EX-10.17 3 dex1017.htm LEASE AGREEMENT LEASE AGREEMENT LANDLORD: NB MS NEBC LLC TENANT: FARO Technologies, Inc. BUILDING ADDRESS: 35 New England Business Center Drive Andover, Massachusetts 01810 SUBMISSION NOT AN OPTION THE SUBMISSION OF THIS LEASE...
Exhibit 10.17
LANDLORD: | NB MS NEBC LLC | |
TENANT: | FARO Technologies, Inc. | |
BUILDING ADDRESS: | 00 Xxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000 |
SUBMISSION NOT AN OPTION
THE SUBMISSION OF THIS LEASE FOR EXAMINATION AND NEGOTIATION DOES NOT CONSTITUTE AN OFFER TO LEASE, A RESERVATION OF, OR OPTION FOR THE PREMISES AND SHALL VEST NO RIGHT IN ANY PARTY. TENANT OR ANYONE CLAIMING UNDER OR THROUGH TENANT SHALL HAVE THE RIGHTS TO THE PREMISES AS SET FORTH HEREIN AND THIS LEASE BECOMES EFFECTIVE AS A LEASE ONLY UPON EXECUTION, ACKNOWLEDGEMENT AND DELIVERY THEREOF BY LANDLORD AND TENANT TO EACH OTHER, REGARDLESS OF ANY WRITTEN OR VERBAL REPRESENTATION OF ANY AGENT, MANAGER OR EMPLOYEE OF LANDLORD TO THE CONTRARY.
FROM THE OFFICE OF:
Xxxxxxxxx, Xxxxxxxx & Xxxxxx
00 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
000-000-0000
LEASE
NB MS NEBC LLC (“Landlord”)
to
FARO Technologies, Inc. (“Tenant”)
Table Of Contents
SECTION I. PREMISES | 1 | |
SECTION II. USE | 1 | |
SECTION III. TERM | 2 | |
SECTION IV. RENT | 3 | |
SECTION V. CONSTRUCTION AND PREPARATION OF THE PREMISES | 4 | |
SECTION VI. BUILDING AND EQUIPMENT; TENANT’S CARE OF PREMISES | 5 | |
SECTION VII. FLOOR LOAD, HEAVY MACHINERY | 6 | |
SECTION VIII. SERVICES | 6 | |
SECTION VIII-A. LANDLORD’S FAILURE TO PROVIDE SERVICES | 7 | |
SECTION IX. UTILITIES | 7 | |
SECTION X. ADDITIONAL RENT AND ESCALATION | 8 | |
SECTION XI. SALES TAX | 13 | |
SECTION XII. IMPROVEMENTS AND ALTERATIONS | 13 | |
SECTION XIII. INSPECTION | 14 | |
SECTION XIV. CASUALTY | 14 | |
SECTION XV. EMINENT DOMAIN | 15 | |
SECTION XVI. INDEMNIFICATION | 16 | |
SECTION XVII. PROPERTY OF TENANT | 16 | |
SECTION XVIII. INJURY AND DAMAGE | 16 | |
SECTION XIX. ASSIGNMENT, MORTGAGING, AND SUBLETTING | 16 | |
SECTION XX. SIGNS, WINDOW TREATMENT, AND ADVERTISING | 18 | |
SECTION XXI. INSURANCE COMPLIANCE | 18 | |
SECTION XXII. INFLAMMABLES, ODORS | 18 | |
SECTION XXIII. DEFAULT | 19 | |
SECTION XXIV. SUBORDINATION AND ESTOPPEL | 20 | |
SECTION XXV. NOTICES | 21 | |
SECTION XXVI. RULES AND REGULATIONS | 21 | |
SECTION XXVII. QUIET ENJOYMENT | 22 | |
SECTION XXVIII. BINDING AGREEMENT | 22 | |
SECTION XXIX. PARTNERSHIP | 22 | |
SECTION XXX. SEISIN | 22 | |
SECTION XXXI. INSURANCE | 22 | |
SECTION XXXII. SUBROGATION, INSURANCE PREMIUMS | 23 | |
SECTION XXXIII. REZONING | 23 | |
SECTION XXXIV. SEPARABILITY | 23 | |
SECTION XXXV. WAIVER OF TRIAL BY JURY | 23 | |
SECTION XXXVI. NO WAIVER | 23 | |
SECTION XXXVII. REMOVAL OF GOODS AND TENANT’S REPAIRS; HOLDING OVER | 24 | |
SECTION XXXVIII. CAPTIONS, PLURAL, GENDER | 24 | |
SECTION XXXIX. BROKERAGE | 24 | |
SECTION XL. HAZARDOUS WASTE | 25 | |
SECTION XLI. SECURITY DEPOSIT; GUARANTY | 25 |
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SECTION XLII. LANDLORD’S RIGHT TO PERFORM FOR TENANT | 26 | |
SECTION XLIII. GOVERNING LAW | 26 | |
SECTION XLIV. RELOCATION | 26 | |
SECTION XLV. FORCE MAJEURE | 26 | |
SECTION XLVI. FINANCIAL INFORMATION | 26 | |
SECTION XLVII. PARKING | 26 | |
SECTION XLVIII. MULTIPLE COUNTERPARTS | 27 |
Exhibit A | Lease Plan | |
Exhibit B | Landlord’s Work and Tenant’s Work | |
Exhibit B-1 | Plans and Specifications | |
Exhibit B-2 | Construction Rules | |
Exhibit C | Legal Holidays | |
Exhibit D | Scope of Services – Cleaning | |
Exhibit E | Subordination, Non-Disturbance and Attornment Agreement | |
Exhibit F | Form of Guaranty | |
Exhibit G | Xxxx of Sale | |
Rules and Regulations |
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THIS LEASE (the “Lease”) made and entered into as of this day of August, 2008 by and between NB MS NEBC LLC, a Delaware limited liability company, having a business address at 00 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxxxxx 00000 (the “Landlord”) and FARO TECHNOLOGIES, INC., a Florida corporation having a business address at 000 Xxxxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxx 00000 (the “Tenant”).
SECTION I. PREMISES. Landlord leases to Tenant, and Tenant hereby hires and takes from Landlord the following described premises subject to the mortgages as hereinafter provided, and to all encumbrances of record.
The “Premises” are that portion of a building located in the Town of Xxxxxxx, Xxxxxxxxxxxxx 00000 having a mailing address of 35 New England Business Center Drive (the “Building”) substantially as shown on Exhibit A hereto attached and made a part hereof, consisting of approximately 5,096 square feet of net rentable area (the “Net Rentable Area”) on the second floor of the Building. The Building and the parcel of land on which it is located are hereinafter referred to as the “Property”. The Property is part of the business park commonly known as New England Business Center comprised of 10, 15, 20, 25 and 35 New England Business Center Drive (the “Business Park”).
Landlord reserves and excepts all rights of ownership and use of the Property outside the Premises except that at all times during the term of this Lease Tenant shall have a reasonable means of access from the street to the Premises. Without limiting the foregoing reservation of rights by Landlord, it is understood that, Landlord in its sole discretion shall have the right to change, add, relocate and eliminate facilities structures and improvements in and to the Building and Property, to permit the use of or lease all or part thereof for exhibition and displays, to sell, lease or dedicate all or part thereof to public use, provided that the Premises continues to be usable for the purposes permitted by this Lease.
