
conditions .of this trust shall operate as a~y forfeiture< or · ·
defeasance in Javor of his heirs, or. of ·any. claiming-' in ·
his .right, nevertheless it is hereby declared, and these
presents are upon the express and strict condition; that

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these presents and every ·matter and thing hereinbefore
contained, and every estate, right, title, interest, and
power thereby given,· granted, conveyed, and limited,
.shall cease and determine, and become utterly void and
of none effect, whensoever: it shall be decreed. adiudged.
o,r deda·red by th ... ·highest judicial authC\titY haVInll
jurisdic~i'bn,upo~:a~prop'e'r p~o;eedlng in.la,w o~ in equity~
to be in~frtutM;hy:the heirs, devisees, or assiggees of the
said pa~ty of the first part, that tb,_e -n:al estate hereinbefore conveyed shall have been diverted from the purposes of this trust, to be gathered from this instrument
in.· all its parts and provisions, · so as stibtantially to
defeat or plafnly to be inconsistent with and repugnant
to this trust, construed and interpreted in a. liberal and
sensible spirit;· and thereupon, as in a case of a breach of
strict condition subsequent, the heirs, devisees, or assigns;
or other proper legal representatives in the premises, of
the said William W. Corcoran shall be. entitled to r~­
enter upon the said real estate as of his, the said William
W. Corcoran's, right and title prior to the ~~ecution of
these presents, and as if the same had never been executed; and, in like maimer, all and ~very other estate,
property, chattel, or valuable thing, the title to which
shall have praceeded in the premises ·from the said
William, W. Corcoran .to the said trustees, . or their
success.011sr :;tnd .as'signs,,_shall as far as may be consistent·.
with; tht*irule~/ a~cLpritidples of law. and equity,. reve'rt
and be revested in right. of the said • Corcoran or ,his •· .· . -• ·
proper legal representatives therein.

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EighPhly. That the said Board ofTrustees 'in(ly ~tany .
time h~reafter, iri its discretion, apply for arid ac.cept ah .
· act of Congress incorporati ng then1and theit successorl, ··
so as to .facilitate the execution of this trust by Y.estihg
the same in a perpetual body corporate with tl1e like
powers and for the same trusts, intents, arid purpose~· ·
herein declared, expressed, orindicated , but for no other·
trusts, intents, or purposes whatsoevet ; such act ofincor~
poration to refer to this deed 1 and to be expressed to·be
...
in execution of the trusts thereof; aJ:id thereupoll th¢ ...
said parties of the second part, and the survi..~or~. and . '
survivor of them, or the heirs and assigns of such
survivor, shall execute such cbn~eyahces . as m(ly: b~ ...·
necessary tp tra{i,~fer the· whol~· property of this trust t() ... · . ·
such corporatiQ:ri' lip-on the t;usts of this deed;.: .And·
whereas the 'lots' of ·wound and improvements'her~in
before described and referred to have, by reason' of the ...
exigencies of the public service of the. U nhed S~a,te.s; .
been rented and occupied for. the public u'~e, with6J1t•.ai1y
special contract, but subjectto the constitutional proyision .
that "private property .shdl notJ be taken ·for the 'public
use without just compensation," whichjust compens,ati()n ·
for the whole period of such. occupation by the· United ·
States now remains to be paid, andcortside ring the same
properly to belong to this trust,. as being of the rents, ·
issues, and profits o£ the. ground and buildings. which. he .·
had heretofore, and as early as the year ~ighteen~Jmn;. , .····
dred and fifty-nine, devoted and dedicated to the t~ll;ts
and purposes hereinbefore fornia1ly' declared,··
therefore,· in consideration of the premises; and<cif'the .
sum of one dollar by the said. parties·. of the second; par(

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to him in han<i.pai4, he; the said p~rty of the first part,
hath assign~d, _tra~sferred, ·a~d.set ·,over, arid· by th~se
presents3 doth assign, tniilsfer, ~nd set over, unto the' said
parti~s!Bt: th~: s·~·con'd part, and the survivors and survivor
of them; and thl! executors, administrators, and assigns
of such survivor, all and singular the rents, i~sues, and
profits of the lots of grotmd and improvements herdn. before described-for and dudng the .whole peri~ of the
occupation· and possession of the. same by .the Govern~
rrient ofthe UriitedStates; and all thejust compensation
which m!J.y.be due ·from theUnitedStates·for the. public
use. ()f .the same, . hereby authorizing and .empowering
the said parties of the second part, or a: ·majonty of
them, either by themselves or by any s~bstituted attorney
or attorneys; to be named an<i appoint~d by. ~hem or a
majority of them, to acquit and release and receipt for
the same in any su:fficientlegalform of acquittance which
may be according ;to law, as fully as he, the said party
of the first part, could personally release and acquit the
same;·. iv,~ich •.r~nts, issues,. arid profi'ts, a11d just compen- .
satip.~,.~qt~he.phbl,i~;\i~e·()f
.. thf:. saidproperty, shall . be
'•~ I~ ~.· ~:.j.
~.
n.._, ,·
,
recei~~4il~?~d;:h.~Jd1
t~~ said parties of the second part,
'l . '
. .
for the same uses,.· intents, · anq purposes hereinbefore
declared, . ~lit shall, as far as may be necessary, be
applied, before all other' obje~ts, to ·the completion of.
the int~rii:n: of said building; and to. puttingjt ·in a. coq- . · ·
ditio~·to be imm~diately applied totheprimary intents .
aria P~ll>oses of i:his t:~st, as expressed in the recital in ·
the premises of this· deed;·
·
·
·
··
·
._·:··· .·
.. '· ·.
. ... .
.
·... :.·.,
. . ..
In. testimony whereof,· the said party of the fi~st pad
I

,_, '·

I

J

;.

'

•,

-..~

;.,

.

..

'-

• ,..

' ! ,

. . .,_ l_ '

9Y
•'

> '

.4

l

:.

..

.I

.

1...

. ..

I.

j ~-'-~,.c~,, •·•.·. ,,·.·. -~- ~~~"-_..·~-~~~-~~ -~·c·
~)

··. ··.;::·

11
ed· hjs ~eal; the Jay •·· ·. ·
hath here unto set his han d and affix
. . : ' ..

.
and year. first here inbe fore wri tten

W~

W. CORCORAN. [sEA~.]

Signed, sealed, and delivered,
in the pres enc e of JoHN HUNTER.
A. T. BRICE.
ly, accept, tlte trus ts' of th~ ·
_ We , jointly and sev eral
1
.
1
foregoing, de~d: : 1 :·; • • \ · · ·
said ten th day of
Wit nes s ~iii- hi~ds' ind seals, the
ne ..
Ma y, eighteen hun dre d and sixty-ni

M. CA RL ISL E.
J .. C. HA LL.

J.

·;.

.-4J1

·. [sEA'L.] ...·.
[sEA~.J····

[SEAL.]
GEO. w. RIGGS.
· (sE in;]
AN TH ON Y HY DE .
[sEAi:].
JAM ES G. BE RR ET .
JAM ES C. KE NN ED Y. [sEAL.]
HE NR Y D. COOKE. [siA i;] ·.
JAM ES C. Mc GU IRE . [sEAL.]

. W. T. WA LT ER S .. ·

[sEAL.]

DISTRICT OF CoLUMlHA, . } set·
· ·
·
.. · · ·· . . . · .. · ·.·.·
Cou nty of Wa shin gton , · · ·
lic in and ' for
I; Wh itm an C. Bestor, a not ary pub
here by cert ify tha t
Wa shin gton county afor esai d,. do
of the first P;t: t):o ;1. .
Wil liam WhCor;<;:ot~n, th!! par ty
h day of Ma y, A: D~
certair1: dcte.d.Dl'>ea~irig! d~te the te~t
and her,eto .• apn,exe~;' '
eighteeP. . .hiliid~e,d•i''itt1d', sixty-nine,

· : . · ,.....

•'.!'":"

.'!l

A

v

.12

· . W£~~~~l~\~l~!~l~;at~J.;· ·.
my

Given under
hand a~d 1l~ta;iafsea1: thi~ tenth day
of May; eighteen hum:lred :imd si:xty-11i~e~ . ...

.. . .

. .

WHITMAN C.

~ESTOR,

··· ... Notary Public .

.

. ·..

·.,...

:

.

.

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. .·,'

.·.'···
····:.

EXHIBIT 2

FEDERAL CHARTER

THE LIBRARY OF CONGRESS
WASHINGTON, D.C. 20540

PHOTODUPLICA TION SERVICE

I hereby certify that I am an officer of the Photoduplication
Service at the Library of.Congress and that there is now in the collections
of the Library of Congress a publication entitled
The Statutes at Large and Proclamations of the United States of America
From December 1869 to March 1871

Volume XVI - - - - - -

I further certify that the attached photocopies are true copies

of
spine, title page and page 139
from the said publication.
In testimony whereof I hereunto subscribe my name and cause the
seal of the Library of Congress to be affixed this 23rd day of Dece!Tlber
19 97 •

~Q.OUM~

Supervisor, Information Unit[cJ~~

BY AUTHORITY OF CONGRESS.

THE

~tatntts

at Jargt
A:"; I)

PROCLAMATIONS
O!o' TU.E

UNITED STATES OF AMERICA,
FROM DECEMBER 1869 TO MARCH 1871,
AND

TREATIES AND POSTAL CONVENTIONS
i\xra:ngtb in

i!t~tonological

tl)e

@rbet a:nb cartfnUJ1 collllttb mill)

@riginal~

a:t

im~l)ington,

WITH

REFERENCES TO THE MATTER OF EACH ACT AND TO TilE SUBSEQUENT
ACTS ON TilE SAJ,IE SUBJECT.
EDITED

BY

GEORGE P. SANGER,
COUNSELLOR AT LA \V,

'l'he rtgbta aod Jntere:IL of tbe United States {n the tte<reotTfi'C! platoJ from which tblt "ork l.s prioted are betebJ reoogahed1 ackMWl~ged. and declt.red by the publlabm, aocordiQg to t.be proTitloD.J of the joltlt retolution Q( Conpeas,

.-.!Marcl13,18<S.

VOL. XVI.

BOSTON:
LITTLE, BROWN, AND COMPANY.
1871.

0. 1870 .
excee d one
~n three quar, any one time
of all depotita
sentatives, aecipal m•! be
.on aball m ita

:ot

ector, or com-.
til borrow any
e expenses of
lr pel"llon con:posit3 1hereof,
1 use, he shall
f uy any court
1tiary not lea!
e officers and
:urity for their
n time to time
and agents.
ed u corporat and organize
:nt, and one as
el"!!Ins as they
bat the whole
tnd vice-"resishall make an
Said return s
of depositors;
d depo..ited in
vested in pubrtgage of real
ld; total diviof which shall
·e of the mancorrect accord.id corporation
inspection and
3.

may make byt repug nant to
pleasure ; that
r lreasu rer, or
ttlid ; and ~aid
td and be. held
ntion shall file
)f the Distri ct,
United StateJ ,
•ndition to pay
n as the party
be demanded ;
tk-d after such
•u rt shall ha \'e
ime they may

FOR TY -F.IR ST CON GRES S.

SESs. IL

Ca. 110, 111, 118.

1870.

ess shall, at all time3,
Sxc. 12• .And be it further enacud, That Congr
act.

pcmess the power to alter, amend, or repea l this
API'R OVEP , May 24, 1870.
CHAP . CXL - An Act

w incorpora.t~ tl~ T,IM _ of tl•e Corcoran Gallery of Art, and

189
Aet mu.y be
altered, &e.

May 24, lS'TO.

for otlw PurptJCU .

1entativett of the Unitea
Be it enacted by the &nate and House of Repre
Jamed M. Carlisle, James

Trnsteet t>C
&ate& of Amer ica in Congress a11embled, That
.Ji!:
~~rA
C.
James
t,
Berre
G.
James
,
Hyde
C. Hall, George W. Rigg~, Anthony
ated.
IX>rpor
Wash
of
city
the
of
ire,
Kennedy, Henry D. Cooke, and James C. McGu and William T. Walbia,
Colum
of
ct
Distri
,
etown
ington, and of Georg
and their successors,
ters, of the city of Baltimore, State of Maryland,
tuted a body politic and corpobe, and they are hereby, created and constiTrust
ees of the Corcoran Galrate in law, by the name and style of the
sued, implead and be im- Powers or cor·
be
and
sue
may
lery of Art, and by that name
may take, hold, manage, poratioo.
and
shall
and
pleaded, have perpetual succession,
, and shall and may do
and dispose of, at all times, real and personal estate appropriate for the
or
sary
neces
things
and
acts
and perform all other
them in and by a certain
execution of the trust.s created and conferred on
said parties hereinbefore
the
them,
to
ran,
Corco
W.
m
Willia
from
deed
en hundred and sixtynamed, which is dated the tenth day of May, eighte
month in liber D,
same
the
of
enth
eighte
nine, and was recorded on the
et sequitt~r, one of the
-four,
ninety
and
ed
hundr
two
folio
eight,
er
numb
Columbia, to which referland records of W ai>hington county, Di~trict of
intent of this charte r of Intent of eb&rthe
;
nty
ce1·tai
r
ence is hereby made for greate
tion of Ihe tru3ts in the ter.
execu
in
be
incorporation being that the same shall
intent or purpose
other
any
to
not
and
forth,
set
and
ed
declar
eaid deed
whatever.
Secretary of ·war, the Pay CoT the
SEc. 2. .And be it further. enacted, That the State be, and they are nae ofdce';rlo
of
Secretary of the Trea~ury, and lhe Secretary
~eule, upon principles of ru\ld'in;'to be
hereby, authorized and directed to ascertain nnd of thl ground and build- determined an4
use
the
for
on
justice, a fair and just compen~ati
while the same were occu- !~et:::nt pa~d
ings described in the before-mentioned deed,
rpora
e; and that the sum so tion.
servic
pu\)lic
the
for
States
d
Unite
pied by the
their
upon
shall,
them,
of
ity
major
a
or
ascertained and settled by them,
ration hereinbefore crecertificate and award thereof, be paid to the corpo\·ise appropriated.
other'l
not
ry
treasu
the
in
money
any
ated, out of
which may be claimed Tu remitted
SEC. 3. .And be it further enacted, That any tax
er of lhe property
transf
the
of
or due to the United States, by reason
of the said deed from the
ry
delive
and
tion
execu
the
or
oned,
menti
above
trustees, be, and the &arne
said William W. Corcoran to the above-named
is hereby, remitted and released.
aforesaid building~ and Buildings &e.
SEC. 4. And ~ it furll~U enacted, That the works of art that may exempt fro~
the
all
with
er
togeth
itb,
therew
grounas connected
and asses5ment.s by, the taxes.
be contained therein, shall be free from all taxes
as the same shall
long
so
,
municipal authorities, or by the Unite d States
forth.
set
before
herein
se
purpo
the
for
be held and used
APPR OVED , May 24, 1870.
27, 1876.
odditional Land Di.trid in tht Ttrritory of May
CHAP. CXIll . - An Act creating onColorod
o.
See Pa.t, r· 'l98.
United
the
of
e&
entativ
Repres
of
House
Be it enacted by the Senate and
all that portion of the ATbns as ValStates of .America in Cangress assembled, That described limits, to wit: ley la!ld dl~trict
10
Territ ory of Colorado embraced in the following
ory at the intersection ~~bh~Jed
commencing at the eastern boundary of the Territ
~nes.
'&':n3
line
that
on
west
thenr.e
ng
of the second correction line south and runni
and se,·enty-six we•t
to the line dividing ranges numbered se\'enty-fh·e
the range line to the
with
south
e
thenc
ian;
merid
pal
of the sixth princi

EXHIBIT 3

FINANCES
FOR YEARS 2001 - 2013

Restricted and Unrestricted

Actual per Audited Financial Statements
2008
2007
2006

2005

2004

2003

2002

2001

2011

2010

2009

2012

2013

Revenues

22,866,693

$

33,088,567

$

25,690,355

$

19,517,148

$

26,401,383

$ 20,298,881 $ 19,349,146 $ 26,214,615

Total Revenues per audited financial statemE $

19,047,915

$

$

22,460,073

$

Total expenses per audited financial stateme $

19,445,952

$ 21,598,434 $ 20,268,858 $ 22,847,213 $

24,338,276

$ 22,599,738 $ 25,085,364 $ 25,370,759 $ 23,444,429 $ 25,063,766 $ 27,435,461 $ 28,668,075 $ 28,285,744

24,586,713

$

19,579,783

$

22,894,297

(398,037)

2,988,279

(689,075)

47,084

(1,878,203)

266,955

8,003,203

319,596

(3,927,281)

1,337,617

(7,136,580)

(9,318,929)

(2,071,129)

Total Other Changes

21,011,559

438,757

(2,070,339)

113,019

(25,363,449)

822,501

1,765,625

(2,987,381)

(4,297,969)

(146,752)

(2,052,456)

17,985,337

38,445,902

Change in Net Assets Per Audited Financials $

20,613,522

(2,667,785) $

(8,225,250) $

8,666,408

$ 36,374,773

Change in net assets from operations

(398,037)
1,177,491
(1,575,528)

Change in net assets from operations

less: investment income
True change in net assets from operations

$

3,427,036
2,988,279
1,269,494
1,718,785

$

(2,759,414)
(689,075)
1,206,356
(1,895,431)

$

160,103
47,084
1,103,452
{1,056,368)

$

(27,241,652) $
(1,878,203)
923,948
{2,802,151)

1,089,456
266,955
1,414,692
{1,147,737)

$

9,768,828
8,003,203
2,609,790
5,393,413

$

319,596
718,290
{398,694)

(3,927,281)
(1,213,714)
(2,713,567)

1,190,865
1,337,617
4,298,324
{2,960,707)

$

(9,189,036) $
(7,136,580)
582,555
{7 ,719,135)

(9,318,929)
(85,160)
{9,233,769)

(2,071,129)
3,456,179
(5,527,308)

EXHIBIT 4

ART ACCESSION AND CUSTODIAL
TRANSFER AGREEMENT

Execution Version
ART ACCESSION AND CUSTODIAL TRANSFER AGREEMENT
This ART ACCESSION AND CUSTODIAL TRANSFER AGREEMENT (this
"Agreement") is hereby made and entered into as ofMay 15,2014, by and between the
TRUSTEES OF THE CORCORAN GALLERY OF ART, a Congressionally chartered nonprofit
corporation located in the District of Columbia ("Corcoran"), and the NATIONAL GALLERY OF
ART, an independent establishment of the United States created by Joint Resolution of Congress
located in the District of Columbia ("NGA").
WHEREAS:
A.
Corcoran is a nonprofit institution dedicated to art and encouraging American
genius and, in service to that mission, (i) owns and operates the Corcoran Gallery of Art, an art
gallery and museum located in the District of Columbia (the "Gallery"), in which a collection of
art works owned or controlled by Corcoran is located for exhibition or storage (including those
art works owned by Corcoran currently on loan for exhibition in other venues and art work in
off-site storage) (collectively, the "Existing Collection"), (ii) owns and operates the Corcoran
College of Art+ Design, an accredited school of art and design located in the District of
Columbia (the "College"), and (iii) owns and controls the Corcoran legacy building located at
500 17th Street Northwest in the District of Columbia (the "17th Street Building"), together
with other certain real estate;
B.
Corcoran has determined that it is in the best interests of the institution and its
mission to transfer to the custody, care and possession ofNGA all of the Existing Collection,
together with certain related assets. A portion of the Existing Collection will be designated by
NGA for accession into its collection of art (as further described in, and in accordance with the
terms and conditions of, Section 2.1, the "Accessioned Art"), and the remainder of the Existing
Collection that is not so accessioned will remain in NGA's care until distributed to other art
museums and appropriate entities (as further described in Section 2.4, the "Custodial Art");
C.
NGA desires to establish a new contemporary art program, to be conducted as the
"Corcoran Contemporary, National Gallery of Art" (or such other name as may be designated in
accordance with Section 2.2(a)) (the "Contemporary Art Gallery"), to be housed at the 17th
Street Building (acknowledging that the 17th Street Building will be under the ownership of the
University, as hereinafter defined), for the purpose of exhibiting, inter alia, certain works of the
Accessioned Art and other works as determined by NGA, and for the purposes of preserving,
maintaining and perpetuating the mission and reputation of the Gallery, on the terms and
conditions set forth herein;
D.
NGA intends to designate a space (the "Legacy Gallery") within the 17th Street
Building to be used for the exhibition of certain works of Accessioned Art that are so
intrinsically identified with the 17th Street Building and its legacy and the history of the Gallery
that consideration should be given to their remaining on exhibit therein (the "Legacy Art");
E.
The parties desire to provide for the use of the "Corcoran" name and related
marks in connection with matters contemplated herein and, accordingly, in connection with the
closing of the transactions contemplated hereby, Corcoran and NGA will enter into the License

SCI :3636271.1
LEGAL_US_E# 108762926.28

Agreement (as defined below) pursuant to which Corcoran will license toNGA as of the Closing
the right to use the "Corcoran" name and related marks as set forth in the License Agreement;
F.
Concurrently with the execution and delivery of this Agreement, Corcoran has
entered into a related agreement (the "University Asset Agreement") with The George
Washington University, a Congressionally chartered nonprofit corporation located in the District
of Columbia (the "University"), pursuant to which Corcoran will transfer the 17th Street
Building and other related assets (including the College and certain Permanent Works (as
hereinafter defined) intrinsic to the 17th Street Building) to the University (the "University
Transaction");
G.
In connection with the University Transaction, and concurrently with the
execution and delivery of this Agreement, the University and NGA have entered into a related
agreement pursuant to which the University will dedicate portions of the 17th Street Building, as
set forth on Exhibit A hereto, for continuous use as exhibition space for art of the Contemporary
Art Gallery and the Legacy Gallery and other programming and administrative needs ofNGA
(the "University-NGA Agreement");
H.
Following the consummation of the transactions contemplated hereby, Corcoran
will continue and maintain its separate existence as an organization dedicated to art and
encouraging American genius, and, in connection therewith, the parties have provided herein for
a joint advisory committee; and
I.
The parties desire to set forth the terms and conditions upon which such
transactions and related matters shall occur.

Now, THEREFORE, in consideration of their respective representations, promises
and obligations, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and agreed, and desiring to be bound hereby, the parties agree as
follows:
ARTICLE 1
DEFINITIONS
1.1
forth below:

Certain Definitions. The following terms, as used herein, have the meanings set

"17th Street Building" has the meaning set forth in the preamble.
"2014 Commitments" has the meaning set forth in Section 5.4.
"Accessioned Art" has the meaning set forth in the preamble.
"Accession Waiver Notice" has the meaning set forth in Section 2.4(b ).
"Agreement" has the meaning set forth in the preamble.

2
SC13636271.1
LEGAL_US_E # 108762926.28

"Art Related Materials" means (i) all Documentary Art Related Materials and
(it) all Equipment Art Related Materials.
"Assumed Liabilities" has the meaning set forth in Section 2.1(b)(i).
"Authorized Corcoran Representatives" shall mean those persons who shall be
authorized by Corcoran as of the Closing or thereafter and from time to time with notice toNGA,
to execute all documentation necessary on behalf of Corcoran to distribute and convey title to the
Distributed Art or Accessioned Art, as applicable.
"Closing" has the meaning set forth in Section 6.1.
"Closing Date" has the meaning set forth in Section 6.1.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"College" has the meaning set forth in the preamble.
"Contemporary Art Gallery" has the meaning set forth in the preamble.
"Contract" means any contract, lease, license, evidence of indebtedness,
mortgage, indenture, security agreement, or other commitment, undertaking, or agreement
(whether written or oral) that is legally binding.
"Corcoran" has the meaning set forth in the preamble.
"Custodial Art" has the meaning set forth in the preamble.
"Dispute" has the meaning set forth in Section 8.11(a).
"Distributed Art" has the meaning set forth in Section 2.4(b ).
"Documentary Art Related Materials" means, with respect to a work of art, all
documentation, files, records, images, archival material, Contracts, correspondence, and other
written, electronic or digital materials, including all documentation with respect to the accession,
donation, provenance, conservation, and restoration thereof, and with respect to the copyright
and other intellectual property rights (including the right to create derivative works),
reproduction rights, licenses, rights in images, publication rights, and similar matters therein
relating to such work.
"Equipment Art Related Materials" means all frames, tools, packing materials,
supplies and equipment related to art and art preparation, installation or handling (including
ladders and lifts), the cold storage equipment, display cases and file cabinets and other storage
materials currently used for any of the foregoing (exclusive, for the avoidance of doubt, of
Gallery Shop Inventory), but in each case only to the extent NGA notifies Corcoran in writing
prior to the Closing that it will take ownership of any such equipment effective as of the Closing.
"Equitable Provisions" has the meaning set forth in Section 8.11 (b).
3
SCJ3636271.1
LEGAL_US_E # 108762926.28

"Existing Collection" has the meaning set forth in the preamble, it being
understood that the Existing Collection shall not include the Flemish Windows or the Permanent
Works that are being transferred to the University at the Closing as set forth in Section 2.4( d).
"Flemish Windows" means the Jan de Caumont stained glass windows installed
in the Platt portion of the 17th Street Building.
"French Window" means the French Soissons stained glass window installed in
the Platt portion of the 17th Street Building.
"Gallery" has the meaning set forth in the preamble.
"Gallery Shop Inventory" means all merchandise and products in stock for sale
by Corcoran to the general public.
"Gifts and Endowments" means all assets, held as cash and cash equivalents,
investments or other assets, which are held by Corcoran subject to donor restrictions limiting the
use of the gifts and endowments for the purpose of acquiring works of art, endowing
curatorships, the care and restoration of art or similarly restricted for use related to art, provided,
however, that such accounts shall not include Board-restricted funds allocated to such purposes
(including for the avoidance of doubt the fund subject to the Renovation Transfer Amount (as
defined in the University Asset Agreement)).
"Governmental Entity" means any (a) nation, state, commonwealth, county,
city, town, village, district, or other jurisdiction of any nature, (b) federal, state, local, municipal,
foreign, or other government, (c) federal, state, local or foreign governmental or quasigovernmental authority of any nature (including any agency, branch, department, board,
commission, court or tribunal), (d) multi-national or supra-national organization or body,
(e) body exercising, or entitled or purporting to exercise, any administrative, executive, judicial,
legislative, police, regulatory, or taxing authority or power, including any court or arbitrator,
(/) self-regulatory organization, (g) academic or professional agency, association or organization
or (h) official of any of the foregoing.
"Identification Process" has the meaning set forth in Section 2.1 (a).
"Initial Accessioned Art" shall consist of those works of art in the Existing
Collection designated as such by NGA, and which shall be accessioned by NGA at the Closing
pursuant to Section 2.1 (b )(i).
"Instrument of Accession" has the meaning set forth in Section 2.1 (b).
"Instrument of Custodial Transfer" has the meaning set forth in Section
6.2(d)(ii).
"IRS" has the meaning set forth in Section 3.1 (b).
"Joint Advisory Committee" has the meaning set forth in Section 5.5(b).

4
SCI :36362711
LEGAL_US_E # 108762926.28

"Laws" means all laws, statutes, common law, rules, codes, regulations,
restrictions, ordinances, orders, decrees, approvals, directives, judgments, rulings, injunctions,
writs and awards of, or issued or entered by, all Governmental Entities.
"Legacy Art" has the meaning set forth in the preamble.
"Legacy Gallery" has the meaning set forth in the preamble.
"License Agreement" has the meaning set forth in Section 6.2(d)(ii)(E).
"List of Accessioned Art" shall mean the list of Initial Accessioned Art to be
delivered by NGA to Corcoran no later than three business days prior to the Closing, which shall
be in the form attached to Exhibit C hereto, as such List of Accessioned Art may be
supplemented and amended pursuant to Section 2.1 (c).
"NGA" has the meaning set forth in the preamble.
"Notice of Accession" has the meaning set forth in Section 2.1 (c).
"Notice of Termination" has the meaning set forth in Section 7.2(a).
"Permanent Works" has the meaning set forth in Section 2.4(d).
"Person" means any individual, corporation, partnership, joint venture, limited
liability company, trust, Governmental Entity, or other organization.
"Release" has the meaning set forth in Section 6.2( d)(ii)(D).
"Restricted Works" has the meaning set forth in Section 2.3.
"Restrictions" has the meaning set forth in Section 3.5.
"Solvent" means, with respect to any Person on any date of determination, that on
such date (i) the fair value of such Person's assets is greater than the total amount of such
Person's liabilities, (ii) the present fair saleable value of such Person's assets is not less than the
amount that will be required to pay the probable liabilities of such Person as they become
absolute and matured, (iii) such Person does not intend to, and does not believe that it will, incur
liabilities beyond such person's ability to pay such liabilities as they mature, and (iv) such Person
is not engaged in a business or a transaction, and is not about to engage in a business or a
transaction, for which such Person's property would constitute an unreasonably small capital.
The amount of contingent liabilities at any time shall be computed as the amount that, in light of
all the fact and circumstances existing at the time, represents the amount that can reasonably be
expected to become an actual matured liability.
"Taxes" means all taxes, charges, fees, duties (including customs duties), levies
or other assessments, including income, gross receipts, net proceeds, ad valorem, turnover, real
and personal property (tangible and intangible), sales, use, franchise, excise, value-added, stamp,
leasing, lease, user, transfer, fuel, excess profits, unrelated business income, occupational,

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interest equalization, windfall profits, severance, license, payroll, environmental, capital stock,
disability, employee's income withholding, other withholding, unemployment and Social
Security taxes, which are imposed by any federal, state, local or foreign Governmental Entity,
and such term shall include any interest, penalties or additions to tax attributable thereto.

"Transaction Documents" has the meaning set forth in Section 8.11.
"University" has the meaning set forth in the preamble.
"University Asset Agreement" has the meaning set forth in the preamble.
"University Transaction" has the meaning set forth in the preamble.
"University-NGA Agreement" has the meaning set forth in the preamble.
Interpretation. The headings in this Agreement are inserted for convenience only
1.2
and shall not constitute a part hereof. Except where the context requires otherwise, whenever
used in this Agreement, the singular includes the plural, the plural includes the singular, the use
of any gender is applicable to all genders and the word "or" has the inclusive meaning
represented by the phrase "and/or." The words "include" and "including" and variations thereof,
shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the
words "without limitation." A reference in this Agreement to an Article, Section, Exhibit or
Schedule is to the referenced Article, Section, Exhibit or Schedule of this Agreement. The
wording of this Agreement shall be deemed to be the wording mutually chosen by the parties and
no rule of strict construction shall be applied against either party. Unless expressly provided
otherwise, all dollar figures in this Agreement are in the currency of the United States of
America.
ARTICLE 2
TRANSFER AND TREATMENT OF
THE EXISTING COLLECTION
Pursuant to the terms and subject to the conditions of this Agreement, Corcoran
shall transfer into the custody, care and possession ofNGA all works in the Existing Collection,
with certain of such works to be designated by NGA as Accessioned Art and the remainder to be
Custodial Art, in each case as set forth in this Article 2:
2.1
Designation ofAccessioned Art and Crediting as the "Corcoran Collection".
Certain works of the Existing Collection shall be designated by NGA as Accessioned Art, as
follows:
(a)
From and after the date hereof, the parties shall work together to inventory
the Existing Collection in its entirety (the "Identification Process"). As part of the Identification
Process, Corcoran will cooperate with NGA to identify applicable Restrictions, if any, with
respect to works in the Existing Collection that NGA is considering for accession into its
collection.

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The Initial Accessioned Art shall be conveyed toNGA at the Closing
(b)
pursuant to an instrument of accession in substantially in the form attached as Exhibit C hereto
(the "Instrument of Accession") and which shall have attached thereto the List of Accessioned
Art.
At the Closing, pursuant to the Instrument of Accession, without
(i)
any further act by Corcoran, the works designated as the Initial Accessioned Art as set forth in
the List of Accessioned Art shall be deemed to constitute Accessioned Art and shall be deemed
de-accessioned, contributed, transferred and conveyed by Corcoran toNGA by virtue of such
Instrument of Accession and the List of Accessioned Art attached thereto, and thereupon NGA
shall assume and accept from Corcoran, all of its right, title and interest (including all copyright
and other intellectual property rights, including the right to create derivative works (subject to
crediting as contemplated by Section 2.l(d) below)) in and to the Initial Accessioned Art as
listed on the List of Accessioned Art, to the fullest extent permissible under applicable Laws and
any donor or other restrictions in respect of works of the Initial Accessioned Art (including, as
applicable by transfer of title or permanent loan); and Corcoran shall thereby transfer toNGA,
and NGA shall accept and assume and undertake to pay, discharge and perform, all liabilities,
commitments and obligations, whether absolute, accrued, contingent or otherwise, that arise
from and after the Closing as a result of the ownership by, or permanent loan to, NGA of the
Initial Accessioned Art (collectively, the "Assumed Liabilities").
During the period from the Closing through December 31, 2014,
(ii)
Corcoran shall keep in effect, at its expense, its existing insurance coverage with respect to the
Custodial Art, and Corcoran shall list NGA as an additional named insured as custodian with
respect to the Custodial Art from the Closing through December 31, 2014. To the extent
insurance proceeds are paid to Corcoran, rather than NGA, with respect to any event occurring
after the time of accession with respect to any work of Accessioned Art, Corcoran shall pay such
proceeds over toNGA. After the Closing, NGA shall assume all costs of off-site storage for the
Existing Collection and the Documentary Art Related Materials, to the extent such costs are not
already prepaid. If requested by NGA, Corcoran shall notify its insurer following the accession
of any work of Accessioned Art that NGA's insurer is the primary insurer with respect to such
work.
From and after the Closing, the parties will continue the Identification
(c)
Process and NGA shall continue, in its sole discretion, to designate by one or more notices of
accession (a "Notice of Accession") additional works of the Existing Collection that shall be
accessioned by NGA; provided, however, that no work may be subject to a Notice of Accession
or deemed Accessioned Art if such work shall have been designated as Distributed Art (as
hereinafter defined) prior to delivery of such Notice of Accession. Each Notice of Accession
shall reasonably identify such additional works. Upon delivery of a Notice of Accession, an
Authorized Corcoran Representative shall promptly execute and deliver toNGA a ratification
and acknowledgement of such Notice of Accession as an amendment to the List of Accessioned
Art and thereupon, (i) the works set forth in such ratified Notice of Accession shall automatically
supplement and be deemed to amend the List of Accessioned Art, (ii) any works of the Existing
Collection designated therein shall be deemed to be Accessioned Art hereunder, and (iii) all of
Corcoran's right, title and interest (including all copyright and other intellectual property rights,
including the right to create derivative works) in and to such designated works shall
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automatically be de-accessioned, contributed, transferred and conveyed by Corcoran toNGA
pursuant to the Instrument of Accession, without any further action by the parties, subject in each
case to all liabilities, commitments and obligations, whether absolute, accrued, contingent or
otherwise, that arise after the effective time of such accessioning as a result of the ownership by,
or permanent loan to, NGA of such designated works (which shall constitute Assumed Liabilities
hereunder).
For so long as the License Agreement is in effect, works ofthe
(d)
Accessioned Art that are displayed or exhibited in the 17th Street Building or at other venues
other than NGA after the Closing Date shall be identified and credited as part of the "National
Gallery of Art, Corcoran Collection" (including, as applicable, an appropriate sub-identifier, e.g.,
"National Gallery of Art, Corcoran Collection (William A. Clark Collection)") and works
displayed or exhibited at the NGA after the Closing Date shall be identified and credited as part
ofthe "Corcoran Collection"(including, as applicable, an appropriate sub-identifier).
2.2

Exhibition of the Accessioned Art in the 17th Street Building.

Effective as of the Closing, NGA shall assume responsibility for operating
(a)
the Gallery as a museum, with the University to be responsible for the upkeep and maintenance
of the entire 1ih Street Building, as set forth in the University-NGA Agreement. In connection
therewith, and subject to existing obligations of Corcoran with respect to special exhibitions,
NGA may in its sole discretion determine what art is exhibited in what portion of the existing
Gallery space, depending on, among other things, the space designated for use by NGA in the
University-NGA Agreement, whatever renovation or construction NGA determines to undertake
in such space, and the process concerning the distribution of the Custodial Art. It is the
understanding of the parties that the Gallery will be closed on or around October 1, 2014 (or
following the Closing if the Closing occurs after that date) for a period to complete the
Identification Process, renovate the space to be provided toNGA under the University-NGA
Agreement and establish the Legacy Gallery and the Contemporary Art Gallery in the 1ih Street
Building, with the Contemporary Art Gallery to be established by NGA for the purpose of
exhibiting and programming modern and contemporary works from NGA's collection of art,
including Accessioned Art, as well as works on loan individually or in special exhibitions. NGA
may change the name of the Contemporary Art Gallery upon Corcoran's prior written approval
in its sole discretion, provided that in any event the name of the Contemporary Art Gallery shall
include the "Corcoran" name. For the avoidance of doubt, the obligations ofNGA under this
Section 2.2 shall be subject to the performance by the University of its applicable obligations
under the University-NGA Agreement and a failure of the University to perform its obligations
thereunder shall not constitute a breach by NGA hereunder to the extent such failure is a
proximate cause ofNGA's inability to perform hereunder; provided, however, that NGA
covenants and agrees to use commercially reasonable efforts to enforce its rights under the
University-NGA Agreement to ensure to the greatest extent practicable its ability to perform its
obligations hereunder.
NGA and Corcoran shall work together to identify works of the
(b)
Accessioned Art that shall constitute the Legacy Art hereunder as works that are so intrinsically
identified with the 17th Street Building or with the history of the Gallery that consideration
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should be given to their remaining on exhibit within the 17th Street Building in the Legacy
Gallery.
With respect to works ofLegacy Art, NGA covenants and agrees to use
(c)
reasonable efforts to continue the exhibition thereof within the 17th Street Building in the
Legacy Gallery, with the understanding that NGA shall maintain curatorial authority over the
Legacy Gallery and may elect to rotate the Legacy Art and may display some of the works of the
Legacy Art at the National Gallery of Art or offer such works for loan to qualified borrowers in
accordance with NGA's customary lending practices.
NGA's obligations pursuant to this Section 2.2 are conditioned on (i) the
(d)
continued ownership by the University of the 1ih Street Building, (ii) the performance in all
material respects by the University of its obligations under the University-NGA Agreement and
such agreement remaining in effect, (iii) the portion of the 1ih Street Building that is not
dedicated to use by NGA not being leased by the University to a third party and (iv) no event
occurring or condition existing that would render the 1ih Street Building unsuitable, in NGA's
reasonable judgment, for the purposes of exhibiting art.

Restrictions on the Accessioned Art. Without limiting the generality of Section
2.3
2.1, NGA acknowledges and agrees that certain works ofthe Accessioned Art may be subject to
donor or other restrictions (such as the Clark Collection) (collectively, the "Restricted Works").
With respect to any such Restricted Works, NGA covenants and agrees to assume, discharge and
fully perform all obligations, as those restrictions have been understood and performed by
Corcoran prior to the date hereof, under any donor or other restrictions applicable thereto.
Custodial Art and Designation for Distribution. Any works of the Existing
2.4
Collection that are not accessioned into NGA's .collection of art pursuant to Section 2.1 shall be
deemed Custodial Art hereunder and treated as follows:
On the Closing Date, pursuant to the terms and subject to the conditions of
(a)
this Agreement, Corcoran shall execute and deliver toNGA the Instrument of Custodial
Transfer, which shall be effective as of the Closing and, thereupon, without any further act by
Corcoran, Corcoran shall transfer and deliver into the custody, care and possession ofNGA, and
NGA shall accept into its custody, care and possession, the Custodial Art (which at Closing shall
be all of the Existing Collection other than the Initial Accessioned Art, but which over time shall
be subject to designation as Accessioned Art pursuant to Section 2.l(c)), to be held by NGA for
the benefit of Corcoran until its accession by NGA or distribution in accordance with Section
2.4(b). Following the Closing and based on the time schedule agreed with the University, NGA
shall begin the process of physically removing the Custodial Art from the 17th Street Building,
with the understanding of the parties that such physical removal shall take place over time in
accordance with customary museum practice and as the care and preservation of such works
otherwise requires. Subject to the terms of the Release, and without limiting the foregoing, NGA
shall accept full responsibility for all liabilities, costs and expenses associated with the care,
protection, storage, transfer and maintenance of the Custodial Art from and after the Closing.
Subject to the ongoing process of designating works of Accessioned Art,
(b)
from and after the Closing, the Corcoran and NGA shall agree on an appropriate policy and
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program for the distribution of the Custodial Art to other art museums and appropriate entities
(the "Distributed Art"), which shall include appropriate provision for any then-existing
liabilities, commitments and obligations relating to, associated with or arising from such
Distributed Art (such as agreements for future loan or exhibition, etc.). Pursuant to such policy
and program, following receipt of written notice from NGA that it does not intend to accession
any particular work of Custodial Art (an "Accession Waiver Notice"), Corcoran may designate
such works of Custodial Art as Distributed Art and, pursuant to this Section 2.4, arrange with
NGA for distribution of such work. It is contemplated that NGA will provide information and
recommendations to Corcoran, which shall make any final determinations with respect to
distributing such Distributed Art. Corcoran and NGA shall agree on a form of Deed of Gift that
shall be used to distribute works of Custodial Art designated as Distributed Art, which form may
be appropriately revised as necessary with respect to any work of art. It is contemplated that all
recipients of the Distributed Art will pay toNGA the cost of packing, shipping and insuring
during shipment the Distributed Art conveyed to them, together with an additional fee intended
to defray the overhead costs involved in the distribution process. For the avoidance of doubt,
following the Closing, Corcoran shall not designate any work of Custodial Art as Distributed Art
or otherwise de-accession, loan, transfer title or gift any such work of Custodial Art unless and
until NGA has delivered an Accession Waiver Notice with respect to such work of Custodial Art.
Following the Closing, NGA shall safeguard, hold, conserve, handle and
(c)
transfer the Custodial Art, in accordance with customary practices for comparable collections.
Without limiting the foregoing, NGA covenants and agrees to take every reasonable and
customary precaution to protect the Custodial Art from fire, theft, mishandling and the effects of
light, temperature and humidity. Following December 31,2014, NGA shall (i) maintain at its
expense policies of insurance on the Custodial Art, in coverage amounts and against the types of
risks that are consistent with customary practices for comparable collections, and (ii) list
Corcoran as an additional named insured and loss payee under such policies of insurance with
respect to the Custodial Art. For the avoidance of doubt, delivery by Corcoran of the Release at
Closing as contemplated by Section 6.2(d)(ii)(D) shall not limit or impair in any way Corcoran's
right to obtain payment of insurance proceeds in respect of any covered loss under such policies
of insurance to which Corcoran is entitled pursuant to the foregoing sentence.
The parties acknowledge that certain works of art that are installed as a
(d)
permanent part of the 17th Street Building and that cannot reasonably be removed (collectively,
as set forth on Schedule 2.4(d), the "Permanent Works"). With respect to such Permanent
Works, the parties agree that such works shall be transferred to the University at the Closing with
the University's agreement in accordance with the University Asset Agreement that the
installation of such Permanent Works within the 17th Street Building shall be maintained with a
standard of care appropriate for works of art similar in kind and value (or as otherwise mutually
agreed by Corcoran and the University) and in compliance with any applicable donor or other
restrictions on the use, display, exhibition, maintenance or transfer of such Permanent Works,
subject to customary preservation, conservation or renovation needs of such Permanent Works as
reasonably determined by the University. For the avoidance of doubt, the French Window shall
not be included in the Permanent Works and shall be deemed part ofthe Existing Collection,
and, accordingly, subject to accessioning by NGA as works of the Existing Collection pursuant
to Section 2.1, provided that NGA agrees to (i) bear all costs and expenses arising from the
removal and installation of a replacement window and (ii) coordinate with the University in
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undertaking such removal and replacement in connection with the Renovation (as defined in the
University Asset Agreement) of the 17th Street Building.

