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L
EASE
BY
AND BETWEEN
GPO R
IVERBEND LLC , L ANDLORD
,
AND
C ATCHER ,
I NC . , T ENANT
D ATED :
October 12, 2006
P ROPERTY :
44084 R IVERSIDE P ARKWAY , L
ANSDOWNE , V A
TABLE OF CONTENTS
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ARTICLE I - FUNDAMENTAL LEASE
PROVISIONS
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1 |
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| 1.1 |
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R
EFERENCE S UBJECTS |
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1 |
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ARTICLE II - PREMISES AND
TERM
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4 |
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| 2.1 |
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P
REMISES |
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4 |
| 2.2 |
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A
CCEPTANCE OF P
REMISES |
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4 |
| 2.3 |
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T
ERM |
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4 |
| 2.4 |
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R
ENEWAL |
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4 |
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ARTICLE III – CONDITION OF
PREMISES AND TENANT WORK
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6 |
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| 3.1 |
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I
NITIAL C ONSTRUCTION |
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6 |
| 3.2 |
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D
ELIVERY OF P
OSSESSION |
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6 |
| 3.3 |
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E
ARLY A CCESS |
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6 |
| 3.4 |
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G
ENERAL P ROVISIONS A
PPLICABLE TO C
ONSTRUCTION |
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6 |
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ARTICLE IV - RENT
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7 |
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| 4.1 |
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A
NNUAL F IXED R
ENT |
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7 |
| 4.2 |
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M
ETHOD OF P
AYMENT |
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7 |
| 4.3 |
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N
ET R ETURN TO L
ANDLORD |
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7 |
| 4.4 |
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A
DDITIONAL R ENT |
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7 |
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4.4.1 |
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Additional Rent - Landlord's
Taxes |
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7 |
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4.4.2 |
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Landlord’s Taxes -
Definition |
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7 |
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4.4.3 |
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Additional Rent - Operating
Expenses |
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8 |
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4.4.4 |
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Landlord’s Operating Expenses
- Definition |
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8 |
| 4.5 |
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A
LLOCATION OF C ERTAIN
O PERATING E XPENSES |
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9 |
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ARTICLE V - ADDITIONAL
COVENANTS
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9 |
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| 5.1 |
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T
ENANT ’ S C
OVENANTS |
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9 |
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5.1.1 |
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Utilities and
Services |
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9 |
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5.1.2 |
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Maintenance |
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10 |
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5.1.3 |
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Use and Compliance with
Law |
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10 |
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5.1.4 |
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Liens and
Encumbrances |
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10 |
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5.1.5 |
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Waiver and
Indemnity |
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10 |
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5.1.5.1 |
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Waiver |
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10 |
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5.1.5.2 |
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Indemnity |
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11 |
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5.1.6 |
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Landlord’s Right to Enter |
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11 |
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5.1.7 |
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Personal Property at Tenant’s Risk |
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11 |
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5.1.8 |
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Overloading, Nuisance, Etc. |
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11 |
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5.1.9 |
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Yield
Up |
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12 |
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5.1.10 |
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Holding Over |
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12 |
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5.1.11 |
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Assignment,
Subletting |
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13 |
| 5.2 |
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L
ANDLORD ’ S C
OVENANTS |
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15 |
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5.2.1 |
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Building Services |
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15 |
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5.2.1.1 |
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Landlord's
Maintenance |
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15 |
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5.2.1.2 |
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Office
Identification |
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15 |
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5.2.1.3 |
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Grounds
Maintenance |
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15 |
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5.2.1.4 |
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Cleaning |
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15 |
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5.2.2 |
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Interruptions |
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15 |
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ARTICLE VI - INSURANCE; CASUALTY;
TAKING
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16 |
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| 6.1 |
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I
NSURANCE |
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16 |
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6.1.1 |
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Coverage |
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16 |
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6.1.2 |
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Avoid
Action Increasing Rates |
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17 |
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6.1.3 |
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Waiver
of Subrogation |
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17 |
| 6.2 |
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F
IRE OR C
ASUALTY |
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17 |
| 6.3 |
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W
AIVER OF C LAIM - I
NDEMNIFICATION |
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18 |
| 6.4 |
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N
ONWAIVER |
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18 |
| 6.5 |
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C
ONDEMNATION |
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18 |
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ARTICLE VII - DEFAULT
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19 |
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| 7.1 |
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E
VENTS OF D
EFAULT |
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19 |
| 7.2 |
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R
EMEDIES FOR D
EFAULT |
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20 |
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7.2.1 |
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Reletting Expenses Damages |
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20 |
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7.2.2 |
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Termination Damages |
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20 |
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7.2.3 |
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Lump
Sum Liquidated Damages |
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21 |
| 7.3 |
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R
EMEDIES C UMULATIVE |
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21 |
| 7.4 |
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E
FFECT OF W AIVERS
OF D EFAULT |
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21 |
| 7.5 |
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N
O A CCORD AND S
ATISFACTION ; N O S
URRENDER |