Concurrently with the execution and delivery of this Lease by Landlord, for the consideration stated therein, Landlord shall execute and deliver to Tenant a Xxxx of Sale in the form of Exhibit G attached hereto, appropriately completed (the “Xxxx of Sale”), and convey to Tenant the Property, pursuant to and as defined in the Xxxx of Sale.
Tenant will notify Landlord if the Premises will be vacant for more than thirty (30) consecutive days at any time during the term of this Lease, except by reason of casualty, taking or loss of access.
Each of Landlord and Tenant shall at its own cost and expense retain a real estate broker, who must have ten (10) years experience in commercial leasing in the greater Boston metropolitan market, to determine the fair market rent for the Premises as of the commencement date of the Extended Term, which appraisals must be completed and submitted within thirty (30) days of the commencement of the appraisal process by Tenant’s notice. If the two appraisals are within ten percent (10%) of each other, the average of the two amounts shall constitute the rent which shall be due during the Extended Term. If the two appraisals are not within ten percent (10%) of each other, the two brokers shall select a third real estate broker (who must also possess the minimum qualifications described above), who
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within the next thirty (30) days shall select which of the two initial amounts shall constitute the rent which shall be due during the Extended Term. Landlord and Tenant shall each bear one-half of the cost of said third broker. The appraisal process shall be binding upon both Landlord and Tenant, and once the process is initiated, Tenant may not withdraw the exercise of the Option to Extend. If Tenant shall fail to give Landlord written notice not less than two hundred seventy (270) days prior to the expiration of the initial term of this Lease, Tenant shall have no right to extend this Lease for the Extended Term, and this Lease shall terminate as provided in Section III, and Tenant shall vacate the Premises on or before such date in accordance with the provisions of this Lease.
Lease Year | Monthly Rent | Annual Rent Per Square Foot | ||||
Lease Year 1 | $ | 7,219.34 | $ | 17.00 | ||
Lease Year 2 | $ | 7,219.34 | $ | 17.00 | ||
Lease Year 3 | $ | 7,644.00 | $ | 18.00 | ||
Lease Year 4 | $ | 7,856.34 | $ | 18.50 | ||
Lease Year 5 | $ | 8,068.67 | $ | 19.00 |
For the purposes of this Section IV, the term “Lease Year” shall mean the twelve (12) month period commencing upon the Commencement Date, plus the remaining portion of any unexpired calendar month at the end of the first Lease Year, and each successive twelve (12) month period during the term hereof.
The Rent shall be paid in equal installments of one-twelfth ( 1 /12) of the annual Rent in advance on the first day of each calendar month.
Tenant shall pay a proportionate share of such monthly installment for any fraction of a calendar month at the beginning or end of the term of this Lease.
Tenant shall pay the Rent and Additional Rent (as hereinafter defined) without demand or notice and without deduction, abatement, counterclaim, or set-off, to the Landlord, NB MS NEBC LLC, X.X. Xxx 000000, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, or at such other place as designated from time to time by Landlord in writing.
Upon the first time in any calendar year that Tenant fails to pay Rent or Additional Rent and such failure continues for five (5) days, Tenant shall pay interest at the rate of one and one-half percent (1- 1/12%) per month on the unpaid Rent or Additional Rent from the due date until the date paid. Upon the second time in the same calendar year that Tenant fails to pay Rent or Additional Rent when due (whether or not such failure continues for five (5) days), and each time thereafter in the same calendar year that Tenant fails to pay Rent of Additional Rent when due, Tenant shall pay, in addition to such interest, upon demand by Landlord, a late charge in an amount equal to five percent (5%) of the unpaid Rent or Additional Rent. All amounts other than Rent that Tenant is required to pay in accordance with the provisions of this Lease, together with all interest and penalties that may accrue thereon or in respect of Rent, shall be “Additional Rent,” and in the event of non-payment thereof by Tenant, Landlord shall have all the rights and remedies that would accrue to Landlord for non-payment of Rent.
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SECTION V. CONSTRUCTION AND PREPARATION OF THE PREMISES.
(a) Landlord’s Work. Landlord shall do the work, if any, shown on Exhibit B attached hereto and made a part hereof as the work on the part of Landlord in a good and workmanlike manner in accordance with all laws, rules, regulations and ordinances applicable thereto (the “Landlord’s Work”). Landlord’s Work shall be done at Landlord’s expense except as otherwise provided on Exhibit B. To the extent practical, Landlord shall give advance notice to the Tenant of the approximate date upon which Landlord’s Work shall be “substantially completed”. “Substantial Completion” or “substantially completed” shall mean that Landlord’s Work has been completed, except for minor details of mechanical adjustment, decoration and finish which do not materially interfere with Tenant’s ability to use and occupy the Premises for the purposes permitted hereunder. If Substantial Completion of Landlord’s Work is delayed due to any act or omission of Tenant or Tenant’s representative, including, but not limited to, any delay by Tenant in the submission of plans, drawings, specifications or other information, or in approving any working drawings or estimates or in giving any authorization or approval, the Premises shall be deemed substantially completed on the date when they would have been ready but for such delay. The taking of possession of the Premises by Tenant shall be conclusive evidence of the acceptance of the Premises by Tenant and that the Premises are in good and satisfactory condition, in accordance with Landlord’s obligations hereunder.
Landlord hereby approves J&J Construction Services as the contractor to be retained for the construction of the Tenant’s Work and any work under Section XII of this Lease. Tenant shall ensure that J&J Construction Services and its labor will work in harmony with other labor working in and about the Building, Property, and the Business Park and with suppliers of materials for use in construction in and about the Building, Property, and Business Park, and Tenant agrees that it will not do or permit to be done anything which would cause any labor difficulty in connection with any construction in and about the Building, Property, and Business Park.
Tenant shall require all of its contractors to carry (i) Worker’s Compensation Insurance in accordance with statutory requirements and (ii) Commercial General Liability Insurance and
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Automobile Liability Insurance covering such contractors in or about the Premises, Building, Property and Business Park in amounts not less than Two Million Dollars ($2,000,000) combined single limits for property damage, for injury or death of more than one person in a single accident, and to submit certificates of insurance evidencing such coverage to Landlord prior to commencement of such work, which name Landlord as an additional insured thereunder as its interest may appear. Tenant agrees to indemnify, exonerate, and hold harmless Landlord and its management agent from all claims, liabilities, penalties, costs, expenses (including reasonable attorneys’ fees) actions, proceedings, demands and causes of actions occasioned by, on account of, or upon (i) Tenant’s contractors being on or about the Premises, the Building, the Property, or the Business Park, and/or (ii) any work done on the Premises pursuant to this Section V or Section XII of this Lease whether performed prior to the Commencement Date, during or after the term of this Lease, including, but not limited to, any claims, actions, demands or causes of action asserted by any other tenants in the Building against Landlord as a result of breach of covenant of quiet enjoyment. In case any action or proceeding is brought against Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall, at Tenant’s expense, resist or defend such action or proceeding and employ counsel therefor reasonably satisfactory to Landlord, it being agreed that such counsel as may act for insurance underwriters of Tenant engaged in such defense shall be deemed satisfactory.
All contractors, subcontractors, mechanics, laborers, materialmen, and others who perform any work, labor or services, or furnish any materials, or otherwise participate in the improvement or alteration of the Premises, are hereby given notice that Tenant is not authorized to subject Landlord’s interest in the Premises, Building or Property to any claim for mechanics’, laborers’ and materialmen’s liens, and all persons dealing directly or indirectly with Tenant may not look to the Premises, Building or Property as security for payment. Tenant shall save Landlord harmless from and against all expenses, liens, claims or damages to either property or person which arise from the making of any such additions, improvements, alterations and/or installations and shall remove any mechanics’, laborers’ and/or materialmen’s liens within ten (10) business days after the same have been filed.