Art Related Materials. At the Closing, Corcoran shall also transfer toNGA (i)
2.5
custody of all Documentary Art Related Materials with respect to the Custodial Art and (ii)
ownership of all Equipment Art Related Materials and all Documentary Art Related Materials
with respect to the Initial Accessioned Art. Thereafter pursuant to Section 2.1 (c), Corcoran shall
also transfer all of its right, title, and interest in and to the Documentary Art Related Materials
that relate to the Accessioned Art as such art is accessioned toNGA pursuant to Section 2.1 (c) to
the fullest extent permissible under applicable Laws and any donor or other restrictions.
Following the Closing, Corcoran shall provide reasonable access to any written material retained
by Corcoran and of which it has not provided copies toNGA, such as organizational documents,
minute books and corporate records, relating to any of the Existing Collection which NGA has
accessioned or of which it has custody. Corcoran agrees not to destroy any documentation which
it retains which relates to the Existing Collection without giving prior notice toNGA, so that
NGA can preserve or copy any materials to the extent it deems it advisable.
Consideration. In consideration of the accession, contribution, transfer and
2.6
conveyance of the Accessioned Art, and Corcoran's other covenants and obligations hereunder,
NGA agrees, pursuant to the terms and subject to the conditions hereof, to (a) assume the
Assumed Liabilities, (b) undertake the care, exhibition, preservation and conservation, as
applicable, of the Existing Collection as contemplated hereunder, (c) establish and operate the
Contemporary Art Gallery and the Legacy Gallery as contemplated hereunder and (d) perform its
other covenants and obligations set forth herein. The parties hereby acknowledge the sufficiency
of the foregoing and the benefits that each shall obtain from the execution and delivery of this
Agreement, the performance ofthe covenants and obligations hereunder, and the consummation
of the transactions contemplated hereby.
Excluded Materials. For the avoidance of doubt, NGA shall not acquire from
2.7
Corcoran, and the following assets, properties and rights of Corcoran shall be deemed excluded
from the terms and conditions of this Agreement and shall be deemed excluded from the Existing
Collection and shall be deemed to not constitute Accessioned Art, Custodial Art or Art Related
Materials, as applicable (collectively, the "Excluded Assets"):
Subject to Section 2.1 (b )(ii), all insurance proceeds or other rights arising
(a)
from ownership, damage or loss of any work constituting the Custodial Art, at the time of the
event giving rise to the insurance proceeds;
(b)

The Permanent Works;

(c)

Subject to Section 5.6, the Flemish Windows;

Documentary Art Related Materials relating to the Permanent Works or
(d)
the Flemish Windows; and
(e)

Gallery Shop Inventory.

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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF CORCORAN
As of the date of this Agreement and as of the Closing Date, Corcoran represents
and warrants toNGA as follows, with each such representation and warranty subject to such
exceptions as are set forth in the Corcoran disclosure schedules attached hereto:
3.1

Organization, Standing and Power; Tax-Exempt Status.

(a)
Corcoran is a Congressionally chartered nonprofit corporation duly
formed, validly existing and in good standing under the Laws of the District of Columbia and the
United States of America. Corcoran has all requisite organizational power and authority to own,
lease and operate its properties and to carry on its business as now being conducted. Corcoran is
duly qualified to do business and in good standing in each jurisdiction in which such
qualification is necessary because of the property owned, leased or operated by it or because of
the nature of its business as now being conducted, except where any failure, individually or in
the aggregate, to be so qualified or in good standing could not reasonably be expected to have a
material adverse effect on the business or operations of the Corcoran.
(b)
Corcoran is exempt from (i) U.S. income taxation under Section 501(c)(3)
of the Code and (ii) from District of Columbia income Tax, sales and use Tax, franchise Tax and
transfer Tax pursuant to the relevant provisions of the District of Columbia Code. Corcoran has
received a determination letter from the Internal Revenue Service ("IRS") that it is exempt from
U.S. income taxation under Section 501 (c)(3) of the Code, which determination letter is in full
force and effect. No part of the net earnings of Corcoran has inured to the benefit of any private
shareholder or individual within the meaning of Section 501(c)(3) ofthe Code. Corcoran has
conducted its activities so as to continue to be eligible for Tax-exempt status under Section
501(c)(3) ofthe Code. There is no pending, or, to the knowledge of Corcoran, threatened
challenge to the Tax-exempt status of Corcoran.
3.2
Authority; Binding Agreement. The execution and delivery by Corcoran of this
Agreement and all of the other Transaction Documents to which Corcoran is a party, and the
consummation of the transactions contemplated hereby and thereby, are duly and validly
authorized by all necessary corporate action on the part of Corcoran. Corcoran has all requisite
corporate power and authority to enter into this Agreement and the other Transaction Documents
to which it is a party, and to consummate the transactions contemplated hereby and thereby, and
this Agreement and the other Transaction Documents to which Corcoran is a party have been
duly executed and delivered by Corcoran. This Agreement and the other Transaction Documents
to which it is a party are the valid and binding obligations of Corcoran enforceable against it in
accordance with its terms, except as enforceability may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar Laws affecting the
enforcement of creditor's rights generally and the application of general principles of equity
(regardless of whether that enforceability is considered in a proceeding at law or in equity).
3.3
Compliance with Laws; Restricted Works. Corcoran has complied with and is in
compliance with all Laws applicable to it or to any of its properties, assets, operations, and
business, the failure of which to so comply would have a material adverse effect on the business
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or operations of Corcoran. To the knowledge of Corcoran, there does not exist any basis for any
claim of default under or violation of any Law except such defaults or violations, if any, that in
the aggregate do not and will not have a material adverse effect on the business or operations of
Corcoran. Corcoran has complied in all material respects with the donor or other restrictions
applicable to the Restricted Works.
Conflicts; Consents. Except as set forth on Schedule 3.4, the execution, delivery
3.4
and performance by Corcoran of this Agreement and the other Transaction Documents to which
Corcoran is a party, and the consummation by Corcoran of any of the transactions contemplated
hereby and thereby, do not and will not in any material respect conflict with, violate, result in a
breach of the terms and conditions of, or, with or without notice or the passage of time, result in
any material breach, event of default or the creation of any lien under, any material Contract, any
organizational documents of Corcoran or any Law, judgment, order, or decree to which Corcoran
is subject, or require the consent or approval of any third party, including the consent or
approval, or a filing by Corcoran with, any Governmental Entity.

3.5
Authority over the Existing Collection; Restrictions; Agreements; Litigation.
Corcoran has all necessary rights to effect the transactions contemplated hereby with respect to
the Existing Collection, including (a) the transfer and delivery into the custody, care and
possession ofNGA of the Custodial Art and (b) the accession of the Accessioned Art into
N GA' s collection of art, as provided herein, and Corcoran will convey all of its right, title and
interest (including all copyright and other intellectual property rights, including the right to
create derivative works) in and to (i) the Initial Accessioned Art and the corresponding
Documentary Art Related Materials and the Equipment Art Related Materials at the Closing (and
with respect to works designated as Accessioned Art thereafter pursuant to Section 2.1 (c)) and
(ii) the Gifts and Endowments at the Closing, in each case toNGA, free and clear of any material
encumbrances or restrictions other than those set forth on Schedule 3.5.1 (collectively, the
"Restrictions"). Except for the Restrictions, or any restrictions that may be imposed in
connection with the cy pres proceeding, no third party has rights that would interfere in any
material respect with NGA's ownership or use of the Existing Collection or the Gifts and
Endowments as provided in this Agreement. Since 1940, no work in the Existing Collection has
been imported or exported into or from any country contrary to its laws. Schedule 3.5.1 sets forth
(i) the Gifts and Endowments, (ii) all material Restrictions applicable to the Existing Collection,
(iii) any restrictions applicable to the Gifts and Endowments and (iv) to the knowledge of
Corcoran, the Assumed Liabilities. Schedule 3.5.2 sets forth all agreements and understandings,
whether in writing or not, as to the reproduction or use of the Existing Collection, and all
publication agreements and licenses and similar Contracts granted with respect to the Existing
Collection. Except as set forth in Schedule 3.5.3, there is no litigation pending, or threatened in
writing, with respect to the Existing Collection or the Gallery.
3.6
No Other Representations and Warranties. EXCEPT AS EXPRESSLY PROVIDED IN
THIS ARTICLE 3, CORCORAN MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, TONGA, INCLUDING, WITH RESPECT TO THE ACCESSIONED ART, (i) ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii) ANY WARRANTY IN RESPECT OF
CONDITION OR TITLE, (iii) ANY WARRANTY ARISING THROUGH COURSE OF DEALING OR USAGE OF
TRADE, AND (iv) ANY LIABILITY FOR ANY DAMAGES, INCLUDING CONSEQUENTIAL, DIRECT,
INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, ARISING OUT OF, OR RELATING IN ANY
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WAY TO, THE USE OR INABILITY TO USE THE ACCESSIONED ART BY ANY PERSON AND REGARDLESS
OF THE BASIS OR CAUSE OF ACTION GIVING RISE THERETO.
3.7
Solvency. Corcoran is Solvent on the date hereof and as of and immediately
following the Closing Date, after giving effect to the transactions contemplated hereby and by
the University Transaction, Corcoran will be Solvent.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF NGA
As of the date hereof and as of the Closing Date, NGA represents and warrants to
Corcoran as follows:
4.1

Organization, Standing and Power; Non-Profit Status.

(a)
NGA is an independent establishment of the United States created by Joint
Resolution of Congress (Act ofMarch 24, 1937, 50 Stat. 51,20 U.S.C. §§ 71-75). NGA has all
requisite organizational power and authority to operate its properties and to carry on its activities
as now being conducted.
(b)
NGA is a non-profit organization that is exempt from U.S. income tax
under §501 (c)(3) ofthe Internal Revenue Code (Ruling Letters dated February 20, 1973 and
June 8, 1973).
4.2
Authority; Binding Agreement. The execution and delivery by NGA of this
Agreement and all of the other Transaction Documents to which NGA is a party, and the
consummation of the transactions contemplated hereby and thereby, are duly and validly
authorized by all necessary action on the part ofNGA. NGA has all requisite power and
authority to enter into this Agreement and the other Transaction Documents to which it is a
party, and to consummate the transactions contemplated hereby and thereby, and this Agreement
and the other Transaction Documents to which NGA is a party have been duly executed and
delivered by NGA. This Agreement and the other Transaction Documents to which it is a party
are the valid and binding obligations ofNGA enforceable against it in accordance with its terms,
except as enforceability may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar Laws affecting the enforcement of
creditor's rights generally and the application of general principles of equity (regardless of
whether that enforceability is considered in a proceeding at law or in equity).
4.3
No Other Representations and Warranties. EXCEPT AS EXPRESSLY PROVIDED IN
THIS ARTICLE 4, NGA MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
TO CORCORAN.

ARTICLE 5
COVENANTS AND AGREEMENTS
5.1
Cooperation. After the date hereof, the parties shall confer, reasonably cooperate
and work together to ensure (a) an orderly transfer of the Existing Collection into the custody,
care and possession ofNGA and (b) the operation of the Gallery post-Closing and the
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subsequent installation of the Contemporary Art Gallery and the Legacy Gallery, with the goal of
installing the Contemporary Art Gallery and the Legacy Gallery after the Closing Date on a time
schedule that takes into account the current obligations of Corcoran with respect to planned
exhibitions and the status of renovation efforts. NGA will not assume any obligations, financial
or otherwise, for the operation of the Gallery prior to the Closing.
5.2
Interim Operating Covenants. From the date hereof until the Closing, Corcoran
shall, except as otherwise expressly contemplated or required hereby or as otherwise consented
to in advance in writing by NGA (such consent not to be unreasonably withheld, conditioned or
delayed), operate in the ordinary course of its business, consistent with past practice, and shall,
except as otherwise expressly contemplated or required hereby or as otherwise consented to in
advance in writing by NGA (such consent not to be unreasonably withheld, conditioned or
delayed): (a) use its commercially reasonable efforts to preserve intact the goodwill and business
organization of the Gallery; (b) not enter into any new agreements with respect to the rental after
the date hereof of the Gallery; (c) not spend the Gifts and Endowments except in accordance
with prior practice, and in any event, not buy any additional works of art and (d) not agree or
commit, whether in writing or otherwise, to take any of the actions specified in the foregoing
clauses (a) through (c). From the date hereof until the Closing Date, Corcoran shall not assign,
sell, lease (as lessor), transfer or dispose of, or agree to the loan of any works of the Existing
Collection, or agree to take such actions.
5.3

Approvals and Proceedings.

(a)
The parties acknowledge and agree that the ability of Corcoran to
consummate the transactions contemplated hereby requires seeking the application of the cy pres
doctrine to the Corcoran's organizational documents, in addition to other approvals by
Governmental Entities.
(b)
With respect to the foregoing and subject to the terms and conditions
herein provided, Corcoran and NGA shall use reasonable best efforts to:
(i)
obtain as promptly as practicable any necessary permits, consents,
approvals, notices, waivers and authorizations of, or actions or nonactions by, and make as
promptly as practicable all necessary filings and submissions with, any Governmental Entity or
any third party necessary in connection with the consummation of the transactions contemplated
by this Agreement and the other Transaction Documents;
(ii)
cooperate with each other in (A) determining which filings are
required to be made prior to the Closing with, and which material permits, consents, approvals,
notices, waivers or authorizations are required to be obtained prior to the Closing from,
Governmental Entities or third parties in connection with the execution and delivery of this
Agreement and the other Transaction Documents and the consummation of the transactions
contemplated hereby and thereby and (B) timely making all such filings and timely seeking all
such permits, consents, approvals, notices, waivers or authorizations;
(iii)
cooperate with each other in defending, contesting and objecting to
any claims, legal proceedings, petitions to deny, objections or other proceedings, whether

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judicial or administrative, by or before any Governmental Entity challenging the transactions
contemplated hereby or that would otherwise prevent or materially impede, interfere with, hinder
or delay the consummation of the transactions contemplated hereby, including by seeking to
have any stay or temporary restraining order entered by any Governmental Entity vacated or
reversed;
(iv)
cause the conditions to the Closing set forth in Article 6 to be
satisfied as promptly as reasonably practicable; and
(v)
take, or cause to be taken, all other actions and do, or cause to be
done, and cooperate with each other in order to do, all other things necessary or appropriate to
consummate the transactions contemplated hereby.
5.4
Acknowledgement with Respect to Certain Near-Term Exhibits and Special
Events. NGA acknowledges that Corcoran is party to certain agreements and other
understandings with third parties with respect to exhibits and special events scheduled to occur in
the 17th Street Building between the date hereof and December 31, 2014, a list of which is
attached hereto as Schedule 5.4 (collectively, the "2014 Commitments"), copies ofwhich
agreements have been made available toNGA. NGA agrees to work with Corcoran and the
University, as the post-Closing owner of the 17th Street Building, to use reasonable efforts to
ensure that the 20 14 Commitments are honored, in a manner consistent with past practice of
Corcoran and otherwise as described in Schedule 5.4. Corcoran has provided for, in its budget,
(i) all costs associated with the Paley and Tribe exhibitions and (ii) the cost of security guards for
the Gallery through September 30, 2014 and such costs shall be the sole responsibility of
Corcoran, whether incurred before or after the Closing.
5.5

Continuation of Corcoran Mission; Establishment of Joint Advisory

Committee. In order to fulfill its legal duties as the holder of the federal charter and its
responsibilities under the terms of this and related agreements, the Corcoran will continue as a
legal entity committed to its original mission: "Dedicated to Art and Encouraging American
Genius" and in that manner the Corcoran will continue its 145 year history of pursuing and
supporting new art and new ideas. The continuing entity will seek to support NGA and the
University stewardship of the Corcoran name and legacy, to promote the important role of
contemporary art and artists in provoking new thinking and realizing new exciting cultural
initiatives and, through the Joint Advisory Committee described below, to consult with and
provide advice toNGA and the University on programs and interconnected activities of the
University and NGA. Insofar as Corcoran will continue in existence following the Closing and
will develop a program for the fulfillment of its mission as an organization dedicated to art and
encouraging American genius, the parties desire to establish a framework for future potential
collaboration and exploration of joint activities, as follows:
(a)
The parties desire to (i) establish an ongoing relationship to perpetuate
Corcoran's mission by the establishment and operation of the Contemporary Art Gallery and (ii)
pursue the goals contemplated in the preceding paragraph.
In connection with the foregoing, promptly following the Closing,
(b)
Corcoran and NGA shall form a joint advisory committee (the "Joint Advisory Committee")
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for the purposes of discussing the implementation of the goals embodied in this Agreement and
endeavoring to jointly undertake such other actions or activities as the parties may agree from
time to time in furtherance of the purposes of this Agreement and their ongoing respective
missions.
NGA and Corcoran shall each have the right to appoint an equal number
(c)
of representatives to the Joint Advisory Committee, which shall not exceed three (3)
representatives, respectively, unless the parties agree otherwise. NGA, on the one hand, and
Corcoran, on the other, may replace its respective representatives to the Joint Advisory
Committee from time to time by giving notice to the other party.
The Joint Advisory Committee shall meet from time to time, but in any
(d)
event no less frequently than once every two (2) years. The Joint Advisory Committee shall
establish its own procedures with respect to the conduct of its meetings, provided that NGA, on
the one hand, and Corcoran, on the other, shall propose any matters for the agenda of each
meeting ofthe Joint Advisory Committee reasonably in advance by notice to the members of the
Joint Advisory Committee. The parties shall in good faith coordinate with one another to
establish the schedule of meetings for the Joint Advisory Committee as contemplated hereby.

Flemish Windows. It is the expectation of the parties that the Flemish Windows
5.6
will be repatriated to Park Abbey in Louvain (Heverlee ), Belgium, with all costs and expenses of
such repatriation and the installation of replacement windows to be borne by the City of Louvain
as the recipient thereof. In accordance with the University Asset Agreement, to the extent such
repatriation occurs following the Closing, during the time period between Closing and such
repatriation, Corcoran shall retain title to the Flemish Windows, and the University shall be
deemed bailee thereof for the purpose of safeguarding and maintaining the Flemish Windows
until such repatriation is complete.

ARTICLE 6
CONSUMMATION OF THE TRANSACTION
Closing. Pursuant to the terms and subject to the conditions of this Agreement,
6.1
including as set forth in Sections 6.2 and 6.3 below, the consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices of the University,
2100 Pennsylvania Avenue, N.W. at 10:00 a.m. local time, three (3) business days after the
conditions set forth in this Article 6 are satisfied or, if permissible, waived, or on such other date
as mutually agreed by the parties (such date of the Closing hereinafter referred to as the "Closing
Date"), provided that in no event shall the Closing be prior to August 12, 2014.
Conditions to Obligations ofNGA. The obligations ofNGA to consummate the
6.2
transactions contemplated by this Agreement at the Closing are subject to the satisfaction of the
following conditions, or the waiver thereof by NGA:
The representations and warranties of Corcoran contained herein that are
(a)
qualified by materiality or subject to thresholds shall be true and correct in all respects, and the
representations and warranties of Corcoran contained herein that are not so qualified shall be true

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and correct in all material respects, in each case as of the date hereof and the Closing Date as if
made on and as ofthe Closing Date.
Corcoran shall have performed and complied in all material respects with
(b)
all covenants and agreements required to be performed or complied with on or prior to the
Closing Date.
The parties shall have obtained final resolution of the application of the cy
(c)
pres doctrine to Corcoran's organizational documents which resolution does not, in NGA's
reasonable judgment, impose any restrictions which would materially and negatively affect the
goals intended to be achieved by the parties in entering into this Agreement.
(d)

NGA shall have received or Corcoran shall stand ready to deliver:

a certificate, dated as of the Closing Date, duly executed by an
(i)
authorized officer of Corcoran, certifying that:
A.

the conditions set forth in Sections 6.2(a) and (b) have been

fulfilled;
all documents to be executed by Corcoran and delivered at
B.
the Closing have been executed by a duly authorized officer of Corcoran; and
(1) Corcoran's charter and bylaws, attached to the
C.
certificate, are true and correct, (2) such organizational documents have been in full force
and effect in the form attached since the date of the adoption of the resolutions referred to
in clause (3) below and no amendment to such organizational documents has occurred
since the date of the last amendment annexed thereto, if any, and (3) the resolutions
adopted by Corcoran authorizing the execution, delivery and performance of this
Agreement, attached to the certificate, were duly adopted at a duly convened meeting
thereof, at which a quorum was present and acting throughout or by unanimous written
consent, remain in full force and effect, and have not been amended, rescinded or
modified, except to the extent attached thereto;
the following documents duly executed by Corcoran: (A) the
(ii)
Instrument of Accession, (B) with respect to the Gifts and Endowments, a wire transfer to an
account designated by NGA of all amounts in cash and with respect to investments, such
documentation as may be reasonably necessary to confer upon NGA ownership of such
investments, (C) with respect to the Custodial Art, an instrument of custodial transfer and such
other instruments of transfer, dated as of the Closing Date, as necessary to give effect to Section
2.4, in form and substance reasonably satisfactory to the parties hereto (the "Instrument of
Custodial Transfer"), (D) a release ofNGA from any and all liability arising out of its
operation of the Gallery from the Closing and its custody of the Custodial Art substantially in the
form attached as Exhibit D hereto (the "Release"), and (E) a trademark license agreement with
respect to the "Corcoran" name and related marks as contemplated in the preamble to this
Agreement based on the form attached hereto as Exhibit B, as further negotiated by the parties to
implement their discussions prior to the execution of this Agreement (the "License
Agreement"); and
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such other documents, certificates or instruments as NGA may
(iii)
reasonably request, including an instrument transferring ownership of the Equipment Art Related
Materials and an instrument assigning or otherwise transferring Documentary Art Related
Materials.

Conditions to Obligations of Corcoran. The obligations of Corcoran to
6.3
consummate the transactions contemplated by this Agreement at the Closing are subject to the
satisfaction of the following conditions or waiver thereof by Corcoran:
The representations and warranties ofNGA contained herein that are
(a)
qualified by materiality or subject to thresholds shall be true and correct in all respects, and the
representations and warranties ofNGA contained herein that are not so qualified shall be true
and correct in all material respects, in each case as of the date hereof and the Closing Date as if
made on and as of the Closing Date.
NGA shall have performed and complied in all material respects with all
(b)
covenants and agreements required to be performed or complied with on or prior to the Closing
Date.
The parties shall have obtained final resolution ofthe application ofthe cy
(c)
pres doctrine to Corcoran's organizational documents which resolution does not, in Corcoran's
reasonable judgment, impose any restrictions which would materially and negatively affect the
goals intended to be achieved by the parties in entering into this Agreement.
The University Transaction shall be consummated simultaneously with the
(d)
Closing of the transactions contemplated hereby and the University-NGA Agreement shall not
have been terminated.
(e)

Corcoran shall have received or NGA shall stand ready to deliver:

a certificate, dated as of the Closing Date, duly executed by an
(i)
authorized officer ofNGA, certifying that:
A.

the conditions set forth in Sections 6.3(a) and (b) have been

fulfilled; and
all documents to be executed by NGA and delivered at the
B.
Closing have been executed by a duly authorized officer ofNGA; and
the following documents duly executed by NGA: (A) the License
(ii)
Agreement, (B) the Instrument of Accession, (C) the Instrument of Custodial Transfer, and (D)
such other documents, certificates or instruments as Corcoran may reasonably request.

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ARTICLE 7
TERMINATION
7.1
Termination. In addition to other remedies available at Law or equity, this
Agreement may be terminated as set forth below by either Corcoran or NGA upon the
occurrence of any of the following prior to the Closing:
(a)

the mutual written consent of both parties;

(b)
the termination of the definitive agreements entered into by Corcoran and
NGA in respect of the University Transaction or the termination of the University-NGA
Agreement;
(c)
if the parties' request for application ofthe cy pres doctrine to Corcoran's
organizational documents shall have been denied by final judgment in accordance with
applicable Laws, or ifthe conditions set forth in Section 6.2(c) or Section 6.3(c) shall not have
been satisfied by such final judgment;
(d)
if the other party is in material breach of any of its representations,
warranties, covenants, agreements or obligations hereunder and has failed to cure such breach
within thirty (30) days of notice from the non-breaching party; provided that the party seeking to
terminate the Agreement pursuant to this paragraph (d) is not then in material default or breach
hereunder; or
(e)

if the Closing shall not have occurred as of the first anniversary of the date

hereof.
7.2

Procedure and E.ffect of Termination.

(a)
Any termination by either party pursuant to Section 7.1 shall be
communicated by a written notice to the other party (the "Notice of Termination"). The Notice
of Termination shall indicate the termination provision in this Agreement claimed to provide a
basis for termination of this Agreement. Termination of this Agreement pursuant to the terms
and subject to the conditions of Section 7.2 shall be effective upon and as of the date of delivery
of a Notice of Termination.
(b)
In the event of the termination of this Agreement pursuant to Section 7.1,
this Agreement shall forthwith become null and void and have no effect, and the obligations of
the parties under this Agreement shall terminate, except for this Section 7.2, Section 7.3 and
Article 8, which shall survive indefinitely. Nothing in this Article 7 shall relieve either party of
any liability for a breach of this Agreement prior to the termination hereof.
(c)
For the avoidance of doubt, in the event this Agreement is terminated prior
to the Closing, Corcoran shall not be obligated to enter into the License Agreement.
7.3
Withdrawal of Certain Filings. All filings, applications and other submissions
relating to the transactions contemplated by this Agreement as to which termination has occurred
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shall, to the extent practicable, be withdrawn from the Governmental Entity or other Person to
which made.

ARTICLE 8
MISCELLANEOUS PROVISIONS
Survival of Representations, Warranties and Agreements. None of the
8.1
representations, warranties, covenants and agreements in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive beyond the Closing, except for (a) those
covenants and agreements set forth in this Agreement that by their terms contemplate
performance in whole or in part after the Closing, including Section 2.1 (b), Section 2.1 (c),
Section 2.1 (d), Section 2.2, Section 2.3, Section 2.4, Section 2.5, Section 5.4, Section 5.5 and
Section 5.6, which shall survive until fully performed and discharged, and (b) those contained in
this Article 8.
Confidentiality. Information concerning either Corcoran or NGA's business
8.2
methods, financial information, future plans, personnel data, trade secrets, information systems,
financial and accounting policies or similar matters, or information designated as "confidential"
by the disclosing party or released under circumstances where a reasonable Person would
understand that such information is to be treated as confidential, shall be treated as confidential.
The party receiving such confidential information shall take the same precautions as it takes to
protect its own confidential information, but in all events reasonable precautions shall be taken,
in order to preserve its confidentiality. Confidential information shall not be revealed to third
parties without the written consent ofthe disclosing party, and neither Corcoran nor NGA may
use the other party's confidential information for any purpose except for purposes of performing
this Agreement. This confidentiality requirement shall not apply to: (a) information in the public
domain, (b) information independently developed by either party without use of the other party's
confidential information, (c) information received by either party from a third party under no
duty of confidentiality, and (d) a disclosure of information that is required by Law or legislative
or regulatory body. The obligations of the parties under this Section 8.2 shall survive the Closing
or the termination of the Agreement for a period of five (5) years after such Closing or
termination, as applicable.
Publicity, Marks and Use of Names. Except as permitted by the License
8.3
Agreement, neither party shall use the name, logo, insignia, or trademarks of the other party or
any of the other party's trustees, directors, officers, employees, or agents, in any press release,
fund-raising, website, or product advertising, or for any other promotional purpose, without first
obtaining the written consent of the other party.
Public Announcement. Prior to the Closing, NGA and Corcoran shall mutually
8.4
agree on any public announcement concerning the matters covered by this Agreement. At the
time of the Closing, Corcoran and NGA shall release a public announcement as shall be mutually
agreed by the parties.
Cooperation Following the Closing. Following the Closing, each party shall
8.5
deliver to the other party such further information and documents and shall execute and deliver
to the other party such further instruments and agreements as any other party shall reasonably
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request to consummate or confirm the transactions provided for herein, to accomplish the
purpose hereof or to assure to any other party the benefits hereof.

Notices. All notices, requests, demands and other communications which are
8.6
required or may be given pursuant to the terms of this Agreement (including Notices of
Termination) shall be in the English language and in written or electronic form, and shall be
deemed delivered (a) on the date of delivery when (i) delivered by hand or (ii) sent by reputable
overnight courier maintaining records of receipt and (b) on the date of transmission when sent by
facsimile or other electronic transmission during normal business hours with confirmation of
transmission by the transmitting equipment; provided that any such communication delivered by
facsimile or other electronic transmission shall only be effective if such communication is also
delivered by hand or deposited with a reputable overnight courier maintaining records of receipt
within two (2) business days after its delivery by facsimile or other electronic transmission. All
such communications shall be addressed to the parties at the addresses set forth below, or at such
other address as a party may designate upon ten ( 10) days' prior written notice to the other party.
If to Corcoran:
Corcoran Gallery of Art
500 17th Street N.W.
Washington, DC 20006
Attention: General Counsel
Phone: (202) 365-7327
Fax: (202) 639-1738

with a copy to:
Charles A. Patrizia
Paul Hastings LLP
875 15th Street N.W.
Washington, D.C. 20005
Phone: (202) 551-1710
Fax: (202) 551-1705
Ifto NGA:
Elizabeth A. Croog
Secretary and General Counsel
National Gallery of Art
2000B South Club Drive
Landover, MD 20785
Tel: (202) 842-6363
Fax: (202) 842-3782

with a copy to:
Janet T. Geldzahler
Sullivan & Cromwell LLP
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1700 New York Avenue N.W.
Suite 700
Washington, D.C. 20006-5215
Tel: (202) 956-7515
Fax: (212) 558-3588

Amendments. Amendments to this Agreement shall be made by mutual consent
8.7
of the parties, by the issuance of a mutually agreed upon written instrument, signed and dated by
authorized officials of Corcoran and NGA, prior to any changes being performed.
Waiver. Any agreement on the part of a party to any extension or waiver of any
8.8
provision hereof shall be valid only if set forth in an instrument in writing signed on behalf of
such party. A waiver by a party of the performance of any covenant, agreement, obligation,
condition, representation or warranty shall not be construed as a waiver of any other covenant,
agreement, obligation, condition, representation or warranty. A waiver by any party of the
performance of any act shall not constitute a waiver of the performance of any other act or an
identical act required to be performed at a later time.
Assignment. Neither party may assign or transfer any rights or obligations in this
8.9
Agreement except with the prior written consent of the other party. Any attempted assignment or
delegation in violation ofthis Section 8.9 shall be void.
8.10 Governing Law. This Agreement shall be governed by the Laws of the District of
Columbia, excluding any conflicts or choice of Law rules or principles that might otherwise refer
construction or interpretation of this Agreement to the substantive Law of another jurisdiction.
8.11

Dispute Resolution; Remedies.

In the event of any dispute, controversy or claim arising out of or in
(a)
connection with this Agreement, the License Agreement or the other agreements, certificates and
documents delivered in connection herewith (collectively, the "Transaction Documents"), and
the rights and obligations of the parties under the Transaction Documents, including any question
regarding their existence, validity or termination (a "Dispute") the parties agree to negotiate in
good faith and to act reasonably, and within a reasonable time, to attempt to resolve any
Disputes.
Notwithstanding the foregoing, the parties recognize that irreparable
(b)
injury will result from a breach by NGA of any of its covenants or obligations arising under the
License Agreement or Section 2.1 or Sections 2.4(a) or (b) hereof (collectively, the "Equitable
Provisions") and that money damages will be inadequate to fully remedy the injury.
Accordingly, in the event of a breach or threatened breach of one or more of the Equitable
Provisions, and following the inability of the parties to resolve the matter as set forth in
subsection (a), any party that may be injured (in addition to any other remedies which may be
available to that party), shall be entitled to one or more preliminary or permanent orders
restraining and enjoining any act which would constitute a breach or compelling the performance
of any obligation which, if not performed, would constitute a breach of any such Equitable
Provision.
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8.12 Cumulative Rights. Except as expressly provided herein, the various rights of this
Agreement shall be construed as cumulative, and no one of them is exclusive of the other or
exclusive of any rights allowed by Law.
8.13 Severability. If any covenant or provision hereof is determined by a court of
competent jurisdiction to be void or unenforceable in whole or in part, it shall not, subject to the
discretion of such court, be deemed to affect or impair the validity of any other covenant or
provision, each of which is hereby declared to be separate and distinct. If any provision of this
Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so
broad as is enforceable. If any provision of this Agreement is declared invalid or unenforceable
for any reason other than overbreadth, the offending provision shall be modified so as to
maintain the essential benefits of the bargain between the parties hereto to the maximum extent
possible, consistent with Law and public policy.
8.14 Expenses. Except as otherwise expressly provided herein, each party shall pay its
own fees, costs and expenses incurred in connection herewith and the transactions contemplated
hereby, including the fees, costs and expenses of its financial advisors, accountants and counsel.
8.15 Independent Contractors. The parties to this Agreement are independent
contractors. Neither party shall have any right, power or authority to enter into any agreement for
or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This
Agreement shall not be interpreted or construed to create an association, agency, joint venture or
partnership between the parties or to impose any liability attributable to such a relationship upon
the parties.
8.16 No Third-Party Beneficiaries. This Agreement is solely for the benefit ofNGA
and Corcoran. There are no intended or implied third-party beneficiaries to this Agreement or
any of the transactions contemplated herein.
8.17 Entire Agreement. This Agreement, together with any Schedules and Exhibits
attached hereto and contemplated hereby, and the other Transaction Documents constitute the
entire understanding between the parties with respect to the subject matter hereof and supersede
all oral communications and prior writings with respect thereto, including for the avoidance of
doubt, that certain Letter of Intent, dated as of February 18, 2014, by and between Corcoran and
NGA.
8.18 Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be an original and all of which will constitute together the same document.
[Signatures appear on following page; remainder intentionally blank.]

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IN WITNESS WHEREOF, the parties hereto have executed this Art Accession and
Custodial Transfer Agreement as of the date first written above.

TRUSTEES OF THE CORCORAN
GALLERY OF ART:

THE NATIONAL GALLERY OF ART

By:
Name: Earl A. Powell Ill
Title: Director

[Signature Page to Art Accession and Custodial Transfer Agreement]

IN WITNES S WHERE OF, the parties hereto have executed this Art Accession and
Custodia l Transfer Agreeme nt as of the date first written above.

TRUSTEES OF THE CORCO RAN
GALLERY OF ART:

By:
Name: Harry F. Hopper III
Title: Chairman

THE NATIONAL GALLE RY OF ART

~~k

By:
Name: Ear1 A. Powell III
Title: Director

[Signature Page to Art Accession and Custodial Transfer Agreement]

LICENSE AGREEMENT BETWEEN THE
TRUSTEES OF THE CORCORAN GALLERY OF
ART AND NATIONAL GALLERY OF ART

EXHIBITB
FORM OF LICENSE AGREEMENT
This LICENSE AGREEMENT (this "Agreement") is hereby made and entered into as of
[•], 2014, by and between the TRUSTEES OF THE CORCORAN GALLERY OF ART, a
Congressionally chartered nonprofit corporation located in the District of Columbia
("Corcoran"), and the NATIONAL GALLERY OF ART, an independent establishment of the
United States created by Joint Resolution of Congress located in the District of Columbia
("NGA") (each a "Party" and, collectively, the "Parties").
WHEREAS:
A.
The Parties are entering this Agreement in conjunction with the closing under that
certain Art Accession and Custodial Transfer Agreement, dated as of [• ], 2014 (the "Accession
Agreement").
B.
Pursuant to the Accession Agreement, the Parties desire that NGA will license
from Corcoran, and Corcoran will license toNGA, certain rights to the "Corcoran" name and
mark for use by NGA in connection with the Licensed Field (as set forth below) as contemplated
by the Accession Agreement and on the terms and conditions set forth herein.
Now, THEREFORE, in consideration of their respective representations, promises and
obligations, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and agreed, and desiring to be bound hereby, the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND TERMS
1.1
forth below:

Certain Definitions. The following terms, as used herein, have the meanings set

"Accession Agreement" has the meaning set forth in the preamble.
"Agreement" has the meaning set forth in the preamble.
"Authorized Uses" has the meaning set forth in Section 2.3.
"Claim" has the meaning set forth in Section 5.3(b).
"Combined Mark" means any Trademark that combines the Licensed Mark with
anNGAMark.
"Corcoran" has the meaning set forth in the preamble.
"Corcoran Intellectual Property" means any Intellectual Property that is owned
by, licensed to or used by Corcoran in the conduct of its business.
"Effective Date" has the meaning set forth in Section 2.4.
"Infringement Claim" has the meaning set forth in Section 5.3(b).
DC_LAN01:291305.13
LEGAL_US_E # 108792898.9

"Initial Term" has the meaning set forth in Section 2.4.
"Intellectual Property" means any or all of the following and all rights, arising
out of or associated therewith: (a) all patents and applications therefor and all reissues, divisions,
renewals, extensions, provisionals, continuations and continuations-in-part thereof; (b) all
inventions (whether patentable or not), invention disclosures, improvements, proprietary
information, know-how, technology, technical data and customer lists, and all documentation
relating to any of the foregoing; (c) all copyrights, copyright registrations and applications
therefor, and all other rights corresponding thereto; (d) all industrial designs and any registrations
and applications therefor; (e) all corporate, trade or business names, brands, designs, trademarks,
service marks, trade dress, logos, domain names, and slogans (collectively, "Trademarks"), and
all registrations and applications for registration of Trademarks; (j) all software, databases and
data collections and all rights therein; (g) all moral and economic rights of authors and inventors,
however denominated; and (h) any similar or equivalent rights to any of the foregoing.
"Licensed Field" has the meaning set forth in Section 2.1(a).
"Licensed Mark" means "Corcoran."
"NGA" has the meaning set forth in the preamble.
"NGA Mark" means any Trademark owned by NGA (other than a Trademark
including the Licensed Mark).
"Renewal Term" has the meaning set forth in Section 2.4.
"Term" has the meaning set forth in Section 2.4.
1.2
Other Defined Terms. Other capitalized terms contained herein that are not
otherwise defined herein shall have the meanings ascribed thereto in the Accession Agreement.
1.3
Interpretation. The headings in this Agreement are inserted for convenience only
and shall not constitute a part hereof. Except where the context requires otherwise, whenever
used in this Agreement, the singular includes the plural, the plural includes the singular, the use
of any gender is applicable to all genders, and the word "or" has the inclusive meaning
represented by the phrase "and/or." The words "include" and "including" and variations thereof
shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the
words "without limitation." A reference in this Agreement to an Article, Section, Exhibit, or
Schedule is to the referenced Article, Section, Exhibit, or Schedule of this Agreement. The
wording of this Agreement shall be deemed to be the wording mutually chosen by the Parties,
and no rule of strict construction shall be applied against either Party. Unless expressly provided
otherwise, all dollar figures in this Agreement, if any, are in the currency ofthe United States of
America.

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ARTICLE2
GRANT OF LICENSE AND RELATED RIGHTS
2.1

Grant of License.

