LEASE AGREEMENT XENON RESEARCH, INC. as Landlord AND FARO TECHNOLOGIES, INC. as Tenant DATED: As of August 8, 2006
EXHIBIT
10
XENON
RESEARCH, INC.
as
Landlord
AND
FARO
TECHNOLOGIES, INC.
as
Tenant
DATED:
As of August 8, 2006
THIS
LEASE AGREEMENT (the “Lease”) is made as of August 8, 2006 between Xenon
Research, Inc.
(“Landlord”), a Florida corporation having its principal place of business at
0000 Xxxx Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000 and FARO
Technologies, Inc.
(“Tenant”) a Florida corporation having its principal place of business at 000
Xxxxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxx 00000.
WITNESSETH:
Landlord
and Tenant do hereby covenant and agree as follows:
ARTICLE
I
DEMISED
PREMISES
Section
1.1. Landlord
does hereby lease and demise unto Tenant and Tenant does hereby hire
and take
from Landlord, all those certain plots, pieces or parcels of land,
together with
the buildings, structures and improvements thereon, located at 000
Xxxxxxxxxx
Xxxx, Xxxx Xxxx, Xxxxxxx 00000 (said land, together with any and all
buildings,
structures and improvements now or hereafter erected thereon by Landlord
or
Tenant, being hereinafter referred to as the “Demised Premises”).
ARTICLE
II
TERM
Section
2.1. The
term
of this Lease shall commence as of July 1, 2006 (the “Commencement Date”) and
expire at midnight on July 1, 2011, both dates inclusive, unless sooner
terminated as hereinafter provided (the “Initial Term”). Thereafter, this Lease
shall automatically renew for one (1) successive term of five (5) years,
unless
Tenant provides Landlord written notice of non-renewal, which notice
is
delivered at least 90 days prior to the end of the then current term
of this
Lease (hereinafter the “Renewal Term,” and hereinafter the Initial Term and the
Renewal Term are collectively referred to as the “Term”). The date the Lease
expires pursuant to this paragraph or such earlier termination date
as may be
provided for elsewhere in this Lease shall be referred to as the “Expiration
Date.”
Section
2.2. Notwithstanding
anything to the contrary in Section 2.1 hereof, Tenant may in its sole
discretion terminate this Lease after three (3) years from the Commencement
Date
upon written notice delivered to Landlord, which notice shall be delivered
one
(1) year prior to the date upon which Tenant wishes to early terminate
this
Lease. The parties agree and acknowledge that the early termination
right set
forth in this Section 2.2 is a one time right which shall become effective
and
may be exercised after three (3) years from the Commencement Date.
Upon this
earlier termination, the parties shall be released from any and all
further
liability and obligations under this Lease (including Tenant’s obligation to pay
Fixed Rent and Additional Rent) other than those obligations which
specifically
survive termination of this Lease.
1
ARTICLE
III
RENT
AND ADDITIONAL RENT
Section
3.1. During
the first year of the Initial Term, Tenant shall pay to Landlord, as
fixed rent
(the “Fixed Rent” ) for the Demised Premises $302,750.00 per annum payable in
equal monthly installments, each in advance on the first day of each
month
during the first year of the Initial Term hereof, and without offset
or
deduction of any kind whatsoever, except as herein specifically set
forth.
Commencing on the first anniversary of the Commencement Date and on
each
anniversary of the Commencement Date thereafter during the Initial
Term and
Renewal Term, the Fixed Rent shall be increased by an amount equal
to the
product of three percent (3%) multiplied by the Fixed Rent for the
immediate
preceding twelve month period. During the Term, Tenant shall pay to
Landlord the
Fixed Rent payable in equal monthly installments, each in advance on
the first
day of each month during the term hereof, without offset or deduction
of any
kind whatsoever, except as herein specifically set forth.
Section
3.2. Tenant
shall also pay and discharge as additional rent (the “Additional Rent”) all
other amounts, liabilities and obligations of whatsoever nature that
Tenant
assumes or agrees to pay under this Lease. In the event of any failure
on the
part of Tenant to pay any of the Additional Rent, Landlord shall have
all legal,
equitable and contractual rights, powers and remedies provided either
in this
Lease or by statute or otherwise in the case of nonpayment of the Fixed
Rent.