SECTION VI. BUILDING AND EQUIPMENT; TENANT’S CARE OF PREMISES.
(a) Landlord’s Obligations. Landlord shall keep in good condition and repair the structure and exterior of the Building, the roof, the elevator(s), if any, the plumbing and electrical systems, and the heating, ventilating and air conditioning systems servicing the Building and the Premises (except for such equipment and service lines installed by Tenant or exclusively serving the Premises and except as otherwise provided in Section VIII), and the exterior parking area(s) serving the Building. The Landlord shall comply with applicable governmental rules, regulations, laws and ordinances affecting the Building, unless the violation is caused by Tenant or Tenant’s use of the Premises, or by any other tenant in the Building. Landlord shall keep the sidewalks, common corridors, stairways, elevator(s), if any, and all other means of ingress and egress for the Premises and all public portions of the Building in serviceable repair and in a reasonably clean and safe condition. Landlord reserves the right to interrupt, curtail, stop and suspend the furnishing of any services and operation of the plumbing and electrical, heating, ventilating, and air conditioning systems, and elevator(s), if any, when necessary, by reason of accident or emergency or for repairs, alterations, replacements or improvements, which may become necessary or when it cannot secure supplies or labor or by reason of any other cause beyond its control, without liability or any abatement of Rent or Additional Rent being due thereby, except as otherwise expressly provided herein.
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loading dock(s) and glass within the Premises (other than exterior windows), and all other portions thereof in the condition each of the same were in at the time of the delivery thereof to Tenant, but in all events in good and tenantable working order, condition and repair, and will maintain, repair and replace the same when necessary so as to comply with the foregoing, except only for reasonable wear and tear and damage due to casualty for which and to the extent Landlord is required to purchase casualty insurance as provided in this Lease, and so as to comply with applicable laws.
SECTION VIII. SERVICES. Landlord shall provide or cause:
(a) Access to the Building from the lobby Monday through Friday, except for holidays listed on Exhibit C, hereinafter referred to as “business days”, during normal business hours. Normal business hours are Monday through Friday, 8:00 AM to 6:00 PM, holidays excepted. At all other times, that is, twenty-four (24) hours a day, seven (7) days a week, Landlord shall provide restricted access to the Building in accordance with such Building standard entry system as shall from time to time be in effect. As of the Commencement Date, access to the Building at other than normal business hours shall be through either a card key or personnel identification pinstation system. Tenant shall be entitled to three (3) key cards per 1,000 net rentable square feet of Premises leased. Additional cards shall be provided to Tenant at a per card cost of Seven Dollars and 50/100 ($7.50). Upon the expiration or earlier termination of this Lease, Tenant shall surrender all key cards to Landlord; Tenant shall pay to Landlord Fifteen and 00/100 Dollars ($15.00) for each key card not so returned, which payment shall be deemed Additional Rent and may be withheld from Tenant’s security deposit or otherwise collected in accordance with applicable law. The Landlord reserves the right to alter the Building standard entry system from time to time as it sees fit.
(b) Use, in common with others, of all elevator facilities, subject to such reasonable rules and regulations as Landlord may prescribe.
(c) Building standard heat and air conditioning during normal business hours and from 9:00 AM to 1:00 PM on Saturdays which is reasonably required for reasonably comfortable occupation of the Premises, under normal business operation at an occupancy of not more than one person per 250 square feet of Net Rentable Area and an electrical demand load not exceeding the demand load of a typical office use for premises the size of the Premises, subject to all governmental laws, regulations or restrictions now or hereafter in force pertaining to the furnishing or use of such heat and air conditioning. Landlord shall provide heat and air conditioning to Tenant at other than normal business hours, provided that Tenant pays Landlord its charges for supplying the same. As of the Commencement Date, Landlord’s charge for supplying heat and air conditioning to Tenant at other than normal business hours is $75.00 per hour. Landlord reserves the right to increase this charge from time to time throughout the term of this Lease upon prior written notice to Tenant. Tenant shall not introduce into the Premises personnel or equipment which overloads the capacity of the Building systems or in any other way interferes with any system’s ability to perform adequately
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its proper functions. If Tenant violates the foregoing, Landlord may, at its option, upon prior notice to Tenant, elect to provide supplementary systems or take other steps to cure such violation, at Tenant’s sole cost and expense.
(d) The Premises to be kept reasonably clean as hereinafter described, provided the Premises are kept in order by Tenant. The cleaning services provided hereunder are limited to those set forth on Exhibit D attached hereto and made a part hereof which sets forth the scope of the cleaning services. The cleaning services shall be provided only Monday through Friday, legal holidays excepted. Notwithstanding the foregoing, at no time and under no circumstances shall Landlord have any responsibility for the storage or removal of any “medical waste”, “infectious waste”, “hazardous medical waste”, “hazardous waste”, as such terms may from time to time be defined in such municipal, state and federal statutes, laws, ordinances, rules and regulations as may apply to Tenant or to the Premises because of the business, profession or activity carried on in the Premises by Tenant, Tenant’s servants, agents, employees, invitees or anyone claiming by, through or under Tenant.
(e) Hot and cold running water, toilet paper, paper towels and hand soap for common area wash rooms and lavatories.
(f) Electricity for normal lighting of main lobby, elevator(s), stairways, parking areas, walkways and corridors.
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SECTION X. ADDITIONAL RENT AND ESCALATION.
(1) “Taxes” shall mean the total of all real estate taxes, charges, and assessments, extraordinary as well as ordinary, and any payments in lieu of such real estate taxes, levied, imposed, or assessed for a particular tax year during the term of this Lease by governmental authorities upon or attributable to the Property and/or the Business Park, or to any and all personalty owned by Landlord installed in or about the same by Landlord and any and all other taxes, levies, betterments, assessments and charges arising from the ownership and/or operation of the Property. If the taxation method changes and any franchise, income, profit or other tax shall be levied against Landlord in substitution or in lieu of any tax which would otherwise constitute a real estate tax or payment in lieu of real estate tax, or if a specific tax on rentals from the Property shall be levied against Landlord, such franchise, income, profit, rental or other tax shall be deemed to constitute “Taxes” for the purposes hereof.
(2) “Tax Base” shall mean the Taxes for the fiscal tax year 2009, commencing July 1, 2008 and terminating June 30, 2009 as abated, if abated.
(3) “Tenant’s Proportionate Share of Taxes” shall be five and eighty-seven hundredths percent (5.87%). In the event that the Net Rentable Area of the Building is increased or decreased, Tenant’s Proportionate Share of Taxes shall be adjusted to reflect the portion of the Net Rentable Area of the Building leased to Tenant.
(4) “Tax Year” shall mean the twelve-month period commencing July 1, 2009, and each twelve-month period commencing on an anniversary of said date during the term of the Lease.
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(5) “Tax Excess” shall mean the amount, in any Tax Year by which the Taxes for said year exceed the Tax Base, multiplied by Tenant’s Proportionate Share of Taxes.
(6) “Tax Excess Statement” shall mean a statement setting forth in reasonable detail the amount payable by Tenant as Tax Excess for said Tax Year.