(a)
In consideration ofNGA's covenants and obligations hereunder and under
the Accession Agreement, and pursuant to the terms and conditions of this Agreement, Corcoran
hereby grants toNGA, and NGA hereby accepts from Corcoran, the exclusive, worldwide,
royalty-free, fully paid-up, irrevocable, non-transferable (except as expressly set forth in Section
2.1(b)) right and license to use the Licensed Mark during the Term in connection with (i) the
establishment and operation of a new contemporary art program, to be conducted as the
"Corcoran Contemporary, National Gallery of Art" (or such other name as may be designated in
accordance with Section 2.2(a) of the Accession Agreement), which program is to be housed at
the 1ih Street Building; (ii) the display or exhibition in the 1ih Street Building or other venues
other than NGA of works of the Accessioned Art, which works shall be identified and credited as
part of the "National Gallery of Art, Corcoran Collection" (including, as applicable, an
appropriate sub-identifier), in accordance with Section 2.1(d) of the Accession Agreement; (iii)
the display or exhibition at NGA of works of the Accessioned Art, which works shall be
identified as part of the "Corcoran Collection" (including, as applicable, an appropriate subidentifier), in accordance with Section 2.1(d) of the Accession Agreement; (iv) the performance
of any and all activities consistent with or incident to such establishment, operation, display, or
exhibition; and (v) any reproduction or derivative work of any work of the Accessioned Art (the
"Licensed Field"), including on products created and distributed in connection with the
Licensed Field, in connection with all services provided as part of the Licensed Field, in all
advertising and promotion of such products, services, and activities, and in domain names or
similar or successor electronic address mechanisms or systems as provided in Section 5.2 and
Section 6.3.
(b)
NGA's rights hereunder include the right to allow its officers, directors,
trustees, employees, representatives, contractors, volunteers, and agents to use the Licensed
Mark, pursuant to the terms and conditions of this Agreement, for the purpose of allowing NGA
to exercise fully the rights granted under this Agreement or under the Accession Agreement. For
the avoidance of doubt, NGA may allow other venues that exhibit the Accessioned Art pursuant
to the terms and conditions of the Accession Agreement to use the Licensed Mark and Combined
Marks in connection with such exhibitions in the same ways and under the same conditions that
this Agreement permits NGA to use the Licensed Mark and Combined Marks, except that such
venues shall not use the Licensed Mark to create any new Trademark.
2.2
Reserved Rights. Except for the rights expressly granted toNGA under this
Agreement and under the Accession Agreement, all other rights, benefits and privileges relating
to the Corcoran Intellectual Property are expressly reserved by and to Corcoran. For the
avoidance of doubt, the license granted herein is exclusive even as to Corcoran, except that
Corcoran may continue to use the Licensed Mark for its own corporate, non-commercial, and
internal purposes, and except that Corcoran may grant a limited license to each recipient of any
of the Distributed Art to use the Licensed Mark solely to identify and credit the Distributed Art
that it acquires. No such recipient shall use the Licensed Mark to create any new Trademark .

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2.3
Authorized Uses. Except with the prior written consent of Corcoran, NGA: (a)
shall use the Licensed Mark only in the Licensed Field, and (b) shall use the Licensed Mark only
with other words or letters, including any NGA Mark, and including as part of the Trademarks
shown on Exhibit B hereto ((a) and (b), collectively, the "Authorized Uses").
2.4
Term. The term of this Agreement shall commence on the Closing under the
Accession Agreement (the "Effective Date") and continue for an initial term of ninety-nine (99)
years (the "Initial Term"). This Agreement shall automatically renew following the Initial
Term for additional successive ten (10) year renewal terms (each, a "Renewal Term" and,
together with the Initial Term, the "Term").
ARTICLE3
MAINTENANCE OF GOODWILL RELATING TO LICENSED MARK
3.1
Compliance with Laws. NGA shall comply with applicable Laws in its use of the
Licensed Mark.
3.2

Use of the Licensed Mark.

(a)
The products and services that NGA provides in connection with the
Licensed Mark shall be of substantially the same quality as the products and services that NGA
provides in connection with the NGA Marks as of the date of this Agreement.
(b)
If any use by NGA of the Licensed Mark is not consistent with the terms
and conditions of this Agreement and Corcoran so notifies NGA in writing, NGA shall use its
reasonable best efforts to cure the cause of such failure, and, ifNGA is unable to cure such
failure, NGA shall discontinue such non-conforming use after a commercially reasonable phaseout period.
(c)
NGA shall not use, display, or exhibit the Authorized Uses, or otherwise
distribute any depiction of the Licensed Mark, in any way that would reasonably be expected to
damage the goodwill associated with the Licensed Mark.
3.3
Inspection. Upon Corcoran's reasonable request, but no more than once in any
calendar year, NGA shall provide Corcoran with representative samples of the Authorized Uses
to allow Corcoran to ensure that NGA's use of the Licensed Mark complies with the terms and
conditions of this Agreement.
ARTICLE4
REPRESENTATIONS AND WARRANTIES OF CORCORAN
Corcoran represents and warrants toNGA as follows:
4.1
Rights to Licensed Mark. Corcoran is the sole and exclusive owner of the
Licensed Mark worldwide. Corcoran has the right to grant this license to the Licensed Mark on
the terms and conditions provided herein.

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4

4.2
No Infringement. The use of the Licensed Mark as authorized in this Agreement
does not infringe the Intellectual Property rights of any third party.
4.3
No Litigation. There is no litigation pending or, to the knowledge of Corcoran,
threatened, and Corcoran has not received or sent any written notice of a claim or suit (a) that
could reasonably be expected to restrain, enjoin or otherwise prevent the performance by
Corcoran of the covenants and obligations contemplated by this Agreement, or (b) relating to the
validity or non-infringement of the Licensed Mark.
4.4

Disclaimer of Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS
3 OF THE ACCESSION AGREEMENT, CORCORAN MAKES NO
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED MARK
AND THE OTHER MATTERS CONTEMPLATED BY THIS AGREEMENT, INCLUDING (A) ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (B) ANY WARRANTY ARISING

ARTICLE 4 OR IN ARTICLE

THROUGH COURSE OF DEALING OR USAGE OF TRADE.

1

ARTICLES
OWNERSHIP AND PROTECTION OF LICENSED MARK
5.1
Ownership of the Licensed Mark. Subject to Article 7, NGA shall not acquire
any owr1ership interest in the Licensed Mark throughout the Term of this Agreement. NGA
acknowledges: (a) that Corcoran exclusively owns, and shall continue to own, all right, title, and
interest in and to the Licensed Mark, except for the rights expressly granted toNGA hereunder;
(b) the great value ofthe goodwill associated with the Licensed Mark; (c) that all goodwill
associated with the Licensed Mark that arises from NGA's use thereof shall inure to the benefit
of Corcoran, except that all goodwill attributable to use of any NGA Mark or any Combined
Mark as part of the Authorized Uses shall inure solely to the benefit ofNGA; and (d) that the
Licensed Mark has secondary meaning in the minds of the public.
5.2

Registrations; Protection of the Licensed Mark.

(a)
Subject to Section 6.3, at Corcoran's election or upon the request ofNGA,
Corcoran shall use commercially reasonable efforts to file applications for trademark or service
mark registration or to register domain names (or similar or successor electronic address
mechanisms or systems) for the Licensed Mark in the Licensed Field. The cost of preparing and
filing any such application or registration contemplated hereby, including reasonable attorneys'
fees in connection therewith, shall be borne by Corcoran or, ifNGA makes such request for
registration, by NGA. Subject to Section 6.3, NGA shall not, on its OWfl behalf or on behalf of
any other Person, in any jurisdiction in the world, register or attempt to register the Licensed
Mark as a domain name or with the United States Patent and Trademark Office or any other
Governmental Entity (including state trademark offices) as a trademark or service mark.

1

We have deleted the representations and warranties of both parties that are covered in the
Accession Agreement.

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5

(b)
Upon any such registration of the Licensed Mark, Corcoran shall take all
reasonable steps to maintain such registration during the Term hereof, to the extent that NGA
continues to use such registered Licensed Mark. The cost of preparing and making any filings in
connection with maintenance of a registration for the Licensed Mark, including reasonable
attorneys' fees in connection therewith, shall be borne by the Party who bore the cost of the
obtaining the applicable registration.
5.3

Infringement Claims.

(a)
Each ofNGA and Corcoran shall notify the other in writing reasonably
promptly (and in no event later than thirty (30) days) after becoming aware of any imitation,
infringement, use without authorization, or dilution of the Licensed Mark by any Person.
(b)
NGA shall have the initial right to institute and control, at its own
expense, a claim, action, suit, demand, or proceeding, whether formally or otherwise asserted
(collectively, a "Claim") alleging infringement of the Licensed Mark in the Licensed Field
("Infringement Claim"). NGA shall notify Corcoran within thirty (30) business days ofNGA's .
receipt or issuance of the notice described in Section 5.3(a) whether NGA will initiate or pursue
an Infringement Claim. NGA shall have no duty to initiate or pursue an Infringement Claim if
NGA determines, in its reasonable business judgment, that initiating or pursuing such Claim is
not warranted or in its best interests. Upon NGA's request, Corcoran shall reasonably cooperate
with NGA in any Infringement Claim that NGA institutes or controls, including being joined as a
party, and NGA shall reimburse Corcoran for the reasonable out-of-pocket, third-party expenses
that it incurs in connection with such cooperation. At its own expense, Corcoran shall have the
right to participate and be represented by Corcoran's own counsel in any Infringement Claim that
NGA institutes or controls. In any Infringement Claim that NGA institutes or controls, NGA
shall notify Corcoran of any proposed settlement or compromise, and NGA shall not, without
Corcoran's express prior written consent, settle any Infringement Claim if such settlement (i)
does not release Corcoran from all liability with respect thereto, or (ii) adversely impacts the
exercise of any of the rights retained by Corcoran in the Corcoran Intellectual Property at such
time.
(c)
IfNGA elects to not institute an Infringement Claim, Corcoran may, at its
option and expense, take any action on its own behalf that it deems appropriate, including
initiating or pursuing an Infringement Claim. Upon Corcoran's request, NGA shall reasonably
cooperate with Corcoran in any Infringement Claim that Corcoran institutes or controls, and
Corcoran shall reimburse NGA for the reasonable out-of-pocket, third-party expenses that it
incurs in connection with such cooperation. At its own expense, NGA shall have the right to
participate and be represented by NGA's own counsel in any Infringement Claim that Corcoran
institutes or controls.
(d)
In any Infringement Claim that Corcoran institutes or controls, Corcoran
shall consult with NGA regarding any proposed settlement or compromise, and Corcoran shall
not, without NGA's express prior written consent, settle an Infringement Claim in any manner
other than for money damages alone.
(e)

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Any monetary reward, money damages or recovery resulting from any
6

Infringement Claim that either Party institutes shall be applied first to reimburse the Party
incurring the expenses of such action. The Parties shall divide the balance, including any
punitive or treble damages, in proportion to the damages or injury each has suffered as a result of
such infringement in the Parties' respective fields, giving due regard, to the extent applicable, to
any findings by an applicable court, jury, arbitrator or other finder of fact with respect to the
nature or correlation of such damages, and with NGA being entitled to retain all damages
attributable to infringing activities in the Licensed Field. If the Parties cannot agree on an
appropriate division of the balance, they shall attempt to resolve the dispute according to the
procedure set out in Section 7.9 of this Agreement.
5.4
NGA Estoppel. NGA shall not at any time do, or cause to be done, any acts or
things that would be reasonably likely either to challenge or impair the rights of Corcoran in and
to the Licensed Mark or to adversely affect the validity of the Licensed Mark.
ARTICLE6
NGA MARKS, COMBINED MARKS, AUTHORIZED USES AND MATERIALS
6.1
Ownership of NGA Intellectual Property. Any Combined Marks created by
NGA shall be owned solely and exclusively by NGA and shall constitute Intellectual Property of
NGA. All rights, benefits, and privileges relating to any ofNGA's Intellectual Property
(including any Combined Marks and any NGA Marks) are owned by, and expressly reserved by
and to, NGA. For the avoidance of doubt, Corcoran shall not acquire any ownership interest in
any NGA Marks or any Combined Marks throughout the Term of this Agreement. Corcoran
acknowledges: (a) that NGA exclusively owns, and shall continue to own, all right, title, and
interest in and to all NGA Marks and Combined Marks; (b) the great value of the goodwill
associated with NGA Marks and Combined Marks; and (c) that all goodwill associated with
NGA Marks and Combined Marks shall inure to the benefit ofNGA.
6.2
Proprietary Materials of NGA. Corcoran acknowledges that NGA shall own
worldwide in perpetuity the following materials created by or on behalf ofNGA: (a) all artwork
that bears any Authorized Use; (b) all computer artwork incorporating graphic descriptions of
any Authorized Use; (c) all photographs incorporating graphic descriptions of any Authorized
Use; (d) all derivative works based on any of the Authorized Uses or works or materials
described in (a)-(c) above; and (e) all copyrights and other Intellectual Property rights in, and all
duplicates and copies of any works or materials described in clauses (a) through (d), except that
NGA shall have no ownership rights in the Licensed Mark contained or embodied in any ofthe
foregoing except to the extent such Licensed Mark is contained or embodied in a Combined
Mark.
6.3
Registrations; Protection of NGA Marks and Combined Marks. NGA shall be
responsible for filing all applications for trademark or service mark registration and for
registering all domain names (or similar or successor electronic address mechanisms or systems)
for Combined Marks and NGA Marks in the Licensed Field. Corcoran shall not, on its own
behalf or on behalf of any other Person, in any jurisdiction in the world, register or attempt to
register as domain names or with the United States Patent and Trademark Office or any other
Governmental Entity (including state trademark offices) as trademarks or service marks (i) any
Combined Mark, (ii) any NGA Mark, or (iii) any Trademark that consists of or includes a
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7

Combined Mark or an NGA Mark or that would dilute the distinctiveness of, or is confusingly
similar to, a Combined Mark or an NGA Mark.
6.4
Infringement Claims. NGA shall have the sole right to institute, control, and
settle, at its own expense and in its sole discretion, all Claims alleging infringement of a
Combined Mark or an NGA Mark. Corcoran shall not have any right to participate in any such
Claim.
6.5
Corcoran Estoppel. Corcoran shall not at any time do, or cause to be done, any
acts or things that would be reasonably likely either to challenge or impair the rights ofNGA in
and to any NGA Mark or any Combined Mark or to adversely affect the validity of any NGA
Mark or any Combined Mark
6.6
Public Announcements. Except for the public announcement that the Parties will
release pursuant to Section 8.4 of the Accession Agreement, after the Closing under the
Accession Agreement, Corcoran shall not refer toNGA or any ofNGA's trustees, directors,
officers, employees, or agents, or use any NGA Mark or any Combined Mark, or refer to the
current care, custody, possession, distribution, or exhibition of the Existing Collection (including
the "Corcoran Contemporary, National Gallery of Art" or the "Legacy Gallery"), or NGA's other
activities within the Licensed Field, for any purpose (including, but not limited to, in any press
release or educational materials, in connection with any fund-raising, on any Web site or social
media page or account, or in any advertising or for any other promotional purpose) without first
obtaining NGA's written consent, except that Corcoran may provide a link on a Web site under
the control of Corcoran to a page on a Web site that NGA identifies.

ARTICLE?
MISCELLANEOUS PROVISIONS
7.1
Survival of Representations, Warranties and Agreements. None ofthe
representations or warranties in this Agreement shall survive beyond the Closing under the
Accession Agreement. Each of the covenants and agreements of the Parties in this Agreement
shall survive until the earlier of (a) the expiration of the Term, or (b) the full performance or
discharge of such covenant or agreement in accordance with this Agreement.
7.2
Confidentiality. Information concerning either Corcoran or NGA's business
methods, financial information, future plans, personnel data, trade secrets, information systems,
financial and accounting policies or similar matters, or information designated as "confidential"
by the disclosing Party or released under circumstances where a reasonable Person would
understand that such information is to be treated as confidential, shall be treated as confidentiaL
The Party receiving such confidential information shall take the same precautions as it takes to
protect its own confidential information, but in all events reasonable precautions shall be taken,
in order to preserve its confidentiality. Confidential information shall not be revealed to third
parties without the written consent of the disclosing Party, and neither Corcoran nor NGA may
use the other Party's confidential information for any purpose except for purposes of performing
this Agreement. This confidentiality requirement shall not apply to: (a) information in the public
domain, (b) information independently developed by either Party without use of the other Party's
confidential information, (c) information received by either Party from a third party under no
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8

duty of confidentiality, and (d) a disclosure of information that is required by Law or legislative
or regulatory body. The obligations ofthe Parties under this Section 7.2 shall survive the
Closing or the termination of the Accession Agreement for a period of five (5) years after such
Closing or termination, as applicable.
7.3
Further Assurances. From and after the date of this Agreement, upon the terms
ofthis Agreement and subject to applicable Law, Corcoran and NGA shall actin good faith and
shall cooperate with each other and use their commercially reasonable efforts to, as soon as
reasonably practicable, (a) take, or cause to be taken, all actions, (b) execute, acknowledge, and
deliver all documents, agreements, and instruments, and (c) perform such other acts and do, or
cause to be done, all things necessary, proper, or advisable, in each case to confer on each Party
the rights, benefits, and obligations provided by, and to consummate and make effective the
transactions contemplated by, this Agreement as soon as practicable.
7.4
Notices. All notices, requests, demands and other communications which are
required or may be given pursuant to the terms of this Agreement shall be in the Engllsh
language and in written or electronic form, and shall be deemed delivered (a) on the date of
delivery when (i) delivered by hand or (ii) sent by reputable overnight courier maintaining
records of receipt, and (b) on the date oftransmission when sent by facsimile or other electronic
transmission during normal business hours with confirmation of transmission by the transmitting
equipment; provided that any such communication delivered by facsimile or other electronic
transmission shall only be effective if such communication is also delivered by hand or deposited
with a reputable overnight courier maintaining records of receipt within two (2) business days
after its delivery by facsimile or other electronic transmission. All such communications shall be
addressed to the Parties at the addresses set forth below, or at such other address as a Party may
designate upon ten (1 0) days' prior written notice to the other Party.
If to Corcoran:
Corcoran Gallery of Art
500 17th Street, N.W.
Washington, DC 20006
Attention: General Counsel
Phone: (202) 365-7327
Fax:[·]
with a copy to:
Charles A. Patrizia
Paul Hastings LLP
875 15th Street, N.W.
Washington, D.C. 20005
Phone: (202) 551-1710
Fax: (202) 551-1705
IftoNGA:
Elizabeth A. Croog
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Secretary and General Counsel
National Gallery of Art
2000B South Club Drive
Landover, MD 20785
Phone: (202) 842-6363
Fax: (202) 842-3782

with a copy to:
Janet T. Geldzahler
Sullivan & Cromwell LLP
1700 New York Avenue N.W.
Suite 700
Washington, D.C. 20006-5215
Tel: (202) 956-7515
Fax: (212) 558-3588
7.5
Amendments. Amendments to this Agreement shall be made by mutual consent
of the Parties, by the issuance of a mutually agreed upon written instrument, signed and dated by
authorized officials of Corcoran and NGA, prior to any changes being performed.
7.6
Waiver. Any agreement on the part of a Party to any extension or waiver of any
provision hereof shall be valid only if set forth in an instrument in writing signed on behalf of
such party. A waiver by a Party of the performance of any covenant, agreement, obligation,
condition, representation, or warranty shall not be construed as a waiver of any other covenant,
agreement, obligation, condition, representation, or warranty. A waiver by any Party of the
performance of any act shall not constitute a waiver of the performance of any other act or an
identical act required to be performed at a later time.
7.7
Assignment. Neither Party may assign or transfer any rights or obligations in this
Agreement except with the prior written consent of the other Party. Any attempted assignment
or delegation in violation of this Section 7.7 shall be void.
7.8
Governing Law. This Agreement shall be governed by the Laws of the District of
·columbia, excluding any conflicts or choice of Law rules or principles that might otherwise refer
construction or interpretation of this Agreement to the substantive Law of another jurisdiction.
7.9
Dispute Resolution; Remedies. Any dispute, controversy, or claim arising out of
or in connection with this Agreement or in connection with the rights and obligations of the
Parties under this Agreement, including any question regarding its existence, validity, or force
and effect, shall be subject in all respects to the terms, conditions, and procedures set forth in
Section 8.11 of the Accession Agreement, and the terms, conditions, and procedures of such
Section 8.11 are incorporated herein by reference and made a part hereof.
7.10 Cumulative Rights. Except as expressly provided herein, the various rights of
this Agreement shall be construed as cumulative, and no one of them is exclusive of the other or
exclusive of any rights allowed by Law.

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7.11 Severability. If any covenant or provision hereof is determined by a court of
competent jurisdiction to be void or unenforceable in whole or in part, it shall not, subject to the
discretion of such court, be deemed to affect or impair the validity of any other covenant or
provision, each of which is hereby declared to be separate and distinct. If any provision of this
Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so
broad as is enforceable. If any provision of this Agreement is declared invalid or unenforceable
for any reason other than overbreadth, the offending provision shall be modified so as to
maintain the essential benefits of the bargain between the Parties to the maximum extent
possible, consistent with Law and public policy.
7.12 Expenses. Except as otherwise expressly provided herein, each Party shall pay its
own fees, costs, and expenses incurred in connection herewith and the transactions contemplated
hereby, including the fees, costs and expenses of its financial advisors, accountants, and counsel.
7.13 Independent Contractors. The Parties are independent contractors, and neither
Party shall have any right, power or authority to enter into any agreement for or on behalf of, or
incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall
not be interpreted or construed to create an association, agency, joint venture, or partnership
between the Parties or to impose any liability attributable to such a relationship upon the Parties.
7.14 No Third-Party Beneficiaries. This Agreement is solely for the benefit ofNGA
and Corcoran. There are no intended or implied third-party beneficiaries to this Agreement or
any of the transactions contemplated herein.
7.15 Entire Agreement. This Agreement, together with any Exhibits attached hereto
and contemplated hereby, and the other Transaction Documents constitute the entire
understanding between the Parties with respect to the subject matter hereof and supersede all oral
communications and prior writings with respect thereto, including for the avoidance of doubt,
that certain Letter oflntent, dated as of February 18, 2014, by and between Corcoran and NGA.
7.16 Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be an original and all of which will constitute together the same document.
[Signatures appear on following page; remainder intentionally blank.}

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IN WITNESS WHEREOF, the parties hereto have executed this License Agreement as of
the date first written above.

TRUSTEES OF THE CORCORAN
GALLERY OF ART

By:
Name: Harry F. Hopper III
Title: Chairman

THE NATIONAL GALLERY OF ART

By:
Name: Earl A. Powell III
Title: Director

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Exhibit A
Certain Authorized Uses
({Corcoran Contemporary, National Gallery ofArt"
({Corcoran Collection"
({Corcoran Collection-NGA"
({Corcoran Legacy Collection"
"National Gallery ofArt, Corcoran Collection"
[and others to be discussed] .

DC_LAND 1:291305.13
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ASSET CONTRIBUTION AGREEMENT

Execution Version

ASSET CONTRIBUTION AGREEMENT
dated as of May 15,2014
by and between

THE TRUSTEES OF THE CORCORAN GALLERY OF ART
and

THE GEORGE WASHINGTON UNIVERSITY

LEGAL_US_E # 108587467.27

TABLE OF CONTENTS
ARTICLE 1 -DEFINITIONS .................................................................................................... 2
1.1
Certain Definitions ................................................................................................. 2
1.2
Interpretation . ...................................................................................................... 10
ARTICLE 2 - CONTRIBUTION OF LEGACY COLLEGE AND CERTAIN
OTHER ASSETS ............................................................................................... 10
2.1
Contribution and Acceptance ofAssets ............................................................... 10
2.2
Excluded Assets .................................................................................................... 12
2.3
Consideration ....................................................................................................... 13
2.4
Assumed Liabilities; Excluded Liabilities........................................................... 13
2.5
Assumed Contracts Not Freely Assignable ......................................................... 14
2.6
Adjustments to Renovation Transfer Amount .................................................... 14
2.7
Uncollected Receivables ....................................................................................... 15
2.8
Permanent Works ................................................................................................. 15
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF CORCORAN .................... 16
3.1
Organization, Standing and Power; Tax-Exempt Status. .................................. 16
3.2
Authority; Binding Agreement............................................................................ 16
3.3
Compliance with Laws and Donor Restrictions. ................................................ 17
3.4
Conflicts; Consents .............................................................................................. 17
3.5
Assumed Contracts ............................................................................................... 17
3.6
Good Title; Ownership of Real Property ............................................................. 18
3. 7
Litigation . ............................................................................................................. 18
3.8
Insurance .............................................................................................................. 18
3.9
Sufficient Funds; PNC Notes .............................................................................. 19
3.10 No Other Representations and Warranties ......................................................... 19
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF THE
UNIVERSITY .................................................................................................... 19
4.1
Organization, Standing and Power; Tax-Exempt Status. .................................. 19
4.2
Authority; Binding Agreement ............................................................................ 20
4.3
Sufficient Funds ................................................................................................... 20
4.4
Regulatory Matters ............................................................................................... 20
4.5
No Other Representations and Warranties ......................................................... 21
ARTICLE 5 - INTERIM MATTERS; OTHER COVENANTS .............................................. 21
5.1
Cooperation on Interim Matters .......................................................................... 21
5.2
Interim Steering Committee ................................................................................ 21
5.3
Interim Operating Covenants .............................................................................. 21
5.4
Approvals and Proceedings ................................................................................. 22
5.5
Acknowledgements with Respect to Certain Near-Term Special
Events and Commitments of Corcoran . .............................................................. 23
5.6
Transition Budget . ............................................................................................... 24
5.7
Renovation Transfer Amount Insufficiency ....................................................... 25

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5.8
5.9
5.10

Corcoran Support for GW Corcoran School for Dedicated
Purposes . .............................................................................................................. 25
Audit Rights.......................................................................................................... 25
Flemish Windows; Replacement . ........................................................................ 25

ARTICLE 6 - REAL ESTATE MATTERS ............................................................................. 26
6.1
Name of the 17th Street Building ........................................................................ 26
6.2
Use ofthe 17th Street Building ............................................................................ 26
6.3
Renovation and Rehabilitation of the 17th Street Building. .............................. 26
ARTICLE 7
7.1
7.2
7.3
7.4
7.5
7.6

ESTABLISHMENT AND OPERATION OF THE GW
CORCORAN SCHOOL .................................................................................... 27
Establishment of the GW Corcoran School ........................................................ 27
University Control and Oversight........................................................................ 29
University Funding Support ................................................................................ 29
College Transfer Amount ..... ;.............................................................................. 29
Transferred Employees ........................................................................................ 29
GW Corcoran School Advisory Board. ............................................................... 31

'ARTICLE 8 - CONTINUATION OF CORCORAN MISSION;
ESTABLISHMENT OF JOINT ADVISORY COMMITTEE .......................... 31
ARTICLE 9 - CON SUMMA TTON OF THE TRANSACTION .............................................. 32
9.1
Closing .................................................................................................................. 32
Conditions to Obligations of the University ........................................................ 33
9.2
9.3
Conditions to Obligations of Corcoran ............................................................... 35
ARTICLE 10- TERMINATION .............................................................................................. 35
10.1
Termination .......................................................................................................... 35
10.2 Procedure and Effect of Termination ................................................................. 36
10.3 Withdrawal of Certain Filings ............................................................................. 36
ARTICLE 11 -MISCELLANEOUS PROVISIONS ............................................................... 36
11.1 Survival of Representations, Warranties and Agreements ................................. 36
11.2 Confidentiality ...................................................................................................... 37
11.3 Publicity, Marks and Use of Names . ................................................................... 37
11.4 Public Announcement .......................................................................................... 37
11.5 Cooperation Following the Closing .................................................................... 37
11.6 Notices . ................................................................................................................. 37
11.7 Amendments ......................................................................................................... 38
11.8 Waiver ................................................................................................................... 39
11.9 Assignment ........................................................................................................... 39
11.10 Governing Law ..................................................................................................... 39
11.11 Mediation; Dispute Resolution; Remedies .......................................................... 39
11.12 Cumulative Rights ................................................................................................ 40
11.13 Severability . .......................................................................................................... 40
11. 14 Expenses ............................................................................................................... 41
11.15 Independent Contractors ..................................................................................... 41

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11.16 No Third-Party Beneficiaries .............................................................................. 41
11.17 Entire Agreement . ................................................................................................ 41
11.18 Counterparts ......................................................................................................... 41

LEGAL_US_E # 108587467. 27

EXHIBITS & SCHEDULES
EXHIBITS

Exhibit A

Preliminary Renovation Plan

Exhibit B

License Agreement

Exhibit C

Non-Binding Statement of Intent Regarding Operation of the GW Corcoran
School Following the Closing Date

Exhibit D

Form of Offer Letter

SCHEDULES

Schedule 1.1

Owned Real Property

Schedule 1.2

Permitted Liens

Schedule 2.1(c)

Assumed Contracts

Schedule 2.1 (d)

Estimate of College Transfer Amount

Schedule 2.1 (n)

Permanent Works

Schedule 2.2(e)

Excluded Contracts

Schedule 2.4(b)

Excluded Liabilities

Schedule 2.6(c)

Illustrative Schedule of Adjustments to Renovation Transfer Amount

Schedule 3.4

Conflicts; Consents

Schedule 3.6(a)

Material Restrictions on Contributed Assets

Schedule 3.6(c)

Other Rights in and to the Owned Real Property

Schedule 3.8.

Insurance

Schedule 5.3(h)

Permitted Pre-Closing Employment or Independent Contractor
Agreements

Schedule 5.5(b)

Certain Near-Term Commitments of Corcoran (Exhibitions)

Schedule 5.5(c)

Certain Near-Term Commitments of Corcoran (Summer Programming)

Schedule 6.1

Named Galleries and Other Spaces in 17th Street Building

Schedule 7.5(a)

Transferred Employees (Faculty)

Schedule 7.5(b)

Transferred Employees (Non-Faculty)

Schedule 9 .2( d)

Required Consents

LEGAL_US_E # 108587467. 27

ASSET CONTRIBUTION AGREEMENT
This ASSET CONTRIBUTION AGREEMENT (this "Agreement") is hereby made and
entered into as of May 15, 2014 (the "Effective Date"), by and between the TRUSTEES OF THE
CORCORAN GALLERY OF ART, a Congressionally chartered nonprofit corporation located in the
District of Columbia ("Corcoran"), and THE GEORGE WASHINGTON UNIVERSITY, a
Congressionally chartered nonprofit corporation located in the District of Columbia (the
"University").
WHEREAS:
A.
Corcoran is a nonprofit institution dedicated to art and encouraging American
genius and, in service to that mission, (i) owns and operates the Corcoran College of Art+
Design, an accredited school of art and design located in the District of Columbia (the "Legacy
College"), (ii) owns and controls the Corcoran legacy building located at 500 17th Street
Northwest in the District of Columbia (as further described on Schedule 1.1, the "17th Street
Building") and the Fillmore Building (as defined below); and (iii) owns and operates the
Corcoran Gallery of Art, an art gallery and museum located in the 17th Street Building (the
"Gallery"), in which a collection of art works owned or controlled by Corcoran is located for
exhibition or storage, including for the avoidance of doubt those art works owned by Corcoran
that are (a) currently on loan for exhibition in other art centers or (b) held in storage by or on
behalf of Corcoran in other locations (collectively, the "Existing Collection");
B.
Corcoran has determined that it is in the best interest of the institution and its
mission to contribute substantially all of the assets of the Legacy College and the 17th Street
Building and the Fillmore Building (but excluding for the avoidance of doubt the Randall Street
Property (as defined below)), and to transfer the Legacy College, including its operation and
mission, to the University;
C.
The University desires to assume the contributed assets and continue the mission
of the Legacy College by establishing within the University system a new school that will seek to
preserve and maintain the mission, reputation and brand of the Legacy College, on the terms and
conditions set forth herein;
D.
In connection with the transfer of the Legacy College to the University, the
parties desire that the Legacy College be operated with a name that integrates the name and mark
"Corcoran" with the University's name and, accordingly, in connection with the closing ofthe
transactions contemplated hereby, Corcoran and the University will enter into the License
Agreement (as defined below) pursuant to which Corcoran will license to the University certain
rights to the "Corcoran" name and related marks for use by the University in connection with the
establishment and operation of the Legacy College as part of the University following the
closing;
E.
The University has agreed pursuant to the terms and subject to the conditions set
forth below to undertake renovation and rehabilitation of the 17th Street Building and the parties
further desire to work together and confer with respect to such efforts, on the terms and
conditions set forth herein;

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F.
Concurrently with the execution and delivery of this Agreement, Corcoran has
entered into an Art Accession and Custodial Transfer Agreement (the "NGA Accession
Agreement") with the National Gallery of Art, a statutory federal establishment ("NGA"),
pursuant to which Corcoran will transfer to the custody, care and possession ofNGA all of the
Existing Collection, together with certain related assets (the "NGA Transaction"). A portion of
the Existing Collection will be designated by NGA for accession into its collection of art (the
"Accessioned Art"), and the remainder of the Existing Collection that is not so accessioned will
remain in NGA's care until distributed to other art museums and appropriate entities;
G.
The parties contemplate that, following the closing of the transactions
contemplated hereby, NGA will (i) establish a new contemporary art program, to be conducted
as the "Corcoran Contemporary, National Gallery of Art" (or such other name as may be
designated by NGA and Corcoran) (the "Contemporary Art Gallery"), to be housed at the 17th
Street Building under the ownership of the University, for the purpose of exhibiting, inter alia,
certain works of the Accessioned Art and other works as determined by NGA, and for the
purposes of preserving, maintaining and perpetuating the mission and reputation of the Gallery,
on the terms and conditions set forth therein, and (ii) designate a space (the "Legacy Gallery")
within the I 7th Street Building to be used for the exhibition of certain works of Accessioned Art
that are so intrinsically identified with the 17th Street Building and its legacy and the history of
the Gallery that consideration should be given to their remaining on exhibit therein;
H.
In connection with the NGA Transaction, and concurrently with the transactions
contemplated hereby and thereby, the University and NGA have entered into a related agreement
pursuant to which the University will dedicate portions of the 17th Street Building for continuous
use as exhibition space for art of the Contemporary Art Gallery and the Legacy Gallery and other
programming and administrative needs ofNGA (the "University-NGA Transaction");
I.
Following the consummation of the transactions contemplated hereby, the Board
of Trustees of the Corcoran Gallery of Art will continue and maintain its separate existence as an
institution dedicated to art and encouraging American genius, and, in connection therewith, the
parties have provided herein mechanisms for the potential future collaboration and promotion of
the interconnected mission, activities and programs between them; and

J.
The parties desire to set forth the terms and conditions upon which such
contribution of assets, transfer of mission and programming of the Legacy College, and related
transactions shall occur.

Now, THEREFORE, in consideration ofthe foregoing and the representations, promises,
covenants, obligations, and other good and valuable consideration contained in this Agreement,
the receipt and sufficiency of which is hereby acknowledged and agreed, and desiring to be
legally bound hereby, the parties agree as follows:
ARTICLE 1 -DEFINITIONS
1.1
forth below:

Certain Definitions. The following terms, as used herein, have the meanings set

"17th Street Building" has the meaning set forth in the Preamble.
LEGAL_US_E # 108587467. 27

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"AAA" means the American Arbitration Association.

"Accessioned Art" has the meaning set forth in the preamble.
"Accounts Receivable" means the outstanding accounts receivable of Corcoran, notes
receivable and other receivables, including refunds or rebates owing to Corcoran, and any
security, claim, remedy or other right related to any of the foregoing, but only to the extent
related to the Legacy College or the Owned Real Property as of the Closing Date, including for
the avoidance of doubt, all outstanding tuition and related fees due to or receivable by Corcoran
in respect of (i) students enrolled at the Legacy College as of the Closing Date and (ii) students
admitted for enrollment at the Legacy College for academic terms beginning after the Closing
Date.
"Action" means any action, claim, complaint, petition, investigation, suit or other
proceeding, whether civil or criminal, in Law or in equity, or before any arbitrator or
Governmental Entity.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control with, such Person.
The term "control" (including the terms "controlled by" and "under common control with")
means the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agreement" has the meaning set forth in the preamble.
"Arbitration Rules" has the meaning set forth in Section 11.11 (c).
"Art Related Materials" means (i) all Documentary Art Related Materials and (ii) all
Equipment Art Related Materials.
"Assignment and Assumption Agreement" has the meaning set forth in
Section 9.2(k)(ii).
"Assumed Accounts Payable" means the outstanding trade accounts payable of
Corcoran for goods and services that remain unpaid and are not delinquent as of the Closing
Date, but only to the extent such trade accounts payable are related to the Legacy College or the
Owned Real Property.
"Assumed Contracts" has the meaning set forth in Section 2.1 (c).
"Assumed Liabilities" has the meaning set forth in Section 2.4(a).
"Authorizations" has the meaning set forth in Section 4.4.
"Available Corcoran Retained Funds" means, as of the date that the Clark Estate
Proceeds are received by Corcoran, the aggregate amount of the Corcoran Retained Funds that

LEGAL_US_E# 108587467. 27

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have not been disbursed by Corcoran to pay expenses or other items contemplated by, and in
accordance with, the Transition Budget.
"Benefit Plan" means each plan, fund, program, agreement, arrangement or scheme,
including each plan, fund, program, agreement, arrangement or scheme maintained or required to
be maintained under applicable Laws, that is at any time sponsored or maintained or required to
be sponsored or maintained by Corcoran or to which Corcoran makes or has made, or has had an
obligation to make, contributions providing benefits to the current and former employees,
directors, managers, officers, consultants, independent contractors, contingent workers or leased
employees of Corcoran or the dependents of any of them (whether written or oral), or with
respect to which Corcoran has any liability or obligation, including (a) each deferred
compensation, bonus, incentive compensation, pension, retirement, and other equity
compensation plan, "welfare" plan (within the meaning of Section 3(1) of ERISA, determined
without regard to whether such plan is subject to ERISA), (b) each "pension" plan (within the
meaning of Section 3(2) of ERISA, determined without regard to whether such plan is either
subject to ERISA or is Tax qualified under the Code), (c) each severance plan or agreement, and
each other plan providing health, vacation, supplemental unemployment benefit, hospitalization
insurance, medical, dental, disability, life insurance, death or survivor benefits, fringe benefits or
legal benefits and (d) each other employee benefit plan, fund, program, agreement or
arrangement.
"Bill of Sale" has the meaning set forth in Section 9.2(k)(ii).
"Cash and Cash Equivalents" means all cash, cash equivalents and cash items of any
kind whatsoever, certificates of deposit, money market instruments, institutional funds, bank
balances and rights in and to bank accounts, Treasury bills and marketable securities and other
securities of Corcoran as of Closing.
"Cause" shall mean, with respect to the employment or termination of employment by
the University of a Transferred Employee who is not a faculty member of the Legacy College
(referred to below as a "non-faculty Transferred Employee"), (a) a good faith determination by
the University that the non-faculty Transferred Employee has committed an act of dishonesty or
breach of trust or fiduciary duty in connection with his or her employment; (b) willful refusal by
a non-faculty Transferred Employee to perform the duties reasonably assigned to him or her,
which failure or breach continues for more than ten (1 0) days after written notice given to him or
her by the University; (c) gross dereliction of duty by the non-faculty Transferred Employee that
continues for more than ten (1 0) days following written notice given to him or her by the
University; (d) commitment by the non-faculty Transferred Employee of any illegal act or act
involving moral turpitude, whether or not directly affecting the University; or (e) any actions or
omissions by the non-faculty Transferred Employee which amount to incompetence, including a
pattern and practice of negligence, or willful neglect of his or her duties.
"Clark Estate Proceeds" has the meaning set forth in Section 2.6(b ).
"Clark Estate Settlement Receivable" means the amount due to Corcoran from the
Clark Estate Proceeds as of the Closing.