Section
3.3. Except
as
provided in Section 3.6, Tenant further agrees to pay, in addition
to, but not
in lieu of, the Fixed Rent or Additional Rent any and all sales and
use tax now
or hereafter imposed by any governmental entity upon, applicable to,
or measured
by or on the Fixed Rent and Additional Rent and any other charge payable
to
Landlord under this Lease. Tenant shall pay to Landlord, concurrently
with each
such payment of Fixed Rent and Additional Rent, or such other charges
hereunder,
the amount of sales and use tax attributable to the payment being made
to
Landlord. If any such tax is required to be paid to the governmental
taxing
authority directly by Landlord, whether during the Term of the Lease
or
subsequent to the termination of this Lease (including any underpayments,
if
such tax is levied on the amounts paid by Tenant), then Landlord upon
demand
shall be fully reimbursed by Tenant for such payment.
Section
3.4. All
Fixed
Rent and Additional Rent payable hereunder shall be made payable to
Landlord and
sent to Landlord’s address as above set forth, or to such other person or
persons or at such other place as may be designated by notice from
Landlord or
Landlord’s successors, to Tenant, from time to time, and shall be made in United
States currency which shall be legal tender for all debts, public and
private.
Section
3.5. This
Lease shall be deemed and construed to be a “net lease” and Tenant shall pay to
Landlord, absolutely net through the Expiration Date, the Fixed Rent
and
Additional Rent without deduction, abatement, or set-off whatsoever,
except for
any deduction, set-off, or abatement permitted under this Lease. Under
no
circumstances or conditions, whether now existing or hereafter arising,
or
whether beyond the present contemplation of the parties, shall Landlord
be
expected or required to make any payment of any kind whatsoever or
be under any
other obligation or liability hereunder, except as otherwise provided
in this
Lease.
2
Section
3.6. Landlord
shall be responsible for the payment of “Taxes” (as hereinafter defined) and
“Insurance Expenses” (as hereinafter defined”) for the Demised Premises. In
addition to the monthly payment of Fixed Rent as set forth above, Tenant
shall
be responsible for an additional amount to be computed annually based
on the
amount of the Taxes and Insurance Expenses covering the Demised Premises
(hereinafter referred to as the “Premium”). The Premium shall be adjusted
annually based upon increases in the Taxes and Insurance Expenses covering
the
Demised Premises. This Premium shall be construed as Additional Rent
and shall
be paid monthly in addition to monthly Fixed Rent.
For
purposes of this Section 3.6, “Insurance Expenses” means the total costs and
expenses paid or incurred by Landlord in connection with the obtaining
of
insurance on the Demised Premises or any part thereof or interest therein
including, without limitation, premiums for “all risk” fire and extended
coverage insurance, commercial general liability insurance, rent loss
or
abatement insurance, earthquake insurance, flood or surface water coverage,
and
other insurance as Landlord deems necessary in its sole and absolute
discretion,
and any deductibles paid under policies of any such insurance. The
foregoing
shall not be deemed an agreement by Landlord to carry any particular
insurance
relating to the Demised Premises. Nothing in this section shall be
deemed to
change or alter the amounts of insurance Tenant is to carry as set
forth below.
For
purposes of this Section 3.6, “Taxes” means all real estate taxes and
assessments, which shall include any form of tax, assessment (including
any
special or general assessments and any assessments included within
any tax xxxx
for the Demised Premises or any part thereof, including, without limitation,
entitlement fees, allocation unit fees and or penalty (if a result
of Tenant’s
delinquency), sales tax, rent tax, occupancy tax or other tax (other
than net
income, estate, succession, inheritance, transfer or franchise taxes),
imposed
by any authority having the direct or indirect power to tax, or by
any city,
county, state or federal government or any improvement or other district
or
division thereof, whether such tax is determined by the area of the
Demised
Premises, or any part thereof, or the Fixed Rent and other sums payable
hereunder by Tenant..
For
purposes of establishing the Premium for the initial year of the Term,
the
parties will use the ad valorem tax xxxx for the preceding year if
the new ad
valorem tax xxxx has not be issued and the preceding years insurance
premium
invoices for the Demised Premises. Every year, the Premium to be paid
monthly
from Tenant to Landlord in addition to the monthly Fixed Rent shall
be adjusted
to reflect changes in the Taxes and Insurance Expenses.
ARTICLE
IV
USE
OF PREMISES
Section
4.1. The
Demised Premises may be used and occupied for manufacturing, assembly,
distribution, storage, and office facilities or for any other lawful
use or
purpose whatsoever.
3
Section
4.2. Tenant
shall not use or knowingly permit to be used any part of the Demised
Premises
for any unlawful or disreputable purpose.