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21 |
| 7.6 |
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W
AIVER OF J
URY |
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21 |
| 7.7 |
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L
ANDLORD ’ S C
URING AND E
NFORCEMENT |
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22 |
| 7.8 |
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L
ANDLORD ’ S D
EFAULT |
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22 |
| 7.9 |
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V
ACANCY D URING L AST S
IX M ONTHS |
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22 |
| 7.10 |
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S
ECURITY D EPOSIT |
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22 |
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ARTICLE VIII - MISCELLANEOUS
PROVISIONS
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23 |
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| 8.1 |
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N
OTICE FROM O NE P
ARTY TO THE O
THER |
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23 |
| 8.2 |
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Q
UIET E NJOYMENT |
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23 |
| 8.3 |
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L
IMITATION OF L ANDLORD
’ S L IABILITY |
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23 |
| 8.4 |
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A
PPLICABLE L AW AND C
ONSTRUCTION |
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24 |
| 8.5 |
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S
UCCESSORS AND A
SSIGNS |
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24 |
| 8.6 |
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R
ELATIONSHIP OF THE P
ARTIES |
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24 |
| 8.7 |
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E
STOPPEL C ERTIFICATE |
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24 |
| 8.8 |
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N
OTICE OF L
EASE |
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25 |
| 8.9 |
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T
ENANT AS B USINESS E
NTITY |
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25 |
| 8.10 |
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R
ELOCATION |
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25 |
| 8.11 |
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P
ARKING |
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25 |
| 8.12 |
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R
EGISTERED A GENT |
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25 |
| 8.13 |
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D
EED OF L
EASE |
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25 |
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ARTICLE IX - BROKERS
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26 |
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| 9.1 |
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B
ROKERS |
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26 |
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ARTICLE X - LANDLORD’S
FINANCING
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26 |
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| 10.1 |
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S
UBORDINATION AND S
UPERIORITY OF L
EASE |
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26 |
| 10.2 |
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R
ENT A SSIGNMENT |
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27 |
| 10.3 |
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O
THER I NSTRUMENTS |
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27 |
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APPENDIX A – PREMISES
PLAN
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1 |
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APPENDIX B – LANDLORD’S
WORK
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1 |
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APPENDIX C – RULES AND
REGULATIONS
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1 |
ii
LEASE
ARTICLE I
Fundamental Lease
Provisions
1.1 Reference Subjects
. Each reference in this Lease to any of the following subjects
shall be construed to incorporate the information stated for that
subject in this Section.
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| EFFECTIVE
DATE: |
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August 21, 2006 |
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| PREMISES: |
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A portion of
the third (3rd) floor of the Building commonly known as Suite 320
consisting of approximately Two Thousand Six Hundred and Four
(2,604) rentable square feet, as depicted on Appendix A
attached hereto. |
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| BUILDING: |
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The building
located at 44084 Riverside Parkway, Lansdowne, VA and known as Two
Riverbend |
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| PROPERTY: |
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The Building
and the land upon which it is located |
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| LANDLORD: |
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GPO
Riverbend LLC |
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NOTICE ADDRESS OF LANDLORD:
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c/o Great Point Investors LLC
Two Center Plaza, Suite 410
Boston, MA 02108
Attn: Randolph L. Kazazian,
III
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LANDLORD’S MANAGING
AGENT:
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Buchanan Properties
9055 Comprint Court, Suite
200
Gaithersburg, MD 20877
Attn: Kevin Burns
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| TENANT: |
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Catcher,
Inc., a Delaware corporation |
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NOTICE ADDRESS OF TENANT:
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3881 Irish Corner Road
Lovettsville, Virginia 20180
Attn: Ira Tabankin
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| INITIAL
TERM: |
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Three (3)
Years |
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| RENEWAL
TERM: |
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One (1)
additional term of two (2) years, as provided in and on the terms
set forth in Section 2.4 |
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| LEASE
YEAR: |
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The first
Lease Year of the Term shall commence on the Lease Commencement
Date and end on the last day of the month in which the first (1st)
anniversary of the Lease Commencement Date shall occur (unless
the |
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Commencement Date shall occur on the first day of a month, in
which case the first Lease Year
shall end on the day before the first (1st) anniversary of the
Commencement Date). Subsequent
Lease Years shall commence on the day after the last day of the
first Lease Year or an
anniversary thereof, and shall end on an anniversary of the last
day of the first Lease Year. |
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LEASE COMMENCEMENT DATE:
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The later of November 1, 2006 or the date upon which the
Landlord substantially completes the Landlord’s Work and
provides Tenant at least fourteen (14) days advance notice thereof.
For the purposes of determining the date upon which the Landlord
substantially completes the Landlord’s Work, such date shall
be the date upon which a Certificate of Occupancy for Premises is
issued by the appropriate governmental authority. |
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RENT COMMENCEMENT DATE:
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The Lease Commencement Date. |
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| LEASE
EXPIRATION DATE: |
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The last day of the thirty-sixth (36th) month after the Lease
Commencement Date. |
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ANNUAL FIXED RENT:
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Months In Term
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Annual Fixed
Rent
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| Lease
Commencement Date – 12 |
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$ |
65,100.00 |
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| 13 –
24 |
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$ |
67,053.00 |
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| 25 –
36 |
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$ |
69,064.59 |
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BASE OPERATING EXPENSE YEAR:
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Calendar year 2006 (i.e.,
January 1, 2006 through December 31, 2006)
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BASE TAX YEAR:
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Calendar year 2006 (i.e., January 1,
2006 through December 31, 2006)
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PARKING SPACES:
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9 unreserved spaces
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PREMISES RENTABLE AREA:
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Approximately Two Thousand Six Hundred
and Four (2,604) rentable square feet
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TENANT’S PERCENTAGE
SHARE:
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3.74%
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PERMITTED USES:
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General office use
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PUBLIC LIABILITY INSURANCE:
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$1,000,000 combined single limit per
occurrence, with $5,000,000 umbrella coverage per
occurrence
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2
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| BROKER: |
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PM Realty
Group is acting solely as agent for the Landlord and Vaaler Real
Estate Company is acting solely as agent for the Tenant. Landlord
shall be responsible for the fees payable to PM Realty Group and PM
Realty Group will in turn be responsible for the fees payable to
Vaaler Real Estate Company pursuant to a separate
agreement. |
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| SECURITY DEPOSIT: |
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$21,700 |
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TENANT IMPROVEMENT ALLOWANCE:
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Not
Applicable. |
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| APPENDICES: |
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Appendix
A- |
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Premises
Plan |
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Appendix B
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Landlord’s Work |
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Appendix C
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Rules and
Regulations |
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Appendix D
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Form of
Letter of Credit |
3
ARTICLE II
Premises and
Term
2.1 Premises .
Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises, subject to and with the benefit of the
terms, covenants and conditions of this Lease, and rights,
agreements, easements and restrictions of record applicable to the
property of which the Premises are a part, all of which Tenant
shall perform and observe insofar as (i) the same are
applicable to the Premises, and (ii) Tenant has prior notice
of such rights, agreements, easement and restrictions. Subject to
the rules and regulations established by Landlord, attached hereto
as Appendix C , as they may be amended from time to time
provided any such amendments do not materially adversely affect
Tenant’s use of the Premises (the “Rules and
Regulations”) Tenant shall have the appurtenant rights in
common with others to use (a) the common lobbies, hallways,
stairways and elevators of the Building serving the Premises in
common with others, (b) the exterior walkways, sidewalks and
driveways necessary for access to the Premises and (c) the
parking areas serving the Premises. Except as specifically provided
herein to the contrary, all the perimeter walls of the Premises
except the interior surfaces thereof, any space in or adjacent to
the Premises used for shafts, stacks, pipes, conduits, wires and
appurtenant fixtures, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities, and the use thereof,
are expressly excluded from the Premises and reserved to Landlord.
Landlord excepts and reserves the right from time to time
(a) to install, use, maintain, repair, replace and relocate
within the Premises and other parts of the Building, or either,
pipes, meters and other equipment, machinery, apparatus and
appurtenant fixtures; and (b) to make additions to the
Building and alter or relocate any entranceways, common areas or
other facilities (including without limitation all access
driveways, walkways and parking areas) serving the
Premises.
2.2 Acceptance of
Premises . Tenant acknowledges that it has inspected the
Premises and accepts the same in the condition they are in on the
Effective Date hereof, subject to the completion of
Landlord’s Work as set forth in Section 3.1, it being
expressly agreed that Landlord shall have no obligation, liability
or risk whatsoever with respect to the Premises or their condition,
except as expressly set forth herein.
Tenant shall have the right
to inspect the Premises during the completion of Landlord’s
Work, provided, any such inspection by Tenant does not interfere
with the completion of Landlord’s Work and Tenant indemnifies
and holds harmless Landlord from all injury, loss, claims or damage
to any person or property occasioned by or growing out of such
Tenant inspections prior to the Commencement Date. Tenant further
acknowledges that neither Landlord nor any agent or employee of
Landlord has made any representations or warranties of any kind,
express or implied, concerning the Premises, their condition or
this Lease (including, without limitation, any express or implied
warranties of merchantability, fitness, habitability or suitability
for Tenant’s particular purposes).
2.3 Term . This Lease
is for a Term beginning on the Lease Commencement Date and ending
on the Expiration Date.
2.4 Renewal . Provided
that as of the time of the giving of each Renewal Notice (as
defined below) and the Commencement Date of each Renewal Term (as
defined below) (a) Tenant is the Tenant originally named
herein, (b) Tenant actually occupies all of the Premises, and
(c) no event of default exists or would exist but for the
passage of time or the giving of notice, or both; then Tenant will
have the right to extend the Lease Term for one (1) additional
term of two (2) years each (the “Renewal Terms”)
commencing on the day following the expiration of the then current
Lease Term (the
4
“Commencement Date of the Renewal
Term”). Tenant will give Landlord notice (the “Renewal
Notice”) of its election to extend the term of the Lease Term
at least six (6) months, but not more than twelve
(12) months, prior to the scheduled expiration date of then
current Lease Term (the “Notice Period”). If Tenant
does not give the Renewal Notice during the Notice Period,
Tenant’s right to extend the Lease Term will automatically
terminate. Time is of the essence as to the giving of the Renewal
Notice.
The minimum monthly rental
payable by Tenant to Landlord for each year during the Renewal Term
will be the rate for prior year increased by three percent
(3%).
Except for the minimum
monthly rental as determined above, Tenant’s occupancy of the
Premises during each Renewal Term will be on the same terms and
conditions (including the payment of additional rent) as are in
effect immediately prior to the expiration of the then current
Lease Term; provided, however, except as specified in this
Section 2.4, Tenant will have no further right to any
allowances, credits or abatements or any options to expand,
contract, renew or extend the Lease. Landlord will have no
obligation to refurbish (other than repairs in the event of
casualty as set forth herein) or otherwise improve the Premises for
any Renewal Term. The Premises will be tendered on the Commencement
Date of the Renewal Term in “as-is”
condition.