Appropriate credit against Tax Excess shall be given for any refund obtained by reason of a reduction in any Taxes. The original computation of Tax Excess, as well as reimbursement or payments of additional charges, if any, or allowances, if any, under the provisions of this Section X(a) shall be based on the original assessed valuations with adjustments to be made at a later date when the tax refund, if any, shall be paid to Landlord by the taxing authority. Expenditures for legal fees and for other expenses incurred in analyzing the desirability of pursuing or obtaining the tax refund shall be charged against the tax refund before the adjustments are made for the Tax Year but, if there is no tax refund, Tenant shall be charged for such fees and other expenses as Operating Costs. In no event shall Tenant be entitled to receive a credit against Tax Excess for any Tax Year in an amount greater than Tenant’s share of the Tax Excess for such Tax Year, and in no event shall Tenant be entitled to receive a credit or refund against Rent or Additional Rent other than Tax Excess because of a reduction in Taxes.
(1) “Operating Costs” shall mean all costs incurred and expenditures of whatever nature made by the Landlord, whether directly or by allocation, in the operation, management, repair, cleaning and maintenance of the Building, the Property, related equipment and facilities and appurtenant parking and landscaped areas, if any, heating and cooling equipment, including but not limited to the following:
(a) All costs for fire, extended coverage, casualty, liability, worker’s compensation, rental interruption insurance, and all other bonds and insurance as may be required by the holder or guarantor of the mortgage upon the Building in which the Premises are located, or otherwise reasonably required.
(b) Water and sewer charges.
(c) Fuel charges, except to the extent that the same are separately metered or apportioned to tenants.
(d) Heating, ventilating and air conditioning equipment and filter service contracts.
(e) Rubbish removal.
(f) Electricity charges except to the extent that the same are separately metered or apportioned to tenants, including without limitation, the cost of electric current for the operation of elevator(s), if any, and public lights inside and outside the Building, and the parking area(s), if any.
(g) Security service equipment contracts, if any.
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(h) Exterminating services and contracts.
(i) Wages, including all fringe benefits, federal and state payroll, unemployment and old age taxes paid by Landlord on account of all employees at or below the grade of property manager who are employed in, about or on account of the Property, the Building or other improvements of which the Premises are a part. Employees shall include administrative and overhead personnel. Such costs of any employee assigned less than full-time to the Property shall be allocated proportionately.
(j) The cost of labor and materials used in cleaning the Building, surrounding areaways and windows in the Building, and the parking area(s), if any.
(l) Elevator service contracts, if any.
(m) All costs for permits and fees, except those associated with work undertaken solely for an individual tenant.
(n) The cost of capital improvements made after the Commencement Date to the Building and any parking areas, that Landlord in good faith believes will reduce (or reduce foreseeable increases in) Operating Costs or that are required for compliance with any applicable law, rule, regulation or code enacted or first applied to the Property after the date of this Lease, the cost thereof amortized over the estimated useful life of such improvements together with interest at a rate equal to two percent (2%) above the prime or base rate of interest announced from time to time by Bank of America, N.A. or its successor(s), with only the amortization and interest attributable to any calendar year to be included in Operating Costs for such year.
(o) All management fees paid for the Manager of the Building, and all asset management fees, not to exceed in the aggregate five percent (5%) of gross revenue of the Property.
(p) All fees, dues, assessments or charges with respect to the Building, Property, and/or the common areas of the Business Park in which the Property is located on account of any existing or future business improvement district, or similar association or designation affecting the Building and/or Property.
Notwithstanding the foregoing, Operating Costs shall not include the following:
(a) costs of alterations and other leasehold improvements (including the supervision and administration of such construction) and relocations of the premises of tenants of the Building;
(b) depreciation or amortization charges;
(c) interest and principal payments on mortgage loans or any loan fees payable in connection therewith;
(d) ground rental payments;
(e) legal fees and other costs and expenses incurred in connection with negotiating leases with tenants in the Building, enforcing lease obligations of tenants in the Building, or resolving disputes with tenants in the Building;
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(f) interest, fines and penalties for delinquent payments made by Landlord;
(g) real estate brokerage and leasing commissions;
(h) any expenditures for which Landlord has been directly reimbursed by tenants of the Building (other than pursuant to tax and operating expense reimbursement provisions in leases, such as Operating Costs and Taxes);
(i) the costs of providing services to other tenants of the Building without a charge (i.e, excluding any services paid for such tenants through payment of operating expenses and taxes, such as Operating Costs and Taxes) that are in excess of those services provided or made available to Tenant without a charge (i.e., excluding any services provided to Tenant and paid for through payment of Operating Costs and Taxes hereunder), to the extend of such excess;
(j) expenses for repairs, maintenance or replacements for which Landlord is reimbursed from or pursuant to insurance or condemnation proceeds (or for which Landlord would have been so reimbursed had it maintained the insurance required hereunder) or pursuant to product or service warranties or guaranties;
(k) advertising expenses, leasing commissions and promotional expenses relating to leasing of space at the Building;
(l) excluding management fees provided in to Section X(b)(1)(o), amounts paid to subsidiaries or affiliates of Landlord for services to the Building, to the extent only that the costs of such services exceed the costs of such services rendered on arm’s-length terms by unrelated third parties;
(m) rentals of Building systems, elevators or other equipment ordinarily considered to be of a capital nature, other than temporary rentals to provide service during installation, repair, modification, etc., of base Building systems;
(n) damages awarded against Landlord or other costs incurred by Landlord by reason of Landlord’s breach of any agreement, including any lease;
(o) without limiting Landlord’s and Tenant’s obligations herein, the costs to remediate any violations of ADA or of environmental laws existing at the Building as of the Commencement Date, based on the requirements of ADA and of environmental laws in effect as of the Commencement Date; or
(p) costs, other than those incurred for ordinary maintenance, security and insurance, for any sculpture, paintings or other objects of fine art displayed in the Building.
(2) “Operating Cost Base” shall mean the actual Operating Costs for the calendar year 2008 (the “Operating Cost Base Year”). If and to the extent the Building is less than fully occupied during the Operating Cost Base Year, then those Operating Costs which are variable based upon occupancy levels shall be equitably adjusted to reflect the Operating Costs which would have been incurred had the Building been fully occupied during such Operating Cost Base Year.
(3) “Computation Year” shall mean each calendar year beginning with the calendar year 2009.
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(4) “Tenant’s Proportionate Share of Operating Costs” shall be five and eighty-seven hundredths percent (5.87%). In the event that the Building is enlarged or diminished so as to increase or decrease the Net Rentable Area of the Building, Tenant’s Proportionate Share of Operating Costs shall be adjusted to reflect accurately the portion of the Net Rentable Area of the Building leased to Tenant.
(6) “Operating Cost Excess Statement” shall mean a statement setting forth in reasonable detail the amount payable by Tenant as Operating Cost Excess for the Computation Year.
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is required pursuant to any litigation or other dispute resolution between Landlord and Tenant materially related to the facts disclosed by such audit, or otherwise required by law. The right of audit provided in this Section shall not be construed as postponing or delaying any payment of Rent or Additional Rent provided for herein.
If a Tenant audit demonstrates that Tenant has overpaid Operating Costs for any calendar year, the amount of any such overpayment shall be applied as a credit against the next succeeding payments of Tenant’s Proportionate Share of Operating Costs payable hereunder until such credit is exhausted. If the term of this Lease shall expire or otherwise be terminated (other than upon an Event of Default) before such credit is so applied, Landlord shall pay to Tenant the remaining balance of such overpayment amount within thirty (30) days after the expiration or earlier termination of the term hereof. If a Tenant audit demonstrates that Tenant has underpaid Operating Costs for any calendar year, Tenant shall pay to Landlord the amount of such underpayment within thirty (30) days after delivery of the report of such audit to Landlord as Additional Rent.