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"Closing" has the meaning set forth in Section 9 .1.
"Closing Date" has the meaning set forth in Section 9 .1.
"COBRA" has the meaning set forth in Section 7.5(d).
"Code" means the United States Internal Revenue Code of 1986, as amended.
"College Transfer Amount" has the meaning set forth in Section 2.1 (d).
"Contemporary Art Gallery" has the meaning set forth in the preamble.
"Contracts" has the meaning set forth in Section 2.1 (c).
"Contributed Assets" has the meaning set forth in Section 2.1.
"Corcoran" has the meaning set forth in the preamble.
"Corcoran Intellectual Property" means any Intellectual Property that is owned by,
licensed to or used by Corcoran in the conduct of its business.
"Corcoran Retained Funds" means the portion of the Cash and Cash Equivalents in an
amount equal to the aggregate sum of the expenses set forth in the Transition Budget for the
entire period covered thereby.
"Dedicated Purposes" means solely for purposes of scholarship and financial aid for
students of the GW Corcoran School, subject to standards and terms for the award, timing and
distribution of such scholarships and financial aid as may be agreed from time to time by
Corcoran and the University.
"Dispute" has the meaning set forth in Section 11.11.
"Documentary Art Related Materials" means, with respect to a work of art, all
documentation, files, records, images, archival material, Contracts, correspondence, and other
written, electronic or digital materials, including all documentation with respect to the accession,
donation, provenance, conservation, and restoration thereof, and with respect to the copyright
and other intellectual property rights (including the right to create derivative works),
reproduction rights, licenses, rights in images, publication rights, and similar matters therein
relating to such work.
"Effective Date" has the meaning set forth in the preamble.
"Equipment Art Related Materials" means all frames, tools, packing materials,
supplies and equipment related to art and art preparation, installation or handling (including
ladders and lifts), the cold storage equipment, display cases and file cabinets and other storage
materials currently used for any of the foregoing (exclusive, for the avoidance of doubt, of
Gallery Shop Inventory).
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.
LEGAL_US_E# 108587467. 27

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"Excluded Assets" has the meaning set forth in Section 2.2.
"Excluded Contracts" has the meaning set forth in Section 2.2( e).
"Excluded Liabilities" has the meaning set forth in Section 2.4(b).
"Existing Collection" has the meaning set forth in the preamble.
"Existing Insurance" has the meaning set forth in Section 2.1 (k).
"Fillmore Building" has the meaning set forth on Schedule 1.1.
"Flemish Windows" means the Jan de Caumont stained glass windows attached to the
Platt portion of the 17th Street Building.
"French Window" means the French Soissons stained glass window installed in the 17th
Street Building.
"Gallery" has the meaning set forth in the preamble.
"Gallery Shop Inventory" means all merchandise and products in stock for sale by
Corcoran to the general public.
"Gifts and Endowments" means all assets, including Cash and Cash Equivalents,
investments or other assets, which are held by Corcoran subject to donor restrictions limiting the
use of the gifts and endowments for the purpose of acquiring works of art, endowing
curatorships, the care and restoration of art or similarly restricted for use related to art, provided,
however, that Gifts and Endowments shall not include any assets restricted to such purposes by
Corcoran's board or any amounts comprising the College Transfer Amount.
"Governmental Entity" means any (a) nation, state, commonwealth, county, city, town,
village, district, or other jurisdiction of any nature, (b) federal, state, local, municipal, foreign, or
other government, (c) federal, state, local or foreign governmental or quasi-governmental
authority of any nature (including any agency, branch, department, board, commission, court or
tribunal), (d) multi-national or supra national organization or body, (e) body exercising, or
entitled or purporting to exercise, any administrative, executive, judicial, legislative, police,
regulatory, or taxing authority or power, including any court or arbitrator, (f) self regulatory
organization, (g) academic or professional agency, association or organization (including
voluntary accrediting associations, such as the Middle States Association of Colleges and
Schools) or (h) official of any ofthe foregoing.
"GW Corcoran School" has the meaning set forth in Section 7 .1.
"Intellectual Property" means any or all of the following and all rights, arising out of or
associated therewith: (a) all patents and applications therefor and all reissues, divisions,
renewals, extensions, provisionals, continuations and continuations-in-part thereof, (b) all
inventions (whether patentable or not), invention disclosures, improvements, proprietary
information, know-how, technology, technical data and customer lists, and all documentation
LEGAL_US_E # 108587467. 27

6

relating to any of the foregoing, (c) all copyrights, copyright registrations and applications
therefor, and all other rights corresponding thereto, (d) all industrial designs and any registrations
and applications therefor, (e) all internet uniform resource locators, domain names, trade names,
logos, slogans, designs, common Law trademarks and service marks, trademark and service mark
registrations and applications therefor, (f) all Software, databases and data collections and all
rights therein, (g) all moral and economic rights of authors and inventors, however denominated,
and (h) any similar or equivalent rights to any of the foregoing.
"Interim Steering Committee" has the meaning set forth in Section 5.2.
"IRS" has the meaning set forth in Section 3.1 (b)
"Joint Advisory Committee" has the meaning set forth in Section 8(b).
"Laws" means all laws, statutes, common law, rules, codes, regulations, restrictions,
ordinances, orders, decrees, approvals, directives, judgments, rulings, injunctions, writs and
awards of, or issued or entered by, all Governmental Entities.
"Legacy College" has the meaning set forth in the preamble.
"Liabilities" means liabilities, commitments and obligations, whether absolute, accrued,
contingent or otherwise.
"License Agreement" has the meaning set forth in Section 9.2(k)(ii).
"Liens" means all mortgages, liens, pledges, security interests, charges, claims,
restrictions and encumbrances of any nature whatsoever.
"Material Adverse Effect" means any circumstance, change in or effect on Corcoran
that occurs after the Effective Date and that (a) is, or would reasonably be expected to be,
materially adverse to the results of operations or the financial condition of the Legacy College or
(b) materially adversely impairs the ability of the University to use the 17th Street Building as
contemplated by this Agreement (exclusive, for the avoidance of doubt, of any matter currently
contemplated to be addressed by the Renovation); provided that none of the following, either
alone or in combination, shall be considered in determining whether there has been a breach of a
representation, warranty, covenant or agreement that is qualified by the term "Material Adverse
Effect": (i) events, circumstances, changes or effects that generally affect the museum or arts
education industries in the United States (including legal and regulatory changes), (ii) general
economic or political conditions or events, circumstances, changes or effects affecting such
industries generally, (iii) changes arising from the consummation of the transactions
contemplated by, or the announcement of the execution of (or intention to execute), this
Agreement or any other Transaction Document, (iv) any change in applicable Laws or
accounting requirements or principles, or the interpretation thereof, (v) events, circumstances,
changes or effects caused by any outbreak or escalation of war, act of foreign enemies,
hostilities, terrorist activities, or acts of nature, (vi) any acts or omissions of the University after
the Effective Date (other than as specifically contemplated by this Agreement), including any
publicly available statement made by the University, its Affiliates or representatives concerning
Corcoran or the Legacy College, or otherwise relating to the transactions contemplated hereby,
LEGAL~US_E

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(vii) any failure, in and of itself, by the Corcoran or the Legacy College to meet any budgets,

projections, forecasts or predictions for any period ending on or after the Effective Date, or (viii)
any circumstance, change or effect that results from any action taken or omitted to be taken
pursuant to or in accordance with this Agreement or at the request or with the consent of the
University. The parties agree that any circumstance, change in or effect that materially adversely
impairs the ability of the University to use the Fillmore Building as contemplated by this
Agreement shall not be a Material Adverse Effect, so long as such event is covered by Existing
Insurance and such insurance proceeds shall be expressly excluded from the calculation of the
Renovation Transfer Amount.

"NGA" has the meaning set forth in the preamble.
"NGA Accession Agreement" has the meaning set forth in the preamble.
"NGA Transaction" has the meaning set forth in the preamble.
"Notice of Termination" has the meaning set forth in Section 10.2(a).
"Owned Real Property" means the real property owned by Corcoran listed on
Schedule 1.1. Notwithstanding anything to the contrary and for the avoidance of doubt, Owned
Real Property shall be deemed to exclude the Randall Street Property.
"Permanent Works" has the meaning set forth in Section 2.1(n).
"Permitted Liens" means, collectively, (a) Liens for Taxes, assessments and
governmental charges not yet due and payable; (b) zoning Laws and ordinances and similar
Laws and any right reserved to any Governmental Entity to regulate the affected property
(including restrictions stated in any permits) not materially interfering with the present use of, or
detracting from the value of, the applicable Contributed Assets subject thereto; (c) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, material men and other
Liens imposed by Law arising or incurred in the ordinary course of business for amounts that are
not yet due and payable and that are not resulting from any breach, violation or default by
Corcoran of any Assumed Contract or applicable Laws; (d) Liens created by or through the
University or any of its affiliates; (e) easements, rights-of-way, restrictions and other Liens not
materially iJnterfering with the present use of, or materially detracting from the value of, the
applicable Contributed Assets subject thereto; (f) Liens that will be released prior to or as of the
Closing Date, including all mortgages and security interests securing indebtedness of Corcoran
listed on Schedule 1.2; (g) any Liens relating to construction conducted pursuant to this
Agreement, with the consent of the University or otherwise in connection with the Renovation;
(h) without limiting the University's rights under Section 9.2(c), any Liens imposed in
connection with the application of the cy pres doctrine to the Corcoran's organizational
documents as further described in Section 5.4(a), and (i) Liens designated as Permitted Liens on
Schedule 1.2.
"Person" means any individual, corporation, partnership, joint venture, limited liability
company, trust, Governmental Entity, unincorporated organization, association or other
organization or entity.
LEGAL_US_E # 108587467. 27

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"PNC" means PNC Bank, National Association.
"PNC Notes" means the notes referenced in the Amendment to Deed of Trust,
Assignment and Security Agreement, effective June 15, 2009, between Corcoran, Joanne T.
Hampson (Trustee) and PNC Bank, encumbering the Fillmore Building and securing repayment
and performance of obligations of Corcoran to PNC Bank as described therein.
"Pre-Closing Period" has the meaning set forth in Section 5.1.
"Preliminary Renovation Plan" has the meaning set forth in Section 6.3(a).
"Proceeds Disbursement Request" has the meaning set forth in Section 2.6( d).
"Randall Street Property" means the property owned by the Corcoran located at 820
Half Street, SW, Washington, D.C. (Sq. 643 S, Lot 801).
"Renovation" has the meaning set forth in Section 6.3(a).
"Renovation Transfer Amount" means the sum of the following: (A) as of the Closing
Date, an amount equal to Thirty Five Million Dollars ($35,000,000), subject to adjustment in
accordance with Section 2.6, comprised of (i) Cash and Cash Equivalents, including the
marketable securities and alternative investments in Corcoran's J.P. Morgan account no.
S30543003, and (ii) that portion of the Clark Estate Settlement Receivable necessary for the sum
of clause (i) and this clause (ii) to equal Thirty Five Million Dollars ($35,000,000), plus (B)
following the Closing Date, the amount payable to the University pursuant to Section 2.6(b)(iii).
(For the avoidance of doubt, the foregoing limitation of the Clark Estate Settlement Receivable
does not limit the final amount of monies the University may receive from the Clark Estate
Proceeds.)
"Required Consents" has the meaning set forth in Section 9.2(d).
"RTA Insufficiency Notice" has the meaning set forth in Section 5.7.
"Software" means any computer software program, together with any error corrections,
updates, modifications, or enhancements thereto, in both machine-readable form and humanreadable form, including all comments and any procedural code.
"Summer Programming" has the meaning set forth in Section 5.5(c).
"Tangible Personal Property" has the meaning set forth in Section 2.1 (b).
"Taxes" means all taxes, charges, fees, duties (including customs duties), levies or other
assessments, including income, gross receipts, net proceeds, ad valorem, turnover, real and
personal property (tangible and intangible), sales, use, franchise, excise, value-added, stamp,
leasing, lease, user, transfer, fuel, excess profits, unrelated business income, occupational,
interest equalization, windfall profits, severance, license, payroll, environmental, capital stock,
disability, employee's income withholding, other withholding, unemployment and Social

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Security taxes, which are imposed by any federal, state, local or foreign Governmental Entity,
and such term shall include any interest, penalties or additions to tax attributable thereto.
"Transaction Documents" has the meaning set forth in Section 11.11.
"Transferred Employees" has the meaning set forth in Section 7.5(c).
"Transition Budget" has the meaning set forth in Section 5.6.
"University" has the meaning set forth in the preamble.
"University-NGA Transaction" has the meaning set forth in the preamble.
1.2
Interpretation. The headings in this Agreement are inserted for convenience only
and shall not constitute a part hereof. Except where the context requires otherwise, whenever
used in this Agreement, the singular includes the plural, the plural includes the singular, the use
of any gender is applicable to all genders and the word "or" has the inclusive meaning
represented by the phrase "and/or." The words "include" and "including" and variations thereof,
shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the
words "without limitation." A reference in this Agreement to an Article, Section, Exhibit or
Schedule is to the referenced Article, Section, Exhibit or Schedule of this Agreement. All
Schedules and Exhibits referenced in this Agreement are incorporated by this reference as if fully
set forth in this Agreement, and all references to this Agreement shall be deemed to include all
such Schedules and Exhibits. The wording of this Agreement shall be deemed to be the wording
mutually chosen by the parties and no rule of strict construction shall be applied against either
party. Unless expressly provided otherwise, all dollar figures in this Agreement are in the
currency of the United States of America. The preamble is intended to be a substantive and
legally binding element of this Agreement.
ARTICLE2CONTRIBUTION OF LEGACY COLLEGE AND CERTAIN OTHER ASSETS
2.1
Contribution and Acceptance ofAssets. Pursuant to the terms and subject to the
conditions of this Agreement, upon and in connection with the Closing contemplated by
ARTICLE 9 hereof, Corcoran agrees to contribute, assign, transfer and deliver to the University,
and the University agrees to assume, acquire and accept from Corcoran, all right, title and
interest of Corcoran in and to, except for the Excluded Assets, all of the assets, properties and
rights of every kind, nature, character and description, whether real, personal or mixed, whether
tangible or intangible, and wherever situated, primarily used in connection with the ownership,
business and operations of the Legacy College, as the same shall exist on the Closing Date (such
assets, properties and rights being referred to as the "Contributed Assets"), free and clear of all
Liens other than Permitted Liens. Without limiting the foregoing, the Contributed Assets shall
include the following assets, properties and rights of Corcoran, without duplication, but only to
the extent relating to the ownership, business and operations of the Legacy College:
(a)

all curriculum and other academic materials;

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(b)
fixed assets, inventory, art supplies, equipment, machinery, furnishings,
computer hardware and software, and fixtures (including furniture, cubicles and fixtures) and any
other tangible personal property (collectively, the "Tangible Personal Property"); provided,
however, that any artwork or fixtures constituting the Existing Collection shall be deemed
Excluded Assets except as expressly set forth below with respect to Permanent Works;
(c)
all ofthe contracts, grants and similar commitments for funding, licenses
and agreements of any kind by which Corcoran is bound in respect of the Legacy College (the
"Contracts"), including those Contracts set forth on Schedule 2.1 (c) (but in all events, exclusive
of all Excluded Contracts) (collectively, the "Assumed Contracts");
(d)
all funds allocated to the business and operations of the Legacy College,
including the following: (i) all operating revenues received in relation to the Legacy College as
of the Closing Date, including all tuition and fees received in respect of enrolled students as of
the Closing Date and students admitted for enrollment for academic terms beginning after the
Closing Date, (ii) the Accounts Receivable, the proceeds thereof and any security therefor, and
(iii) all donor-restricted Corcoran institutional funds allocated for use in relation to the Legacy
College as ofthe Closing Date, an estimate of which aggregate amount as ofthe Effective Date,
which shall in any case be at least Eight Million Dollars ($8,000,000), is set forth on
Schedule 2.1 (d) attached hereto (the "College Transfer Amount");
(e)

the Renovation Transfer Amount;

(f)
all Cash and Cash Equivalents other than Gifts and Endowments and the
Corcoran Retained Funds;

(g)

the Owned Real Property;

(h)
causes of action, lawsuits, judgments, claims and demands of any nature,
whether arising by way of counterclaim or otherwise that are asserted or may be asserted by the
Legacy College;
(i)
all express or implied guarantees, warranties, representations, covenants,
indemnities and similar rights covering the Tangible Personal Property to the extent transferable
by Corcoran;

G)

the goodwill ofthe Legacy College;

(k)
to the extent transferable, all (i) policies for insurance maintained by
Corcoran in respect of the Contributed Assets (the "Existing Insurance") and (ii) insurance
proceeds and insurance awards receivable with respect to any of the Contributed Assets;
(I)
to the extent transferable pursuant to, and otherwise subject to, applicable
Laws, applicable student records, information, files, correspondence, records, data, plans,
reports, and recorded knowledge, and all accounting or other books and records of the Legacy
College, in whatever media retained or stored, including computer programs and disks;

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(m)
files and related correspondence (whether in electronic or hard-copy
format) with funding agencies or other sources of funding for and with respect to the Legacy
College;
(n)
those certain works or art set forth on Schedule 2.1 (n), each of which is
deemed integral to the 17th Street Building (collectively, the "Permanent Works"), and which
Permanent Works, for the avoidance of doubt, are excluded from the Existing Collection for
purposes of the NGA Transaction; and
(o)

all Art Related Materials relating to the Permanent Works.

2.2
Excluded Assets. The University shall not acquire from Corcoran, and the
Contributed Assets shall not include, the following assets, properties and rights of Corcoran
(collectively, the "Excluded Assets"):
(a)
Corcoran's organizational documents, minute books, and corporate seals,
and Corcoran's corporate records and other books and records that pertain to internal corporate
matters of Corcoran;
(b)

the Corcoran Retained Funds;

(c)
all assets, properties and rights of every kind, nature, character and
description, whether real, personal or mixed, whether tangible or intangible, and wherever
situated, used in connection with the Art Collection;
(d)

subject to the License Agreement, all Corcoran Intellectual Property;

(e)
all Corcoran employment Contracts and all other Contracts set forth on
Schedule 2.2(e) (collectively, the "Excluded Contracts");
(f)

all Benefit Plans and assets attributable thereto;

(g)
the Existing Collection and all works of art included therein (exclusive of,
for the avoidance of doubt, Permanent Works) together with all Art Related Materials relating to
such Existing Collection;
(h)

Gifts and Endowments;

(i)

the Randall Street Property;

U)
the Gallery Shop Inventory as of the Closing Date and the right to sell off
such merchandise and all proceeds relating from any sale thereof;
(k)

subject to Section 5.1 0, the Flemish Windows; and

(1)
any of the rights of Corcoran under this Agreement and the other
Transaction Documents.

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2.3
Consideration. In consideration of the contribution, assignment and transfer of
the Contributed Assets and Corcoran's other covenants and obligations hereunder, the University
agrees, pursuant to the terms and subject to the conditions hereof, to (a) assume the Assumed
Liabilities, (b) undertake the Renovation of the 17th Street Building and the operation and
maintenance of the Owned Real Property as contemplated in ARTICLE 6, (c) establish, fund and
operate the GW Corcoran School as contemplated in ARTICLE 7 and (d) perform its other
covenants and obligations set forth herein. The parties hereby acknowledge the sufficiency of
the foregoing and the benefits that each shall obtain from the execution and delivery of this
Agreement, the performance of the covenants and obligations hereunder, and the consummation
of the transactions contemplated hereby.
2.4

Assumed Liabilities; Excluded Liabilities.

(a)
Pursuant to the terms and subject to the conditions of this Agreement,
upon the Closing Date, the University shall assume and agree to pay, perform and discharge only
the following Liabilities of Corcoran (collectively, the "Assumed Liabilities"), and no other
Liabilities:
(i)
all Liabilities in respect of the Assumed Contracts but only to the
extent that such Liabilities thereunder are required to be performed after the Closing Date, were
incurred in the ordinary course of business and do not relate to any failure to perform, improper
performance, warranty or other breach, default or violation by Corcoran on or prior to the
Closing;
(ii)

all Liabilities in respect of the Assumed Accounts Payable;

(iii)
all Liabilities in respect of the ownership, occupancy, operation,
use or control of the Owned Real Property, including obligations of Corcoran in existence as of
the date hereof with respect to the "naming" of galleries and other premises;
(iv)

all Liabilities in respect of the Permanent Works; and

(v)

all Liabilities in respect of the operation of the Legacy College.

(b)
Notwithstanding the provisions of Section 2.4( a) or any other provision in
this Agreement to the contrary, the University shall not assume and shall not be responsible to
pay, perform or discharge any Liabilities of Corcoran or any of its Affiliates of any kind or
nature whatsoever other than the Assumed Liabilities (the "Excluded Liabilities"). Without
limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited
to, all Liabilities set forth in the Transition Budget and each of those certain Liabilities set forth
on Schedule 2.4(b).
(c)
The University shall not be the successor to Corcoran with respect to the
Excluded Liabilities, and the University expressly does not assume and shall not become liable
to pay, perform or discharge, any obligation or liability whatsoever of Corcoran other than the
Assumed Liabilities. Corcoran shall be responsible for the payment, discharge and performance
ofthe Excluded Liabilities.
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2.5

Assumed Contracts Not Freely Assignable.

(a)
Corcoran shall use all commercially reasonable efforts and the University
shall cooperate in all commercially reasonable respects with Corcoran to obtain any consent
necessary for the assignment of any Assumed Contract; provided that no such consents are
conditions to Closing other than those certain Required Consents; and provided further that no
party shall be required to expend any out-of-pocket expenses to obtain any such consent.
(b)
Except as otherwise provided in Section 2.5( d), to the extent that any
Assumed Contract may not be assigned without consent and such consent is not obtained prior to
the Closing, or if an attempted assignment of such an Assumed Contract shall be ineffective,
Corcoran shall use all commercially reasonable efforts to provide the University the benefits of
any such Assumed Contract and, to the extent the University is provided with the benefits of
such Assumed Contract, the University shall perform or discharge on behalf of Corcoran the
Liabilities under such Assumed Contract in accordance with the provisions thereof. In addition
to the University's obligation pursuant to the foregoing sentence, as to any Assumed Contract
that is not effectively assigned to the University as of the Closing but is thereafter effectively
assigned to the University, the University shall, from and after the effective date of such
assignment, assume, and shall thereafter pay, perform and discharge as and when due, all
Liabilities of Corcoran arising under such Assumed Contract.
(c)
Upon Corcoran obtaining any such consent, (i) Corcoran shall promptly
deliver to the University evidence of each such consent and (ii) upon delivery to the University
of such consent, the corresponding Assumed Contract shall be deemed assigned and transferred
pursuant to the terms and subject to the conditions of the Assignment and Assumption
Agreement and the Bill of Sale, effective as of the effective time of such consent, and without
any further action by the parties.
(d)
Corcoran shall use all commercially reasonable efforts and the University
shall cooperate in all commercially reasonable respects with Corcoran to obtain PNC's consent
to the assignment of the PNC Notes to the University in connection with the conveyance of the
Fillmore Building to the University as a Contributed Asset hereunder. In the event that such
consent shall not have been obtained as of the Closing, the parties shall use commercially
reasonable efforts to negotiate and enter into an agreement as of the Closing that provides the
University and Corcoran with substantially the same benefits of conveyance of the Fillmore
Building and assignment of the PNC Notes, and all obligations with respect thereto, as if title to
the Fillmore Building had been conveyed, and the PNC Notes had been assigned, to the
University at the Closing. Nothing in this Section 2.5(d) shall modify the conditions to Closing
set forth in Sections 9.2(i) or 9.20).
2.6
Adjustments to Renovation Transfer Amount. The Renovation Transfer Amount
shall be subject to adjustment as follows:
(a)
Approved Pre-Closing Renovations Adjustment. Without limiting the
provisions of Section 5.3, in the event that the parties agree to conduct any portion of the
Renovation of the 17th Street Building prior to Closing, the Renovation Transfer Amount shall
be reduced by the aggregate amount of the costs and expenses incurred by Corcoran in
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connection with such Renovation consistent with the parties' agreed-upon plans for completing
such portion of the Renovation (including the estimated cost thereof).
(b)
Allocation of Clark Estate Proceeds. It is contemplated that certain
proceeds arising under the Settlement Order in the Estate of Huguette Clark, including amounts
from the sale of a Monet painting by the Estate (the "Clark Estate Proceeds"), will be paid to
Corcoran following the Closing Date. The University and Corcoran acknowledge and agree that
any Clark Estate Proceeds received following the Closing Date shall be distributed as follows:
(i)first, to the University in the amount necessary for the Renovation Transfer Amount to equal
Thirty Five Million Dollars ($35,000,000); (ii) second, to Corcoran in an amount equal to Five
Million Dollars ($5,000,000) minus an amount equal to the Available Corcoran Retained Funds;
and (iii) third, subject to Section 5.8 solely with respect to Corcoran, all remaining amounts and
rights to Clark Estate Proceeds shall be payable in equal amounts to the University and Corcoran
pari passu.
(c)
Illustrative Schedule ofAdjustments. For the convenience of the parties
and by way of example only, Schedule 2. 6(c) contains an illustrative calculation of potential
adjustments to the Renovation Transfer Amount that may result from application of this
Section 2.6.
(d)
Payment of Clark Estate Proceeds. Within three (3) business days
following receipt by Corcoran of the Clark Estate Proceeds, or any portion thereof, Corcoran
shall prepare and deliver to the University a report showing the amount, as of such date, of the
Available Corcoran Retained Funds and the expenses incurred and to be incurred by Corcoran
pursuant to the Transition Budget and the proposed distribution of the Clark Estate Proceeds
calculated in accordance with Section 2.6 (the "Proceeds Disbursement Request"). The
University shall have five (5) business days from receipt thereof to review the Proceeds
Disbursement Request and certify to Corcoran that the University is in agreement with such
Proceeds Disbursement Request or to notify Corcoran if the University disputes any amounts in
the Proceeds Disbursement Request. If the University disputes any amounts in the Proceeds
Disbursement Request, the Parties will meet to discuss in good faith the resolution of such
dispute. Payment by Corcoran to the University in accordance with this Section 2.6 and with
respect to any undisputed amounts in such Proceeds Disbursement Request shall be made by
wire transfer of immediately available funds (or by such other method of payment as may be
agreed by the parties) on the second business day following confirmation by the University to
Corcoran that it is in agreement with the Proceeds Disbursement Request (or any undisputed
amounts therein).
2.7
Uncollected Receivables. For the avoidance of doubt, the parties acknowledge
and agree that all Accounts Receivable shall be a Contributed Asset and the property of the
University as of the Closing. In the event that Corcoran obtains any amounts with respect to
Accounts Receivable properly owing to the University in accordance with the terms hereof,
Corcoran shall promptly pay over such amounts to the University.
2.8
Permanent Works. The parties acknowledge and agree that the Permanent Works
are intrinsic to the 17th Street Building and in connection with the contribution of such
Permanent Works pursuant to this Agreement, the University agrees that the installation of such
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Permanent Works within the 17th Street Building shall be maintained with a standard of care
appropriate for works of art similar in kind and value (or as otherwise mutually agreed by
Corcoran and the University) and in compliance with any applicable donor or other restrictions
on the use, display, exhibition, maintenance or transfer of such Permanent Works (including
those set forth on Schedule 2.1 (n)), subject to customary preservation, conservation or renovation
needs of such Permanent Works as reasonably determined by the University. Following the
Closing, the University shall maintain policies of insurance on the Permanent Works in coverage
amounts and against the types of risks that are consistent with customary practices for
comparable collections. For the avoidance of doubt, (a) the French Window shall not be included
in the Permanent Works and shall be subject to accessioning by NGA as works of the Existing
Collection pursuant to the NGA Accession Agreement (including Section 2.4(d) thereof), and (b)
the French Window shall be treated and subject to the same terms and conditions as other
Accessioned Art to be displayed by NGA in the 17th Street Building.

ARTICLE3REPRESENTATIONS AND WARRANTIES OF CORCORAN
As of the Effective Date and as of the Closing Date, Corcoran represents and warrants to
the University as follows, with each such representation and warranty subject to such exceptions
as are set forth in the Corcoran disclosure schedules attached hereto:
3.1

Organization, Standing and Power; Tax-Exempt Status.

(a)
Corcoran is a Congressionally chartered nonprofit corporation duly
formed, validly existing and in good standing under the Laws of the District of Columbia and the
United States of America. Corcoran has all requisite organizational power and authority to own,
lease and operate its properties and to carry on its business as now being conducted. Corcoran is
duly qualified to do business and in good standing in each jurisdiction in which such
qualification is necessary because of the property owned, leased or operated by it or because of
the nature of its business as now being conducted makes such licensing or qualification
necessary.
(b)
Corcoran is exempt from (i) U.S. income taxation under Section 501(c)(3)
of the Code and (it) from District of Columbia income Tax, sales and use Tax, franchise Tax and
transfer Tax pursuant to the relevant provisions of the District of Columbia Code. Corcoran has
received a determination letter from the Internal Revenue Service ("IRS") that it is exempt from
U.S. income taxation under Section 501(c)(3) ofthe Code, which determination letter is in full
force and effect. No part of the net earnings of Corcoran has inured to the benefit of any private
shareholder or individual within the meaning of Section 501(c)(3) of the Code. Corcoran has
conducted its activities so as to continue to be eligible for Tax-exempt status under Section
501(c)(3) ofthe Code. There is no pending, or, to the knowledge of Corcoran, threatened
challenge to the Tax-exempt status of Corcoran.

Authority; Binding Agreement. The execution and delivery by Corcoran of this
3.2
Agreement and all of the other Transaction Documents to which Corcoran is a party, and the
consummation of the transactions contemplated hereby and thereby, are duly and validly
authorized by all necessary corporate action on the part of Corcoran. Corcoran has all requisite
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corporate power and authority to enter into this Agreement and the other Transaction Documents
to which it is a party, and to consummate the transactions contemplated hereby and thereby, and
this Agreement and the other Transaction Documents to which Corcoran is a party have been
duly executed and delivered by Corcoran. This Agreement and the other Transaction Documents
to which it is a party are the valid and binding obligations of Corcoran enforceable against it in
accordance with its terms, except as enforceability may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar Laws affecting the
enforcement of creditor's rights generally and the application of general principles of equity
(regardless of whether that enforceability is considered in a proceeding at law or in equity).
3.3

Compliance with Laws and Donor Restrictions.

(a)
Corcoran has complied with and is in compliance with all Laws, including
the Uniform Management of Institutional Funds Act, applicable to it or to any of its properties,
assets, operations, and business, the failure of which to so comply would have a Material
Adverse Effect. To the knowledge of Corcoran, there does not exist any basis for any claim of
default under or violation of any Law except such defaults or violations, if any, that in the
aggregate do not and will not have a Material Adverse Effect. For the last six (6) years no notice
has been received by Corcoran, and no investigation or review is pending or, to the knowledge of
Corcoran, threatened by any Governmental Entity with respect to (i) any alleged violation of any
Law for which Corcoran may be liable or which may impact the business, or (ii) any alleged
failure to have all permits, licenses and certificates of authority required in connection with the
operation of the business.
(b)
Corcoran is and has been in compliance with any applicable donor
restrictions in all material respects. To the knowledge of Corcoran, there does not exist any basis
for any Corcoran donor to claim that Corcoran has breached the terms of such donor's restricted
donation. For the last six (6) years no donor of Corcoran has notified Corcoran in writing
alleging that Corcoran has violated the terms of such donor's restricted donation.
3.4
Conflicts; Consents. Except as set forth on Schedule 3.4, the execution, delivery
and performance by Corcoran of this Agreement and the other Transaction Documents to which
Corcoran is a party, and the consummation by Corcoran of any of the transactions contemplated
hereby and thereby, do not and will not in any material respect conflict with, violate, result in a
breach of the terms and conditions of, or, with or without notice or the passage of time, result in
any material breach, event of default or the creation of any Lien under, any Assumed Contract,
any organizational documents of Corcoran or any Law, judgment, order, or decree to which
Corcoran is subject, or require the consent or approval of, or a filing by Corcoran with, any
Governmental Entity.
3.5
Assumed Contracts. Schedule 2.1 (c) sets forth a true and correct list of the
material Assumed Contracts, and Corcoran has provided copies of such material Assumed
Contracts to the University. Except to the extent as would not have a Material Adverse Effect,
(a) all of the Assumed Contracts are, and on the Closing Date all Assumed Contracts will be, in
full force and effect, constituting valid and binding obligations of Corcoran and, to the
knowledge of Corcoran, the other parties thereto and enforceable in accordance with their
respective terms (subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, or
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other similar Laws relating to or affecting the enforcement of creditors' rights generally and
except as such enforceability is subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at Law)), and (b) there exists no
default, or any event which upon notice or the passage of time, or both, could reasonably be
expected to give rise to any default, in any such case, in the performance by Corcoran under any
Assumed Contract.
3.6

Good Title; Ownership of Real Property.

(a)
Schedule 3.6(a) lists all material restrictions (donor, board or otherwise)
currently encumbering the Contributed Assets.
(b)
Corcoran holds valid title to, or valid contract rights to, as applicable, all
of the Contributed Assets, free and clear of all Liens (other than Permitted Liens). At the
Closing, the University will acquire from Corcoran valid title to, or valid contract rights to, as
applicable, all of the Contributed Assets, free and clear of all Liens (other than Permitted Liens).
(c)
Corcoran is the sole owner and has good and valid fee simple interest to
each parcel of Owned Real Property listed on Schedule 1.1, free and clear of any Liens, other
than Permitted Liens. Corcoran is not party to any real property leases, subleases, licenses,
concessions, or other contracts granting to any party or parties the right of use or occupancy of
any portion of any such parcel of Owned Real Property. Corcoran has delivered or otherwise
made available to the University true, correct and complete copies of all deeds, title insurance
reports and policies, exception documents, real property leases and related documents and
information and surveys for the Owned Real Property in Corcoran's possession. Except as
disclosed in Schedule 3. 6(c), there are no parties in possession of any portion of the Owned Real
Property other than Corcoran, whether as lessees, tenants at will, trespassers or otherwise, and
neither Corcoran, nor, to the knowledge of Corcoran, any other Person, has granted any oral or
written right to any Person other than Corcoran to lease, sublease, license or otherwise use or
occupy any of the Owned Real Property. To the knowledge of Corcoran, there are no options or
rights in any third party to purchase or acquire any ownership interest in the Owned Real
Property, including pursuant to any executory contracts of sale, rights of first refusal or options.
3.7
Litigation. There is no material decree, injunction, judgment, order, ruling,
assessment or writ of any Governmental Entity outstanding or Action (i) pending, or to the best
of Corcoran's knowledge threatened, against Corcoran or affecting its business, the Contributed
Assets or the Assumed Liabilities or (ii) which seeks to prohibit, restrict or delay consummation
of the transactions contemplated by this Agreement or any of the conditions to consummation of
such transactions. In the past three years, Corcoran has not been subject to any material Action
(whether or not settled) nor has Corcoran settled any material claim prior to being sued or
prosecuted or a judgment being given in respect of it.

Insurance. Corcoran has, and at all times during the past three (3) years has had,
3.8
insurance policies in full force and effect with reputable insurers, providing for coverages in all
material respects that are sufficient for its business, the Contributed Assets and the Assumed
Liabilities as to both amount and scope. Corcoran's insurance coverages for the current year and
previous three (3) years, including annual premiums, are as described in Schedule 3.8. Corcoran
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is not in default under any such policy or bond. Corcoran has timely filed claims with its
insurers with respect to all material matters and occurrences of which it has knowledge.
3.9
Sufficient Funds; PNC Notes. Assuming payment of the Corcoran Retained
Funds (as may be adjusted pursuant to Section 2.6), Corcoran will have as of the Closing Date,
accrued sufficient funds to (a) pay the full consideration payable hereunder, including the
Renovation Transfer Amount and the College Transfer Amount, (b) make all other necessary
payments by it in connection with the transactions contemplated by this Agreement, including all
fees and expenses related thereto, (c) otherwise perform its covenants and obligations of this
Agreement and the other Transaction Documents and (d) to remain solvent after the
consummation of the transactions contemplated by this Agreement and the NGA Transaction.
The aggregate amount outstanding under the PNC Notes as of May 9, 2014 is $2,900,581.63.
3.10 No Other Representations and Warranties. The University acknowledges and
agrees that, except as otherwise expressly provided in this ARTICLE 3, (a) the Contributed
Assets are bargained, sold, conveyed, transferred, assigned, delegated and released to the
University on an "as is, where is" basis, in their present condition, and without any other
representation or warranty, express or implied, (b) Corcoran makes no other warranty with
respect to any ofthe Contributed Assets, including (i) any warranty of merchantability or fitness
for a particular purpose, (ii) any warranty in respect of condition, title, the absence of
encumbrances of Liens, and quiet enjoyment, (iii) any warranty arising through course of dealing
or usage of trade, and (iv) any liability for any damages, including consequential, direct, indirect,
incidental, exemplary or punitive damages, arising out of, or relating in any way to, the use or
inability to use the Contributed Assets by any Person and regardless of the basis or cause of
action giving rise thereto, and (c) for the avoidance of doubt, with respect to the institutional
funds to be delivered to the University pursuant to Sections 9.2(h) and 9.2(i), (i) at Closing,
Corcoran shall only be obligated to deliver to the University sufficient authority to control the
investment and liquidation of such institutional funds, (ii) Corcoran makes no warranty as to the
timing or process for which any investment allocations may be changed or such institutional
funds may be liquidated, and (iii) risk of any changes in value of such institutional funds after
Closing shall be borne entirely by the University.
ARTICLE4REPRESENTATIONS AND WARRANTIES OF THE UNIVERSITY
As of the Effective Date and as of the Closing Date, the University represents and
warrants to Corcoran as follows:
4.1

Organization, Standing and Power; Tax-Exempt Status.

(a)
The University is a Congressionally chartered nonprofit corporation duly
formed, validly existing and in good standing under the Laws of the District of Columbia and the
United States of America. The University has all requisite organizational power and authority to
own, lease and operate its properties and to carry on its business as now being conducted. The
University is duly qualified to do business and in good standing in each jurisdiction in which
such qualification is necessary because of the property owned, leased or operated by it or
because of the nature of its business as now being conducted, except where any failure,
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individually or in the aggregate, to be so qualified or in good standing could not reasonably be
expected to have a material adverse effect on the business or operations of the University.
(b)
The University is exempt from (i) U.S. income taxation under Section
50l(c)(3) ofthe Code and (ii) from District of Columbia income Tax, sales and use Tax,
franchise Tax and transfer Tax pursuant to the relevant provisions of the District of Columbia
Code. The University has received a determination letter from the IRS that it is exempt from
U.S. income taxation under Section 501 (c)(3) of the Code, which determination letter is in full
force and effect. No part of the net earnings of the University has inured to the benefit of any
private shareholder or individual within the meaning of Section 50l(c)(3) of the Code. The
University has conducted its activities so as to continue to be eligible for Tax-exempt status
under Section 50l(c)(3) ofthe Code. There is no pending, or, to the knowledge ofthe
University, threatened challenge to the Tax-exempt status of the University.
4.2
Authority; Binding Agreement. The execution and delivery by the University of
this Agreement and all of the other Transaction Documents to which the University is a party,
and the consummation of the transactions contemplated hereby and thereby, are duly and validly
authorized by all necessary corporate action on the part of the University. The University has all
requisite corporate power and authority to enter into this Agreement and the other Transaction
Documents to which it is a party, and to consummate the transactions contemplated hereby and
thereby, and this Agreement and the other Transaction Documents to which the University is a
party have been duly executed and delivered by the University. This Agreement and the other
Transaction Documents to which it is a party are the valid and binding obligations of the
University enforceable against it in accordance with its terms, except as enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar Laws affecting the enforcement of creditor's rights generally and the
application of general principles of equity (regardless of whether that enforceability is considered
in a proceeding at law or in equity).
4.3
Sufficient Funds. The University has sufficient funds, when added to the
Renovation Transfer Amount and the College Transfer Amount, to (a) fund the GW Corcoran
School in an amount sufficient to support the transfer of the Legacy College and establishment of
the GW Corcoran School on the terms and conditions set forth herein, (b) subject to Section 6.3,
undertake the Renovation of the 17th Street Building and to operate and maintain the 17th Street
Building and the Fillmore Building on the terms and conditions set forth herein, and (c)
otherwise perform its covenants and obligations of this Agreement and the other Transaction
Documents.
4.4
Regulatory Matters. The University holds all of the licenses, permits,
accreditations and authorizations (collectively, the "Authorizations") required in the applicable
jurisdictions under applicable Laws for the assumption of the Contributed Assets at Closing and
the establishment and operation of the GW Corcoran School from and after the Closing as
contemplated herein. Such Authorizations are in full force and effect and have not been revoked,
suspended, canceled, rescinded or terminated and have not expired. There is not pending, or to
the knowledge of the University, threatened, any action by or before any Governmental Entity to
revoke, suspend, cancel, rescind or materially adversely modify any of the Authorizations.

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4.5
No Other Representations and Warranties. Except as expressly provided in this
ARTICLE 4, the University makes no other representation or warranty, express or implied, to
Corcoran.

ARTICLESINTERIM MATTERS; OTHER COVENANTS
5.1
Cooperation on Interim Matters. From the Effective Date until the Closing (the
"Pre-Closing Period"), the parties shall confer and reasonably cooperate and work together to
ensure an orderly transfer of the operations of the Legacy College to the University, with the
goal of initiating the operations of the GW Corcoran School on the Closing Date, as set forth in
ARTICLE 9.
5.2
Interim Steering Committee. As promptly as reasonably practicable following
the Effective Date, Corcoran and the University shall establish a joint committee (the "Interim
Steering Committee") for the purpose of facilitating decision-making and discussing interim
transfer matters (including, by way of example and not of limitation, (a) the University's use of
premises in the 17th Street Building and Fillmore Building, (b) plans for the Renovation,
(c) receipt of revenues and payment of expenses of the Legacy College, (d) scheduling of special
events and exhibitions, and (e) admissions and other academic matters) during the Pre-Closing
Period. Corcoran and the University shall each have the right to appoint an equal number of
representatives to the Interim Steering Committee, which shall not exceed three (3)
representatives, respectively, unless the parties agree otherwise. The parties' representatives to
the Interim Steering Committee shall be representatives who (i) have responsibility for, and
familiarity with, in the case of Corcoran, the ownership, business and operation of the Legacy
College and, in the case of the University, the University's business as it relates to matters
contemplated by this Agreement and the other Transaction Documents and (ii) the requisite
authority within their respective organizations to make decisions with respect to those business
and non-legal matters customarily addressed by the Interim Steering Committee. Corcoran, on
the one hand, and the University, on the other, may replace its respective representatives to the
Interim Steering Committee from time to time by giving notice to the other party. The Interim
Steering Committee shall be wound down by the parties as promptly as practicable following the
Closing. The Interim Steering Committee shall endeavor to coordinate and integrate with the
NGA and Corcoran personnel working on transition matters arising in connection with the NGA
Accession Agreement, and both such committees shall function jointly as an omnibus committee
as appropriate and to the extent reasonably practicable. The Interim Steering Committee shall
not have the authority to make any decisions inconsistent with the terms of this Agreement or to
amend this Agreement.
5.3
Interim Operating Covenants. During the Pre-Closing Period, Corcoran shall,
except as otherwise expressly contemplated or required hereby or as otherwise consented to in
advance in writing by the University (such consent not to be unreasonably withheld, conditioned
or delayed), operate in the ordinary course of its business, consistent with past practice, and
shall, except as otherwise expressly contemplated or required hereby or as otherwise consented
to in advance in writing by the University (such consent not to be unreasonably withheld,
conditioned or delayed):

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(a)
use its commercially reasonable efforts to preserve intact the goodwill and
business organization of the Legacy College;
(b)
maintain the policies for the Existing Insurance through the Closing Date
and shall cause the University to be added as a named insured to each policy for Existing
Insurance;
(c)
not, other than in the ordinary course of its business, consistent with past
practice, assign, sell, lease (as lessor), transfer or dispose of, or agree to assign, sell, lease (as
lessor), transfer or dispose of, any material Contributed Assets without replacement thereof with
functionally equivalent or superior assets;
(d)
pay and satisfy in the ordinary course of business consistent with past
practice all Excluded Liabilities which shall become due and payable and which Corcoran or an
Affiliate of Corcoran shall be obligated to pay
(e)
not incur, or suffer or permit to exist, any Lien (other than Permitted
Liens) on the Contributed Assets;
(f)
not make or authorize any new capital expenditures, other than (i) those
set forth in the Legacy College budget provided to the University on or prior to the Effective
Date and (ii) capital expenditures under $25,000 in the aggregate;
(g)
not renew, amend or modify any Assumed Contract, other than in the
ordinary course of its business, consistent with past practice;
(h)
not, except as required by applicable Laws, (i) hire any employee of the
Legacy College, or (ii) enter into, renew, amend or modify any Contract with an independent
contractor of the Legacy College other than those (x) with respect to security, (y) in the ordinary
course of business consistent with past practice and terminable as of the Closing, or (z) set forth
on Schedule 5.3(h);
(i)
not enter into any new Benefit Plan or amend any existing Benefit Plan or
grant any increases in employee compensation except for increases in compensation in the
ordinary course of its business, consistent with past practice;

G)
use commercially reasonable efforts to liquidate the Gallery Shop
Inventory and not expend funds to replace such inventory; and
(k)
not agree or commit, whether in writing or otherwise, to take any of the
actions specified in the foregoing clauses.