2.5 Right of First
Offer . Provided that (a) there has been no Default or
event which with the giving of notice or passage of time or both
would constitute a Default at any time during the Lease Term and
provided further, that as of the date of the giving of the First
Offer Notice (as defined below) (b) Tenant is the Tenant
originally named herein and (c) Tenant actually occupies all
of the Premises originally demised under this Lease and any space
added to the Premises, if and when the current lease for Suite 300
with Reed Smith, LLP expires and becomes available (the “
Offered Space ”), Landlord, before offering the
Offered Space to anyone (other than the tenant and/or occupant then
occupying such space or their affiliates), will offer to Tenant on
one occasion the right to include the Offered Space within the
Premises on the same terms and conditions upon which Landlord
intends to offer the Offered Space for lease.
2.5.1 Such offer will be made
by Landlord to Tenant in a written notice (the “ First
Offer Notice ”), which offer will designate the space
being offered and specify the terms which Landlord intends to offer
with respect to the Offered Space. Landlord may, but shall not be
obligated to send the First Offer Notice prior to the expiration of
the lease with Reed Smith LLP. Tenant may accept the offer set
forth in the First Offer Notice by delivering Landlord an
unconditional acceptance (“ Tenant’s Notice
”) of such offer within ten (10) business days after
delivery by Landlord of the First Offer Notice to Tenant. Tenant
may not revoke Tenant’s Notice once such notice has been
delivered to Landlord. Time will be of the essence with respect to
the giving of Tenant’s Notice. If Tenant does not accept (or
fails to timely accept) the offer made by Landlord in the First
Offer Notice, Landlord will have no further obligation to Tenant
with respect to the Offered Space.
2.5.2 Tenant must accept all
Offered Space offered by Landlord if Tenant desires to accept the
Offered Space and may not exercise its right with respect to only
part of the Offered Space; provided, however, Landlord may, in its
sole discretion, agree to lease a portion of the Offered Space to
Tenant upon reasonably acceptable terms.
2.5.3 If Tenant at any time
declines or is deemed to have declined the Offered Space, Tenant
will be deemed to have irrevocably waived all rights with respect
to the Offered Space and Landlord will be free to lease the Offered
Space to third parties including on terms which may be more or less
favorable to Landlord than those offered to Tenant. In such event,
upon Landlord’s request, Tenant shall execute a release
evidencing its waiver of such rights with respect to the Offered
Space.
5
ARTICLE III
Condition of Premises and
Tenant Work
3.1 Initial
Construction . Landlord shall complete the work
(“Landlord’s Work”) as specified in Appendix
B . Except for Landlord’s Work, Landlord is leasing the
Premises to Tenant “as is”, without any representations
or warranties of any kind (including, without limitation, any
express or implied warranties of merchantability, fitness or
habitability), subject to all recorded matters, laws, ordinances
and governmental regulations and orders.
3.2 Delivery of
Possession . Except for latent defects, and subject to
(i) the conditions noted by Tenant in writing not later than
ten (10) business days after the Lease Commencement Date,
which items can be completed after Tenant’s occupancy without
undue interference with Tenant’s use of the Premises
(“Punchlist Items”), and (ii) the issuance of a
certificate of occupancy for the Premises with respect to
Landlord’s Work, Tenant shall accept delivery of the Premises
and Tenant shall have no claim that Landlord failed to perform any
of Landlord’s Work. Landlord shall use reasonable efforts to
complete all Punchlist Items within thirty (30) days or, if
such completion is not feasible for any reason, as soon as
conditions permit, and Tenant shall afford Landlord access to the
Premises for such purpose pursuant to the terms of this Lease,
provided that Landlord does not unreasonably interfere with
Tenant’s use or occupancy of the Premises.
3.3 Early Access .
Landlord shall permit Tenant access (at Tenant’s sole risk)
for purposes of making measurements, installing equipment and
furnishings in the Premises, and inspecting Landlord’s Work
prior to Tenant’s taking possession of the Premises if such
can be done without interference with Landlord’s Work in the
Premises and in harmony with Landlord’s contractors and
subcontractors. Any interference with Landlord’s Work shall
be deemed a Tenant Delay.
3.4 General Provisions
Applicable to Construction . With the exception of cosmetic
alterations, Tenant shall not make any installations, alterations,
additions, or improvements in or to the Premises, including,
without limitation, any apertures in the walls, partitions,
ceilings or floors, without on each occasion obtaining the prior
written consent of Landlord, which shall not be unreasonably
withheld. Tenant shall reimburse Landlord for all costs incurred by
Landlord or any Superior Mortgagee (as defined below) in reviewing
Tenant’s proposed installation, alterations, additions or
improvements. Any such work so approved by Landlord shall be
performed only in accordance with plans and specifications therefor
approved by Landlord. Tenant shall procure at Tenant’s sole
expense all necessary permits and licenses before undertaking any
work on the Premises and shall perform all such work in a good and
workmanlike manner employing materials of good quality and so as to
conform with all applicable insurance requirements, laws,
ordinances, regulations and orders of governmental authorities.