(1) If the Commencement Date or the Termination Date of the Lease occurs in the middle of a Tax Year or Computation Year, Tenant shall be liable for only that portion of the Tax Excess or Operating Cost Excess in respect of such Tax Year or Computation Year, as applicable, represented by a fraction, the numerator of which is the number of days of the herein term which falls within the Tax Year or Computation Year, and the denominator of which is three hundred sixty-five (365).
(2) In the event of any taking of the Building or Property whereby this Lease shall not terminate under the provisions of Section XV, then (i) for the purpose of determining Operating Cost Excess, the Operating Cost Base shall be adjusted pro-rata to reflect the proportion of the Building and/or Property remaining after such taking and (ii) for the purpose of determining Tax Excess, in the event that the valuation of the Property is lowered to reflect the taking, the Tax Base shall be lowered proportionately in relation to the reduced valuation. In the event the taking includes a portion of the Premises or the Building of which it is a part, Tenant’s Proportionate Share shall be adjusted pro-rata to reflect the proportion of the Premises and/or Building remaining after such taking.
(3) Any obligation under Section X(a) or Section X(b) of Tenant which shall not have been paid at the expiration of the term of this Lease shall survive such expiration and shall be paid when and as the amount of same shall be determined to be due.
SECTION XII. IMPROVEMENTS AND ALTERATIONS.
(a) Tenant may place such partitions, fixtures (including light fixtures), personal property, equipment, machinery and the like (subject to Section VII) in the Premises and may make, at its own expense, such improvements and alterations pursuant to Plans and Specifications that have the prior written approval of Landlord in each instance, which approval as to any non-structural items shall not be unreasonably withheld or delayed but which as to structural items may be granted or denied in Landlord’s sole discretion, provided that all work done by Tenant in the Premises shall be done in accordance with all zoning, building, fire and other codes applicable thereto. When Tenant submits Plans and Specifications for approval, it shall also list separately or otherwise clearly indicate all elements of the proposed work that Tenant desires to retain the right to remove from the Premises, during or at expiration of the term of this Lease, and as part of its response to Tenant’s
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submission, Landlord shall make any objections it has to such list and shall also list or otherwise indicate such elements of the proposed work as Landlord retains the right to require Tenant to remove at the expiration or earlier termination of the term of this Lease. So long as Tenant is not then in default under the Lease, Tenant shall have the right to remove all equipment, furnishings and furniture and such fixtures, improvements and appurtenances as have been approved by Landlord for removal at the time of its response to Tenant’s Plans and Specifications or otherwise, and paid for by Tenant and attached to or built into the Premises prior to or during the term of this Lease (“Tenant’s Removable Property”). Upon removal of any such fixtures, equipment, improvements and appurtenances, Tenant shall restore the Premises at least to its condition as of time of delivery of the Premises to Tenant. If Tenant fails to remove any Tenant’s Removable Property at the end of the term of this Lease the provisions of Section XXXVII shall apply. In the case of damage to or destruction of such items during the term of this Lease, Tenant shall have the right to recover its loss from any insurance company with which it has insured the same, notwithstanding that any of such things might be considered part of the Premises at the end of the term of this Lease. Landlord shall not require removal of pipes, wires and the like from the walls, ceilings or floors, provided that the Tenant properly cuts, caps and disconnects such pipes and wires and seals them off in a safe and lawful manner flush with the applicable wall, floor or ceiling and redecorates the area consistent with the remainder of the Premises. Tenant shall be responsible for any damage to the Building or to the property of other tenants caused by the malfunction of its equipment or the removal of its property as aforesaid.
(a) If the Premises, the Building or Property shall be damaged or destroyed by fire or other casualty insurable under standard coverage insurance to the extent of less than twenty-five percent (25%) of the reasonable replacement value thereof at the time of such damage or destruction, Landlord shall, except as otherwise provided herein, repair and/or rebuild the same with reasonable diligence. Tenant shall repair or restore with due diligence all trade fixtures, equipment and other installations theretofore installed by Tenant to the extent of Tenant’s obligations as set forth in Exhibit B and damaged or destroyed by such fire or casualty. If the Premises, the Building, the Property, or any portion of the Business Park owned by Landlord shall be damaged or destroyed (i) to the extent of twenty-five percent (25%) or more of the reasonable replacement value thereof at the time of such damage or destruction, or (ii) as a result of a risk which is not covered by insurance, or (iii) to any extent by any cause in the last three (3) years of the then current term of this Lease (unless Tenant shall have exercised prior to the date of said fire or other casualty any remaining option to extend the term of this Lease), then the Landlord may at its sole election restore or rebuild the Premises, the Building, the Property, or any portion of the Business Park, as the case may be, or terminate this Lease.
(b) If Landlord elects to terminate this Lease by reason of such damage or destruction, it shall give Tenant notice of its election within sixty (60) days after such damage or destruction. If Landlord is obligated to or elects to repair or rebuild, Landlord shall deliver to Tenant within seventy-five (75) days after the date of the casualty, Landlord’s good faith estimate of the time necessary to complete such repair or rebuilding. If the estimated time to completion exceeds two hundred seventy (270) days, Tenant shall have the right to terminate
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this Lease by notice to Landlord given within thirty (30) days after Tenant’s receipt of Landlord’s notice of estimated time to completion. If this Lease is not terminated by reason of such casualty damage, Landlord shall restore or rebuild reasonable diligence and Tenant shall replace or restore with reasonable diligence all trade fixtures, equipment and other installations theretofore installed by Tenant and damaged or destroyed by such fire or other casualty. Landlord’s obligation under this Section XIV shall be to restore or rebuild to no greater extent than its obligations in connection with the original construction as set forth in Exhibit B and shall be subject to zoning and building laws then applicable to the Premises. Landlord’s obligation under this Section XIV shall be limited to the proceeds received and retained by Landlord (net of any amounts required to be paid to Landlord’s mortgagee) under the insurance policy which is allocable to the Premises, and Landlord shall not be obligated to commence such repairs and/or rebuilding until such insurance proceeds are released to Landlord. Landlord shall not be liable for delays in the making of any such repairs which are due to governmental regulations, casualties, strikes, unavailability of labor and materials, and other causes beyond the reasonable control of Landlord. If the actual time to repair or rebuild exceeds two hundred seventy (270) days, Tenant may terminate this Lease by written notice to Landlord given within thirty (30) days after such 270-day period and received prior to completion of such repair or rebuilding, and such termination shall be effective upon receipt by Landlord of such notice.
(c) Landlord shall not be liable for any inconvenience or annoyance to Tenant or injury to the business of Tenant resulting from reasonable delays in the making of any such repairs. If the Premises, or any part thereof, shall be damaged or destroyed by fire or other casualty, and if as a result thereof the Premises shall be rendered untenantable, then a just proportion of the Rent reserved hereunder shall be suspended or abated according to the extent to which Tenant may be reasonably required to discontinue its business in the Premises until the work of restoration to be done by Landlord as aforesaid shall be substantially completed.
(d) In the event Landlord elects to terminate this Lease pursuant hereto, the effective termination date shall be not less than thirty (30) days after the date on which a termination notice is received by Tenant, and the yearly Rent and Additional Rent shall be apportioned as of such date.