5.4

Approvals and Proceedings.

(a)
The parties acknowledge and agree that the ability of Corcoran to
consummate the transactions contemplated hereby will require seeking the application of the cy
pres doctrine to the Corcoran's organizational documents, in addition to other approvals by
Governmental Entities. Corcoran shall provide the University with reasonable opportunity to
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review and comment on each filing with a Governmental Entity prior to filing. Corcoran shall
use its reasonable best efforts to file the cy pres application promptly following the Effective
Date.
(b)
With respect to the foregoing and subject to the terms and conditions
herein provided, Corcoran and the University shall use reasonable best efforts to:
(i)
obtain as promptly as practicable any necessary permits, consents,
approvals, waivers and authorizations of, actions or nonactions by, and make as promptly as
practicable all necessary filings and submissions with, any Governmental Entity or any third
party necessary in connection with the consummation of the transactions contemplated by this
Agreement and the other Transaction Documents;
(ii)
cooperate with each other in (A) determining which filings are
required to be made prior to the Closing with, and which material consents, approvals, permits,
notices or authorizations are required to be obtained prior to the Closing from, Governmental
Entities or third parties in connection with the execution and delivery of this Agreement and the
other Transaction Documents and the consummation of the transactions contemplated hereby
and thereby and (B) timely making all such filings and timely seeking all such consents,
approvals, permits, notices or authorizations;
(iii)
cooperate with each other in vigorously defending, contesting and
objecting to any claims, legal proceedings, petitions to deny, objections or other proceedings,
whether judicial or administrative, by or before any Governmental Entity challenging the
transactions contemplated hereby or that would otherwise prevent or materially impede, interfere
with, hinder or delay the consummation of the transactions contemplated hereby, including by
seeking to have any stay or temporary restraining order entered by any Governmental Entity
vacated or reversed;
(iv)
cause the conditions to the Closing set forth in ARTICLE 9 to be
satisfied as promptly as reasonably practicable; and
(v)
take, or cause to be taken, all other actions and do, or cause to be
done, and cooperate with each other in order to do, all other things necessary or appropriate to
consummate the transactions contemplated as soon as practicable.

5.5
Acknowledgements with Respect to Certain Near-Term Special Events and
Commitments of Corcoran. Without limiting the generality of Section 2.1, given the timesensitive nature of certain obligations of Corcoran in connection with the 17th Street Building,
the parties wish to specifically acknowledge the intention of the University to assume and
undertake to pay, discharge and perform such obligations of Corcoran as follows:
(a)
Reference is hereby made to those certain Assumed Contracts for the
rental of the 17th Street Building as a venue for special events between the Effective Date and
December 31, 2014, a list of which is included in Schedule 2.1 (c). In respect thereof, the
University covenants and agrees to assume and undertake to pay, discharge and perform the
obligations of Corcoran under such Assumed Contracts in accordance with their terms and
conditions.
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(b)
Reference is hereby made to the exhibitions scheduled to take place within
the 17th Street Building between the Effective Date and October 1, 2014, a list of which is
attached hereto as Schedule 5.5(b). In respect thereof, the University affirms its commitment to
provide space in the 17th Street Building and hold such exhibitions in a manner consistent with
past practice of Corcoran and otherwise as described in Schedule 5.5(b); provided, however, that
the Corcoran shall bear certain security guard-related third-party expenses incurred with the
operation of such exhibitions as contemplated in the Transition Budget.
(c)
Reference is hereby made to certain summer programs scheduled to be
conducted by Corcoran within the 17th Street Building beginning in approximately May 2014
and continuing through September 2014, a list of which is attached hereto as Schedule 5.5(c) (the
"Summer Programming"). Insofar as such Summer Programming may be conducted following
the Closing, the parties acknowledge and agree that (i) Corcoran shall conduct any such postClosing Summer Programming and bear all costs for, and retain the revenues resulting from,
such Summer Programming, except to the extent that the University agrees to provide limited
post-Closing staffing services related to the Summer Programming for which Corcoran will
reimburse the University for the reasonable, documented expenses incurred by the University in
connection with providing such services, and (ii) the University shall (x) provide Corcoran and
its licensees and guests in relation to such Summer Programming with reasonable access to the
17th Street Building to permit Corcoran to conduct such Summer Programming consistent with
past practice and (y) confer and reasonably cooperate and work together with Corcoran to ensure
the orderly operation of such Summer Programming by Corcoran.
(d)
For the avoidance of doubt, this Section 5.5 shall survive the Closing until
11:59 p.m. on December 31,2014.
5.6

Transition Budget.

(a)
Reference is hereby made to that certain budget prepared by Corcoran
with respect to certain expenses set forth therein to be incurred during the period from the
Closing Date through the anticipated payment of the Clark Estate Proceeds to Corcoran (the
"Transition Budget"), a copy of which has been delivered to the University as of the date hereof
and designated as the "Transition Budget" for purposes of this Section 5.6, and which
Transition Budget includes certain post-Closing operational expenses to be borne by Corcoran as
expressly contemplated hereby. For the avoidance of doubt, the Transition Budget includes an
estimate of the outstanding trade accounts payable of Corcoran for goods and services that will
be accrued but unpaid and not delinquent as of the Closing Date, and which are not Assumed
Accounts Payable.
(b)
Corcoran covenants that, without the consent of the University (not to be
unreasonably conditioned, withheld or delayed), Corcoran shall only make expenditures in
material compliance with the Transition Budget.
(c)
Upon request from the University from time-to-time and on a date not
more than three (3) business days prior to the Closing Date, Corcoran shall provide information
regarding its expenditures and allocations for costs and expenses pursuant to the Transition
Budget and the amount of the Available Corcoran Retained Funds as of such Date.
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I

5.7
Renovation Transfer Amount Insufficiency. In the event that Corcoran
reasonably determines that it is, or is reasonably likely to be, unable to perform its obligation
hereunder to deliver to the University a Renovation Transfer Amount equal to or greater than
Thirty Five Million Dollars ($35,000,000), Corcoran shall promptly deliver notice thereof to the
University, which notice shall include a reasonable explanation of the basis for such
determination (such notice, an "RTA Insufficiency Notice").

Corcoran Support for GW Corcoran School for Dedicated Purposes. Corcoran
5.8
covenants and agrees that the amount payable to Corcoran pursuant to Section 2.6(b)(iii) shall be
deposited by Corcoran into a separate account in the University's endowment to be used solely
for the Dedicated Purposes.
5.9

Audit Rights.

(a)
Corcoran shall keep complete and accurate books and records, including
to the extent applicable electronic records, pertaining to (i) the expenditure of the Corcoran
Retained Funds in accordance with the Transition Budget and (ii) the expenditure of the amount
payable to Corcoran pursuant to Section 2.6(b )(iii) subject to the Dedicated Purposes, in each
case in sufficient detail to calculate the payments payable hereunder, and such books and records
shall be retained by Corcoran in a manner and for a period consistent with Corcoran's customary
records retention policy.
(b)
At the request ofthe University, and at the University's sole cost and
expense, Corcoran shall permit a certified public accountant or a person possessing similar
professional status or associated with a national independent accounting firm or another
accounting firm reasonably acceptable to the both parties, during regular business hours and
upon reasonable notice, to examine those books and records directly pertinent to (i) the
expenditure of the Corcoran Retained Funds in accordance with the Transition Budget and
(ii) the expenditure of the amount payable to Corcoran pursuant to Section 2.6(b)(iii) subject to
the Dedicated Purposes, which books and records are maintained by Corcoran pursuant to
Section 5.9(a);provided, however, that no audit may be conducted with respect to books and
records beyond the scope of such Section 5.9(a). For the avoidance of doubt, any Dispute with
respect to a matter contemplated by this Section 5.9 or arising as a result of the examination of
the books and records under this Section 5.9 shall be subject to Section 11.11. This Section 5.9
shall survive the Closing for a period of eighteen (18) months following the Closing Date.
5 .I 0 Flemish Windows; Replacement. It is the expectation of the parties that the
Flemish Windows will be repatriated to Park Abbey in Louvain (Heverlee), Belgium, with all
costs and expenses of such repatriation and the installation of replacement windows to be borne
by the City of Louvain as the recipient thereof. The parties shall reasonably cooperate with
respect to such repatriation, including the removal of the Flemish Windows and the payment to
the University of the replacement costs relating thereto. To the extent such repatriation occurs
following the Closing, during the time period between Closing and such repatriation,
(a) Corcoran shall retain title to the Flemish Windows, and (b) the University shall (i) be deemed
bailee thereof for the purpose of safeguarding and maintaining the Flemish Windows until such
repatriation is complete and (ii) maintain the Flemish Windows with a standard of care

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appropriate for works of art similar in kind and value (or as otherwise mutually agreed by
Corcoran and the University).

ARTICLE 6 - REAL ESTATE MATTERS
6.1
Name of the 17th Street Building. Effective as of the Closing Date, and in
perpetuity thereafter, the name of the 17th Street Building shall be as mutually agreed by the
parties on or prior to the Closing Date, which name shall in any event include reference to the
Corcoran and University names. The University shall not amend, modify or supplement such
name in any manner without Corcoran's prior written consent, such consent not to be
unreasonably withheld, conditioned or delayed. From and after the Closing Date, the University
shall have the right to name portions of the 17th Street Building and interior spaces thereof in
connection with a program of development and fundraising to support the GW Corcoran School,
provided that the University may not rename any the galleries or other spaces in the 17th Street
Building set forth on Schedule 6.1 hereto.

Use of the 17th Street Building. Corcoran and the University contemplate that
6.2
from and after the Closing Date, the 17th Street Building shall be primarily dedicated to arts
education and to the operation of the GW Corcoran College and use as exhibition space for art in
accordance with the terms and conditions of the definitive agreement executed and delivered in
connection with the University-NGA Transaction, which definitive agreement shall not be
amended by the University in a manner so as to materially reduce the space in the 17th Street
Building dedicated to the exhibition of art. Without limiting the foregoing, except as otherwise
provided herein, following the Closing the University will have the right to use the I ih Street
Building in any manner not inconsistent with this agreement.
6.3

Renovation and Rehabilitation of the 17th Street Building.

(a)
Attached hereto as Exhibit A is an initial, preliminary renovation plan (the
"Preliminary Renovation Plan") that outlines the proposed renovation and rehabilitation of the
17th Street Building (the "Renovation"), including the proposed uses and application of the
Renovation Transfer Amount. The parties acknowledge that the Renovation is intended to be
completed in phases as determined by the University in its sole discretion.
(b)
From and after the Closing Date through substantial completion of the
Renovations, and subject to applicable Laws (including the resolution, if any, of the application
of the cy pres doctrine to Corcoran's organizational documents or similar proceedings in
connection with the consummation of the transactions contemplated hereby) and this Section 6.3,
the University may amend, modify or supplement the Preliminary Renovation Plan in its sole
discretion after consultation in good faith with Corcoran, provided that the Renovation Transfer
Amount may be used only for the Renovation (as such may be modified by the University in
accordance with the foregoing). The University shall bear all costs of every kind and nature
related to the Renovation, whether pursuant to the Preliminary Renovation Plan or otherwise,
over and above the Renovation Transfer Amount.

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(c)
From and after the Closing Date through substantial completion of the
Renovations, the University shall periodically update and consult with Corcoran on the status of
the Renovations, including plans for future phases thereof.
(d)
From and after the Closing Date, the University shall bear all costs of
every kind and nature related to the operation of the 17th Street Building and (subject to
subparagraph (f) of this Section 6.3 below) the Fillmore Building, in accordance with and subject
to the definitive agreement between the University and NGA regarding gallery and exhibition
space, at level that is at least equal to the level of other University buildings that require similar
degrees of access, security and environmental controls, but in no event at a level less than that
which (i) is appropriate for the use of the buildings as contemplated hereby or (ii) is reasonably
necessary for the preservation and protection of the art, including the Permanent Works and
otherwise in accordance with any agreements between NGA and the University.
(e)
Other than as expressly set forth in this Agreement, in no event shall
Corcoran be required to make payments towards the Renovation or the operation and
maintenance of the 17th Street Building or the Fillmore Building.
(f)
The parties acknowledge that the University plans to sell the Fillmore
Building and use the proceeds therefrom in support of the operation of the GW Corcoran School
or the Renovation. The University reserves the right to continue the use of the Fillmore Building
for arts education uses until such time as those uses are transferred to another location or
otherwise determined in accordance with the operation of the GW Corcoran School.

ARTICLE7ESTABLISHMENT AND OPERATION
OF THE GW CORCORAN SCHOOL
7.1

Establishment of the GW Corcoran School.

(a)
In connection with the transfer of the Legacy College, the University
covenants and agrees to establish a new school for art and design within the University under a
name to be mutually agreed by the parties on or prior to the Closing Date, which name shall in
any event include reference to the Corcoran name (the "GW Corcoran School"). On the
Closing Date, the GW Corcoran School shall be established as a continuation of the Legacy
College within the University. The University shall operate the GW Corcoran School as a
separate and distinct entity integrated within the University system that honors the legacy of the
Legacy College and preserves and continues the reputation, mission and brand of the Legacy
College. In its operation of the GW Corcoran School, the University shall endeavor to maintain
the academic quality and artistic mission of the Legacy College as of the Closing Date, including
by seeking to preserve and foster the culture, character and diverse nature of the student body as
of the Closing Date.
(b)
At such time and over such period as determined in the sole discretion of
the University, the University may integrate current arts programs at the University (e.g., Fine
Arts, Interior Architecture and Design, and Museum Studies) with programs of the GW Corcoran
School.
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(c)
From and after the Closing Date, the name ofthe GW Corcoran School
shall remain in perpetuity as set forth in Section 7.1 in accordance with the terms ofthe License.
Exhibit C hereto describes the intent of Corcoran and the University
(d)
regarding the operation of the GW Corcoran School by the University after the Closing Date,
subject to the following obligations:

(i)
The GW Corcoran School shall continue to have a significant
presence in the District of Columbia and at the 17th Street Building in perpetuity, in such manner
as shall be determined by the University in its discretion;
(ii)
The University shall permit cross-registration by students of the
GW Corcoran School and students at all other programs and schools in the University system on
reasonable terms and conditions as determined by the University in order to facilitate integration
of the GW Corcoran School into the University system;
(iii)
The University shall make all determinations regarding the
awarding of degrees to the students of the GW Corcoran School and shall award such degrees
under its own authority. Without limiting the foregoing, with respect to students enrolled or
accepted for enrollment at the Legacy College as of the Closing Date, Corcoran and the
University shall confer in good faith and jointly formulate a designation to appear on every
degree granted by the GW Corcoran School after the Closing Date to such students;
(iv)
The University will grant admission to students currently enrolled
and in good standing at the Legacy College to the GW Corcoran School with status substantially
similar to such students' status at the Legacy College (e.g., a second year undergraduate student
in good standing pursuing a degree as of the end of the spring 2014 term at the Legacy College
would be admitted by the University for the fall 2014 term as a third year undergraduate student
in good standing pursuing a degree at the GW Corcoran School);
(v)
All students who have been admitted to the Legacy College will
have their degree requirements grandfathered on substantially similar terms at the GW Corcoran
School;
(vi)
Students currently enrolled and in good standing at the Legacy
College who continue their course of study at the GW Corcoran School will continue to be
charged tuition and all other fees at the level existing at the Legacy College as of the Closing
Date (subject to adjustment on an annual basis consistent with past practices in an amount to be
determined by the University) for all courses that are offered within the GW Corcoran School or
that are required for such students' degree until the later of such students' respective graduation
dates or the end of the 2017-2018 academic year;
(vii) The University shall grant admission to the GW Corcoran School
for a substantially similar program of study to all students accepted for admission, but not yet
enrolled, at the Legacy College as of the Closing Date (e.g., students accepted for enrollment for
the Legacy College autumn 2014 term), provided that any previously admitted student may have
their offer rescinded if such admitted student violates any existing terms of acceptance imposed
by the Legacy College.
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7.2
University Control and Oversight. Subject to the terms and conditions of this
ARTICLE 7, the University shall have ultimate oversight and control of the GW Corcoran
School and its successors from and after the Closing Date, including with respect to course
requirements, curriculum development, academic standards, admissions, faculty appointment and
oversight, administration and support staff and all other things related to the GW Corcoran
School.
7.3
University Funding Support. From and after the Closing Date, the University
shall provide funding for the GW Corcoran School so as to support the transfer of the Legacy
College and the establishment of the GW Corcoran School on the terms and conditions set forth
herein. The University shall bear all costs (including faculty salaries, employee benefits,
classroom and studio space, operations, capital expenses, etc.) and receive all revenues
(including tuition funds, fees, grants, etc.) associated with the operation of the GW Corcoran
School from and after the Closing Date.
7.4
College Transfer Amount. The University shall use the College Transfer
Amount solely in connection with the operation of the GW Corcoran School. The University
acknowledges and agrees that certain portions of the College Transfer Amounts may be subject
to temporary or permanent donor or other restrictions on the use of such funds (e.g., scholarship
funds, prizes, etc.). Such restrictions have been described to the University and the University
agrees to fully comply with such restrictions.

7.5

Transferred Employees.

(a)
The University shall offer employment to the Legacy College full-time,
ranked faculty members listed on Schedule 7.5(a) through a non-tenure accruing faculty
appointment at a rank comparable to the rank the faculty members currently hold at the Legacy
College, the term of which, if accepted, shall commence on the Closing Date and end on
August 14, 2015. Such faculty appointment will be considered a one year term solely for
purposes of Article V.B.l.a of the University's Faculty Code and will be at the same base salary
as under their current appointment with Corcoran. Terms and conditions of employment,
including eligibility for University benefits programs, and termination and non-renewal of
employment (on the same or different terms), will be governed by University policies, including
the University's Faculty Code. Corcoran acknowledges that, consistent with University policy,
transferred faculty will not accrue annual or sick leave. The written offer of employment will be
in the form substantially similar to Exhibit D hereto. Such faculty will be given ten (1 0) calendar
days upon receipt of the University's written offer of employment to accept or reject the offer.
Nothing herein shall limit or restrict the discretion of the University to terminate the employment
of any such transferred faculty under the University's Faculty Code at any time. In the event a
faculty member rejects the offer of employment from the University, the University shall have
no further obligations with respect to that faculty member.
(b)
The University shall offer employment to the Legacy College non-faculty
employees listed on Schedule 7.5(b) at their current base salaries. The University reserves the
right to revise such employees' current job titles and responsibilities in order to meet the
University's business needs. Corcoran and the University acknowledge that Schedule 7.5(b), as
of the Effective Date, is not complete and shall be amended, from time to time by the parties
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prior to the Closing Date. Terms and conditions of employment, including eligibility for
University benefits programs, will be governed by University policies. At all times, any nonfaculty employee shall be, like other University staff employees, an "at-will" employee. The
University agrees that if it terminates the employment of any such transferred non-faculty
employees during the first six months after hire except for Cause (as defined herein), it will pay
the terminated employee a lump sum, as severance, an amount equivalent to the employee's base
salary for the balance of the six (6) month period (less taxes). Payment of severance will be
made within ten (1 0) business days after receipt by the University of a release signed by the
terminated employee in the form prescribed by the University. Such employees will be given ten
(1 0) days upon receipt of the written offer of employment to accept or reject the offer. In the
event a non-faculty employee rejects the offer of employment from the University, the
University shall have no further obligations with respect to that non-faculty employee.
(c)
GW will apply to a Transferred Employee any applicable waiting periods
for benefits programs under GW policies (e.g. GW tuition remission, and long and short term
disability.)
(d)
With respect to each Legacy College faculty and other employee identified
in Sections 7.5(a) and 7.5(b) who accepts such offer (collectively, the "Transferred
Employees"), at Closing employment with Corcoran shall terminate and employment with the
University shall commence on the terms and conditions set forth in this Section 7.5. The
University shall have no obligation to or liability for any Legacy College faculty or employee
who is not a Transferred Employee. Corcoran shall offer and, if elected, provide group health
continuation coverage under Part 6 ofTitle I of ERISA and Section 4980B of the Code
("COBRA") to each individual who is or becomes an "M&A qualified beneficiary" within the
meaning of Treasury Regulation§ 54.4980B-9, Q&A-4(a).
(e)
Corcoran shall pay, discharge, and be responsible for (i) all salary or
wages, bonuses, commissions, accrued but unused leave, and other compensation arising out of
or relating to the employment of the Transferred Employees prior to the Closing Date and
(ii) any employee benefits arising under the Benefit Plans with respect to the period prior to the
Closing Date. From and after the Closing Date, the University shall pay, discharge and be
responsible for (A) all salary, wages, and benefits arising out of or relating to the employment of
the Transferred Employees by the University on and after the Closing Date and (B) all severance
Liabilities for any of the Transferred Employees.
(f)
The GW Retirement Plan for Faculty and Staff("40l(a) Plan") provides
for University base and matching contributions. The base contribution is an amount equal to 4%
of the Participant's Compensation for the Plan Year. Matching contributions equal 150% of the
amount that the Participant contributed to the University Supplemental Retirement Plan ("403(b)
Plan"), up to a maximum 6% of the Participant's Compensation for the Plan Year. Two years of
service at the University are required for participation in the 401(a) Plan. Prior creditable service
with another educational organization described in IRC Section 170(b)(I )(A)(ii) or 511 (a)(2)(B),
or with a college or university located outside the United States with accreditation, or a similar
designation, from the country where the college or university is located, may count towards the 2
year service requirement. Service with Corcoran does not meet either of these requirements.
Accordingly, GW will make retirement base and matching contributions to the 401(a) Plan for
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Transferred Employees who meet the two-year service requirement described above as a result
of prior service with a qualifying educational organization. For those Transferred Employees
that do not meet the prior service requirement, OW will provide such employees with
supplemental compensation (subject to income and employment taxes) equal to the base and
matching contributions that would have been made to the 401(a) Plan on their behalf if they had
met the service requirement. Such supplemental compensation shall be paid prior to the end of
the one year term and shall not be considered as an employee's base salary for purposes of
calculating any future merit pay increase or for any other purpose.
(g)
Corcoran shall be responsible for all Liabilities under the Worker
Adjustment and Retraining Notification Act and any similar applicable state or District of
Columbia Law resulting from actions occurring prior to or contemplated on the Closing. The
University shall be responsible for all Liabilities under the Worker Adjustment and Retraining
Notification Act and any similar applicable state or District of Columbia Law resulting from the
University's actions following the Closing.
(h)
Without limiting the generality of Section 11.16, nothing contained herein,
expressed or implied, is intended to confer upon any Transferred Employee any right to
continued employment for any period of time by reason ofthis Agreement.

(i)
Corcoran shall terminate effective no later than the Closing Date, and shall
pay, discharge and be responsible for all salary or wages, bonuses, commissions, accrued but
unused leave or vacation, employee benefits, and any other compensation arising out of or
relating to the termination of employment of, any Legacy College faculty or employees who are
not Transferred Employees.

GW Corcoran School Advisory Board. The parties acknowledge and agree that
7.6
the University may in its sole and absolute discretion form an advisory board in the course of the
establishment and operation of the OW Corcoran School. To the extent reasonably feasible, the
University may choose, at its sole and absolute discretion, to invite at least' one (1) representative
from Corcoran to participate on any such advisory board, if and when formed, as a board
observer.

ARTICLESCONTINUATION OF CORCORAN MISSION; ESTABLISHMENT OF JOINT
ADVISORY COMMITTEE
It is acknowledged that in order to fulfill its legal duties as the holder of the federal
charter and its responsibilities under the terms of this and related agreements, Corcoran will
continue following the Closing as a legal entity committed to its original mission: "Dedicated to
Art and Encouraging American Genius" and in that manner Corcoran will continue its 145 year
history of pursuing and supporting new art and new ideas. As a continuing entity, Corcoran will
seek to support stewardship of the Corcoran name and legacy, to consult with and provide advice
toNGA and the University on programs and interconnected activities of such institutions, and to
promote the important role of contemporary art and artists in provoking new thinking and
realizing new exciting cultural initiatives. Insofar as Corcoran will continue in existence
following the Closing and will develop a program for the fulfillment of its mission as an
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institution dedicated to art and encouraging American genius, the parties desire to establish a
framework for future potential collaboration and exploration of joint activities, as follows:
(a)
The parties desire to (i) establish an ongoing relationship to integrate the
mission ofthe Corcoran with the mission of the University in respect ofthe University's
establishment and operation of the GW Corcoran School, (ii) support the University's
stewardship of the Corcoran name and legacy, (iii) facilitate programs or other interconnected
activities of the University and Corcoran, and (iv) promote the important role of contemporary
art and artists in provoking new thinking and realizing new exciting cultural initiatives.
(b)
In connection with the foregoing, as soon as reasonably practicable
following the Closing, Corcoran and the University shall form a joint advisory committee (the
"Joint Advisory Committee") for the purposes of conferring with one another with respect to
the parties' performance of their respective covenants and agreements hereunder and under the
other Transaction Documents and endeavoring to jointly undertake such other actions or
activities as the parties may agree from time to time in furtherance of the purposes of this
Agreement and their ongoing respective missions.
(c)
The University and Corcoran shall each have the right to appoint an equal
number of representatives to the Joint Advisory Committee, which shall not exceed two (2)
representatives, respectively, unless the parties agree otherwise. The University, on the one
hand, and Corcoran, on the other, may replace its respective representatives to the Joint Advisory
Committee from time to time by giving notice to the other party.
(d)
The Joint Advisory Committee shall meet from time to time, but in any
event no less frequently than once every two (2) years. The Joint Advisory Committee shall
establish its own procedures with respect to the conduct of its meetings, provided that the
University, on the one hand, and Corcoran, on the other, shall propose any matters for the agenda
of each meeting of the Joint Advisory Committee reasonably in advance by notice to the
members of the Joint Advisory Committee. The parties shall in good faith coordinate with one
another to establish the schedule of meetings for the Joint Advisory Committee as contemplated
hereby. The parties may agree to dissolve the Joint Advisory Committee at any time upon mutual
agreement.

ARTICLE9CONSUMMATION OF THE TRANSACTION
9.1
Closing. Pursuant to the terms and subject to the conditions of this Agreement,
including as set forth in Sections 9.2 and 9.3 below, the consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices of the University,
2100 Pennsylvania Avenue, N.W., Washington, D.C., at 10:00 a.m. local time, three (3)
business days after the conditions set forth in this ARTICLE 9 are satisfied or, if permissible,
waived, or on such other date as mutually agreed by the parties (such date of the Closing
hereinafter referred to as the "Closing Date"), provided that in no event shall the Closing be
prior to August 12, 2014.

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9.2
Conditions to Obligations of the University. The obligations of the University to
consummate the transactions contemplated by this Agreement at the Closing are subject to the
satisfaction or waiver by the University of the following conditions:
(a)
The representations and warranties of Corcoran contained herein that are
qualified by materiality or subject to thresholds shall be true and correct in all respects, and the
representations and warranties of Corcoran contained herein that are not so qualified shall be true
and correct in all material respects, in each case as of the Effective Date and the Closing Date as
if made on and as of the Closing Date.
(b)
Corcoran shall have performed and complied in all material respects with
all covenants and agreements required to be performed or complied with on or prior to the
Closing Date.
(c)
The parties shall have obtained final resolution of the application of the cy
pres doctrine to Corcoran's organizational documents in a manner reasonably satisfactory to the
University.
(d)
The consents and approvals listed on Schedule 9.2(d) (the "Required
Consents") shall have been obtained and delivered to the University.
(e)

There shall have been no Material Adverse Effect following the Effective

Date.
(f)
The NGA Transaction shall be consummated substantially simultaneously
with the Closing of the transactions contemplated hereby (for the avoidance of doubt, without
respect to those certain obligations to be performed thereunder following the closing thereunder).
(g)
The University and NGA shall have executed and delivered definitive
agreements in respect of the University-NGA Transaction in a form reasonably satisfactory to
the University.
(h)
The University shall have received (i) with respect to any cash comprising
the College Transfer Amount, such amount by wire transfer of immediately available funds, plus
(ii) with respect to any institutional funds comprising the College Transfer Amount, such
documentation as may be reasonably necessary to confer upon the University authority to control
the investment or effect the liquidation of such amount.
(i)
The University shall have received such documentation as may be
reasonably necessary to confer upon the University authority to control the investment or effect
the liquidation of an aggregate amount equal to the Renovation Transfer Amount or, with respect
to any portion of the foregoing that shall be accrued but unpaid as of the Closing, such
documentation as may be reasonably necessary to assign to, and confer upon, the University the
right to the applicable accrued payment.

G)
The University shall have reasonably determined that Corcoran is, or is
reasonably likely to be, able to perform its obligation hereunder to deliver to the University a
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33

Renovation Transfer Amount equal to at least Thirty Five Million Dollars ($35,000,000), taking
into consideration the reasonably anticipated proceeds of the Clark Estate Settlement Receivable.
(k)

The University shall have received or Corcoran shall stand ready to

deliver:
a certificate, dated as of the Closing Date, duly executed by an
(i)
authorized officer of Corcoran, certifying that:
(A)

the conditions set forth in Sections 9.2(a) and 9.2(b) have

been fulfilled;
all documents to be executed by Corcoran and delivered at
(B)
the Closing have been executed by a duly authorized officer of Corcoran; and
Corcoran's charter and bylaws, attached to the
(1)
(C)
certificate, are true and correct, (2) such organizational documents have been in full force and
effect in the form attached since the date of the adoption of the resolutions referred to in clause
(3) below and no amendment to such organizational documents has occurred since the date of the
last amendment annexed thereto, if any, and (3) the resolutions adopted by the board of trustees
of Corcoran authorizing the execution, delivery and performance of this Agreement, attached to
the certificate, were duly adopted at a duly convened meeting thereof, at which a quorum was
present and acting throughout or by unanimous written consent, remain in full force and effect,
and have not been amended, rescinded or modified, except to the extent attached thereto;
the following documents duly executed by Corcoran: (A) a
(ii)
trademark license agreement with respect to the "Corcoran" mark as contemplated in the
preamble to this Agreement based on the form attached hereto as Exhibit B, as further negotiated
by the parties to implement their discussions prior to the execution of this Agreement (the
"License Agreement"); (B) a bill of sale, instruments of accession with respect to the Permanent
Works, and instruments of assignment, certificates of title documents, deeds and other
conveyance documents, dated as of the Closing Date, to effect the transfer to the University of all
of Corcoran's right, title and interest in and to the Contributed Assets, together with possession
of the Contributed Assets, in form and substance reasonably satisfactory to the parties hereto (the
"Bill of Sale"); and (C) an assignment and assumption agreement, executed by Corcoran,
assigning the Assumed Contracts, and pursuant to which the University assumes the Assumed
Contracts and the Assumed Liabilities, in form and substance reasonably satisfactory to the
parties hereto (the "Assignment and Assumption Agreement"); and
(iii)
may reasonably request.

such other documents, certificates or instruments as the University

The University shall have received either (i) PNC's written consent to the
(l)
Notes or (ii) an executed definitive agreement in respect of the PNC
PNC
assignment of the
Notes as contemplated in Section 2.5(d) in a form and substance reasonably satisfactory to the
University.

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34

Conditions to Obligations of Corcoran. The obligations of Corcoran to
9.3
consummate the transactions contemplated by this Agreement at the Closing are subject to the
satisfaction or waiver by Corcoran of the following conditions:
The representations and warranties of the University contained herein that
(a)
are qualified by materiality or subject to thresholds shall be true and correct in all respects, and
the representations and warranties of the University contained herein that are not so qualified
shall be true and correct in all material respects, in each case as of the Effective Date and the
Closing Date as if made on and as ofthe Closing Date.
The University shall have performed and complied in all material respects
(b)
with all covenants and agreements required to be performed or complied with on or prior to the
Closing Date.
The parties shall have obtained final resolution of the application of the cy
(c)
pres doctrine to Corcoran's organizational documents in a manner reasonably satisfactory to
Corcoran.
The NGA Transaction shall be consummated simultaneously with the
(d)
Closing of the transactions contemplated hereby.
The University and NGA shall have executed and delivered definitive
(e)
agreements in respect of the University-NGA Transaction in a form reasonably satisfactory to
Corcoran.

(f)

Corcoran shall have received or the University shall stand ready to deliver:

a certificate, dated as of the Closing Date, duly executed by an
(i)
authorized officer of the University, certifying that:
(A)

the conditions set forth in Sections 9.3(a) and 9.3(b) have

been fulfilled; and
all documents to be executed by the University and
(B)
delivered at the Closing have been executed by a duly authorized officer of the University; and
the following documents duly executed by the University:
(ii)
(A) License Agreement, (B) the Bill of Sale, (C) the Assignment and Assumption Agreement,
and (D) such other documents, certificates or instruments as Corcoran may reasonably request.

ARTICLE 10- TERMINATION
10.1 Termination. In addition to other remedies available at Law or equity, this
Agreement may be terminated as set forth below by either Corcoran or the University upon the
occurrence of any of the following prior to the Closing:
(a)

LEGAL_US_E # 108587467. 27

the mutual written consent of both parties;

35

(b)

the termination ofthe NGA Accession Agreement;

(c)
if the parties' request for application of the cy pres doctrine to Corcoran's
organizational documents shall have been denied by final judgment in accordance with
applicable Laws;
(d)
if the other party is in material breach of any of its representations,
warranties, covenants, agreements or obligations hereunder and has failed to cure such breach
within thirty (30) days of notice from the non-breaching party; provided that the party seeking to
terminate the Agreement pursuant to this paragraph (d) is not then in material default or breach
hereunder;
(e)
Effective Date; or
(f)

if the Closing shall not have occurred as of the first anniversary of the

at any time following delivery of an RTA Insufficiency Notice pursuant to

Section 5.7.
10.2

Procedure and Effect of Termination.

(a)
Any termination by either party pursuant to Section 10.1 shall be
communicated by a written notice to the other party (the "Notice of Termination"). The Notice
of Termination shall indicate the termination provision in this Agreement claimedto provide a
basis for termination ofthis Agreement. Termination of this Agreement pursuant to the terms
and subject to the conditions of Section 10.2 shall be effective upon and as of the date of delivery
of a Notice of Termination.
In the event of the termination of this Agreement pursuant to Section 10.1,
(b)
this Agreement shall forthwith become null and void and have no effect, and the obligations of
the parties under this Agreement shall terminate, except for this Section 10.2, Section 10.3 and
ARTICLE 11, which shall survive indefinitely. Nothing in this ARTICLE 10 shall relieve either
party of any liability for a breach of this Agreement prior to the termination hereof.
(c)
For the avoidance of doubt, in the event this Agreement is terminated prior
to the Closing, Corcoran shall not be obligated to enter into the License Agreement.
10.3 Withdrawal ofCertain Filings. All filings, applications and other submissions
relating to the transactions contemplated by this Agreement as to which termination has occurred
shall, to the extent practicable, be withdrawn from the Governmental Entity or other Person to
which made.