Tenant shall employ for such work only contractors approved by
Landlord and shall require all contractors employed by Tenant to
carry worker’s compensation insurance in accordance with
statutory requirements and commercial general liability insurance
covering such contractors on or about the Premises with a combined
single limit not less than $3,000,000 and shall submit certificates
evidencing such coverage to Landlord prior to the commencement of
such work. Tenant shall indemnify and hold harmless Landlord from
all injury, loss, claims or damage to any person or property
occasioned by or growing out of such work. Landlord may inspect the
work of Tenant at reasonable times and give notice of observed
defects. Upon completion of any such work, Tenant shall provide
Landlord with “as built” plans, copies of all
construction contracts and proof of payment for all labor and
materials.
6
ARTICLE IV
Rent
4.1 Annual Fixed Rent
. Annual Fixed Rent during the Term of this Lease shall be the
amount per annum set forth in Section 1.1.
4.2 Method of Payment
. Tenant covenants and agrees to pay the Annual Fixed Rent to
Landlord in advance in equal monthly installments (or in the
appropriate monthly installments for monthly periods during any
Lease Year) on the first day of each calendar month during the Term
beginning on the Rent Commencement Date. Tenant shall make ratable
payment of Annual Fixed Rent for any portion of a Lease Year (or
month) in which the same accrues, all payments of Annual Fixed Rent
and additional rent and other sums due hereunder to be paid in
current U.S. exchange at the Original Address of Landlord or such
other place as Landlord may by notice in writing to Tenant from
time to time, without demand and without set-off or
deduction.
Without limiting the
generality of the foregoing, Tenant’s obligation so to pay
shall not be discharged or otherwise affected by reason of the
application of any law or regulation now or hereafter applicable to
the Premises, or any other restriction of or interference with the
use thereof by Tenant, or any damage to or destruction of the
Premises by casualty or taking, or on account of any failure by
Landlord to perform hereunder or otherwise, or due to any other
occurrence; nor shall Tenant ever be entitled and Tenant hereby
waives all rights now or hereafter conferred by statute or
otherwise to quit, terminate or surrender this Lease or the
Premises or any part thereof, or to assert any defense in the
nature of constructive eviction to any action seeking to recover
rent. Tenant shall, however, have and maintain, subject to the
provisions hereof, the right to seek and obtain from time to time
judgments for direct money damages occasioned by Landlord’s
breach of the covenants of this Lease.
4.3 Net Return to
Landlord . It is intended that Annual Fixed Rent payable
hereunder shall be a net return to Landlord throughout the Term,
free of expense, charge, offset, diminution or other deduction
whatsoever on account of the Premises (excepting financing
expenses, federal and state income taxes of general application and
those expenses which this Lease expressly makes the responsibility
of Landlord), and all provisions hereof shall be construed in terms
of such intent.
4.4 Additional Rent
.
4.4.1 Additional Rent -
Landlord’s Taxes . Tenant covenants and agrees to pay to
Landlord, as additional rent, an escalation charge calculated as
Tenant’s Percentage Share of the increase in Landlord’s
Taxes (hereafter defined) for each fiscal tax period, or ratable
portion thereof, included in the Lease Term over the Base Taxes
(hereinafter defined). Tenant shall make estimated payments on
account of increases in Landlord’s Taxes above the Base Taxes
in monthly installments on the first day of each month, in amounts
reasonably estimated from time to time by Landlord to provide for
the full payment of Tenant’s obligation with respect to
Landlord’s Taxes on the date such Taxes are due, and with a
final payment adjustment between the parties within thirty
(30) days after Landlord provides Tenant a statement (together
with reasonable supporting documentation) of Landlord’s Taxes
and Tenant’s Share of the increase of such Taxes above Base
Taxes for Landlord’s most recent tax year. “Base
Taxes” as used herein means the amount of Landlord’s
Taxes for the Base Tax Year. This section shall survive the
expiration or earlier termination of this Lease.
4.4.2 Landlord’s
Taxes - Definition . As used in this Lease, the term
“Landlord’s Taxes” shall mean all taxes,
assessments, betterments, excises, user fees and all other
governmental charges and fees of any kind or nature, or impositions
or agreed payments in lieu thereof or voluntary
7
payments made in connection with the
provision of governmental services or improvements of benefit to
the Building (including any so-called linkage, impact or voluntary
betterment payments), and all penalties and interest thereon (if
due to Tenant’s failure to make timely payments on account of
Landlord’s taxes), assessed or imposed against the Premises
or the property of which the Premises are a part (including without
limitation any personal property taxes levied on such property or
on fixtures or equipment used in connection therewith), or upon
Landlord by virtue of its ownership thereof, other than a federal
or state income tax of general application. If during the Term the
present system of ad valorem taxation of property shall be changed
so that, in lieu of or in addition to the whole or any part of such
ad valorem tax, there shall be assessed, levied or imposed on such
property or Premises or on Landlord any kind or nature of federal,
state, county, municipal or other governmental capital levy,
income, sales, franchise, excise or similar tax, assessment, levy,
charge or fee (as distinct from the federal and state income tax in
effect on the Lease Commencement Date) measured by or based in
whole or in part upon Building valuation, mortgage valuation, rents
or any other incidents, benefits or measures of real property or
real property operations, then any and all of such taxes,
assessments, levies, charges and fees shall be included within the
term Landlord’s Taxes.