In the event of restoration, Landlord’s obligation under this Section XV to restore shall be limited to the obligations of Landlord in connection with the original construction as set
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forth on Exhibit B and limited to the extent of the damages awarded for the taking and released to Landlord (net of any amounts required to be paid to Landlord’s mortgagee). Landlord’s obligations under this Section XV shall be subject to zoning and building laws then applicable to the Premises. Tenant shall repair or restore all trade fixtures or equipment and other installations theretofore installed by Tenant. All damages awarded for any such taking, shall belong to and be the property of Landlord whether such damages shall be awarded as compensation for diminution in value to the leasehold or to the fee or otherwise; provided, however, that Tenant shall be entitled to receive and retain any amounts which may be specifically awarded to it by reason of the loss of its trade fixtures or furniture to the extent such award does not diminish Landlord’s award. Tenant shall have the right to prosecute any claim for its relocation or moving expenses.
In case any action or proceeding is brought against Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall, at Tenant’s expense, resist or defend such action or proceeding and employ counsel therefor reasonably satisfactory to Landlord, it being agreed that such counsel as may act for insurance underwriters of Tenant engaged in such defense shall be deemed satisfactory.
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space or for mailing privileges, by anyone other than Tenant, or for any use or purpose other than as stated herein, or be sublet or offered or advertised for subletting, without the prior written consent of Landlord in each and every case, which consent to any requested assignment or subletting shall not be unreasonably withheld or delayed. Tenant shall not sublet or assign all or any portion of the Premises (i) if the proposed subtenant is an existing tenant of Landlord or (ii) if the proposed subtenant is in lease negotiations with, or has received a lease proposal from, Landlord or its affiliates within the prior six (6) months. Not in limitation of the foregoing, Tenant’s request for Landlord’s consent to subletting or assignment shall be submitted in writing no later than thirty (30) days in advance of the proposed effective date of such proposed assignment or sublease, which request shall be accompanied by all reasonable information requested by Landlord. Tenant also shall promptly supply Landlord with financial statements and other information as Landlord may request, prepared in accordance with generally accepted accounting principles not more than ninety (90) days old when delivered to Landlord, indicating the net worth, liquidity and credit worthiness of the proposed assignee or subtenant in order to permit Landlord to evaluate the proposed assignment or sublease. Tenant agrees to reimburse Landlord for reasonable legal fees up to $1,500 and any other reasonable expenses and costs incurred by Landlord in connection with any proposed assignment or subletting.
Landlord’s consent shall be granted only if any and all rights contained within this Lease of expansion, extension, renewal, first offer, termination, and the like are deleted and/or waived by Tenant, and if requested by Landlord such assignee or subtenant, and only if the assignee or subtenant shall promptly execute, acknowledge, and deliver to Landlord an agreement in form and substance satisfactory to Landlord whereby the assignee or subtenant shall agree to be bound by and upon the covenants, agreements, terms, provisions and conditions set forth in this Lease (the “Assignment Agreement”). If Tenant shall sublet the Premises, having first obtained Landlord’s consent, at a rental in excess of the rent and additional rent due and payable by Tenant under the provisions of this Lease, fifty percent (50%) of such excess Rent and Additional Rent, after the deduction of the costs of the tenant improvements, reasonable legal fees and brokerage fees in connection with such sublease amortized over the term of such sublease, shall become the sole property of Landlord, it being agreed, however, that Landlord shall not be responsible for any deficiency if Tenant shall sublet the Premises at a rental less than that provided for herein.
Further, it is agreed that in lieu of withholding or granting its consent, Landlord may, within thirty (30) days of receipt of a request for consent from Tenant, cancel this Lease as to the entire Premises if Tenant requests an assignment or as to so much of the Premises as Tenant has proposed for subletting. If Landlord shall elect to cancel this Lease as to all or a portion of the Premises, it shall give Tenant written notice of its election, containing a “termination date” which shall be not less than sixty (60) or more than one hundred twenty (120) days from the receipt by Landlord of Tenant’s request to assign or sublet, and on that “termination date” Tenant shall surrender the Premises or portion thereof for which this Lease has been canceled, in accordance with the provisions of this Lease. If the cancellation shall be as to a portion of the Premises only, then the Rent and Additional Rent shall be adjusted proportionately to reflect said cancellation.
It is hereby expressly understood and agreed, however, if Tenant is a corporation, that the assignment, or transfer of this Lease, and the term and estate granted, to any corporation into which Tenant is merged or with which Tenant is consolidated, which corporation shall have a net worth at least equal to that of Tenant as of the date hereof and immediately prior to such merger or consolidation (such corporation being hereinafter called “Assignee”), without the prior written consent of Landlord shall not be deemed to be prohibited hereby, if, and upon the express condition that, Assignee and Tenant shall promptly execute, acknowledge, and deliver to Landlord the Assignment Agreement whereby Assignee shall expressly agree that the provisions of this Section XIX shall, notwithstanding such assignment or transfer, continue to
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be binding upon it with respect to all future assignments and transfers. The listing of any name other than that of Tenant, whether on the doors of the Premises or on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the Premises or be deemed to be the written consent of Landlord mentioned in this Section XIX, it being expressly understood that such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
If this Lease is assigned, or if the Premises or any part thereof is sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect Rent and/or Additional Rent from the Assignee, subtenant or occupant, and apply the net amount collected to the Rent and/or Additional Rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the Assignee, subtenant or occupant as a tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Landlord to an assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. No assignment, subletting or use of the Premises by any party shall affect the purpose for which the Premises may be used as stated in Section II. Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and fully responsible and liable for the payment of all sums payable under the Lease and for compliance with all the obligations of Tenant under the Lease.
Landlord agrees, however, to maintain a tenant directory in the lobby of the Building in which will be placed the Tenant’s name and the location of the Premises in the Building. Neither Landlord’s name, nor the name of the Building or any Center, Office Park or other complex of which the Building is a part, or the name of any other structure erected therein shall be used without Landlord’s consent in any advertising material (except on business stationery or as an address in advertising matter), nor shall any such name, as aforesaid, be used in any undignified, confusing, detrimental or misleading manner.
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SECTION XXIII. DEFAULT. Any one of the following shall be deemed to be an “Event of Default”:
(a) Tenant’s failure to pay when due Rent, Additional Rent or other charges payable pursuant to this Lease and such failure continuing for five (5) days after written notice from Landlord.
(b) Failure on the part of Tenant to comply with any non-monetary term, condition, covenant, or requirement of this Lease and such failure continuing for ten (10) business days after Landlord has sent to Tenant written notice of such non-monetary default. If such non-monetary default is not capable of cure within said ten (10) business days, Tenant shall have such additional period of time as is necessary to cure said non-monetary default, so long as Tenant commences and diligently prosecutes to completion said cure, but in no event more than thirty (30) days.
(c) The commencement of any of the following proceedings: (i) the estate hereby created being taken on execution or by other process of law; (ii) Tenant or Guarantor (as defined in Section XLI) being judicially declared bankrupt or insolvent according to law; (iii) an assignment being made of the property of Tenant or Guarantor for the benefit of creditors; (iv) a receiver, guardian, conservator, trustee in involuntary bankruptcy or other similar officer being appointed to take charge of all or any substantial part of Tenant’s or Guarantor’s property by a court of competent jurisdiction; or (v) a petition being filed for the reorganization or rearrangement of Tenant or Guarantor under any provisions of the United States Bankruptcy Code now or hereafter enacted.