ARTICLE 11- MISCELLANEOUS PROVISIONS
11.1 Survival of Representations, Warranties and Agreements. None of the
representations, warranties, covenants and agreements in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive beyond the Closing, except for (a) those
covenants and agreements set forth in this Agreement that by their terms contemplate
performance in whole or in part after the Closing, including Sections 2.8, 5.5, 5.6, 5.8, 5.9 and
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36

5.1 0, ARTICLE 6 and ARTICLE 7, which shall survive until fully performed and discharged or
at such time as specified therein, and (b) those contained in this ARTICLE 11.
11.2 Confidentiality. Information concerning either Corcoran or the University's
business methods, financial information, future plans, personnel data, trade secrets, information
systems, financial and accounting policies or similar matters, or information designated as
"confidential" by the disclosing party or released under circumstances where a reasonable Person
would understand that such information is to be treated as confidential, shall be treated as
confidential. The party receiving such confidential information shall take the same precautions
as it takes to protect its own confidential information, but in all events reasonable precautions
shall be taken, in order to preserve its confidentiality. Confidential information shall not be
revealed to third parties without the written consent of the disclosing party, and neither Corcoran
nor the University may use the other party's confidential information for any purpose except for
purposes of performing this Agreement. This confidentiality requirement shall not apply to:
(a) information in the public domain, (b) information independently developed by either party
without use of the other party's confidential information, (c) information received by either party
from a third party under no duty of confidentiality, and (d) a disclosure of information that is
required by Law. The obligations of the parties under this Section 11.2 shall survive the Closing
or the termination of the Agreement for a period of five (5) years after such Closing or
termination, as applicable.
11.3 Publicity, Marks and Use of Names. Except as permitted by the License
Agreement, neither party shall use the name, logo, insignia, or trademarks of the other party or
any of the other party's trustees, directors, officers, employees, or agents, in any press release,
fund-raising, website, or product advertising, or for any other promotional purpose, without first
obtaining the written consent of the other party.
11.4 Public Announcement. At the time of the Closing, Corcoran and the University
shall release a public announcement and hold an event announcing the GW Corcoran School at
such time, place and in such manner as shall be mutually agreed by the parties.
11.5 Cooperation Following the Closing. Following the Closing, each party shall
deliver to the other party such further information and documents and shall execute and deliver
to the other party such further instruments and agreements as any other party shall reasonably
request to consummate or confirm the transactions provided for herein, to accomplish the
purpose hereof or to assure to any other party the benefits hereof.
11.6 Notices. All notices, requests, demands and other communications which are
required or may be given pursuant to the terms of this Agreement (including Notices of
Termination) shall be in the English language and in written or electronic form, and shall be
deemed delivered (a) on the date of delivery when (i) delivered by hand or (ii) sent by reputable
overnight courier maintaining records of receipt and (b) on the date of transmission when sent by
facsimile or other electronic transmission during normal business hours with confirmation of
transmission by the transmitting equipment; provided that any such communication delivered by
facsimile or other electronic transmission shall only be effective if such communication is also
delivered by hand or deposited with a reputable overnight courier maintaining records of receipt
within two (2) business days after its delivery by facsimile or other electronic transmission. All
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37

such communications shall be addressed to the parties at the addresses set forth below, or at such
other address as a party may designate upon ten (1 0) days' prior written notice to the other party.
Ifto Corcoran:
Corcoran Gallery of Art
500 17th Street, N.W.
Washington, DC 20006
Attention: General Counsel
Phone: (202) 365-7327
Fax: (202) 639-1738
with a copy to:
Charles A. Patrizia
Paul Hastings LLP
875 15th Street, N.W.
Washington, D.C. 20005
Phone:(202)551-1710
Fax: (202) 551-1705
If to the University:
The George Washington University
2121 Eye Street, N.W.
Suite 701
Washington, DC 20037
Attention: Steven Knapp, President
Phone: (202) 994-6500
Fax: (202) 994-0654
with a copy to:
Beth Nolan
The George Washington University
21 00 Pennsylvania Avenue, N. W.
Suite 250
Washington, DC 20052
Phone: (202) 994-3434
Fax: (202) 944-4640
Kevin J. Lavin
Arnold & Porter LLP
555 Twelfth Street, N.W.
Washington, DC 20004-1206
Phone: (202) 942-5461
Fax: (202) 942-5999
11.7 Amendments. Amendments to this Agreement shall be made by mutual consent
of the parties, by the issuance of a mutually agreed upon written instrument, signed and dated by
authorized officials of Corcoran and the University, prior to any changes being performed.
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11.8 Waiver. Any agreement on the part of a party to any extension or waiver of any
provision hereof shall be valid only if set forth in an instrument in writing signed on behalf of
such party. A waiver by a party of the performance of any covenant, agreement, obligation,
condition, representation or warranty shall not be construed as a waiver of any other covenant,
agreement, obligation, condition, representation or warranty. A waiver by any party of the
performance of any act shall not constitute a waiver of the performance of any other act or an
identical act required to be performed at a later time.
11.9 Assignment. Neither party may assign or transfer any rights or obligations in this
Agreement except with the prior written consent of the other party, except that the University
shall always have the right, without such consent, to perform any or all of its obligations and
exercise any or all of its rights under this Agreement through any of its affiliates. Any attempted
assignment or delegation in violation of this Section 11.9 shall be void.
11.10 Governing Law. This Agreement shall be governed by the Laws of the District of
Columbia, excluding any conflicts or choice of Law rules or principles that might otherwise refer
construction or interpretation of this Agreement to the substantive Law of another jurisdiction.
11.11 Mediation; Dispute Resolution; Remedies. Any dispute, controversy or claim
arising out of or in connection with this Agreement, the License Agreement or the other
agreements, certificates and documents delivered in connection herewith or otherwise in
connection with the transactions contemplated hereby and thereby (collectively, the
"Transaction Documents"), and the rights and obligations of the parties under the Transaction
Documents, including any question regarding their existence, validity or termination (a
"Dispute") shall be subject to the following procedures:
(a)
As an initial Dispute resolution procedure hereunder, the parties shall
attempt in good faith to resolve any such Dispute promptly by negotiation between officers of
the parties who have sufficient authority to settle such Dispute and who are at a higher level of
organizational or management authority than the Persons from such party who then have direct
responsibility for administration of the provisions of this Agreement then under dispute. The
foregoing process may be initiated by either party upon written notice to the other of any Dispute
that not resolved in the ordinary course of business. Within fifteen ( 15) days after delivery of
such notice, the receiving party shall submit to the other a written response. The notice and
response shall include (i) a statement of that party's position with respect to the Dispute and a
summary of arguments supporting that position, and (ii) the name and title of the officer who
will be the principal liaison for such party with respect to this Section 11.11 (a) and of any other
Person who will accompany such officer. Within thirty (30) days after delivery of the initial
notice, the designated liaisons of both parties shall meet at a mutually acceptable time and place,
and thereafter as often as they reasonably deem necessary, to attempt to resolve the Dispute. All
reasonable requests for information made by one party to the other shall be honored to the extent
reasonably practicable. All negotiations pursuant to this clause shall be confidential in
accordance with Section 11.2 and shall be treated as compromise and settlement negotiations for
purposes of applicable rules of evidence.
(b)
In the event that a matter subject to the foregoing procedure has not been
resolved by negotiation as provided herein within forty~five (45) days after delivery ofthe initial
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39

notice contemplated by Section 11.11(a), or ifthe parties have failed to meet as contemplated
thereby within twenty (20) days of such notice, the parties shall endeavor to settle such Dispute
by mediation under the Mediation Procedure of the AAA, as then in effect, provided that if one
party fails to participate in the negotiation as provided herein, the other party can initiate
mediation prior to the expiration of the forty-five (45) days.
(c)
Any Dispute that shall not have been resolved in accordance with the
foregoing shall be referred to and finally resolved by arbitration in accordance with the
Commercial Arbitration Rules (the "Arbitration Rules") of the AAA, as then in effect, which
Arbitration Rules are deemed to be incorporated by reference into this clause. The parties shall
appoint one (1) arbitrator by mutual agreement. If the parties cannot agree on the appointment of
an arbitrator within ten (1 0) days after a party's receipt of a demand for arbitration, the arbitrator
shall be appointed by the AAA in accordance with the Arbitration Rules, in which case the
potential arbitrators identified on the list provided by the AAA to the parties in accordance with
such Arbitration Rules shall be, to the extent available, attorneys experienced with commercial
transactions in the broadcast television industry. The arbitrator shall have the exclusive right to
determine the arbitrability of any disputes, controversies or claims. In the event of any conflict
between the Arbitration Rules and any provisions of the Transaction Documents, the Transaction
Documents shall govern. The place of arbitration shall be Washington, D.C. The arbitration
shall be conducted in the English language. Judgment on the award entered in any arbitration
shall be final and may be entered in any court having jurisdiction thereof. The prevailing party
in the arbitration shall be entitled to recover its reasonable attorneys' fees and costs, in addition
to any other relief it may be awarded, and the arbitrator may (but shall not be required to) direct
the parties to deposit funds against the payment of such costs. The parties agree that
notifications of any proceedings, reports, communications, or any other document shall be sent
as set forth in Section 11.5. Notwithstanding any provision ofthis Section 11.11 to the contrary,
either party may, without waiving any remedy under this Agreement or any other Transaction
Document, seek from any court having jurisdiction any interim or provisional relief, including
equitable relief, that is necessary to protect the rights or property of such party or preserve the
subject matter of the Dispute, pending its final resolution and (as applicable) enforcement,
pursuant to the terms and subject to the conditions of this Section 11.11.
(d)
The parties recognize that irreparable injury will result from a breach of
any provision of the Transaction Documents and that money damages will be inadequate to fully
remedy the injury. Accordingly, in the event of a breach or threatened breach of one or more of
the provisions of the Transaction Documents, any party that may be injured (in addition to any
other remedies which may be available to that party), shall be entitled to one or more preliminary
or permanent orders restraining and enjoining any act which would constitute a breach or
compelling the performance of any obligation which, if not performed, would constitute a
breach.
11.12 Cumulative Rights. Except as expressly provided herein, the various rights of
this Agreement shall be construed as cumulative, and no one of them is exclusive of the other or
exclusive of any rights allowed by Law.
11.13 Severability. If any covenant or provision hereof is determined by a court of
competent jurisdiction to be void or unenforceable in whole or in part, it shall not, subject to the
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40

discretion of such court, be deemed to affect or impair the validity of any other covenant or
provision, each of which is hereby declared to be separate and distinct. If any provision of this
Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so
broad as is enforceable. If any provision of this Agreement is declared invalid or unenforceable
for any reason other than overbreadth, the offending provision shall be modified so as to
maintain the essential benefits of the bargain between the parties hereto to the maximum extent
possible, consistent with Law and public policy.
11.14 Expenses. Except as otherwise expressly provided herein, each party shall pay its
own fees, costs and expenses incurred in connection herewith and the transactions contemplated
hereby, including the fees, costs and expenses of its financial advisors, accountants and counsel.
11.15 Independent Contractors. The parties to this Agreement are independent
contractors. Neither party shall have any right, power or authority to enter into any agreement
for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
This Agreement shall not be interpreted or construed to create an association, agency, joint
venture or partnership between the parties or to impose any liability attributable to such a
relationship upon the parties.
11.16 No Third-Party Beneficiaries. This Agreement is solely for the benefit of the
University and Corcoran. There are no intended or implied third-party beneficiaries to this
Agreement or any of the transactions contemplated herein.
11.17 Entire Agreement. This Agreement, together with any Schedules and Exhibits
attached hereto and contemplated hereby, and the other Transaction Documents constitute the
entire understanding between the parties with respect to the subject matter hereof and supersede
all oral communications and prior writings with respect thereto, including for the avoidance of
doubt, that certain Letter oflntent, dated as ofF ebruary 18, 2014, by and between Corcoran and
the University.
11.18 Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be an original and all of which will constitute together the same document.

[Signatures appear on following page; remainder intentionally blank.]

LEGAL_US_E# 108587467. 27

41

!

IN WITNESS WHEREOF, the parties hereto have executed this Asset Contribution
Agreement as of the date frrst written above.
TRUSTEES OF THE CORCORAN
GALLERY OF ART

THE GEORGE WASHINGTON UNIVERSITY

By:

Name: Dr. Steven Knapp
Title: President

[Signature Page to Asset Contribution Agreement]

IN WITNESS WHEREOF, the parties hereto have executed thls Asset Contribution
Agreement as of the date first written above.
TRUSTEES OF THE CORCORAN
GALLERY OF ART:

By: _ _ _ _ _ _ _ _ _ _ _ _ __
Name: Harry F. Hopper III
Title: Chairman

THE GEORGE WASHINGTON UNIVERSITY:

JD 14~~J~

By:
Name: Dr. Steven Knapp
Title: President

{Signature Page to Asset Contribution Agreement]

}y

LICENSE AGREEMENT BETWEEN THE
TRUSTEES OF THE CORCORAN GALLERY OF
ART AND GEORGE WASHINGTON
UNIVERSITY

EXHIBITB
FORM OF LICENSE AGREEMENT
This LICENSE AGREEMENT (this "Agreement") is hereby made and entered into as of
[•], 2014, by and between the Trustees of the Corcoran Gallery of Art, a Congressionally
chartered nonprofit corporation located in the District of Columbia ("Corcoran"), and The
George Washington University, a Congressionally chartered nonprofit corporation located in
the District of Columbia (the "University") (each a "Party" and, collectively, the "Parties").
WHEREAS:
A.
The Parties are entering this Agreement in conjunction with the closing under that
certain Asset Contribution Agreement, dated as of May 15, 2014 (the "Asset Contribution
Agreement").

B.
Pursuant to the Asset Contribution Agreement, the Parties desire that the
University will license from Corcoran, and Corcoran will license to the University, certain rights
to the "Corcoran" name and mark for use by the University in connection with the Licensed
Field (as set forth below) as contemplated by the Asset Contribution Agreement and on the terms
and conditions set forth herein.
Now, THEREFORE, in consideration of their respective representations, promises and
obligations, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and agreed, and desiring to be bound hereby, the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND TERMS
1.1
forth below:

Certain Definitions. The following terms, as used herein, have the meanings set
"Agreement" has the meaning set forth in the preamble.
"Asset Contribution Agreement" has the meaning set forth in the preamble.
"Authorized Uses" has the meaning set forth in Section 2.3.

"Combined Mark" means any Trademark that combines the Licensed Mark with
a University Mark.
"Corcoran" has the meaning set forth in the preamble.
"Corcoran Intellectual Property" means any Intellectual Property that is owned
by, licensed to or used by Corcoran in the conduct of its business.
"Effective Date" has the meaning set forth in Section 2.4.
"Intellectual Property" means any or all of the following and all rights, arising
out of or associated therewith: (a) all patents and applications therefor and all reissues, divisions,

LEGAL_US_E # 109498505.13

renewals, extensions, provisionals, continuations and continuations-in-part thereof; (b) all
inventions (whether patentable or not), invention disclosures, improvements, proprietary
information, know-how, technology, technical data and customer lists, and all documentation
relating to any of the foregoing; (c) all copyrights, copyright registrations and applications
therefor, and all other rights corresponding thereto; (d) all industrial designs and any registrations
and applications therefor; (e) all corporate, trade or business names, brands, designs, trademarks,
service marks, trade dress, logos, domain names, and slogans (collectively, "Trademarks"), and
all registrations and applications for registration of Trademarks; (j) all software, databases and
data collections and all rights therein; (g) all moral and economic rights of authors and inventors,
however denominated; and (h) any similar or equivalent rights to any of the foregoing.
"Licensed Field" has the meaning set forth in Section 2.1.
"Licensed Mark" means "Corcoran."
"Term" has the meaning set forth in Section 2.4.
"University" has the meaning set forth in the preamble.
"University Mark" means any Trademark owned by the University (other than a
Trademark including the Licensed Mark).

Other Defined Terms. Other capitalized terms contained herein that are not
1.2
otherwise defined herein shall have the meanings ascribed thereto in the Asset Contribution
Agreement.
Interpretation. The headings in this Agreement are inserted for convenience only
1.3
and shall not constitute a part hereof. Except where the context requires otherwise, whenever
used in this Agreement, the singular includes the plural, the plural includes the singular, the use
of any gender is applicable to all genders and the word "or" has the inclusive meaning
represented by the phrase "and/or." The words "include" and "including" and variations thereof,
shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the
words "without limitation." A reference in this Agreement to an Article, Section, Exhibit or
Schedule is to the referenced Article, Section, Exhibit or Schedule of this Agreement. The
wording of this Agreement shall be deemed to be the wording mutually chosen by the Parties and
no rule of strict construction shall be applied against either Party. Unless expressly provided
otherwise, all dollar figures in this Agreement, if any, are in the currency of the United States of
America.
ARTICLE2
GRANT OF LICENSE AND RELATED RIGHTS

2.1

Grant of License.

In consideration of the University's covenants and obligations hereunder
(a)
and under the Asset Contribution Agreement, and pursuant to the terms and conditions of this
Agreement, Corcoran hereby grants to the University, and the University hereby accepts from
Corcoran, the exclusive, worldwide, royalty-free, fully paid-up, irrevocable, non-transferable

LEGAL_US_E # 109498505.13

2

(except as expressly set forth in Section 2.1(b) and Section 8.7) right and license to use the
Licensed Mark during the Term in connection with the establishment and operation of an
educational institution and the performance of any and all activities consistent with or incident to
the educational and related missions thereof (the "Licensed Field"), including (i) in the name of
the educational institution and on physical buildings and spaces associated with the institution;
(ii) in connection with any and all activities associated with the educational institution; (iii) on
products created and distributed in connection with such educational institution or activities;
(iv) in connection with all services and other offerings provided by such educational institution
or as part of such activities; (v) in all advertising and promotion of such educational institution,
and/or any such products, services or offerings; (vi) in domain names or similar or successor
electronic address mechanisms or systems as provided in Section 6.2.
(b)
The University's rights hereunder include the right to allow its officers,
directors, trustees, faculty, employees, students, representatives, contractors, volunteers, and
agents to use the Licensed Mark pursuant to the terms and conditions of this Agreement, for the
purpose of allowing the University to exercise fully the rights granted under this Agreement.
(c)
Except with respect to the rights granted pursuant to the License
Agreement entered into by Corcoran and the National Gallery of Art contemporaneously
herewith, the rights granted herein to University are exclusive with respect to the Licensed Field
(even as to Corcoran) and Corcoran shall not use, or grant any third party any right or license to
use, the Licensed Marks in any manner that conflicts with the Licensed Field.
2.2
Reserved Rights. Except for the rights expressly granted to the University under
this Agreement and under the Asset Contribution Agreement, all other rights, benefits and
privileges relating to the Corcoran Intellectual Property are expressly reserved by and to
Corcoran. For the avoidance of doubt, the license granted herein is exclusive even as to
Corcoran, except that Corcoran may continue to use the Licensed Mark for its own corporate,
non-commercial and internal purposes and in connection with events and programs conducted by
Corcoran from time to time, such as symposia.
2.3
Authorized Uses. Except with the prior written consent of Corcoran, the
University: (a) shall use the Licensed Mark only in the Licensed Field, and (b) shall use the
Licensed Mark only with other words or letters, including any University Mark, and including as
part of the Trademarks shown on Exhibit A hereto ((a), and (b), collectively, the "Authorized
Uses").
2.4
Term. The term of this Agreement shall commence on the Closing under the
Asset Contribution Agreement (the "Effective Date") and continue for an initial term of ninetynine (99) years (the "Initial Term"). The Agreement shall automatically renew following the
Initial Term for additional successive ten (1 0) year renewal terms (each, a "Renewal Term" and,
together with the Initial Term, the "Term").

LEGAL_US_E# 109498505.13

3

ARTICLE3
RELATING TO LICENSED MARK
GOODWILL
OF
MAINTENANCE

Compliance with Laws. The University shall comply with applicable Laws in its
3.1
use of the Licensed Mark.
3.2

Use of the Licensed Mark.

The products and services that the University provides in connection with
(a)
the Licensed Mark shall be of substantially the same quality as the products and services that the
University provides in connection with the University Marks as of the date of this Agreement.
If any use by the University of the Licensed Mark is not consistent with
(b)
the terms and conditions of this Agreement and Corcoran so notifies the University in writing,
the University shall use its reasonable best efforts to cure the cause of such failure, and, if the
University is unable to cure such failure, the University shall discontinue such non-conforming
use following a commercially reasonable phase out period.
The University shall not use, display, or exhibit the Authorized Uses, or
(c)
otherwise distribute any depiction of the Licensed Mark, in any way that would reasonably be
expected to damage the goodwill associated with the Licensed Mark.

Inspection. Upon Corcoran's reasonable request, but no more than once in any
3.3
calendar year, the University shall provide Corcoran with representative samples of the
Authorized Uses in order to allow Corcoran to ensure that the University's use ofthe Licensed
Mark complies with the terms and conditions of this Agreement.
ARTICLE4
REPRESENTATIONS AND WARRANTIES OF CORCORAN
Corcoran represents and warrants to the University as follows:

Organization; Authority; Validity. Corcoran is a Congressionally chartered
4.1
nonprofit corporation duly formed, validly existing and in good standing under the Laws of the
District of Columbia and the United States of America. The execution and delivery by Corcoran
of this Agreement and the consummation of the transactions contemplated hereby are duly and
validly authorized by all necessary corporate action on the part of Corcoran. Corcoran has all
requisite corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby, and this Agreement has been duly executed and delivered by
Corcoran. This Agreement is the valid and binding obligations of Corcoran enforceable against it
in accordance with its terms, except as enforceability may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar Laws
affecting the enforcement of creditor's rights generally and the application of general principles
of equity (regardless of whether that enforceability is considered in a proceeding at law or in
equity).
Conflicts; Consents. The execution, delivery and performance by Corcoran of
4.2
this Agreement and the consummation by Corcoran of any of the transactions contemplated

LEGAL_US_E # 109498505.13

4

hereby do not and will not conflict with, violate, result in a breach of the terms and conditions of,
or, with or without notice or the passage of time, result in any breach, event of default or the
creation of any lien under, any contractual obligation of Corcoran, any organizational documents
of Corcoran or any Law, judgment, order, or decree to which Corcoran is subject.
4.3
Rights to Licensed Mark. Corcoran is the sole and exclusive owner of the
Licensed Mark worldwide. Corcoran has the right to grant this license to the Licensed Mark on
the terms and conditions provided herein.
4.4
No Infringement. The use of the Licensed Mark as authorized in this Agreement
does not infringe the Intellectual Property rights of any third party.
4.5
No Litigation. There is no litigation pending or, to the knowledge of Corcoran,
threatened, and Corcoran has not received or sent any written notice of a claim or suit (a) that
could reasonably be expected to restrain, enjoin or otherwise prevent the performance by
Corcoran of the covenants and obligations contemplated by this Agreement, or (b) relating to the
validity or non-infringement of the Licensed Marks.
4.6
Disclaimer of Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS
ARTICLE 4, CORCORAN MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO THE LICENSED MARK AND THE OTHER MATTERS CONTEMPLATED BY THIS AGREEMENT,
INCLUDING (A) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
AND

(B) ANY WARRANTY ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE.
ARTICLES
REPRESENTATIONS AND WARRANTIES OF THE UNIVERSITY
The University represents and warrants to Corcoran as follows:

5.1
Organization; Authority; Validity. The University is a Congressionally chartered
nonprofit corporation duly formed, validly existing and in good standing under the Laws of the
District of Columbia and the United States of America. The execution and delivery by the
University of this Agreement and the consummation of the transactions contemplated hereby are
duly and validly authorized by all necessary corporate action on the part of the University. The
University has all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby, and this Agreement has been duly executed
and delivered by the University. This Agreement is the valid and binding obligation of the
University enfor~eable against it in accordance with the terms of this Agreement, except as
enforceability may be limited by any applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar Laws affecting the enforcement of creditor's
rights generally and the application of general principles of equity (regardless of whether that
enforceability is considered in a proceeding at law or in equity).
5.2
Conflicts; Consents. The execution, delivery and performance by the University
ofthis Agreement and the consummation by the University of any ofthe transactions
contemplated hereby do not and will not conflict with, violate, result in a breach of the terms and
conditions of, or, with or without notice or the passage of time, result in any breach, event of
default or the creation of any lien under, any contractual obligation of the University, any

LEGAL_US_E# 109498505.13

5

organizational documents ofthe University or any Law, judgment, order, or decree to which the
University is subject.

ARTICLE6
OF LICENSED MARK
PROTECTION
AND
OWNERSHIP
Ownership of the Licensed Mark. Subject to Section 7, the University shall not
6.1
acquire any ownership interest in the Licensed Mark throughout the Term of this Agreement.
The University acknowledges: (a) that Corcoran exclusively owns, and shall continue to own,
all right, title, and interest in and to the Licensed Mark, except for the rights expressly granted to
the University hereunder; (b) the great value of the goodwill associated with the Licensed Mark;
(c) that all goodwill associated with the Licensed Mark that arises from the University's use
thereof shall inure to the benefit of Corcoran, except that all goodwill attributable to use of the
University's Trademarks or any Combined Mark as part of the Authorized Uses shall inure
solely to the benefit of the University; and (d) that the Licensed Mark has secondary meaning in
the minds of the public.
6.2

Registrations; Protection of the Licensed Mark.

Subject to Section 6.3, at Corcoran's election or upon the request of the
(a)
University, Corcoran shall use commercially reasonable efforts to file applications for federal
trademark or service mark registration or to register domain names (or similar or successor
electronic address mechanisms or systems) for the Licensed Mark to identify goods, services
and/or offerings in the Licensed Field. The cost of preparing and filing any such application or
registration contemplated hereby, including reasonable attorneys' fees in connection therewith,
shall be borne by Corcoran or, if the University makes such request for registration, by the
University. Subject to Section 6.3, the University shall not, on its own behalf or on behalf of
any other Person, in any jurisdiction in the world, register or attempt to register the Licensed
Mark with the United States Patent and Trademark Office or any other Governmental Entity
(including state trademark offices) as trademarks, service marks or as a domain name.
Upon any such registration of the Licensed Mark, Corcoran shall take all
(b)
reasonable steps to maintain such registration during the Term hereof, to the extent that the
University continues to use such registered Licensed Mark. The cost of preparing and making
any filings in connection with maintenance of a registration for the Licensed Mark, including
reasonable attorneys' fees in connection therewith, shall be borne by the Party who bore the cost
of the obtaining the applicable registration.
6.3

Infringement Claims.

Each ofthe University and Corcoran shall notify the other in writing
(a)
reasonably promptly (and in no event later than thirty (30) days) after becoming aware of any
imitation, infringement, use without authorization, or dilution of the Licensed Mark by any
Person.
The University shall have the initial right to institute and control, at its
(b)
own expense, a claim, action, suit, demand, or proceeding, whether formally or otherwise
asserted (collectively, a "Claim") alleging infringement of the Licensed Mark in the Licensed

LEGAL_US_E # 109498505.13

6

Field ("Infringement Claim"). The University shall notify Corcoran within thirty (30) business
days of the University's receipt or issuance of the notice described in Section 6.3(a) whether the
University will initiate or pursue an Infringement Claim. The University shall have no duty to
initiate or pursue an Infringement Claim if the University determines, in its reasonable business
judgment, that initiating or pursuing such Claim is not warranted or in its best interests. Upon
the University's request, Corcoran shall reasonably cooperate with the University in any
Infringement Claim that the University institutes or controls, including being joined as a party,
and the University shall reimburse Corcoran for the reasonable out-of-pocket expenses that it
incurs in connection with such cooperation. At its own expense, Corcoran shall have the right to
participate and be represented by Corcoran's own counsel in any Infringement Claim that the
University institutes or controls. [In any Infringement Claim that the University institutes or
controls, the University shall notify Corcoran of any proposed settlement or compromise, and the
University shall not, without Corcoran's express prior written consent, settle any Infringement
Claim if such settlement (i) does not release Corcoran from all liability with respect thereto or
(ii) adversely impacts the exercise of any of the rights retained by Corcoran in the Corcoran
Intellectual Property at such time.] [NTD: Under review by Corcoran]
(c)
If the University elects to not institute an Infringement Claim, Corcoran
may, at its option and expense, take any action on its own behalf that it deems appropriate,
including initiating or pursuing an Infringement Claim. Upon Corcoran's request, the University
shall reasonably cooperate with Corcoran in any Infringement Claim that Corcoran institutes or
controls, and Corcoran shall reimburse the University for the reasonable out-of-pocket, thirdparty expenses that it incurs in connection with such cooperation. At its own expense, the
University shall have the right to participate and be represented by the University's own counsel
in any Infringement Claim that Corcoran institutes or controls.
(d)
In any Infringement Claim that Corcoran institutes or controls, Corcoran
shall consult with the University regarding any proposed settlement or compromise, and
Corcoran shall not, without the University's express prior written consent, settle an Infringement
Claim in any manner other than a settlement for money damages alone.
(e)
Any monetary reward, money damages or recovery resulting from any
Infringement Claim that either Party institutes shall be applied first to reimburse the Party
incurring the expenses of such action. The Parties shall divide the balance, including any
punitive or treble damages, in proportion to the damages or injury each has suffered as a result of
such infringement in the Parties' respective fields, giving due regard, to the extent applicable, to
any findings by an applicable court, jury, arbitrator or other finder of fact with respect to the
nature or correlation of such damages, and with the University being entitled to retain all
damages attributable to infringing activities in the Licensed Field. If the Parties cannot agree on
an appropriate division of the balance, they shall attempt to resolve the dispute according to the
procedure set out in Section 8.9 of this Agreement.
6.4
University Estoppel. The University shall not at any time do, or cause to be done,
any acts or things that would be reasonably likely either to challenge or impair the rights of
Corcoran in and to the Licensed Mark or to adversely affect the validity of the Licensed Mark.

LEGAL_US_E# 109498505.13

7

ARTICLE?
UNIVERSITY MARKS, COMBINED MARKS, AUTHORIZED USES AND
MATERIALS
Ownership of University Intellectual Property. Any Combined Marks created by
7.1
University shall be owned solely and exclusively by the University and shall constitute
Intellectual Property of the University. All rights, benefits and privileges relating to any of the
University's Intellectual Property (including any Combined Marks and any University Marks)
are owned by, and expressly reserved by and to, the University. For the avoidance of doubt,
Corcoran shall not acquire any ownership interest in any University Marks or any Combined
Marks) throughout the Term of this Agreement. Corcoran acknowledges: (a) that the University
exclusively owns, and shall continue to own, all right, title, and interest in and to all University
Marks and Combined Marks; (b) the great value of the goodwill associated with the University
Marks and any Combined Marks; and (c) that all goodwill associated with the University Marks
and any Combined Marks shall inure to the benefit of the University.
Proprietary Materials of the University. Corcoran acknowledges that the
7.2
University shall own worldwide in perpetuity the following materials created by or on behalf of
the University: (a) all artwork that bears any Authorized Use; (b) all computer artwork
incorporating graphic descriptions of any Authorized Use; (c) all photographs incorporating
graphic descriptions of any Authorized Use; (d) all derivative works based on any of the
Authorized Uses or works or materials described in (a)-(c) above; and (e) all copyrights and
other Intellectual Property rights in, and all duplicates and copies of any works or materials
described in clauses (a) through (d), except that the University shall have no ownership rights in
the Licensed Mark contained or embodied in any of the foregoing except to the extent such
Licensed Mark is contained or embodied in a Combined Mark.
Registrations; Protection of the University Marks and Combined Marks. The
7.3
be responsible for filing all applications for federal trademark or service mark
shall
University
registration, and for registering all domain names (or similar or successor electronic address
mechanisms or systems) for the Combined Marks and University Marks to identifY goods,
services and/or offerings in the Licensed Field. Corcoran shall not, on its own behalf or on
behalf of any other Person, in any jurisdiction in the world, register or attempt to register with
the United States Patent and Trademark Office or any other Governmental Entity (including state
trademark offices) as trademarks, service marks or as a domain name (i) any Combined Mark,
(ii) any University Mark, or (iii) any Trademark that consists of or includes a Combined Mark or
a University Mark or would dilute the distinctiveness of, or is confusingly similar to, a
Combined Mark or other University Mark.
Infringement Claims. The University shall have the sole right to institute, control
7.4
own expense and in its sole discretion, all Claims alleging infringement of a
its
at
settle,
and
Combined Mark or University Mark. Corcoran shall not have any right to participate in any such
Claim.
Corcoran Estoppel. Corcoran shall not at any time do, or cause to be done, any
7.5
acts or things that would be reasonably likely either to challenge or impair the rights of the

LEGAL_US_E # 109498505.13

8

University in and to any University Mark or any Combined Mark or to adversely affect the
validity of any University Mark or any Combined Mark
7.6
Public Announcements. Except for the public announcement that the Parties will
release pursuant to Section 10.4 of the Asset Contribution Agreement, after the Closing under the
Asset Contribution Agreement, Corcoran shall not refer to the University or any of the
University's trustees, directors, officers, employees, students or agents, or use any University
Mark or any Combined Mark, or refer to the educational institution operated by the University
following Closing, or the University's other activities within the Licensed Field, for any purpose
(including in any press release, in connection with any fund-raising, on any Web site or social
media page or account, or in any advertising or for any other promotional purpose) without first
obtaining the University's written consent, except that Corcoran may provide a link on a Web
site under the control of Corcoran to a Web site that the University identifies.

ARTICLES
MISCELLANEOUS PROVISIONS
8.1
Survival of Representations, Warranties and Agreements. None of the
representations or warranties in this Agreement shall survive beyond the Closing under the Asset
Contribution Agreement. Each of the covenants and agreements of the Parties in this Agreement
shall survive until the earlier of (a) the expiration ofthe Term, or (b) the full performance or
discharge of such covenant or agreement in accordance with this Agreement.
8.2
Confidentiality. Information concerning either Corcoran or the University's
business methods, financial information, future plans, personnel data, trade secrets, information
systems, financial and accounting policies or similar matters, or information designated as
"confidential" by the disclosing Party or released under circumstances where a reasonable Person
would understand that such information is to be treated as confidential, shall be treated as
confidential. The Party receiving such confidential information shall take the same precautions
as it takes to protect its own confidential information, but in all events reasonable precautions
shall be taken, in order to preserve its confidentiality. Confidential information shall not be
revealed to third parties without the written consent of the disclosing Party, and neither Corcoran
nor the University may use the other Party's confidential information for any purpose except for
purposes of performing this Agreement. This confidentiality requirement shall not apply to: (a)
information in the public domain, (b) information independently developed by either Party
without use of the other Party's confidential information, (c) information received by either Party
from a third party under no duty of confidentiality, and (d) a disclosure of information that is
required by Law. The obligations of the Parties under this Section shall survive the Closing or
the termination of the Asset Purchase Agreement for a period of five (5) years after such Closing
or termination, as applicable.
8.3
Further Assurances. From and after the date of this Agreement, upon the terms
of this Agreement and subject to applicable Law, Corcoran and the University shall act in good
faith and shall cooperate with each other and use their commercially reasonable efforts to, as
soon as reasonably practicable, (a) take, or cause to be taken, all actions, (b) execute,
acknowledge and deliver all documents, agreements and instruments, and (c) perform such other
acts and do, or cause to be done, all things necessary, proper or advisable, in each case to confer

LEGAL_US_E# 109498505.13

9

on each Party the rights, benefits and obligations provided by, and to consummate and make
effective the transactions contemplated by, this Agreement as soon as practicable.

Notices. All notices, requests, demands and other communications which are
8.4
be given pursuant to the terms of this Agreement shall be in the English
may
required or
language and in written or electronic form, and shall be deemed delivered (a) on the date of
delivery when (i) delivered by hand or (ii) sent by reputable overnight courier maintaining
records of receipt, and (b) on the date of transmission when sent by facsimile or other electronic
transmission during normal business hours with confirmation of transmission by the transmitting
equipment; provided that any such communication delivered by facsimile or other electronic
transmission shall only be effective if such communication is also delivered by hand or deposited
with a reputable overnight courier maintaining records of receipt within two (2) business days
after its delivery by facsimile or other electronic transmission. All such communications shall be
addressed to the Parties at the addresses set forth below, or at such other address as a Party may
designate upon ten (10) days' prior written notice to the other Party.
If to Corcoran:
Corcoran Gallery of Art
500 17th Street, N.W.
Washington, DC 20006
Attention: General Counsel
Phone: (202) 365-7327
Fax: [•]

with a copy to:
Charles A. Patrizia
Paul Hastings LLP
875 15th Street, N.W.
Washington, D.C. 20005
Phone: (202) 551-1710
Fax: (202) 551-1705
If to the University:
Beth Nolan
The George Washington University
2100 Pennsylvania Avenue, N.W.
Suite 250
Washington, DC 20052
Phone: (202) 994-3434
Fax: (202) 944-4640

LEGAL_US_E # 109498505.13

10

with a copy to:
Kevin J. Lavin
Arnold & Porter LLP
555 Twelfth Street, N.W.
Washington, DC 20004-1206
Phone: (202) 942-5461
Fax: (202) 942-5999
8.5
Amendments. Amendments to this Agreement shall be made by mutual consent
of the Parties, by the issuance of a mutually agreed upon written instrument, signed and dated by
authorized officials of Corcoran and the University, prior to any changes being performed.
8.6
Waiver. Any agreement on the part of a Party to any extension or waiver of any
provision hereof shall be valid only if set forth in an instrument in writing signed on behalf of
such party. A waiver by a Party of the performance of any covenant, agreement, obligation,
condition, representation or warranty shall not be construed as a waiver of any other covenant,
agreement, obligation, condition, representation or warranty. A waiver by any Party of the
performance of any act shall not constitute a waiver of the performance of any other act or an
identical act required to be performed at a later time.
8.7
Assignment. Neither Party may assign or transfer any rights or obligations in this
Agreement except with the prior written consent of the other Party, except that the University
may assign, transfer or sublicense (directly, by operation of law, or in connection with a merger,
acquisition or sale of stock of assets of the University within the Licensed Field) its rights or
obligations in this Agreement to Third Parties provided that notice of such assignment, transfer
or sublicense is provided to Corcoran, and the assignee, transferee or sublicensee agrees in
writing to be bound by the terms of this Agreement. Any attempted assignment or delegation in
violation of this Section 8.7 shall be void.
8.8
Governing Law. This Agreement shall be governed by the Laws of the District of
Columbia, excluding any conflicts or choice of Law rules or principles that might otherwise refer
construction or interpretation of this Agreement to the substantive Law of another jurisdiction.
8.9

Dispute Resolution; Remedies.

8.9.1 Any dispute, controversy or claim arising out of or in connection with this
Agreement or in connection with the rights and obligations of the Parties under this Agreement,
including any question regarding its existence, validity or force and effect, shall be subject in all
respects to the terms, conditions and procedures set forth in Section [ ] of the Asset
Contribution Agreement, and the terms, conditions and procedures of such Section are
incorporated herein by reference and made a part hereof.

8.9.2 Corcoran acknowledges and agrees that the license granted under this
Agreement is intended to be perpetual and irrevocable and that significant damages that are
difficult to quantify would be suffered by the University as the result ofthe termination, in whole
or in part, ofthe license granted to the University hereunder. Accordingly, notwithstanding
anything herein to the contrary, following the Effective Date Corcoran may under no
LEGAL US E # 109498505.13

11

circumstances terminate the license granted herein, nor may Corcoran apply for injunctive or
other equitable relief to terminate such license. Corcoran agrees that its sole remedy, if any, in
the event of a breach will be (1) an action for damages, or (2) an action for injunctive or other
equitable relief to restrain or enjoin any act which would constitute a breach, or compelling the
performance of any obligation which, if not performed, would constitute a breach.
8.9.3 Cumulative Rights. Except as expressly provided herein, the various
rights of this Agreement shall be construed as cumulative, and no one of them is exclusive of the
other or exclusive of any rights allowed by Law.
8.10 Severability. If any covenant or provision hereof is determined by a court of
competent jurisdiction to be void or unenforceable in whole or in part, it shall not, subject to the
discretion of such court, be deemed to affect or impair the validity of any other covenant or
provision, each of which is hereby declared to be separate and distinct. If any provision of this
Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so
broad as is enforceable. If any provision of this Agreement is declared invalid or unenforceable
for any reason other than overbreadth, the offending provision shall be modified so as to
maintain the essential benefits of the bargain between the Parties to the maximum extent
possible, consistent with Law and public policy.
8.11 Expenses. Except as otherwise expressly provided herein, each Party shall pay its
own fees, costs and expenses incurred in connection herewith and the transactions contemplated
hereby, including the fees, costs and expenses of its financial advisors, accountants and counsel.
8.12 Independent Contractors. The Parties are independent contractors, and neither
Party shall have any right, power or authority to enter into any agreement for or on behalf of, or
incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall
not be interpreted or construed to create an association, agency, joint venture or partnership
between the Parties or to impose any liability attributable to such a relationship upon the Parties.
8.13 No Third-Party Beneficiaries. This Agreement is solely for the benefit of the
University and Corcoran. There are no intended or implied third-party beneficiaries to this
Agreement or any of the transactions contemplated herein.
8.14 Entire Agreement. This Agreement, together with any Exhibits attached hereto
and contemplated hereby, and the other Transaction Documents constitute the entire
understanding between the Parties with respect to the subject matter hereof and supersede all oral
communications and prior writings with respect thereto, including for the avoidance of doubt,
that certain Letter oflntent, dated as of February 18,2014, by and between Corcoran and the
University.
8.15 Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be an original and all of which will constitute together the same document.

[Signatures appear on following page; remainder intentionally blank]

LEGAL_US_E # 109498505.13

12

IN WITNESS WHEREOF, the parties hereto have executed this License Agreement as of
the date first written above.
TRUSTEES OF THE CORCORAN
GALLERY OF ART

By:
Name: Harry F. Hopper III
Title: Chairman

THE GEORGE WASHINGTON UNIVERSITY:

By:
Name: Dr. Steven Knapp
Title: President

[Signature Page to License Agreement}
LEGAL_US_E # 109498505.13

Exhibit A
Certain Authorized Uses

[N0te: 0 be provided.

10949850513

LICENSE AGREEMENT BETWEEN THE
GEORGE WASHINGTON UNIVERSITY AND
NATIONAL GALLERY OF ART

LICENSE AGREEMENT BETWEEN THE
TRUSTEES OF THE CORCORAN GALLERY OF
ART AND NATIONAL GALLERY OF ART

EXECUTION COPY

LICENSE AGREEMENT
BETWEEN

THE GEORGE WASHINGTON UNIVERSITY

LICENSOR

and
NATIONAL GALLERY OF ART

LICENSEE
for
500 1ih Street Northwest in the District of Columbia

66592844v6
SC13614880.7A

LICENSE AGREEMENT
TABLE OF CONTENTS
1.

Premises .............................................................................................................................. 1

2.

Programs ............................................................................................................................. 4

3.

Acknowledgement with Respect to Certain Near-Term Exhibits and Other Special
Events and Exhibitions ....................................................................................................... 4

4.

Term .................................................................................................................................... 5

5.

Improvements and Alterations ............................................................................................ 5

6.

License Fee ......................................................................................................................... 7

7.

Utilities and Services .......................................................................................................... 7

8.

Use of Licensed Premises ................................................................................................. 10

9.

Maintenance and Repair ................................................................................................... 10

10.

Surrender of Licensed Premises ........................................................................................ 11

11.

No Assignment or Subletting ............................................................................................ 12

12.

Delivery of Licensed Premises ......................................................................................... 12

13.

Right of Entry ................................................................................................................... 12

14.

Indemnification ................................................................................................................. 12

15.

Change of Licensee's Status and Failure to Use Licensed Premises ................................ 14

16.

Insurance ........................................................................................................................... 14

17.

Default. .............................................................................................................................. 15

18.

Signs .................................................................................................................................. 17

19.

Notices .................................................. :........................................................................... 17

20.

Authority ofParties ........................................................................................................... 18

21.

Brokers .............................................................................................................................. 19

22.

Relationship of the Parties ................................................................................................ 19

23.

Provisions Severable ......................................................................................................... 19

24.

Remedies Cumulative; No Waiver ................................................................................... 19

25.

Interpretation ..................................................................................................................... 20

26.

Counterparts ...................................................................................................................... 20

27.

Governing Law ................................................................................................................. 20

28.

Time of the Essence .......................................................................................................... 20

29.

Survival of Remedies ........................................................................................................ 20

30.

Force Majeure ................................................................................................................... 20

66592844v6
SC13614880.7A

31.

Entire and Bin ding Agreement ......................................................................................... 21

32.

Confidentiality .................................................................................................................. 21

11

66592844v6
SC13614880.7A

EXECUTION COPY
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("License") is made as ofthis 15th day of May 2014
(the "Execution Date"), by The George Washington University, a Congressionally chartered
nonprofit corporation located in the District of Columbia (the "Licensor"), and National
Gallery of Art, an independent establishment of the United States created by Joint Resolution of
Congress (the "Licensee"). Licensor and Licensee are sometimes referred to herein as the
"Parties" and each individually as a "Party."
WHEREAS, Licensor has entered into that certain Asset Contribution Agreement (the
"Asset Contribution Agreement") with the Trustees of the Corcoran Gallery of Art, a
Congressionally chartered nonprofit corporation located in the District of Columbia
("Corcoran"), pursuant to which Corcoran has agreed to contribute substantially all of the assets
of the Legacy College and certain related real property (including the building located at 500 1ih
Street Northwest in the District of Columbia (the "17th Street Building"));
WHEREAS, Licensee has entered into that certain Art Accession and Custodial Transfer
Agreement with Corcoran (the "Corcoran-NGA Agreement"), pursuant to which Corcoran has
agreed to transfer to Licensee the custody and care of the Existing Collection (as defined in the
Corcoran-NGA Agreement) and Licensee will designate a portion of the Existing Collection for
accession into Licensee's collection of art;
WHEREAS, in connection with the transactions contemplated by the above agreements,
Licensor and Licensee desire to enter into this related transaction pursuant to which Licensor will
dedicate and license the use of portions of the 1ih Street Building for continuous use as
exhibition space for art and other programming and administrative needs of Licensee; and
WHEREAS, the parties desire to set forth the terms and conditions upon which such
transactions and related matters shall occur.
NOW, THEREFORE, in consideration of the promises, the mutual obligations set forth
in this License and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the Parties, the Parties, intending to be legally bound,
mutually agree as follows:
WITNESSETH:
1.