Landlord’s Taxes
include reasonable expenses, including fees of attorneys,
appraisers and other consultants, incurred in connection with any
efforts to obtain abatements or reductions or to assure maintenance
of Landlord’s Taxes for any tax fiscal year wholly or
partially included in the Term, whether or not successful and
whether or not such efforts involve filing of actual abatement
applications or initiation of formal proceedings.
4.4.3 Additional Rent -
Operating Expenses . Tenant covenants and agrees to pay to
Landlord, as additional rent, an escalation charge calculated as
Tenant’s Percentage Share of the increase in Landlord’s
Operating Expenses (hereafter defined) for each of Landlord’s
calendar years, or ratable portion thereof, included in the Lease
Term above Base Operating Expenses (hereinafter defined). Tenant
shall make estimated payments on account of increases in Operating
Expenses in monthly installments on the first day of each month in
advance, based on amounts reasonably estimated from time to time by
Landlord, and with a final payment adjustment between the parties
within thirty (30) days after Landlord provides Tenant a
reasonably detailed statement of Landlord’s Operating
Expenses and Tenant’s Share of the increase of such Operating
Expenses over Base Operating Expenses for Landlord’s most
recent calendar year. “Base Operating Expenses” as used
herein means the amount of Operating Expenses for the Base
Operating Expense Year. This section shall survive the expiration
or earlier termination of this Lease.
4.4.4 Landlord’s
Operating Expenses - Definition . “Landlord’s
Operating Expenses” means all costs paid or incurred in
servicing, operating, managing, maintaining, and repairing the
Property and the facilities and appurtenances thereto, including,
without limitation, the costs of the following: (i) supplies,
materials and total wage and labor costs and all costs and expenses
of independent contractors paid or incurred on account of all
persons engaged in the operation, maintenance, security, cleaning
and repair of the Building and the land, facilities and
appurtenances thereto, including social security, unemployment
compensation, pension, vacation, sick pay and other so-called
“fringe benefits”; (ii) services furnished
generally to tenants of the Building by Landlord;
(iii) utilities (including electricity) consumed and expenses
incurred in the operation of the Property and the land, facilities
and appurtenances thereto; (iv) casualty, liability,
workmen’s compensation and all other insurance expenses (and
the amount of any deductible in the event of an insured loss), all
insurance to be in such amounts and insuring against such risks as
Landlord may, in its sole discretion from time to time decide;
(v) snow removal, planting, landscaping, grounds and parking
operation, maintenance and repair expenses and any charges payable
pursuant to any declarations or recorded covenants;
(vi) management fees which do not exceed those customarily
paid with respect to buildings in the area
8
which are similar to the Building, and
fees for required licenses or permits; (vii) rental or
reasonable depreciation of equipment used in the operation of the
Building and the land, facilities and appurtenances thereto, and
personal property taxes assessed upon such equipment; and
(viii) expenses of periodic testing to assure that the
Premises and surrounding land are free of hazardous materials,
agents or substances, and to assure compliance with codes,
regulations and laws. In addition, if Landlord from time to time
repairs or replaces any improvements or equipment or installs any
new improvements or equipment to the Building (including without
limitation energy conservation improvements or other improvements),
then the cost of such items amortized over their reasonable life,
together with an actual or imputed interest rate (at the level then
being charged by institutional first mortgagees for new permanent
first mortgage loans on buildings in the area which are similar to
the Building) shall be included in Landlord’s Operating
Expenses. Landlord’s Operating Expenses shall not include
payments of principal, interest or other charges on mortgages or
payments of any rent by Landlord on account of any ground lease of
the land on which the Building is situated or any lease of the
Building; costs of work or services (including utilities) for
particular tenants to the extent such costs of work or services are
separately reimbursable to Landlord by such tenants; advertising,
marketing costs and leasing commissions; costs for repairs or
replacements to the Property that are reimbursable from insurance
proceeds (net of any applicable deductible or other related
expenses and whether under policies maintained by or for Landlord
or any tenant or other occupant of the Property) and costs of
so-called leasehold improvements to rentable areas in the
Building.
4.5 Allocation of Certain
Operating Expenses . If at any time during the Term, Landlord
provides services only with respect to portions of the Building
which include the Premises or incurs other Operating Expenses
allocable to portions of the Building which include the Premises
alone, then such Operating Expenses shall be charged entirely to
those tenants, including Tenant, of such portions, notwithstanding
the provisions hereof referring to Tenant’s Percentage Share.
If, during any period for which Landlord’s Operating Expenses
are being computed, less than all of the Building is occupied by
tenants, or if Landlord is not supplying all tenants with the
services being supplied hereunder, Operating Expenses shall be
reasonably estimated and extrapolated by Landlord to determine the
Operating Expenses that would have been incurred if the Building
were ninety-five percent (95%) occupied for such year and such
services were being supplied to all tenants, and such estimated and
extrapolated amount shall be deemed to be Landlord’s
Operating Expenses for such period.
ARTICLE V
Additional
Covenants
5.1 Tenant’s
Covenants . Tenant covenants that at all times during the Term
and such further time as Tenant (or persons claiming by, through or
under it) occupies the Premises or any part thereof, it shall
perform and observe the following conditions, all at its sole cost
and expense:
5.1.1 Utilities and
Services . Tenant shall provide and pay all charges and
deposits for gas, water, sewer, electricity, and other energy,
utilities and services if and to the extent used or consumed on the
Premises and not included in the Operating Expenses of the Building
during the Term which now or hereafter separately serve the
Premises, or are not expressly to be provided by Landlord elsewhere
hereunder. It is understood and agreed that except as may be
expressly provided hereunder, Landlord shall be under no obligation
whatsoever to furnish any such services to the Premises, and shall
not be liable for (nor suffer any reduction in any rent on account
of) any interruption or failure in the supply of the
same.