Tenant hereby expressly waives any and all common law and statutory notices to quit, and expressly agrees that the notice provisions contained herein shall be in lieu thereof. Upon an Event of Default, Landlord may, but shall not be obligated to, serve upon Tenant a notice of lease termination, which shall terminate the Lease upon service to Tenant.
If an Event of Default shall occur, then in addition to any other remedy Landlord may have at law or equity, Landlord may (i) apply the Security Deposit, if any, specified in Section XLI toward the satisfaction of such Event of Default or make demand under the Guaranty (as defined in Section XLI) without waiving any of Landlord’s other rights hereunder, (ii) cure Tenant’s Event of Default at Tenant’s cost and expense, and/or (iii) lawfully enter the Premises or any part thereof in the name of the whole or mail or deliver a notice of termination addressed to Tenant at the Premises, and upon entering or mailing as aforesaid repossess the same as the former estate of the Landlord and expel the Tenant and those claiming by, through or under the Tenant without being deemed guilty of any manner of trespass and without prejudice to any other remedies which the Landlord may have for arrears of Rent or Additional Rent or preceding breach of covenant.
Tenant covenants that in case of Lease termination, whether as aforesaid or otherwise, Tenant shall indemnify the Landlord against all losses Landlord may incur by reason of such termination; and at Landlord’s election, Tenant shall immediately be liable for, and pay to Landlord as damages, either (i) all such losses, including without limitation, all Rent, Additional Rent and other charges due pursuant to the Lease up until the normal expiration of the term of this Lease (had the Lease not been terminated), projected on the basis of experience under the Lease, together with all costs Landlord may incur in obtaining possession of, or in reletting the Premises (including without limitation attorneys’ fees, brokerage commissions, leasehold improvements, alterations, repairs and decorations to the Premises as Landlord in its sole judgment considers advisable or necessary to relet the same), less the fair market rental
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value of the Premises until the normal expiration of the term of this Lease, together with interest at the rate of one and one-half percent (1.5%) per month until said monies are paid in full, or such lesser interest rate as may be permitted under applicable law, or (ii) all Rent, Additional Rent and other charges which would have been payable had the Lease not so terminated, payable upon the due dates specified herein (subject to offset for net rents actually received from reletting after subtraction of the expenses of reletting).
Landlord shall, to the extent required by applicable law, and not otherwise, use reasonable efforts to relet the Premises on such terms and conditions as Landlord in its sole discretion may determine (including a term different from the term of this Lease, rental concessions, and alterations to, and improvement of, the Premises). In no event shall Landlord be obligated to relet the Premises at below market rates; nor shall Landlord be obligated to relet the Premises before leasing other portions of the Building. Landlord shall not be liable for, nor shall Tenant’s obligations hereunder be diminished because of, Landlord’s failure to relet the Premises or to collect rent due for such reletting. In the event of reletting, Landlord shall have no liability to account to Tenant for any proceeds received from such reletting, except as otherwise expressly set forth herein.
All of Landlord’s rights and remedies under this Lease, or at law or equity, are cumulative, and may be exercised as Landlord sees fit.
Tenant shall, from time to time, within ten (10) business days after request from Landlord, or from any mortgagee or potential mortgagee of Landlord, or any potential purchaser of the Building, or potential mortgagee of such purchaser, execute, acknowledge and deliver a subordination, non-disturbance and attornment agreement in the form attached hereto as Exhibit E (“SNDA”) and an estoppel certificate (“Estoppel Certificate”) certifying, to the extent true, that this Lease is in full force and effect and unmodified (or, if there have been modifications, that the same is in full force and effect as modified and stating the modifications); that the term has commenced and the full amount of the Rent and Additional Rent then accruing thereunder; the dates to which the Rent and Additional Rent has been paid; that Tenant has accepted possession of the Premises and that any improvements required by the provisions of this Lease to be made by Landlord have been completed to the satisfaction of Tenant; the amount, if any, that Tenant has paid to Landlord as a security deposit; that no Rent under this Lease has been paid more than thirty (30) days in advance of its due date; that the address for notices to be sent to Tenant is as set forth in this Lease (or has been changed by notice duly given and is as set forth in the SNDA and/or Estoppel
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Certificate); that Tenant, as of the date of such SNDA and/or Estoppel Certificate, has no charge, lien, or claim of offset under this Lease or otherwise against Rent or Additional Rent due or to become due hereunder; that, to the knowledge of Tenant, Landlord is not then in default under this Lease; and such other matters as may be reasonably requested by Landlord or any mortgagee or potential mortgagee of Landlord, or any purchaser of the Building, or potential mortgagee of such purchaser. Any SNDA or Estoppel Certificate may be relied upon by Landlord, any successor of Landlord, any mortgagees of Landlord or any prospective purchaser or mortgagee of the Building.
To Landlord: | NB MS NEBC LLC | |
00 Xxxxx Xxxxxx, Xxxxx 0000 | ||
Xxxxxx, Xxxxxxxxxxxxx 00000-0000 | ||
facsimile 000-000-0000 | ||
telephone 000-000-0000 | ||
with a copy to: | Xxxxxxxxx, Xxxxxxxx & Xxxxxx | |
00 Xxxxx Xxxxxx, Xxxxx 0000 | ||
Xxxxxx, Xxxxxxxxxxxxx 00000-0000 | ||
facsimile 000-000-0000 | ||
telephone 000-000-0000 | ||
with a copy to: | New Boston Management Services, Inc. | |
00 Xxxxx Xxxxxx, Xxxxx 0000 | ||
Xxxxxx, Xxxxxxxxxxxxx 00000-0000 | ||
facsimile 000-000-0000 | ||
telephone 000-000-0000 | ||
To Tenant: | FARO Technologies, Inc. | |
000 Xxxxxxxxxx Xxxx | ||
Xxxx Xxxx, Xxxxxxx 00000 | ||
Attention: CFO | ||
Facsimile 000-000-0000 | ||
telephone 000-000-0000 |
It is agreed that certified mail shall be conclusively deemed received three (3) business days after it is mailed, postage prepaid, and that an item sent by recognized overnight courier shall be conclusively deemed received the day it is scheduled to be delivered. Landlord and Tenant may each change their address for notices, as well as their phone number and facsimile number, by providing notice of such change to the other in the manner specified in this Section XXV.
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enforce the Rules and Regulations or the terms, covenants or conditions in any other lease as against any other tenant, and Landlord shall not be liable to Tenant for violation of the same by any other tenant, or any other tenant’s servants, employees, agents, visitors, invitees or licensees.
(a) Tenant shall maintain in full force and effect the following insurance written by one or more responsible companies with an A.M. Best rating of A-VIII or better, licensed to do business in the state in which the Premises is located in form and content reasonably satisfactory to Landlord, including, except as to subsection (2) of this Section XXXI, Landlord and Landlord’s managing agent as additional insureds, and Tenant shall keep deposited with the Landlord copies of all policies of insurance, or certificates thereof, with endorsements on such policies or certificates to the effect that such insurance shall not be cancelled by the insurer without at least fifteen (15) days prior notice to Landlord:
(1) Commercial General Liability insurance in the broadest form of such coverage as is available from time to time in the jurisdiction in which the Premises is located, applying to the use and occupancy of the Premises and all operations of the Tenant written on an occurrence basis with the following minimum limits: One Million Dollars ($1,000,000) each occurrence, Two Million Dollars ($2,000,000) general aggregate, and Two Million Dollars ($2,000,000) products and completed operations aggregate. Such coverage shall include personal injury, including death, to one or more than one person arising out of any one incident, premises and operations, products and completed operations, contractual liability coverage, broad form property damage liability (included completed operations of subcontractors) and personal and advertising injury liability coverage, and shall also include a minimum limit of Three Hundred Thousand Dollars ($300,000) for property damage to rented premises (per occurrence). At any time during the term hereof upon sixty (60) days’ notice, Landlord may require the Tenant to increase the amount of insurance required hereunder to a greater commercially reasonable amount as may be required by Landlord or recommended by Landlord’s insurance advisor or required by Landlord’s mortgagee.