Premises

(a) Licensed Premises. In consideration of covenants hereinafter to be observed and
performed, Licensor, commencing on the Commencement Date (as defined below), shall license
to Licensee, and Licensee shall license from Licensor, the exclusive right to use, access and
occupy those certain premises at the 17th Street Building identified on Exhibit A attached hereto
and made a part hereof(collectively, the "Licensed Premises"). Subject to Licensor's covenants
to perform Licensor's Work (as defined below) and to maintain the Licensed Premises in
compliance with Licensee's required Humidity and Temperature Controls (as defined below),

66592844v6
SC1J614880.7A

Licensee agrees that the Licensed Premises are being provided to Licensee on the
Commencement Date in "as-is" condition, and that, except as expressly set forth herein, Licensor
makes no representations or warranties with regard to the condition of the 17th Street Building,
fixtures and other property in the Licensed Premises.
(b) Licensor Premises. All parts of the 17th Street Building which are not included in the
Licensed Premises are reserved to Licensor and its designees (collectively, the "Licensor
Premises") for such uses as Licensor deems appropriate, subject to Licensee's rights pursuant to
Sections 4(b) and 17(c) hereof.
(c) Licensor's Right to Use and Access. Without limiting any other provision in this
License, Licensor and its employees, agents, contractors and other representatives (together with
Licensor, collectively, "Licensor Representatives") shall have the right at all times after the
Commencement Date during the Term, but with prompt notice thereof to Licensee, to access the
portions of the Licensed Premises to the extent necessary to respond to any emergency issues on
the Licensed Premises, provided that if a Licensee security guard is in the 1ih Street Building,
such Licensor Representatives shall use their best efforts under the circumstances to first locate
such security guard and if such security guard is located, the Licensor Representatives shall at all
times be accompanied by such security guard while in the Licensed Premises.
(d) Licensee's Right to Use and Access; Transition Space.
(i)
Licensor will, after the Commencement Date during the Term, allow
Licensee and its employees, agents, contractors and other representatives (together with
Licensee, collectively, "Licensee's Representatives") to use Licensor's loading dock and have
direct access from the loading dock to the Licensed Premises at times coordinated with
Licensor's schedule. Such use shall be at no additional cost to Licensee (but Licensee shall be
responsible for all security related costs associated with such use as described below).
(ii)
Without limiting any other provision in this License, Licensee's
Representatives shall have the exclusive right to use, access and occupy at no cost and at all
times from the Commencement Date through December 31, 2014 (with the option to extend for
up to twelve months at no charge or cost to Licensee with the consent of Licensor, such consent
not to be unreasonably withheld, delayed or conditioned) the area shown on Exhibit B attached
hereto and made a part hereof (the "Transition Space"), provided however, that after September
30, 2014, Licensor may require Licensee, upon 45 days' notice (which notice may only be
delivered on or after September 30, 2014), to consolidate its use of the Transition Space to
accommodate Licensor's phased renovation of the 1ih Street Building.
(iii)
Licensee's Representatives and Licensee's visitors and invitees shall, at all
times after the Commencement Date during the Term during times when the Licensed Premises
are open to the public, have the non-exclusive right, in common with others, to enter and exit the
17th Street Building at the 1ih Street entrance (and to traverse any of the Licensor Premises in
order to gain access to portions of the 17th Street Building regarding which Licensee has a right
of access, entry, use or occupancy hereunder, including, without limitation, for the purpose of
visiting the Licensed Premises or transporting art or other property), provided however that in
the event of an emergency Licensee's Representatives and Licensee's visitors and invitees shall
2

have the right to use any exit. Licensor agrees to allow Licensee to provide a guard to examine
any packages brought onto the second floor of the 1ih Street Building in the space adjoining the
Licensed Premises.
(iv)
Licensee's Representatives and Licensee's visitors and invitees shall at all
times after the Commencement Date during the Term, have the non-exclusive right, in common
with others, to use (i) Elevator 1 and Stair 1 from the first floor entryways to access the second
floor within the Licensor Premises (including, without limitation, for the purpose of visiting the
Licensed Premises or transporting art or other property), (ii) Elevator 2 and Stair 2 from the first
floor entryways to access the first floor mezzanine, the second floor and the second floor
mezzanine within the Licensor Premises (including, without limitation, for the purpose of
transporting art or other property), and (iii) the men's toilet and women's toilet on the second
floor.
(v)
Licensee's Representatives and security staff shall at all times after the
Commencement Date during the Term, have the non-exclusive right, in common with Licensor's
security staff, to use the security staff locker rooms and security console room. Licensee shall
have the right, during times when the Licensed Premises are open to the public, to have a docent
of Licensee occupy a space at any information desk maintained by the Licensor on the first floor
and to place outside the Licensed Premises up to two portable kiosks (of a size and design to be
approved by Licensor) and display cases necessary for the sale of catalogues, programs, posters
and other typical exhibition materials and the rental of audio-tour devices, as well as a portable
cloakroom, which kiosks and cloakroom shall be stored in the Licensed Premises when the
Licensed Premises are not open to the public.
(vi)
Licensee, at all times after the Commencement Date during the Term,
will, and will use reasonable efforts to cause Licensee's Representatives, visitors and invitees to,
comply fully with all of the rules and regulations applicable to the 17th Street Building. The
present rules and regulations for the 17th Street Building are identified as Exhibit C attached
hereto and made a part hereof. Licensor reserves the right to amend or supplement from time to
time the foregoing rules and regulations, and to adopt and promulgate from time to time
additional reasonable rules and regulations applicable to the 17th Street Building, including the
Licensed Premises, provided that no rules or regulations may be promulgated which would
negatively affect the security or condition of the art exhibited or stored by Licensee in the
Licensed Premises or the Transition Space or which would materially and negatively affect
Licensee's ability to use the Licensed Premises or the Transition Space as contemplated
hereunder. Reasonable notice of such rules and regulations and amendments and supplements
thereto, if any, shall be given to Licensee. Licensee agrees to comply with, and to use reasonable
efforts to cause Licensee's Representatives to comply with, all such rules and regulations and
amendments and supplements thereof.
(vii) Subject to the renovation plans of Licensor with respect to such spaces,
Licensor will allow Licensee to use the space designated as Public Activity on Exhibit A for
events consistent with Licensee's use of the 1ih Street Building that do not require rental to be
paid to Licensee by a third party at reasonable times, upon advance notice and prior written
approval of Licensor, such approval not to be unreasonably withheld. Such use shall be at no
additional cost to Licensee (but Licensee shall be responsible for payment of costs associated
3

l;c---

with such use, including, for example, set up, security and janitorial services). Licensee shall
comply with the reasonable terms established by Licensor regarding the use of Licensor
Premises. Any other use of the Licensor Premises by Licensee shall be at Licensor's sole
discretion.
(viii) Following the reopening of the galleries as contemplated in Section 3(a)
and in addition to the 2014 Event Commitments, Licensee will allow Licensor to occasionally
use (not more than six times in a twelve month period) Licensed Premises for events consistent
with Licensor's use of the I ih Street Building held by Licensor or Licensor's affiliates, that do
not require rental to be paid to Licensor or such affiliates by a third party or charges for
admission at reasonable times, upon advance notice and prior written approval of Licensee, such
approval not to be unreasonably withheld. Such use shall be at no additional cost to Licensor
(but Licensor shall be responsible for payment of costs associated with such use, including, for
example, set up, security and janitorial services). Licensor shall comply with the reasonable
terms established by Licensee regarding the use of Licensed Premises, which shall include no
food or beverages being brought into the Licensed Premises. Any other use of the Licensed
Premises by Licensor shall be at Licensee's sole discretion.
(e) Vacation by Licensee. If Licensee provides written notice to Licensor of its intent to
permanently abandon or vacate any part or all of the Licensed Premises or Transition Space,
Licensor, at its sole option, can recapture such vacated space and, upon written notice to
Licensee, the Licensed Premises or Transition Space, as applicable, shall no longer include such
vacated space.
2.

Programs

Licensor and Licensee affirm that, given the shared use of the 17th Street Building
contemplated herein, the Parties may collaborate on programs in furtherance of the activities of
both institutions. Neither Party shall use the name, logo, insignia, or trademarks of the other
Party or any of the other Party's trustees, directors, officers, employees, or agents, in any press
release, fundraising, website, or product advertising, or for any other purpose, without first
obtaining the written consent of the other Party.
3.

Acknowledgement with Respect to Certain Near-Term Exhibits and Other Special Events
and Exhibitions

(a) 2014 Event Commitments. Licensee acknowledges that Corcoran is party to certain
agreements and other understandings with third parties with respect to exhibits and special
events scheduled to occur in or affect the 17th Street Building between the Execution Date and
December 31,2014, a list ofwhich is attached as Schedule 5.4 to the Corcoran-NGA Agreement
(collectively, the "2014 Event Commitments"). Licensee agrees to cooperate with Corcoran
and Licensor, as the owner of the 17th Street Building following the Commencement Date, with
respect to the 2014 Event Commitments and to use reasonable efforts to accommodate Corcoran
and Licensor in honoring the 2014 Event Commitments. Following the Commencement Date,
all costs associated with and all obligations required to be performed with respect to the 2014
Event Commitments, other than the Tribe and Paley exhibits, shall be the sole responsibility of
Licensor, whether incurred before or after the Execution Date, including, without limitation,
4

security, cleaning and maintenance for such events after normal business hours or in addition to
normal requirements; and any revenue generated from such 2014 Event Commitments shall be
solely for the benefit of Licensor. Any out-of-pocket costs reasonably incurred by Licensee with
respect to the 2014 Event Commitments shall be promptly reimbursed by Licensor. Subject to
existing obligations of Corcoran with respect to special exhibitions, Licensee may in its sole
discretion determine what art is exhibited in what portion of the Licensed Premises, depending
on, among other things, whatever renovation or construction Licensee determines to undertake in
such space, and the process concerning the distribution of the art therein. It is the understanding
of the parties that the gallery operated in the Licensed Premises will be closed on or around
October 1, 2014 (or following the Commencement Date if the Commencement Date occurs after
that date) for a period to complete the Identification Process (as defined in the Corcoran-NGA
Agreement), renovate the Licensed Premises and establish the Legacy Gallery and the
Contemporary Art Gallery in the 17th Street Building.
(b) Other Special Events and Exhibitions. Except as permitted by Section 2(d)(viii),
Licensor agrees that after the Execution Date it shall not enter into any additional agreements or
commitments with third parties with respect to exhibitions and special events or any other
activity which would occur in or negatively impact the Licensed Premises.
4.

Term

(a) The term of this License shall commence on the date of the closing under the Asset
Contribution Agreement referred to in the preamble (the "Commencement Date") and shall,
unless sooner terminated as herein provided, continue thereafter for twenty (20) years following
the Commencement Date (the "Primary Term") and shall automatically renew on the same
terms and conditions as for the Primary Term for successive, additional five (5) year terms (each,
a "Renewal Term") following the expiration of the Primary Term and each Renewal Term,
unless either Party shall provide written notice to the other Party of its determination not to
renew this License at least one (1) year prior to the termination of the Primary Term or any
Renewal Term. The "Term" of this License shall include the Primary Term and each Renewal
Term.
(b) In the event Licensor enters into an agreement to sell, lease or license all or any material
portion of the 17th Street Building, Licensor shall promptly provide written notice thereof to
Licensee (a "Transfer Notice"). Licensee shall have the right, exercisable at any time within
six (6) months of receipt of a Transfer Notice, to terminate this License by written notice to
Licensor, it being understood and agreed that no such sale or lease shall itself terminate the
License and that any buyer or lessee of the Licensor shall be bound by the terms hereof. Licensor
agrees to cooperate with Licensee should Licensee determine to record, at Licensee's expense, a
memorandum of the License in the land record. In addition, Licensee shall have the right to
terminate the License, at any time upon written notice to Licensee, if any event or situation
occurs or arises which, in Licensee's sole discretion, renders the Licensed Premises unsuitable
for the purposes of exhibiting art.
5.

Improvements and Alterations

5

(a) Alterations. "Alterations" means additions, installations, changes and improvements to
the Licensed Premises (excluding personal property and trade fixtures which would not
materially damage the Licensed Premises in a manner unrepairable by Licensee upon removal).
Any and all Alterations shall be at Licensee's expense and shall belong to Licensor.
(b) Non-Structural Alterations. Licensor hereby consents to Licensee conducting each of the
Alterations set forth in Exhibit D, to the extent Licensee determines to make such Alterations.
Licensee may make any Alterations other than those set forth in Exhibit D without the prior
written consent of Licensor (including, without limitation, painting, certain lighting, a hanging
system for art, temporary walls, carpeting, flooring, etc.) provided that such Alterations do not
affect the base building systems and do not require a permit from the applicable governmental
authorities made by or on behalf of Licensee (collectively, the "Non-Structural Alterations").
(c) Structural Alterations. Licensee may not make structural Alterations to the Licensed
Premises ("Structural Alterations") or any changes to the base 17th Street Building systems
without the prior written consent of Licensor. Licensor's consent may be granted or denied in
the sole discretion of Licensor. Any Structural Alterations allowed by Licensor shall be
completed in a good and workmanlike manner and shall be at the sole cost of Licensee.
Structural Alterations shall be performed and completed (a) in accordance with submitted and
Licensor-approved plans and specifications, (b) in a safe and workmanlike manner, (c) in
compliance with Applicable Laws (as defined below), (d) using materials and installations at
least equal in quality to the original building standard materials and installations to the extent
feasible, using contractors and sub-contractors experienced in performing construction work on
historic buildings who are approved by Licensor, such approval not to be unreasonably withheld,
conditioned or delayed.
(d) Mechanic's Liens. Each contract entered into by Licensee or its contractors for work in
or about the Licensed Premises shall contain an express waiver of any rights such contractor may
have to claim a mechanic's or materialman's lien against Licensor's interest in the Licensed
Premises and the 17th Street Building and an agreement to include similar provisions in the
contracts between the contractor and all subcontractors. Licensee shall remove or discharge with
a bond, within thirty (30) days of filing, any mechanics lien placed upon all or any part of the
17th Street Building as a result of Alterations performed by or on behalf of Licensee.
(e) Hazardous Substances. If during any work or Alterations at the Licensed Premises
Licensee discovers any suspected Hazardous Substances, Licensee will promptly notify Licensor
and Licensee and Licensor will consult on the proper response and further action with respect
thereto.

(f) Capital Improvements. Licensee acknowledges and agrees that Licensor is committed to
undertaking a phased renovation of the 17th Street Building and that such renovation may,
subject to the limitation set forth herein, necessitate Licensee temporarily closing or restricting
access to the Licensed Premises; provided that Licensor agrees to take into account any contracts
that Licensee has entered into with respect to planned exhibitions in scheduling same. Subject to
the limitations set forth herein, Licensor shall have the right, at its sole and absolute discretion
and at its expense, to install certain capital improvements and other alterations in, on or about the
17th Street Building, including the Licensed Premises. Licensor currently intends, at its sole
6

expense, to perform the capital improvements and other alternations to the 1ih Street Building
set forth as Exhibit A to the Asset Contribution Agreement, which may be amended from time to
time (collectively, the "Licensor's Work"). Licensor understands that the Licensed Premises
are being used for the exhibition and storage of valuable art and agrees (i) to take all reasonable
and necessary precautions not to damage the same during any capital improvements and
alterations and (ii) to discuss with Licensee any such plans generally at least six months in
advance of commencing work, unless extenuating circumstances require shorter notice. Licensor
agrees to use reasonable efforts to avoid interference with Licensee's use of the Licensed
Premises, but nothing herein shall require Licensor to perform any improvements or alterations
after Licensee's normal hours of operation. If Licensee chooses to temporarily cease displaying
and/or storing art because of Licensor's renovations, Licensor agrees to cooperate with Licensee
regarding the scheduling of such work to minimize impacts on Licensee's operations. Without
limiting the generality of the foregoing, Licensor hereby agrees that without Licensee's prior
written consent, which consent shall not be unreasonably withheld, conditioned or delayed,
Licensor shall not commence any capital improvements at the 17th Street Building, the effect of
which would be to reduce the square feet of the Licensed Premises on a permanent basis or
materially and adversely affect Licensee's access to the Licensed Premises on a permanent basis.
(g) Historic Preservation Restrictions. Notwithstanding any other provision in this Section 5,
Licensee will comply with all applicable laws, rules, regulations, notices or restrictions,
including any restrictions on alterations or improvements to the Licensed Premises, imposed by
the Historic Preservation Review Board in connection with such board's designation of any
portion of the 17th Street Building as "historic." Licensor hereby represents and warrants to
Licensee that (i) the exterior of the 1ih Street Building is designated as "historic" but the
Licensed Premises is not currently designated as "historic" or otherwise subject to restrictions
imposed by the Historic Preservation Review Board and (ii) there is an application pending with
the Historic Preservation Review Board to designate certain interior spaces of the 1ih Street
Building, which may include the Licensed Premises, as "historic". Except for such currently
pending application, Licensor agrees that it shall not petition to have any portion of the Licensed
Premises designated as "historic" or otherwise made subject to any restrictions imposed by the
Historic Preservation Review Board.
(h) French Windows. Licensee hereby notifies Licensor that Licensee intends to accession
the French Soissons stained glass windows installed in the 17th Street Building into Licensee's
collection of art and to remove these windows from the 1ih Street Building. Licensee will be
responsible for the costs associated with removing and replacing the windows.
6.

License Fee
There is no base license fee due to Licensor from Licensee hereunder.

7.

Utilities and Services
(a) Operating Charges.

(i)
Subject to Licensee's obligations to reimburse Licensor for a portion of
Operating Charges (hereinafter defined) pursuant to Section 7(b), Licensor shall be responsible

7

for all reasonable building operating charges during the term of this License associated with the
management and operation of the Licensed Premises as an art gallery, including but not limited
to water, sewer, electricity, gas, HVAC, elevator, window cleaning, life safety, pest control,
snow removal and sidewalk maintenance and any other reasonably necessary services pertaining
to the 17th Street Building and the Licensed Premises (except as limited below) (collectively,
"Operating Charges"); provided however, except with respect to 2014 Event Commitments,
Licensee shall be solely responsible for the costs and expenses of services contracted by
Licensee related to or arising with respect to the Licensed Premises for cleaning and janitorial
services, trash removal (except Licensee shall have the right to deposit its customary trash in the
17th Street Building's trash dumpsters located near the loading dock), and security (except as
expressly set forth in Section 7( c) below). Licensor shall be responsible for at all times operating
and maintaining the Licensed Premises and Transition Space in a manner compliant with Exhibit
E_, which sets forth Licensee's required "Humidity and Temperature Controls", including the
monitoring and documentation thereof. The Parties acknowledge and agree that the costs of
compliance with Licensee's required Humidity and Temperature Controls shall be considered a
part of Operating Charges hereunder. In the event that Licensee requires special building
utilities or services that are in excess of or different from those provided in the ordinary course
pursuant to this Agreement (such as a unique special installation with major utilities needs),
Licensee shall pay for the incremental costs of such building utilities or services to the extent
they are in excess of the ordinary course Operating Charges for the 1ih Street Building. Any
costs required under this Section 7(a)(i) to be paid solely by Licensee shall be deemed not
included within Operating Charges.
(ii)
Notwithstanding anything to the contrary contained in this License,
Licensee shall obtain at its sole expense its own telephone service, wired internet service and any
other telecommunication service for the Licensed Premises, but upon request to Licensor,
Licensee may connect to Licensor's telephone and wired internet service at prevailing Licensor
internal service rates, it being understood and agreed that Licensee's Representatives and
Licensee's guests and invitees may utilize any wireless internet services provided by Licensor
free of charge.
Other than Licensor's obligation to maintain Humidity and Temperature
(iii)
controls, Licensor shall provide the services for which it is responsible to pay under this License
as set forth in this Section 7 in a reasonable manner, taking into consideration the age and
condition of the 17th Street Building, including without limitation the base 17th Street Building
systems, with the understanding that this sentence shall not be construed to require that any 17th
Street Building systems or equipment be upgraded.
(b) Licensee's Obligation to Pay Pro Rata Portion of Operating Charges.
(i)
For purposes ofthis License, the term "License Year" shall mean the
period commencing on the Commencement Date and each consecutive twelve (12) month period
thereafter. The first such period shall be referred to as the "first License Year," and each of the
following License Years shall similarly be numbered for identification purposes.
(ii)
For the first License Year, Licensee shall pay to Licensor as
reimbursement for Licensee's pro rata share of Operating Charges an amount equal to $10.00
8

(the "Base Operating Reimbursement") multiplied by 14,385, which is the number of square feet
of rentable space comprising the Licensed Premises. Such amount shall be paid in twelve (12)
equal monthly installments of $11 ,987.50 no later than the fifth day of each month.
(iii)
For License Years after the first License Year, the Base Operating
Reimbursement shall automatically increase on the first day of each License Year (each, a "CPI
Adjustment Date") by a percentage equal to the "increase in the CPI".
(iv)
The "increase in the CPI" shall mean the percentage increase equal to a
fraction, the numerator of which shall be (i) the CPI for the December immediately preceding the
Adjustment Date minus (ii) the CPI published for the December of the second calendar year
preceding the Adjustment Date, and the denominator of which shall be the CPI published for the
December of the second calendar year preceding the Adjustment Date. Thus, if the Adjustment
Date is July I, 2016, the numerator is the CPI for December 2015 minus the CPI for December
2014 and the denominator is the CPI for December 2014). For purposes hereof, "CPI" means the
revised Consumer Price Index for Urban Wage Earners and Clerical Workers (revised CPI-W),
All Items, Washington- Baltimore DC-MD-V A-WV, CMSA, November 1996 = 100, issued by
the Bureau of Labor Statistics ofthe United States Department of Labor.
(v)
Except for the CPI Adjustment, Licensor shall not increase the Base
Operating Reimbursement. Licensee shall not be required to pay the Base Operating
Reimbursement during any period when Licensee is not able to use the Licensed Premises as a
result of Licensor conducting renovations to the 17th Street Building as contemplated in Section
5(c) above.
(vi)
The Parties may consult on a possible reduction of the Base Operating
Reimbursement based on actual costs, provided that any change in the Base Operating
Reimbursement, as adjusted by Section 7(b)(iii), shall require the mutual agreement ofthe
Parties.
(c) Security.
(i)
Licensor shall, at Licensor's expense, secure the 17th Street Building,
other than the Licensed Premises, 24 hours a day, 7 days a week, in a manner equivalent to the
standard of security Licensor currently applies to its existing academic buildings on its Foggy
Bottom Campus. Licensor shall not be responsible for any thefts or other damages arising from
security breaches that occur in the Licensed Premises, except as a result of the gross negligence
or willful misconduct of Licensor.
(ii)
Licensee shall, at Licensee's sole expense, secure the Licensed Premises
and provide security to protect the artwork stored or displayed in the Licensed Premises.
(d) Interruptions. Licensee undertakes to provide Licensor with prompt notice if any utilities
or services to the Licensed Premises (including without limitation the HVAC base 17th Street
Building system and any systems required to maintain Licensee's required Humidity and
Temperature Controls) to be provided by Licensor hereunder are interrupted or suspended.
Following such notice, Licensor shall use its best efforts to promptly cause such utilities or
9

services to be reinstated. Subject to Licensee's rights set forth in Section 4(b), no interruption or
malfunction of any such utilities or services shall constitute an actual or constructive eviction,
disturbance of Licensee's use and possession of the Licensed Premises, constitute a breach by
Licensor of any of its obligations hereunder, render Licensor liable for damages, entitle Licensee
to be relieved from any of Licensee's obligations hereunder or grant Licensee any right of setoff
or claim against Licensor; provided, however, that Licensor shall be responsible for any costs
incurred to remedy such interruption of malfunction including, without limitation, the costs and
expenses of any temporary arrangement required in order to maintain the Humidity and
Temperature Controls.
8.

Use ofLicensed Premises

Licensee agrees that it shall use the Licensed Premises for the operation of an art gallery
and museum with art exhibitions and programs and administrative and storage space supporting
such uses. Licensee shall not permit any other use thereof, either by change of use or additional
use, without the prior written consent of Licensor in its sole discretion. However, Licensee may
use the Licensed Premises for related uses ancillary to the uses described in the first sentence
above provided they are consistent with the NGA Activities. Licensee shall comply with all
applicable Laws (including Environmental Laws, as hereinafter defined) including without
limitation those pertaining to historic buildings such as compliance with limitations set by the
District Historic Preservation Review Board, and all orders and decrees of any court of
competent jurisdiction (collectively, "Applicable Laws"), and shall not directly or indirectly
make any use of the Licensed Premises which may thereby be prohibited. For purposes hereof,
"Laws" means all laws, statutes, common law, rules, codes, regulations, restrictions, ordinances,
orders, decrees, approvals, directives, judgments, rulings, injunctions, writs and awards of, or
issued or entered by, all Governmental Entities; "Governmental Entity" means any (a) nation,
state, commonwealth, county, city, town, village, district, or other jurisdiction of any nature, (b)
federal, state, local, municipal, foreign, or other government, (c) federal, state, local or foreign
governmental or quasi-governmental authority of any nature (including any agency, branch,
department, board, commission, court or tribunal), (d) multi-national or supra national
organization or body, (e) body exercising, or entitled or purporting to exercise, any
administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power,
including any court or arbitrator, (f) self regulatory organization, (g) academic or professional
agency, association or organization or (h) official of any ofthe foregoing; and "NGA Activities"
means events for the benefit of Licensee's Representatives, visitors and invitees and related to
the activities conducted by Licensee, including, without limitation, those activities contemplated
by the Corcoran-NGA Agreement, and expressly excluding the rental of the Licensed Premises
by Licensee to third parties for purposes unrelated toNGA Activities.
9.

Maintenance and Repair

(a) Licensee's Obligations. Except as provided in Section 9(b) below, Licensee shall, at
Licensee's sole expense, maintain and keep the Licensed Premises in good condition, order and
state of repair at all times during the term of this License, ordinary wear and tear excepted, in
compliance with all Applicable Laws. In addition, Licensee shall keep the Licensed Premises in
orderly and sanitary condition, free of trash or other debris. If Licensee refuses or neglects to
commence and to complete any required repairs within ten (1 0) business days after written notice
10

from Licensor, Licensor may, but shall not be obligated to, make such repairs. Should Licensor
elect to make such repairs, Licensee shall pay the reasonable costs of such repairs within thirty
(30) days after submission to Licensee of a written invoice for same. In no event shall Licensor
have any obligation to make any necessary repairs and shall incur no liability to make any
necessary repairs in or upon the Licensed Premises. Licensee agrees not commit waste within
the Premises. Licensee shall provide the maintenance required to be provided by Licensee under
this Section 9(a) in a reasonable manner, taking into consideration the age and condition of the
17th Street Building and the Licensed Premises, including without limitation the base 17th Street
Building systems, with the understanding that this sentence shall not be construed to require that
any systems or equipment located in the Licensed Premises be upgraded.
(b) Licensor's Obligations. Licensor shall, at Licensor's sole expense, maintain and keep (i)
the 17th Street Building (excluding the Licensed Premises except as set forth below in subsection
(ii)) and (ii) the structural elements of the Licensed Premises and the base 17th Street Building
systems (including base 17th Street Building HVAC, roof, favade, exterior windows, sidewalks,
elevators, stairways, mechanical, electrical, plumbing and sanitary waste systems) serving the
Licensed Premises whether or not within the Licensed Premises, including without limitation any
capital improvements installed by Licensor in the Licensed Premises as permitted under Section
5(e) above, in good condition, order and state of repair at all times during the Term of this
License, ordinary wear and tear excepted, and in compliance with all Applicable Laws; provided,
however, Licensee shall be responsible for the cost of maintenance, repair and compliance with
Applicable Laws caused by (i) the gross negligence or intentional misconduct of Licensee or (ii)
the use of the Licensed Premises by Licensee for purposes other than those permitted under this
License. In addition, Licensor shall keep the 17th Street Building (excluding the Licensed
Premises) in orderly and sanitary condition, free of trash or other debris (including, without
limitation, keep the sidewalks free from snow and other obstructions). Licensor shall provide the
maintenance required to be provided by Licensor under this Section 9(b) in a reasonable manner,
taking into consideration the age and condition of the 17th Street Building, including without
limitation the base 17th Street Building systems, with the understanding that this sentence shall
not be construed to require that any 17th Street Building systems or equipment be upgraded
except in connection with Licensor's Work and to the extent necessary to comply with
Licensee's required Humidity and Temperature Controls and all Applicable Laws.
10.

.Surrender of Licensed Premises

Upon the expiration or earlier termination of this License, Licensee covenants to deliver
to Licensor the Licensed Premises in materially the same condition as at the beginning of the
License term, ordinary wear and tear and damage due to casualty, and Non-Structural Alterations
and Licensor-approved Structural Alterations excepted. The Licensee shall have the right to
remove its personal property and trade fixtures, including any artwork exhibited or stored in the
Licensed Premises, and shall repair any material damage caused by such removal. Any items not
removed by Licensee within thirty (30) days of written notice by Licensor after the expiration or
earlier termination of this License shall be deemed abandoned and may be disposed of by
Licensor. Licensee shall surrender the Licensed Premises free and clear of all liens, charges, or
encumbrances thereon to the extent caused by Licensee. If Licensee does not surrender all of the
Licensed Premises upon the expiration or earlier termination of this License as required hereby,
Licensee shall be obligated to pay to Licensor as holdover fee $1,000.00 per day of such
11

holdover, plus any other reasonable charges due, attorneys' fees, costs, and reasonable expenses
incurred by Licensor in regaining possession of the Licensed Premises and/or to recover the
foregoing amounts, and shall be liable for any other damages, claims or reasonable expenses
incurred by Licensor as a result of such holdover.
11.

No Assignment or Subletting

Except as set forth herein, Licensee shall not transfer, mortgage, encumber or assign this
License or sublicense or allow, to the extent within Licensee's control, any other person or entity
to occupy all or any part of the Licensed Premises.
12.

Delivery of Licensed Premises

Subject to Licensor's covenants to perform Licensor's Work and to maintain the
Licensed Premises in compliance with Licensee's required Humidity and Temperature Controls,
Licensee accepts the Licensed Premises in its "as is" condition as of the Commencement Date.
As of the Commencement Date, Licensor shall be the fee owner of the 17th Street Building and,
except as set forth herein, as of the Commencement Date no other persons shall have the right to
use or occupy the Licensed Premises.
13.

Right of Entry

Licensee agrees that Licensor's Representatives shall have the right upon reasonable
notice to Licensee, to enter into and upon such Licensed Premises, or any part thereof, at all
normal business hours for the purpose of examining or making repairs to same, and, as set forth
in Section 1(c), at any time with no prior notice (but with notice promptly thereafter), during an
emergency as determined by Licensor. Subject to the provisions of Section 14(f) below,
Licensor shall promptly repair any damage to the Licensed Premises (but excluding the personal
property of Licensee located therein which is subject to Section 14(e) below) caused by or
arising from the exercise by Licensor of the rights set forth in this Section 13.
14.

Indemnification

(a) Indemnification by Licensee. To the extent permitted by law, Licensee hereby
indemnifies and agrees to defend and hold each of Licensor's Representatives harmless (i) from
claims for personal injury, death, or property damage caused by the gross negligence or willful
misconduct of Licensee's Representatives; (ii) from all claims, demands, fines, penalties, charges
and orders, judgments and enforcement actions of any kind, and all reasonable costs and
expenses incurred in connection therewith, including remediation costs, reasonable attorneys'
fees and defense costs, arising directly or indirectly, in whole or in part, out of (a) the presence
at the 17th Street Building during the Term of any Hazardous Substances (as hereinafter defined)
that arises out of the actions of Licensee or any spilling, leaking, pumping, or other release into
the environment (collectively, a "Discharge") of any Hazardous Substance on, under, or from
the 17th Street Building that arises out of the actions of Licensee in violation of any
Environmental Laws, or (b) any activity by any third persons occupying the Licensed Premises
and under the control of Licensee regarding the handling of Hazardous Substances and in, on or
about the Licensed Premises during the term of this License; and (iii) from all claims, demands,
12

fines, penalties, charges and orders, judgments and enforcement actions of any kind, and all costs
and expenses incurred in connection therewith, including remediation costs, attorneys' fees and
defense costs, arising directly or indirectly, in whole or in part, out of Licensee's actions or
inactions in violation of the express terms of this License occurring during the Term.
(b) Indemnification by Licensor. Licensor hereby indemnifies and agrees to defend and hold
each of Licensee's Representatives harmless (i) from claims for personal injury, death, or
property damage caused by the gross negligence or willful misconduct of Licensor, its agents,
employees, contractors, subcontractors, guests or invitees (including, without limitation, any
students of Licensor); (ii) from all claims, demands, fines, penalties, charges and orders,
judgments and enforcement actions of any kind, and all costs and expenses incurred in
connection therewith, including remediation costs, reasonable attorneys' fees and defense costs,
arising directly or indirectly, in whole or in part, out of (a) the presence at the 17th Street
Building during the Term of any Hazardous Substances or any Discharge of any Hazardous
Substance on, under, or from the 17th Street Building that arises out of the actions of Licensor in
violation of any Environmental Laws, or (b) any activity by any third persons occupying or
present in, on or about the 17th Street Building (other than the Licensed Premises) and under the
control of Licensor regarding the handling of Hazardous Substances during the term of this
License; and (iii) from all claims, demands, fines, penalties, charges and orders, judgments and
enforcement actions of any kind, and all costs and expenses incurred in connection therewith,
including remediation costs, attorneys' fees and defense costs, arising directly or indirectly, in
whole or in part, out of Licensor's actions or inactions, including without limitation in violation
of the express terms of this License occurring during the Term.
(c) Hazardous Substances Defined. As used in this License, the term "Hazardous
Substances" means any substance, material, condition, mixture or waste which is now or
hereafter (i) defined as a "hazardous waste," "hazardous material," "hazardous substance,"
"extremely hazardous waste," "restricted hazardous waste," "oil," "pollutant," or "contaminant"
under any provision of District, federal, or other Applicable Law; (ii) classified as radioactive
material; (iii) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water
Act, 33 U.S.C. Sec. 1321 or listed pursuant to Section 307 of the Clean Water Act, 33 U.S.C.
sec. 1317 ("Clean Water Act"); (iv) defined as a "hazardous waste" pursuant to the Resource
Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et seq. ("RCRA"); (v) defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Sec. 9601 et seq. ("CERCLA"); (vi) determined to be
a "hazardous chemical substance or mixture" pursuant to the Toxic Substances Control Act, 15
U.S.C. Sec. 2601 et seq. ("TOSCA"); (vii) identified for remediation, storage, containment,
removal, disposal, or treatment in any District plan for the 17th Street Building; or
(viii) determined by the District or federal authorities to pose or be capable of posing a risk of
injury to human health, safety or property (such substances to include petroleum and petroleum
by products, asbestos, polychlorinated biphenyls, polynuclear aromatic hydrocarbons, cyanide,
lead, mercury, acetone, styrene and "hazardous air pollutants" listed pursuant to the Clean Air
Act, 42 U.S.C. §7412 et seq. ("Clean Air Act")).
(d) Environmental Laws Defined. As used in this License, "Environmental Laws" means
every law, ordinance, regulation, judicial or administrative order or decree, permit, license,
approval, authorization and similar requirement of every federal ·and District governmental
13

agency or other governmental authority now or hereafter existing relating to any Hazardous
Substances, including the Clean Water Act, the Clean Air Act, TOSCA, CERCLA, RCRA, the
Hazardous Materials Transportation Act (49 U.S.C. §5101 et seq.), the Hazardous Substances
Account Act, the Federal Hazardous Substances Act (15-U.S.C. §1261 et seq.), the Underground
Storage Tank Act of 1984 (42 U.S.C. §991 et seq.), and the District of Columbia Underground
Storage Tank Management Act of 1990 (D.C. Code §6-995.1 et seq.).
(e) Personal Property. Licensee shall bear the risk of all loss, destruction or damage to any
personal property placed by Licensee on the Licensed Premises, including Licensee's collection
of art in the Licensed Premises, and Licensor shall not be liable for any damage to said personal
property of Licensee for any cause whatsoever, except to the extent caused by the gross
negligence or willful misconduct of Licensor's Representatives. Licensee shall provide Licensor
with evidence that Licensee or Corcoran has in place insurance covering risk of loss, destruction
or damage to Licensee's personal property placed by Licensee on the Licensed Premises.
(f) Limitations on Licensor. Licensor shall not be liable to Licensee for any damage or
injury to Licensee which results when Licensor exercises any rights it has under this License,
except to the extent caused by the gross negligence or willful misconduct of Licensor's
Representatives and subject in all events to Section 13 and Section 14(e) hereof.
15.

Change of Licensee's Status and Failure to Use Licensed Premises

If Licensee ceases to be a non-profit organization or a federal establishment, or if
Licensee uses the Licensed Premises for any purpose other than that permitted under this License
or commits or suffers to exist an Event of Bankruptcy (defined below), then any ofthese events
shall be an Event of Default as defined hereafter in Section 17 of this License. "Event of
Bankruptcy" is any of the following: (i) if a receiver or custodian is appointed for any or all of
the property or assets of Licensee or if there is instituted a foreclosure action on any of the
property of Licensee, or (ii) if Licensee files a voluntary petition under 11 U.S.C. Article 101 et
seq., as amended (the "Bankruptcy Code"), or under the insolvency laws of any jurisdiction
(the "Insolvency Laws"); or (iii) if there is filed an involuntary petition against Licensee as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which is not dismissed within
ninety (90) days of filing; or (iv) if Licensee makes or consents to an assignment of its assets, in
whole or in part for the benefit of creditors, or a common law composition of creditors.
16.

Insurance

(a) Comprehensive General Liability Coverage. At all times during the term of this License,
Licensee shall maintain, at its own cost and expense, policies of contractual and comprehensive
general liability insurance, including public liability and broad form property damage, with a
minimum combined single limit of liability of $1,000,000, for personal injuries or deaths of
persons occurring in or about the Licensed Premises. The liability insurance covering bodily
injury and property damage shall utilize an occurrence policy form in an amount no less than
$1,000,000 combined single limit for each occurrence. Such insurance shall include, but not be
limited to, premises and operations liability, independent contractors liability and personal injury
liability. The Licensor shall be named as an additional insured ("Additional Insureds") on all
such policies as its interest may appear.
14

(b) Other Insurance. At all times during the term of this License, Licensee shall maintain, at
its own cost and expense, Statutory Workers' Compensation Insurance as mandated by the state
or District law. In addition, Licensee must obtain and maintain the following Employers Liability
limits ofLiability:
Bodily Injury by Accident
Bodily Injury by Disease
Bodily Injury by Disease

Each Accident
Policy Limit
Each Employee

$500,000
$500,000
$500,000

(c) Certificate of Insurance; Endorsements. As of the Commencement Date, and on each
anniversary of the Commencement Date during the term of this License, Licensee shall provide
Licensor with a certificate of insurance for each policy required under this License showing that
the coverages required hereunder are in force with premiums paid.
(d) Waiver of Claims. Licensor and Licensee each hereby waives all rights to recovery,
claims or causes of action against the other and the other's agents, trustees, officers, directors and
employees arising from any and all liability, loss or damage to property arising from a risk
insured against under the insurance required to be carried under Section 16(b) of this License or
to be covered by a specified plan of self~ insurance as set forth in Section 16(b), regardless of the
cause or origin (including negligence of the other Party). Each parties' insurance policies
described in Section 16(b) shall include appropriate clauses waiving all rights of subrogation
against the other, with respect to losses payable under such policies.
(e) Violation of Insurance Requirements. Licensee shall not do or suffer to be done or keep
or suffer to be kept anything in or about the Licensed Premises which will contravene any of the
insurance coverages required herein and shall immediately cease any such activity or omission
that is in violation of such insurance coverage.

(f) Miscellaneous. The insurance required to be maintained herein by Licensee is primary
coverage to Licensor with respect to any insurance or self~insurance programs maintained by
Licensee and no insurance held or owned by Licensor shall be called upon to contribute to a loss,
except for the sole negligence of Licensor.
17.