9
5.1.2 Maintenance .
Tenant shall maintain, repair and secure the Premises, all
improvements and appurtenances thereto, all access areas thereof,
and all utilities, facilities, installations and equipment used in
connection therewith, and shall pay all costs and expenses of so
doing, keeping the Premises in good order, repair and condition,
reasonable wear and tear, and damage by casualty and taking (to the
extent provided in Article VI only) excepted. Without limiting the
generality of the foregoing, Tenant shall keep all interior walls,
floor surfaces and coverings, glass, windows, doors, partitions,
all fixtures and equipment, utilities, pipes and drains and other
interior installations used in connection with the Premises in such
good order, repair and condition.
5.1.3 Use and Compliance
with Law . Tenant shall use the Premises continuously and
uninterruptedly only for the Permitted Uses, and then only as
permitted under federal, state, and local laws, regulations and
orders applicable from time to time, including without limitation
municipal bylaws, land use and zoning laws, environmental laws and
regulations (including all laws and regulations regulating the
production, use, and disposal of any pollutant or toxic or
hazardous material), and occupational health and safety laws, and
shall procure all approvals, licenses and permits necessary
therefor, in each case giving Landlord true and complete copies of
the same and all applications therefor. Tenant shall timely comply
with all present and future laws applicable to Tenant’s use
of the Premises or Tenant’s signs thereon, foreseen or
unforeseen, and whether or not the same necessitate structural or
other extraordinary changes or improvements to the Premises or
interfere with its particular use and enjoyment of the Premises,
and shall keep the Premises equipped with adequate safety
appliances and comply with all requirements reasonable in light of
the use Tenant is making of the Premises. If Tenant’s use of
the Premises results in any increase in the premium for any
insurance carried by Landlord, then upon Landlord’s notice to
Tenant of such increase Tenant shall pay the same to Landlord upon
demand as additional rent. Tenant shall, in any event, indemnify,
save Landlord harmless, and defend from all loss, claim, damage,
cost or expense (including reasonable attorneys’ fees of
counsel of Landlord’s choice against whom Tenant makes no
reasonable objection) on account of Tenant’s failure so to
comply with the obligations of this Section (paying the same
to Landlord upon demand as Additional Rent). Tenant’s
obligations in the preceding sentence shall survive the expiration
or earlier termination of this Lease. Tenant shall bear the sole
risk of all present or future laws affecting the Premises or
appurtenances thereto, and Landlord shall not be liable for (nor
suffer any reduction in any rent on account of) any interruption,
impairment or prohibition affecting the Premises or Tenant’s
use thereof resulting from the enforcement of laws. Tenant shall
conform to the Rules and Regulations from time to time promulgated
by Landlord for the operation, care and use of the common areas of
the Building and appurtenant improvements and areas in which Tenant
is granted rights of use by the terms of this Lease.
5.1.4 Liens and
Encumbrances . Tenant shall not create or suffer, shall keep
Landlord’s property, the Premises and Tenant’s
leasehold free of, and shall promptly remove and discharge, any
lien, notice of contract, charge, security interest, mortgage or
other encumbrance which arises for any reason, voluntarily or
involuntarily, as a result of any act or omission by Tenant or
persons claiming by, through or under Tenant, or any of their
agents, employees or independent contractors, including without
limitation liens which arise by reason of labor or materials
furnished or claimed to have been furnished to Tenant or for the
Premises.
5.1.5 Waiver and
Indemnity .
5.1.5.1 Waiver .
Tenant releases Landlord, Landlord’s mortgagee,
Landlord’s property manager and their respective agents and
employees from, and waives all claims for, damage or injury to
person or property and loss of business sustained by Tenant and
resulting from the Building or the Premises or any part thereof or
any equipment therein becoming in disrepair, or resulting from any
accident in or about the Building, except for any of the foregoing
resulting from Landlord’s gross
10
negligence or intentional misconduct.
This paragraph shall apply particularly, but not exclusively, to
flooding, damage caused by Building equipment and apparatus, water,
snow, frost, steam, excessive heat or cold, broken glass, sewage,
gas, odors, excessive noise or vibration or the bursting or leaking
of pipes, plumbing fixtures or sprinkler devices. Without limiting
the generality of the foregoing, Tenant waives all claims and
rights of recovery against Landlord, its property manager and their
respective agents and employees for any loss or damage to any
property of Tenant, which loss or damage is insured against, or
required to be insured against, by Tenant pursuant to
Section 6.1 hereof, whether or not such loss or damage is due
to the fault or negligence of Landlord, its property manager or
their respective agents or employees, and regardless of the amount
of insurance proceeds collected or collectible under any insurance
policies in effect.