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(2) Worker’s compensation insurance in the minimum amount required by statute covering all employees of Tenant, and, if Tenant shall contract with any independent contractor for the furnishing of labor, materials or services to Tenant, Tenant shall require such independent contractor to maintain worker’s compensation insurance covering all its employees and all the employees of any subcontractor.
(3) Extended coverage property damage insurance covering Tenant’s personal property located at the Premises (furniture, fixtures and equipment on a replacement cost basis) and Tenant improvements, if any.
It is specifically understood that Landlord’s insurance does not cover any personal property of Tenant and Tenant shall not make any claim for loss of or damage to such property against Landlord or Landlord’s insurance carrier and shall not permit its insurance carrier to make any claim for loss or damage to such property against Landlord or Landlord’s insurance carrier.
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waiver in any respect nor prevent a subsequent act, which originally constituted a violation from having all force and effect of an original violation. The receipt by Landlord of Rent or Additional Rent with knowledge of the breach of any provision of this Lease shall not be deemed a waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly Rent or Additional Rent herein stipulated shall be deemed to be other than on account, nor shall any endorsement or statement on any check, nor any letter accompanying any check or payment as Rent or Additional Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such Rent or Additional Rent or pursue any other remedy in this Lease provided.
The Tenant shall be responsible for all damages or injury to the Premises, fixtures, appurtenances and equipment of Landlord, and to the Building and the Property, caused by Tenant’s installation or removal of furniture, fixtures or equipment. If requested by Tenant, by notice given not later than thirty (30) days prior to the date of expiration or earlier termination (other than by reason of an Event of Default) of the term of this Lease, Landlord and Tenant shall conduct a walk-through of the Premises and any common corridors of the Building through which Tenant’s Removable Property and other goods and effects would likely be removed, at a mutually convenient time within three (3) business days prior to Tenant’s scheduled moving date. Without regard to whether Tenant requests such a pre-move inspection, Tenant shall reimburse Landlord for costs reasonably incurred by Landlord to repair or replace damage resulting from Tenant’s removal from the Building, provided only that Landlord notifies Tenant within seven (7) business days after Tenant’s removal of the nature of the damage Landlord intends to repair or restore and affords Tenant an opportunity to inspect, within three (3) business days after such notice is received by Tenant, such damage. Reimbursement shall be made by Tenant on demand by Landlord accompanied by receipts in reasonable detail, for the work performed or replacement items acquired. If Tenant fails to remove any of Tenant’s Removable Property or any other of its goods or effects, Landlord shall have the right to remove such goods, effects, equipment fixtures or furniture from the Premises and dispose of the same at Tenant’s sole cost. In the event Tenant or any party claiming by, through or under Tenant shall hold over in the Premises or any part thereof after the termination or expiration of the term of this Lease, such holding over shall constitute and be construed as a tenancy at sufferance only, provided that all the provisions of this Lease shall apply except that the Rent set forth in Section IV shall be calculated at a daily rate equal to the greater of one hundred fifty percent (150%) of the daily Rent reserved in said Section IV, or one hundred percent (100%) of the then fair market rent of the Premises. Nothing contained in this Section XXXVII shall be construed as Landlord’s consent to Tenant or any party claiming by, through or under Tenant holding over.
SECTION XXXVIII. CAPTIONS, PLURAL, GENDER. The captions are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Lease nor the intent of any provisions hereof. Whenever a masculine or singular pronoun is used in this Lease, it shall include the feminine and plural thereof whenever the context so permits or requires.
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other that it shall hold the other harmless from any and all claims which may be asserted by any real estate broker other than the Brokers identified below in connection with the Premises or for any transaction involving this Lease or Premises.
Tenant’s Broker: | CRESA Partners | |
Landlord’s Broker: | CB Xxxxxxx Xxxxx |
(a) For the purpose of this Section XL, “Hazardous Substance” shall mean any waste, substance or other material which may be dangerous to health or environment, including, without limitation, all “hazardous waste”, “hazardous material”, “hazardous substance”, “toxic substance”, “oil”, “infectious medical waste” and “hazardous medical waste” as defined in any federal, state, or local law, regulation or ordinance, or otherwise”.
(b) Tenant shall not dump, flush or in any way introduce any Hazardous Substance, which are regulated under the Resource Conservation and Recovery Act of 1976, as amended, (42 U.S.C. Section 6901, et seq. “RCRA”) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 as amended (42 U.S.C. 9601 et seq. “CERCLA”), the Superfund Amendments and Reauthorization Act of 1986 (“XXXX”), Public Law 99-499, 100 Stat 1613, et seq., and/or any other applicable municipal, federal, or state law, into the sewerage, drainage or other waste disposal system serving the Premises, the Building or the Property.
(c) Tenant shall not generate, use, store or dispose of any Hazardous Substance regulated under RCRA, CERCLA, XXXX and/or any other applicable municipal, federal or state environmental law, in or on the Premises, the Building or the Property, nor transport any Hazardous Substance from the Premises, the Building or the Property except in compliance with RCRA, CERCLA, XXXX, and any other applicable municipal, federal or state environmental law.
(d) Tenant shall promptly notify Landlord in writing of any incident in the Premises, or the Building or the Property which might require the filing of a notice under any statute described in Section XL(b) of this Lease.
(e) Tenant shall indemnify and hold Landlord harmless from any and all costs, liabilities, demands, claims, civil or criminal actions, or causes of action, civil or criminal penalties, fines, losses, liens, assessments, damages, liabilities, costs, disbursements, expenses or fees of any kind or any nature (including without limitation all clean-up costs and attorneys’ fees) which may at any time be imposed upon, incurred by or asserted or awarded against Landlord arising out of or on account of Tenant’s failure to comply with the provisions of Section XL of this Lease, whether due to any action or non-action of Tenant.
(f) The provisions and covenants of this Section XL shall survive the expiration or earlier termination of the term of this Lease.
SECTION XLI. SECURITY DEPOSIT; GUARANTY.
(a) Security Deposit. None.
(b) Guaranty. None.
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or identification standards as shall be reasonably established from time to time, and Tenant shall use only that portion of the parking facilities as may be designated for use by Tenant from time to time, it being understood and agreed that Landlord shall have the right to establish and enforce such reasonable policies, rules and regulations as Landlord and/or the parking operator has issued or may issue to facilitate the operation and management of the parking facilities.
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Landlord: | ||
NB MS NEBC LLC | ||
By: | New Boston NEBC LLC, | |
its sole Member | ||
By: | New Boston NEBC Limited Partnership, | |
its Manager | ||
By: | New Boston Fund IV, Inc., | |
its General Partner | ||
By | /s/ Xxx Xxxxxxx | |
hereunto duly authorized | ||
Tenant: | ||
FARO TECHNOLOGIES, INC. | ||
By | /s/ Xxx X. Xxxxxxxx | |
Its |
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