Default

(a) Monetary Default. In the event Licensee shall fail to pay any monetary obligation when
due in accordance with the terms of this License, and such default shall continue for a period of
thirty (30) days after the giving of written notice thereof to Licensee, such failure shall constitute
an "Event of Default" and Licensor, without prejudice to any other rights or remedies that it
may have under this License or that are available at law or in equity, shall have the right to take
possession of the Licensed Premises and terminate this License, whereupon Licensee shall
promptly surrender the Licensed Premises to Licensor.
(b) Non~Monetary Default. In the event Licensee shall neglect to keep or perform in any
material respect any covenant, agreement, or condition of this License, including but not limited
to the provisions pertaining to the use of the Licensed Premises, compliance with all Applicable
Laws, rules and regulations, the maintenance and repair of the Licensed Premises, the insurance
15

coverages as provided in this License, its non-profit corporate status, or shall fail to conform in
any material respect to any of the building rules and regulations adopted by Licensor and such
failure shall continue for the cure period set forth below in this Section 17(b), such failure to
perform shall constitute a "Licensee Event of Default". If a default under this Section 17(b)
occurs, Licensor shall give written notice of such default to Licensee. In the event that such
default is not rectified within thirty (30) days from the date of such notice or, provided Licensee
has in good faith made an immediate and diligent effort to cure such failure during such thirty
(30) day period and Licensee continues to diligently try to cure such failure thereafter, within
such longer period of time that may be reasonably necessary for Licensee to promptly and
diligently prosecuting the curing thereof (but not in excess of an additional ninety (90) days),
then Licensor, without prejudice to any other rights or remedies that it may have under this
License or that are available at law or in equity, shall have the right to take possession of the
Licensed Premises and terminate this License, whereupon Licensee shall promptly surrender the
Licensed Premises to Licensor.
(c) Default by Licensor. In the event Licensor shall neglect to keep or perform in any
material respect any covenant, agreement, or condition of this License, including but not limited
to the provisions pertaining to Licensor's Work, compliance with all Applicable Laws, rules and
regulations and the maintenance and repair of the 17th Street Building, and such failure shall
continue for the cure period set forth below in this Section 17(c), such failure to perform shall
constitute a "Licensor Event of Default". If a default under this Section 17(c) occurs, Licensee
shall give written notice of such default to Licensor. In the event that such default is not rectified
within thirty (30) days from the date of such notice or, provided Licensor has in good faith made
an immediate and diligent effort to cure such failure during such thirty (30) day period and
Licensor continues to diligently try to cure such failure thereafter, within such longer period of
time that may be reasonably necessary for Licensor to promptly and diligently prosecuting the
curing thereof (but not in excess of an additional ninety (90) days), then Licensee, without
prejudice to any other rights or remedies that it may have under this License or that are available
at law or in equity, shall have the right to terminate this License.
(d) No Waiver. No default of this License by Licensee or Licensor, either prior to or
subsequent to the filing of a bankruptcy or insolvency petition, shall be deemed to have been
waived unless expressly done so in writing by Licensor or Licensee, respectively.
(e) Cure Right. If Licensee breaches any of its obligation under this License (after
applicable notice and cure periods), then Licensor may, but shall not be required to, make such
payment or do such act and charge the amount ofthe expense to Licensee, due within thirty (30)
days of demand therefor. If Licensor breaches any of its obligation under this License (after
applicable notice and cure periods), then Licensee may, but shall not be required to, make such
payment or do such act and charge the amount of the expense to Licensor, due within thirty (30)
days of demand therefor.
(f) Enforcement Costs. In addition to the foregoing, (i) if after a default by Licensee, an
attorney is employed or directed to collect or enforce the monetary or other obligations
evidenced by this License or to assist Licensor in connection with its exercise of any right,
power, privilege, or remedy referred to herein, Licensee agrees to pay promptly all costs incurred
by Licensor with respect to collection or enforcement including reasonable attorney's fees and

16

court costs and (ii) if after a default by Licensor, an attorney is employed or directed to collect or
enforce the monetary or other obligations evidenced by this License or to assist Licensee in
connection with its exercise of any right, power, privilege, or remedy referred to herein, Licensor
agrees to pay promptly all costs incurred by Licensee with respect to collection or enforcement
including reasonable attorney's fees and court costs.
18.

Signs

Except as provided in Exhibit C, Licensee shall place no signs, advertisements or
signboards on the interior or exterior of the Licensed Premises or the 17th Street Building
("Signs") without the approval of Licensor, which approval shall be in its sole and absolute
discretion. To the extent any such Signs are. approved by Licensee, Licensee shall, at Licensee's
sole cost, install, maintain in good, safe and professional condition, insure and remove at the end
of the Term all such Signs. All such Signs shall be in conformity with all Applicable Laws.
19.

Notices

(a) Address. All notices, requests, demands and other communications which are required or
may be given pursuant to the terms of this License shall be in the English language and in written
or electronic form, and shall be deemed delivered (a) on the date of delivery when (i) delivered
by hand or (i i) sent by reputable overnight courier maintaining records of receipt and (b) on the
date of transmission when sent by facsimile or other electronic transmission during normal
business hours with confirmation of transmission by the transmitting equipment; provided that
any such communication delivered by facsimile or other electronic transmission shall only be
effective if such communication is also delivered by hand or deposited with a reputable
overnight courier maintaining records of receipt within two (2) business days after its delivery by
facsimile or other electronic transmission. All such communications shall be addressed to the
parties at the addresses set forth below, or at such other address as a Party may designate upon
ten ( 10) days' prior written notice to the other Party:
The George Washington University
2121 Eye Street, N.W.
Suite 701
Washington, DC 20037
Attention: Steven Knapp, President
Phone: (202) 994-6500
Fax: (202) 994-0654

with a copy to:
Beth Nolan
The George Washington University
2100 Pennsylvania Avenue, N.W.
Suite 250
Washington, DC 20052
Phone: (202) 994-3434
Fax: (202) 944-4640
17

Kevin J. Lavin
Arnold & Porter LLP
555 Twelfth Street, N.W.
Washington, DC 20004-1206
Phone: (202) 942-5461
Fax: (202) 942-5999
Any notice or communications to be given to Licensee shall be sent to the following address,
unless Licensee provides a different notice address to Licensor in accordance with the terms
hereof:
Elizabeth A. Croog
Secretary and General Counsel
National Gallery of Art
2000B South Club Drive
Landover, MD 20785
Tel: (202) 842-6363
Fax: (202) 842-3782

with a copy to:
Janet T. Geldzahler
Sullivan & Cromwell LLP
1700 New York Avenue, N.W.
Suite 700
Washington, DC 2006-5215
Phone: (202) 956-7515
Fax: (202) 956-7619
(b) Jury Trial Waiver. Licensee and Licensor, by its acceptance of this License, each hereby
waives its right to a trial by jury in any action or proceeding based upon, or related to, the subject
matter of this License and the business relationship that is being established. This waiver is
knowingly, intentionally and voluntarily made by Licensee and Licensor. Licensee and Licensor
acknowledge that this waiver is a material inducement to enter into a business relationship, that
Licensee and Licensor have already relied on this waiver in entering into this License and that
each of them will continue to rely on this waiver in their related future dealings. Licensee and
Licensor further acknowledge that they have been represented (or have had the opportunity to be
represented) in the signing of this License and in the making of this waiver by independent legal
counsel.
20.

Authority of Parties

(a) Authority of Licensor. By executing this License, Licensor represents to Licensee that:
(i) Licensor is authorized to enter into, execute, and deliver this License and perform the
obligations hereunder; (ii) this License is effective and enforceable against Licensor in
accordance with its terms; (iii) the person signing on Licensor's behalf is duly authorized to
18

execute this License; and (iv) no other signatures or approvals are necessary in order to make all
ofthe representations of Licensor contained in this paragraph true and correct.
(b) Authority of Licensee. By executing this License, Licensee represents to Licensor that:
(i) it is authorized to enter into, execute and deliver this License and perform its obligations
hereunder; (ii) this License is effective and enforceable against Licensee in accordance with its
terms; (iii) the person signing on behalf of Licensee is duly authorized to execute this License;
and (iv) no other signatures or approvals are necessary in order to make all of the representations
of Licensee contained in this paragraph true and correct.
21.

Brokers

Licensor and Licensee agree that this License was directly negotiated between them and
that no broker was involved in bringing about this License. No claim of a broker's fee shall be
made against either Licensor or Licensee.
22.

Relationship ofthe Parties

Nothing herein contained shall be deemed or construed by the parties or by any third
party as creating the relationship of principal and agent, partnership, joint venture, landlord and
tenant, or any association between the parties hereto other than the relationship of licensor and
licensee. This License is made for the benefit of the parties hereto and not for the benefit of any
third party.
23.

Provisions Severable

If any provision of this License or the application thereof to any person or circumstance
is ruled invalid or unenforceable by a court of competent jurisdiction, the remainder of this
License or the application of such provision to persons or circumstances other than those to
which it is held invalid or unenforceable, shall continue in effect and be enforceable to the fullest
extent permitted by law; provided that, in the event that Licensee's obligation elsewhere under
this License (i) to indemnify Licensor, (ii) to keep the Licensed Premises in good order, repair
and condition at its sole expense in accordance with and subject to the terms of this License, (iii)
to provide insurance as required in this License, or (iv) to use the Licensed Premises solely as a
permitted in this License is ever severed from this License, the term of this License shall
automatically cease and terminate.
24.

Remedies Cumulative; No Waiver

The rights and remedies granted herein or by law or equity are separate and no one of
them, whether or not exercised, shall be deemed to exclude other rights or remedies. No failure
of a Party to exercise, and no custom or practice of the parties at variance with the terms hereof,
shall constitute a waiver of any right or remedy granted hereunder. Receipt by Licensor of any
rent or other amount due hereunder with knowledge of the breach by Licensee of any provision
hereof shall not constitute a waiver of such breach or an accord and satisfaction. To be valid, any
waiver shall be in writing and signed by the Party waiving its rights, and no waiver of any breach
shall be deemed to be a waiver of any subsequent breach.
19

25.

Interpretation

The neuter, feminine, and masculine pronouns when used in the License shall each
include each of the other genders. The parties hereto agree that all of the provisions of this
License are to be construed as covenants and agreements as though the words imparting such
covenants and agreements were used in each separate provision hereof. Although the provisions
of the License were drafted by Licensor, the terms of the License were fully negotiated by the
parties and shall not be construed for or against Licensor or Licensee, but the License shall be
interpreted in accordance with the general meaning of the language herein contained in an effort
to reach the intended result.
26.

Counterparts

This License may be executed in any number of counterparts, each of which shall be
deemed an original, but all ofwhich together shall constitute one and the same instrument.
27.

Governing Law

This License shall be governed by the Laws of the District of Columbia, excluding any
conflicts or choice of Law rules or principles that might otherwise refer construction or
interpretation of this Agreement to the substantive Law of another jurisdiction
28.

Time of the Essence

Time is of the essence with respect to the performance of all obligations by either Party
under this License.
29.

Survival ofRemedies

Each Party's remedies shall survive the termination of this License whether such
termination is caused by the default of the othef Party or otherwise.
30.

Force Majeure

Each of Licensor and Licensee shall be excused from performing an obligation or
undertaking provided for in this License so long as the performance is prevented or delayed,
retarded, or hindered by an act of God, fire, earthquake, flood, explosion, war, invasion,
insurrection, riot, mob violence, sabotage, inability to procure or a general shortage of labor,
equipment, facilities, materials or supplies in the open market, failure or unavailability of
transportation, strike, lockout, actions of labor unions, a taking by eminent domain, requisition,
laws, orders of government or of civil, military, or naval authorities (but only such orders of a
general nature pertaining to the Licensed Premises and comparable properties in the District), or
any other cause, whether similar or dissimilar to the foregoing not within the reasonable control
of Licensor or Licensee, as the case may be, specifically excluding, however, delays for
adjustments of insurance and delays due to shortage or unavailability of funds.

20

31.

Entire and Binding Agreement

This License, including all attachments and exhibits, contains the entire agreement of the
parties hereto, and may not be modified other than by their express, written, mutual consent. The
terms and conditions and provisions of this License shall inure to the benefit of Licensee and
Licensor and shall likewise bind the Parties, their agents, successors and assigns.
32.

Confidentiality.

Information concerning either Licensor's or Licensee's business methods, financial
information, future plans, personnel data, trade secrets, information systems, financial and
accounting policies or similar matters, or information designated as "confidential" by the
disclosing Party or released under circumstances where a reasonable person would understand
that such information is to be treated as confidential, shall be treated as confidential. The Party
receiving such confidential information shall take the same precautions as it takes to protect its
own confidential information, but in all events reasonable precautions shall be taken, in order to
preserve its confidentiality. Confidential information shall not be revealed to third parties
without the written consent of the disclosing Party, and neither Licensor nor Licensee may use
the other Party's confidential information for any purpose except for purposes of performing this
Agreement. This confidentiality requirement shall not apply to: (a) information in the public
domain, (b) information independently developed by either Party without use ofthe other Party's
confidential information, (c) information received by either Party from a third party under no
duty of confidentiality, and (d)a disclosure of information that is required by Law or legislative
or regulatory body. The obligations of the parties under this Section 32 shall survive the
termination of this License for a period of five (5) years after such termination.

[Signatures follow on next page]

21

IN WITNESS WHEREOF, the Parties hereto intending to be legally bound hereby have
executed this License as of the day and year first above written.

LICENSOR:
THE GEORGE WASHINGTON UNIVERSITY

By

~ ;f?AJ1

Name: ~Knapp
Title: President

'(ZJ

LICENSEE:
NATIONAL GALLERY OF ART

By: _ _ _ _ _ _ _ _ _ __
Name: Earl A. Powell III
Title: Director

22

IN WITNESS WHEREOF, the Parties hereto intending to be legally bound hereby have
executed this License as of the day and year first above written.

LICENSOR:
THE GEORGE WASHINGTON UNIVERSITY

By: _______________________
Name: Dr. Steven Knapp
Title: President

LICENSEE:
NATIONAL GALLERY OF ART

Name: Earl A. Powell III
Title: Director

22

EXHIBIT A
LICENSED PREMISES

A-l

FIRST FLOOR

Exhibit A
f..l.

W A Clark Collcoc..ilon
ftC.
~
Gall~ry

l

Tullt't

3

Gallery 4

U09Qt:t1
Gal!ery

ex.,cuUve
Olfl~:;e

Director

cern,-':rm::e

Ruesch
Boararoom

SEVENTEENTH STREET NW

SECOND FLOOR


>3

?mm :1

.i




cgq?? n5, baim?; -

Public Activity

.5

.m

EXHIBIT
TRANSITION SPACE

B?l

Exhibit B
George Washington Universty
Transition Planning- NGA 17th Street Building
Take-off Date: I
I
4/24/2014
Floor
I Page I
Room
Sub-Basement I 1 !Archives
1 IMuseum Storage
Sub-Basement
2 IEducation workshop
Basement
First
3 IConserv
3 !Curatorial Office
First
3 ICuratorial Office
First
3 IEducation
First
3 !Gallery 11
First
3 1Gallery4
First
3 IGallery 5
First
3 1Gallery6
First
3 1Gallery7
First
3 IGallery 8
First
3 INY Ave Entrance Gallery
First
3 IPainting Storage
First
3 !Storage behind 11
Rrst
4 !Cooling Room
Second
4 IGallery 15
Second
4 IGallery 22
Second
4 IGallery 24
Second
4
1Gallery25
Second
Second
4 !Gallery 26
4 - 'S~27'Et,$r.- · 5eamd
4 ]Gaiiery 28
Second
4 1Gallery29
Second
4 IGallery 30
Second
4 !Tapestry Room
Second

sa Foota~:e I

Gallery 31
Gallery 10
Conservation
Gallery 23
Gallery 15
Gallery 22
Gallery 24
Gallery 25

. ·• ·:· ·'ZJ'
Galle~2·

I
I
I

I
I
I
I
I

346.68
605.67
1,208.52
730.92
1,167.13
1,250.82
837.52
653.85
750.51
1,052.81
773.56
521.51
1,152.92
1,039.25
1,577.25
808.85
536.54
1,596.92
1,066.50
570.86
1,396.57

I
I

I
I

I
I
I
I
I

I
I
I

I
I
I
I

I
I
I
I
I

I ....311

Room Dimensions
length
width
Volume {Cfl
ft
in
ft
in
10.1
29.0
3.3
3,095.711 11
43.0 I 1.2
7,826.35 I 14
0.6
9.7
41.0 I 11.5
14,184.39 I 28
25.0 I 11.7
12,597.01 I 28
1.7
0.7
40.0 I 2.0
20,108.76 I 29
1.7
40.0 I 2.0
21,550.50 I 31
2.9
14,434.22 I 32
25.0 I 11.7
8.8
27.0 I 6.7
5,455.56 I 23
7.9
14,955.47 I 36
20.0 I 5.7
1.2
41.0 I 11.4
18,059.45 I 25
7.9
13,297.56 I 36
21.0 I 1.2
8,952.59 I 27
4.3
19.0 I 0.8
21,208.96 I 23
9.8
48.0 I 5.0
4.9
37.0 I 11.0
17,580.69 I 27
1.1
16.0 I 5.0
25,034.67 I 96
1.7
25.0 I 11.7
13,939.94 I 31
0.6
25.0 I 5.9
9,478.92 I 21
0.9
61.0 I 2.9
31,884.38 I 26
4.4
42.0 I 0.6
18,863.74 I 25
0.6
27.0 I 1.4
10,085.15 I 21
6.1
26.0 I 1.2
24,672.67 I 53
4.1
36.0 I 8.9

15,799.5·r· I

-~. - :.-. 992~86- - 11:54~~1 &~~-Gallery29
Gallery 30

·;c._·.

-

604.74 I
1,906.70 I
1,004.29
25,048.05

.

.

- ,:--·~~: _.,

.,. :

10,661.64 I 29
37,850.96 I 64
16,390.25 I 23
425,509.59

Assumptions:
The Museum remains operational until September
The Rllmore will be available until Summer, 2015, Fall & Spring Classes will continue to be held there
Expect transition to be complete for Summer 2015 classes in the 17th Street Building
Assume 20K of space required.

'

I- - f

. -,

height
ft I in
8.0 I 11.2
12.0
11.1
11.0
8.8
17.0
2.8
17.0
2.8
17.0
2.8
17.0
2.8
4.1
8.0
19.0
11.1
17.0
1.8
17.0
2.3
17.0
2.0
18.0
4.8
16.0
11.0
10.5
15.0
2.8
17.0
17.0
8.0
19.0 11.6
17.0
8.3
8.0
17.0
17.0
8.0
17.0
8.0

I I

~
·:;Y_
--._;_
.__
..;
17.0
27.0 I 11.0
8.0
--

•·:c-;•- .... ".'.'". ,·-

.

-. •· .- ,.,

6.8
8.4
20.0 I 4.3
17.0
7.6
2.4
29.0 I 8.4
19.0
10.2
10.8 I 42.0 I 0.2 I 16.0 I 3.8

EXHIBIT C
RULES AND REGULATIONS
(1)
All loading and unloading of goods shall be done only in the areas designated for
such purposes by Licensor and pursuant to Section 2 of the License Agreement.

(2)
All garbage and refuse shall be kept in a container approved by Licensor, and
shall be placed outside of the Licensed Premises prepared for collection in the manner and at the
times and places specified by Licensor. If Licensor shall provide or designate a service for
picking up refuse and garbage, Licensee shall use same at Licensee's cost, provided such cost is
the rate normally charged in the vicinity of the. 1ih Street Building. Licensee shall have the right
to independently contract for trash removal.
(3)
No aerial shall be erected on the roof or exterior walls of the Licensed Premises,
or on the grounds, without in each instance, the written consent of Licensor. Any aerial so
installed without such written consent shall be subject to removal without notice at any time.
(4)
nmsance.

Licensee shall conduct its business in a manner so as not to create a public

(5)
The outside areas immediately adjoining the Licensed Premises shall be kept
clean and free from dirt and rubbish by Licensee to the reasonable satisfaction of Licensor and
Licensee shall not place or permit any obstruction in such areas.
(6)
The plumbing facilities shall not be used for any other purpose than that for which
they are constructed. Licensor shall put signs in public bathrooms requesting that no foreign
substances be thrown in toilets.
(7)
Licensee shall not burn any trash or garbage of any kind in or about the Licensed
Premises or the 1ih Street Building.
(8
Licensee shall not cause or permit any obnoxious or foul odors that unreasonably
disturb the public or other tenants. Should such odors be evident, Licensee shall be required to
take immediate steps to remedy same.
(9)
Licensee shall not display or sell merchandise or allow carts, portable signs,
devices or other objects to be stored or to remain outside the Licensed Premises, without the
prior written consent of Licensor. Notwithstanding the foregoing, Licensee may, without prior
written consent of Licensor, in accordance with its practice, and/or the prior practice of
Corcoran, exhibit signs with respect to exhibitions and programs and, during times when the
Licensed Premises are open to the public, to have a docent of Licensee occupy a space at any
information desk maintained by the Licensor on the first floor and to place outside the Licensed
Premises up to two portable kiosks (of a size and design to be approved by Licensor) and display
cases necessary for the sale of catalogues, programs, posters and other typical exhibition
materials and the rental of audio-tour devices, as well as a portable cloakroom, which kiosks and
cloakroom shall be stored in the Licensed Premises when the Licensed Premises are not open to
the public.
C-1
SCJ 3614880.7A

(10) Licensee and Licensee's employees and agents shall not solicit business in the
parking or other common areas, nor shall Licensee distribute any handbills or other advertising
matter in automobiles parked in the parking area or in other common areas, without the prior
written consent of Licensor.

C-2
SC13614880.7A

EXHIBIT

NGA ALTERATION PLANS

236148807A

EXHIBITD
The Corcoran Gallery of Art
NGA Design Department Phasing Recommendations
April 30, 2014

DRAFT

General
This document is divided into two sections: Immediate Concerns and Future Concerns (Phase I and
Phase II, respectively.)
Phase I- Immediate Concerns will include any project scope from the Corcoran Building closure in
October 2014 through the opening/installation of the special exhibition planned for June 2015.
Phase II- Future Concerns will include any project scope as described in the following phasing plan.
There are 4 estimated steps: "North 11 , "East", "South", "West", and if necessary, "Ground".

PHASE I - Immediate Concerns (2014-2015)
The Corcoran Building will be closed on October X, 2014.
The initial and immediate phase of gallery refurbishment will be performed between October 2014 and
April2014.

Refurbishment includes:
Removal of Light track and lighting components
Removal of single pane lay light glazing in Galleries x, x, x, x, and x.
Remove temporary partitions including electrical, telecommunications and data in Gallery 16
Preparation of the lay light mullions for new paint
Painting of the lay light mullions
Cleaning of supply and return registers
Repair of any supply and return diffusers at the lay light level (Galleries 19, 20, 21, 14, 15)
Removal of extraneous devices on lay lights
Installation and re-wiring of devices needed at the lay light level
Purchasing and installation of new lighting track and fixtures (wiring)
Purchasing and installation of new plastic corrugated material to match adjacent gallery lay light infill
Cleaning of floors
Security?
Painting?

1

EXHIBIT D
The Corcoran Gallery of Art
NGA Design Department Phasing Recommendations
April 30, 2014

DRAFT

Phase II - Future Concerns (2015 - on)
These are broken up into steps based on location. Each step is comprised of a group of rooms that have
similar requirements and can be programmed as a unit. It may be wise to begin with the "North" Step
as these areas are separated from exhibition spaces and will serve future needs.
All work needs to have additional costs applied for any lead paint abatement, etc.

Step 1- "North": Hemicycle and adjacent spaces, Studio 3

Time EstimateStart date- End date

Step 2- "East": Galleries 16, 17, and 18

Time EstimateStart date- End date

Step 3- "South": Galleries 19, 20 and 21

Time EstimateStart date- End date

Step 4- "West": Galleries 14, and 15

Time EstimateStart date- End date

Step 5- "Ground Floor": Gallery 1 (if required)

Time EstimateStart date- End date

2

EXHIBIT D
The Corcoran Gallery of Art
NGA Design Department Phasing Recommendations
April 30, 2014

DRAFT

Step 1- "North": Hemicycle and adjacent spaces, and Studio 3

Time EstimateStart date- End date
Studio #3 (Room 59) NGA Support

Ceiling I HVAC

Remove and replace fluorescent pendent fixtures (8)

Remove extraneous ceiling items

Repair, prime and paint ceiling

Prime and paint ducting and registers
Walls

Remove extraneous temporary wall panels

Remove all interior partitioning

Repair, prime and paint walls

Repair and paint baseboard
Floor

Level floor and install linoleum (or similar)
Windows

Install interior storms and shades

Install security as required

Repair, paint existing radiators
Restroom I Plumbing

Remove existing plumbing fixtures (2 sinks, 1 toilet)

Remove tile in restroom

Install new fixtures (2 sinks, 1 toilet). Repair piping as required

Repair, prime and paint walls in restroom. Install mirror.

Remove and replace existing window in restroom, secure

Remove piping in side office
Doors
• Strip, repair and paint doors (4)
Electrical/ Security I Fire Protection

Remove unused surface mounted wiring & devices (telecommunication, data, electrical)

Revise as needed surface mounted wiring and devices including cameras

Rewire receptacles (10)

Revise as needed surface mounted wiring/devices (smoke detectors, strobes and speakers)

Install fire extinguisher cabinet
Equipment I Ramp


Remove existing ramp?
Install ramp/lift?

Furniture

Install 2 work stations with telecommunication, data, electrical

3

- ---1

EXHIBIT D
The Corcoran Gallery of Art
NGA Design Department Phasing Recommendations
April 30, 2014

DRAFT

Hemicycle (Room 60)

Ceiling/Lay lights/Cove
• Remove fluorescent pendent fixtures
• Remove extraneous ceiling items (pipe)
• Paint lay light mullions
• Install new lighting track and fixtures with integrated emergency lighting
• Repair and repaint cove
Walls (drywall)
• Remove baseboard (lead paint)
• Repair, skim, prime and paint wall
• Install and paint new baseboard

HVAC
• Repair and repaint supply and return registers
Floor
• Remove carpet
• Repair and refinish floor
• Install and paint shoe molding
Doors
• Strip, repair and paint doorway (North)
• Strip, repair and paint double door and door surround (South)
Electrical/ Security I Fire Protection
• Remove surface mounted wiring/devices(telecom, data, electrical, cameras, fire protection, etc.)

• Install recessed fire extinguisher cabinet- do we want to move this to the vestibule?

Install new integrated smoke detectors, strobes, speakers, cameras in fixtures in lighting track

Hemicycle Vestibule (Room 61A)

Ceiling

Remove fluorescent fixtures

Repair and repaint ceiling

Install new lighting with integrated emergency lighting
Walls (drywall)

Remove existing baseboard?(north, south, east walls)


Repair, skim, prime and paint wall

Install and paint baseboard. Install painted baseboard to match original (east).
Floor

Remove carpet

Repair and refinish floor

Install and paint shoe molding
Windows

Install interior storm? and shades?


Replace locks and security
Repair, paint existing radiators

4

EXHIBIT D
The Corcoran Gallery of Art
NGA Design Department Phasing Recommendations
April 30, 2014

Doors
• Strip, repair and paint doorway

Strip, repair and paint original doors (2)

Replace existing metal door with painted raised panel wood door
Electrical/ Security I Fire Protection

Remove surface mounted wiring/devices as required

Install recessed fire extinguisher cabinet

Install new integrated smoke detectors, strobes, speakers, cameras
West Office (Room 618)

Ceiling
• Remove fluorescent fixture
• Install new lighting with integrated emergency lighting
• Repair and repaint ceiling
Walls

• Remove existing baseboard?(north, south, west walls)



HVAC

Repair, skim, prime and paint wall
Repair and paint baseboard
Install painted baseboard and cornice to match original (west wall)

Remove HVAC units at window

• Replace or repair existing HVAC unit? Maintain individual unit? Ducting?
Floor
• Remove carpet
• Replace carpet
• Install and paint shoe molding
Doors
• Replace existing metal door with painted raised panel wood door (see Room 61A)
Electrical I Security I Fire Protection
• Remove surface mounted wiring/devices as required
• Install new integrated smoke detector
Closet (Room 61C)
Ceiling



Walls


Floor

Remove fluorescent fixture
Install new lighting
Repair and repaint ceiling
Repair, prime and paint wall
Repair and paint baseboard
Install carpet?
5

DRAFT

EXHIBITD
The Corcoran Gallery of Art
NGA Design Department Phasing Recommendations
April 30, 2014

Doors
• Add lock? See Room 61A
Electrical I Security I Fire Protection
• Remove surface mounted wiring/devices as required
• Install new integrated smoke detector

6

DRAFT

EXHIBIT D

The Corcoran Gallery of Art
NGA Design Department Phasing Recommendations
April 30, 2014

DRAFT

Step 2- "East": Galleries 16, 17, and 18

Time Estimate Start date- End date
Ceiling

Walls





See Phase 1 re: new lay light panels, new track, new lighting, painting of lay light mullions
Remove baseboard (lead paint)
Repair and repaint cove and cornice
Paint cove and decorative elements
Repair and skim, prime and paint wall
Install new baseboard and coordinate electrical
Paint new baseboard

HVAC

Remove temporary entablature panels with diffusers

Repair entablature grilles using casts from original grille

Install new entablature grilles
Floor

Repair and refinish floor
Doors
• Strip, repair and refinish atrium pocket doors (5), door surround (gallery side?), and transom
window. (add locks and hardware as required)
• Strip, repair and refinish pocket doors (3) and door surround between Galleries, add locks and
hardware as required.
• Strip, repair and refinish North Door surround in Gallery 16. Provide Door?
Electrical

Remove surface mounted wiring and devices

Install new emergency lights in "dummy" tracks and wire into coordinated system

Update electrical power system for lighting and power
• Consolidate electrical switches into integrated panel(s) at specified doorway
Place new conduit and electrical receptacles to baseboard

Security

Remove surface mounted wiring and devices including cameras

Install integrated security cameras in fixtures in lighting track
Fire Protection

Remove surface mounted wiring and devices

Install recessed fire extinguisher cabinets
• Install new integrated smoke detectors, strobes and speakers in fixtures in lighting track
BAS

Review, remove, and replace hydro-thermograph units and sensors with integrated recording
devices and wire to central location

7

EXHIBIT D
The Corcoran Gallery of Art
NGA Design Department Phasing Recommendations

DRAFT

April 30, 2014

Step 3- "South": Galleries 19, 20, and 21
Time EstimateStart date- End date
Ceiling

Most ceiling work was completed previously: new lay light panels, new track, new lighting

Painting

Repair and repaint cornice and decorative elements

Paint new baseboard
Walls (drywall)

Remove temporary walls on east and south elevations

Repair and skim, prime and paint walls

Remove baseboard (lead paint)

Install new baseboard and coordinate electrical
HVAC

Remove supply and return grilles in lay light panels

Install new grilles in ceiling
Floor

Repair and refinish floor
Window

Repair existing window (coordinate security)

Install Interior Storm

Install Interior Shade system
• Strip, repair and paint window surround
Doors
• Strip, repair and refinish atrium pocket doors (1), door surround (gallery side?), and transom
window (add locks and hardware as required)
• Strip, repair and refinish pocket doors (2} and door surround between Galleries, add locks and
hardware as required.

Clean Stone door surround in Gallery 21. Provide Door? (Door to Gallery 14 in next phase)
Electrical

Install new emergency lights in "dummy" tracks and wire into coordinated system

Remove surface mounted wiring and devices

Update electrical power system for lighting and power
• Consolidate electrical switches into integrated panel(s) at specified doorways

Place new conduit and electrical receptacles in baseboard
Security

Remove surface mounted wiring and devices including cameras

Install integrated security cameras in fixtures in lighting track
Fire Protection

Remove surface mounted wiring and devices

Install recessed fire extinguisher cabinets

Install new integrated smoke detectors, strobes and speakers in fixtures in lighting track

8

EXHIBIT D

The Corcoran Gallery of Art
NGA Design Department Phasing Recommendations
April 30, 2014

DRAFT

BAS

Review, remove, and replace hydro-thermograph units and sensors with integrated recording
devices and wire to central location

Step 4- "West": Galleries 14 and 15

Time EstimateStart date- End date
Ceiling

Most ceiling work was completed previously: new lay light panels, new track, new lighting
Walls (drywall)

Remove baseboard (lead paint)

Repair and skim, prime and paint wall

Install and paint new baseboard and coordinate electrical

Repair and repaint cornice

Paint cornice and decorative elements
HVAC

Remove supply and return grilles in lay light panels

Install new grilles in ceiling
Floor

Repair and refinish floor
Doors
• Strip, repair and refinish atrium pocket doors (4), door surround (gallery side?), and transom
window (add locks and hardware as required)
• Strip, repair and refinish pocket doors (1) and door surround between Galleries, add locks and
hardware as required.
BAS

Review, remove, and replace hydro-thermograph units and sensors with integrated recording
devices and wire to central location
Electrical

Remove surface mounted wiring and devices

Install new emergency lights in "dummy" tracks and wire into coordinated system

Update electrical power system for lighting and power
• Consolidate electrical switches into integrated panel(s) at specified doorways

Place new conduit and electrical receptacles in baseboard
Security

Remove surface mounted wiring and devices including cameras

Install integrated security cameras in fixtures in lighting track
Fire Protection

Remove surface mounted wiring and devices

Install recessed fire extinguisher cabinets

Install new integrated smoke detectors, strobes and speakers in fixtures in lighting track

9

EXHIBIT D

The Corcoran Gallery of Art
NGA Design Department Phasing Recommendations
April 30, 2014

DRAFT

Step 5- "Ground Floor'': Galleries 1

Time EstimateStart date- End date
General

Build dividing wall to crate two separate galleries with moldings to match existing
Ceiling

Most ceiling work was completed previously: new lay light panels, new track, new lighting
Walls (drywall)

Remove baseboard (lead paint)

Repair and skim, prime and paint wall

Install new baseboard and coordinate electrical

Paint new baseboard

Repair and repaint cornice and cove

Paint cove, cornice and decorative elements
HVAC

Remove supply and return grilles in lay light panels

Install new grilles in ceiling
Relocate Grille on North wall, replace with linear diffuser

Floor

Repair and refinish floor
Doors
• Strip, repair and refinish atrium pocket doors (2), door surround (gallety side?), and transom
window (add locks and hardware as required)
BAS

Review, remove, and replace hydro-thermograph units and sensors with integrated recording
devices and wire to central location
Electrical

Install new emergency lights in "dummy" tracks and wire into coordinated system

Remove surface mounted wiring and devices

Update electrical power system for lighting and power

Consolidate electrical switches into integrated panel(s) at specified doorways
Place new conduit and electrical receptacles in baseboard

Security

Remove surface mounted wiring and devices including cameras

Install integrated security cameras in fixtures in lighting track
Fire Protection

Remove surface mounted wiring and devices

Install recessed fire extinguisher cabinets

Install new integrated smoke detectors, strobes and speakers in fixtures in lighting track

10

EXHIBIT E
HUMIDITY AND TEMPERATURE CONTROLS

1. There will be facilities for control of relative humidity and temperature in gallery,
storage, and packing areas where NGA objects are located. Relative humidity will be
maintained at 50% ±5% with no more than a 5% fluctuation within that range during a
24-hour period. Temperature will be maintained at 70°F ±5°F (65°F to 75°F).
2. There will be a system for monitoring and recording temperature and relative humidity;
relative humidity will be monitored and documented using a psychrometer or a recording
hygrothermograph, which will be calibrated monthly, or using an electronic system that
accurately monitors and records the temperature and relative humidity.
Hygrothermograph and electronic charts will be checked on a daily basis.

E-1
SCl :3614880.7A

SIDE LETTER REGARDING
DISTRIBUTION OF CUSTODIAL ART

June 19, 2014
Earl A. Powell, III
Director
National Gallery of Art
Re: Policy Regarding Distribution of Custodial Art
Dear Mr. Powell:
Reference is made to that certain Art Accession and Custodial Transfer Agreement between
the TrusLees of lhe Corcoran Gallery of Art and the National Gallery of Art, dated as of May
15, 2014. By this letter, NGA and Corcoran agree, and Corcoran represents and confirms to
the Office of the Attorney General for the District of Columbia (the "Office of the Attorney
General") and for purposes of the cy pres petition that Section 2.4(b) of the Art Accession
and Custodial Transfer Agreement will be implemented as follows:

1. NGA will inventory the Existing Collection. As the inventory is conducted NGA
Corcoran from time to time of works it determines to accession as well as of
notify
will
works it has determined not to accession. NGA and Corcoran will maintain a coordinated list
of works to be accessioned by NGA, and those identified by NGA as not to be accessioned.
2. With respect to those works that NGA has determined not to accession, NGA and
Corcoran will discuss which museums or other institutions within the District of Columbia
would appear to be the most suitable for any particular work or collection. Corcoran, with the
assistance of NGA, will offer such works to such museums or institutions, it being
understood that if Corcoran, in consultation with NGA, believes with respect to any particular
work that there are circumstances that would indicate a non-DC institution would be the most
suitable candidate for a particular work, such work need not first be offered to DC
institutions.
3. If approptiate anangement s can be agreed upon, taking into account the factors
elaborated in sections 5 and 7 below, Corcoran will deaccession the works to such museums
or institutions as agreed.
4. Should an offered work be declined by the initial institution approached, additional
likely D.C. institutions may be determined by Corcoran in consultation with NGA and such
works offered to them. These institutions may include other museums and galleries, public
buildings (such as government buildings, libraries and schools) or buildings with an
appropriate connection to a work or artist and their willingness to accept the conditions.
5. After works have been offered as set forth above, NGA and Corcoran will create a
list of the remaining works which have not been agreed to be accessioned. Corcoran, in
consultation with NGA, will be responsible for compiling a list of all qualified DC
institutions and for notifying all such institutions of the opportunity to acquire the works.
NGA and Corcoran will engage in discussion with those institutions indicating interest to
determine their qualification to accept work(s), and their willingness to accept conditions on
accessioning the works and to pay any associated costs of transfer as set forth in Section
2.4(b). If multiple institutions request a work, Corcoran shall have the right to determine the
receiving institution, taking into account the institution's ability to conserve and insure the
work appropriately, the institution's ability to comply with any restrictions applicable to the

I II

work, how available the work would be to the public at such institution, and such other
factors as Corcoran may reasonably determine.
6. If a work has been on the list available to all qualified D.C. institutions for four
months and no such institution has requested such a work, NGA and Corcoran shall work
together to identify candidate institutions located outside of lhe District of Columbia to
receive the works remaining with a priority to he given to institutions within a 50 mile radius
of the District of Columbia. NGA and Corcoran shall compile a list of the works, the
candidate institutions to receive the work(s) that are willing to accept the conditions
associated with the work(s), and present the Jist and recommended recipient institutions to the
Office of the Attorney General. If the Office of the Attorney General, after appropriate
review, has no objection to the distribution as identified on the list, the Corcoran may proceed
to deaccession the works. If the Office of the Attorney General has objections or concerns,
the Office of the Attorney General and NGA and Corcoran shall consult on the
appropriateness of an additional cy pres proceeding as to some or all of the works and
institutions on the list.
7. All deaccessioning by Corcoran shall be on conditions that maximize, to the extent
reasonably possible:
a. That the works will remain in the District of Columbia, and that they will not be
sold or transferred without consent from the Corcoran.
b. That the works will be properly cared for and preserved.
c. That the works will be displayed to the public free of charge or on other reasonable
terms, subject to appropriate considerations regarding conservation and standard museum
practices on rotation of works on exhibition.
d. To the extent reasonably possible, the students of the Corcoran College at GW will
have access to the works for educational and study purposes.
8. Prior to any work being deaccessioned or otherwise distributed by Corcoran,
pursuant to any of the foregoing provisions, to an institution that is not i) a museum in the
District of Columbia, ii) a governmental institution (e.g., government buildings, public
universities, public schools, or libraries) in the District of Columbia, or iii) George
Washington University, Georgetown University, American University, The Catholic
University of America, Trinity Washington University, Howard University, or Gallaudct
University, either the Office of the Attorney General shall state in wrWng that it does not
object to the proposed deaccessioning or distribution, or the proposed dcacccssioning or
distribution shall be subject to a further cy pres proceeding in the District of Columbia
Superior Court.
Please confirm your understanding by signing on the acknowledgem ent line below.

I eggy Loar

/nlerim Director and President
n•l

Acknowledged and agreed, this 2-~day of June, 2014:
National Gallery of Art

Earl A. Powell III
Director

Cc:

Hon. Irving Nathan, Esq.
Catherine Jackson, Esq.
David Julyan, Esq.
Charles Patdzia, Esq.
Elizabeth Croog, Esq.
Janet Geldzhaler, Esq.

SIDELETTER AGREEMENT CONFIRMING
DESIGNATION OF LICENSED PREMISES

June 19, 2014
The George Washington University
2121 Eye Street, N.W.
Suite 701
Washington, DC 20037
Attention: Steven Knapp, President
Dear Dr. Knapp:
Reference is made to the Asset Contribution Agreement (the "Agreement") made and entered
into as of May 15, 2014, by and between the Trustees of the Corcoran Gallery of Art, a
Congressionally chartered nonprofit corporation located in the District of Columbia
("Corcoran"), and The George Washington University, a Congressionally chartered nonprofit
corporation located in the District of Columbia (the "University"). Capitalized terms used herein
and not otherwise defined have the meanings given to them in the Agreement.
In order to consummate the transactions contemplated by the Agreement, Corcoran is required to
obtain court approval of the transaction documents through application of the cypres doctrine to
the Corcoran's organizational documents. The Office of the Attorney General for the District of
Columbia ("Office of the Attorney General") is charged under the DC Code with certain
oversight and other responsibilities regarding charitable institutions in the District and has legal
standing to appear before the court in the C}' pres proceeding. Accordingly, prior to making the
cy pres filing, Corcoran, with the University's approval, provided drafts of the transaction
documents and the proposed petition and order to the Office of the Attorney General for review.
In connection with that review, and as a condition to supporting Corcoran's petition, the Office
of the Attorney General has requested confirmation that the University will continue to designate
space within the 171h Street Building for the exhibition of works of art in the event that the
University-NGA Transaction is terminated. Accordingly, Corcoran seeks the University's
confirmation as follows:
Upon expiration or termination of the University-NGA Transaction, for any reason, and
NGA's ceasing to operate the Contemporary Art Gallery and the Legacy Gallery in the
1ih Street Building, the University covenants to continue to dedicate the premises
defined in the Agreement as the "Licensed Premises," or a substantially equivalent size
space, within the 171h Street Building for the exhibition of works of art. The exhibition of
works of art would continue to be open to the public.
Please indicate your agreement with the foregoing by executing this letter agreement below.

,(• 'll :,,( l!

Sincerely,

TRUSTEES OF THE CORCORAN
GALLERY OF ART

(

ACCEPTED AND AGREED BY

THE GEORGE WASHINGTON UNIVERSITY

By:~~=----~"-­
Name: Dr. Steven Kna
Title: President