5.1.5.2 Indemnity .
Tenant agrees to indemnify, defend and hold harmless Landlord,
Landlord’s mortgagee, Landlord’s property manager and
their respective agents and employees, from and against any and all
claims, demands, actions, liabilities, damages, costs and expenses
(including attorneys’ fees), for injuries to any persons and
damage to or theft or misappropriation or loss of property
occurring in or about the Building and arising from the use and
occupancy of the Premises or from any activity, work, or thing
done, permitted or suffered by Tenant in or about the Premises
(including, without limitation, any alteration by Tenant) or from
any breach or default on the part of Tenant in the performance of
any covenant or agreement on the part of Tenant to be performed
under this Lease or due to any other act or omission of Tenant, its
subtenants, assignees, invitees, employees, contractors and agents.
Without limiting the foregoing, Tenant shall indemnify, defend and
hold Landlord, Landlord’s property manager and
Landlord’s mortgagee harmless from any claims, liabilities,
damages, costs and expenses arising out of the use or storage of
hazardous or toxic materials in the Building by Tenant. If any such
proceeding is filed against Landlord or any such indemnified party,
Tenant agrees to defend Landlord or such party in such proceeding
at Tenant’s sole cost by legal counsel reasonably
satisfactory to Landlord, if requested by Landlord.
The provisions of
Section 5.1.5 shall survive the expiration or earlier
termination of this Lease.
5.1.6 Landlord’s
Right to Enter . Landlord and its agents or employees may upon
reasonable notice enter the Premises during business hours (and in
case of emergency at any time) for the purpose of performing
repairs or replacements, or exercising any of the rights reserved
to Landlord herein, or securing or protecting Landlord’s
property or the Premises, or removing any alterations or additions
not consented to by Landlord, and similarly upon reasonable notice
may show the Premises to prospective purchasers and lenders, and
during the last 12 months of the Term to prospective tenants, and
may keep affixed in suitable places notices for letting and
selling. Except in case of emergency, Landlord shall be subject in
entering the Premises to reasonable security conditions, if any,
set forth by Tenant in writing to Landlord.
5.1.7 Personal Property at
Tenant’s Risk . Landlord’s obligation or election
to repair or restore the Premises under this Lease shall not
include the repair, restoration or replacement of the furniture or
any other personal property owned by or in the possession of
Tenant, all of which shall be at Tenant’s sole
risk.
5.1.8 Overloading,
Nuisance, Etc . Tenant shall not, either with or without
negligence, injure, overload, deface, damage or otherwise harm
Landlord’s property, the Premises or any part or component
thereof; commit any nuisance; permit the emission of any hazardous
agents or substances; allow the release or other escape of any
biologically or chemically active or other hazardous substances or
materials so as to impregnate, impair or in any manner affect, even
temporarily, any element or part of Landlord’s property or
the Premises or allow the storage or use of such substances or
materials in any
11
manner not sanctioned by law or by the
highest standards prevailing in the industry for the storage and
use of such substances or materials; nor shall Tenant bring onto
the Premises any such materials or substances except to use in the
ordinary course of Tenant’s business, and then only after
written notice is given to Landlord of the identity of such
substances or materials; permit the occurrence of objectionable
noise or odors; or make, allow or suffer any waste whatsoever to
Landlord’s property or the Premises. Landlord may inspect the
Premises from time to time (subject to the requirements set forth
in Section 5.1.6 above), and Tenant will cooperate with such
inspections. Without limitation, “hazardous substances”
shall include such substances described in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. §9601 et seq. and the regulations adopted
thereunder, and “hazardous materials” shall include
such materials described in the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. §6901 et seq.; any state or local
statutes governing hazardous materials, and the regulations adopted
under these acts. In addition, Tenant shall execute affidavits,
representations and the like from time to time at Landlord’s
request concerning Tenant’s best knowledge and belief
regarding the presence or absence of hazardous materials and
substances on the Premises or Property. In all events, Tenant shall
indemnify Landlord, Landlord’s property manager, and
Landlord’s mortgagees as provided in Section 5.1.5 from
any liability arising from or related to the release or threatened
release of hazardous materials and substances on the Premises. (At
the request of Landlord, Tenant will from time to time confirm such
indemnity to mortgagees directly with such mortgagees.) The
provisions of this Section 5.1.8 shall survive the expiration
or earlier termination of this Lease.
5.1.9 Yield Up . At
the expiration or earlier termination of this Lease, Tenant (and
all persons claiming by, through or under it) shall, without the
necessity of any notice, surrender the Premises (including all
Tenant Work, and all replacements thereof, except such additions,
alterations and other Tenant Work as Landlord may have directed in
advance of their installation and otherwise in accordance with this
Lease, to be removed at the end of the expiration or termination of
this Lease, which shall be removed by Tenant and the Premises
restored to their pre-existing condition) and all keys to the
Premises, remove all of its trade fixtures and personal property
not bolted or otherwise attached to the Premises (and such trade
fixtures and other property bolted or attached to the Premises as
Landlord may have directed in advance of their installation and
otherwise in accordance with this Lease to be removed at the end of
the expiration or termination of this Lease), and all
Tenant’s signs wherever located, in each case repairing
damage to the Premises and Property which results in the course of
such removal and restoring the Premises and Property to a fully
functional and tenantable condition (including the filling of all
floor holes, the removal of all disconnected wiring back to
junction boxes and the replacement of all damaged ceiling tiles)
except in each case for ordinary wear and tear. Tenant shall yield
up the Premises broom-clean and in good order, repair and
condition, reasonable wear and tear and damage by casualty and
taking (to the extent provided in Article VI only) excepted. Any
property not so removed within thirty (30) days after the
expiration or termination of the Lease shall be deemed
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