Section
4.3. Tenant
shall obtain all necessary, permits, licenses, and consents from any
or all
appropriate governmental authorities to conduct its business, and shall
keep
such permits, licenses, and consents in full force and effect.
Section
4.4. Landlord
shall, if necessary, execute any applications or documents which may
be
reasonably required by Tenant in connection with the operation of the
Demised
Premises as provided in this Article IV; provided, however, that Landlord
shall
in no event be obligated to pay or incur any obligation, expense or liability of
any nature whatsoever in connection therewith.
Section
4.5. The
statement in this Lease of the nature of the use by Tenant of the Demised
Premises shall not be deemed or construed to constitute a representation
or
guaranty by Landlord that such use may be conducted in the Demised
Premises or
is lawful or permissible under any existing certificate of occupancy
or is
otherwise permitted by law. In the event that Tenant is unable to use
or operate
the Demised Premises for the purposes as set forth in Section 4.1 hereof
due to
circumstances beyond the control of Tenant, Tenant shall have the option
of
terminating this Lease upon 90 days written notice to Landlord.
ARTICLE
V
CONDITION
OF PREMISES, ALTERATIONS AND REPAIRS
Section
5.1. Tenant
has examined the Demised Premises, is familiar with the physical condition
thereof and is leasing the Demised Premises “AS IS”. Landlord has not made and
does not make any representations or warranties, either express or
implied, as
to the physical condition, expenses, operation, use and maintenance,
or any
other matter or thing affecting or related to the Demised Premises.
Section
5.2.
A. Landlord
shall repair and maintain in good order and condition, ordinary wear
and tear
excepted, the roof, the outside walls, the structural portions of the
Demised
Premises, and the electrical, plumbing, and HVAC systems servicing
the Demised
Premises. Landlord
shall make repairs
or replacements or cause them to be made within a reasonable time (depending
on
the nature of the repair or replacement needed) after receiving notice
from
Tenant. All maintenance shall be performed in a manner reasonably intended
to
minimize disturbance of Tenant’s business. At Tenant’s request, any such
maintenance shall be performed during non-business hours. If Landlord
fails to
undertake and complete all any maintenance or repairs as required under
this
Lease, the failure of which materially and adversely affects Tenant’s business
operations, then thirty (30) days after written request (or such longer
period
as is necessary if the repair cannot be reasonably completed within
the thirty
(30) day period and Landlord commences within such 30 day period and
is
diligently pursuing completion of such repair), Tenant shall have the
right, to
undertake and complete such maintenance or repairs at Landlord’s cost and
expense. In performing such work, Tenant shall (i) proceed in accordance
with
the applicable provisions of this Lease and all applicable laws; (ii)
use only
such contractors, suppliers, etc. as are duly licensed in the State
of Florida
and insured to effect such repairs and who perform such repairs in
first class
buildings in the normal course of their business; (iii) upon commencing
such
repairs, complete the same within a reasonable period of time, (iv)
effect such
repairs in a good and workmanlike quality; (v) use new materials; and
(vi)
indemnify and hold Landlord and its lender(s), if any, harmless from
any and all
liability, damage and expense arising from injury to persons or personal
property arising out of or resulting from Tenant’s exercise of such rights.
Landlord shall have thirty (30) days from receipt of Tenant’s invoice(s) for
such costs to make payment in full. In the event Landlord fails to
tender full
payment within said thirty (30) day period, Tenant may thereafter begin
to
offset such costs against up to 10% of each monthly installment of
Fixed Rent
due under this Lease until the entire cost has been recovered.
4
B. Except
as
provided in Section 5.2(A) above, Landlord shall have no maintenance
obligation
with respect to the Demised Premises and no obligation to make any
repairs, in,
on, or to the Demised Premises. Tenant assumes the full and sole responsibility
for the condition, operation, repair, replacement, maintenance, and
management
of the Demised Premises, including all improvements, throughout the
Lease Term,
except to the extent expressly set forth in Section 5.2(A). Tenant
shall
maintain the Demised Premises (including, without limitation, all furniture,
fixtures, equipment, and decorations) in good repair and in a clean,
attractive,
first-class condition. Without limiting the generality of foregoing,
Tenant
agrees to repair, replace, and maintain in good and operational order
and
condition the non-structural interior portions of the Demised Premises,
including interior doors, interior windows, plate and window glass,
floor
coverings, wall coverings, furniture, fixtures, equipment, and appliances
and
the electrical and mechanical systems not considered office standard
which have
been installed for the exclusive use and benefit of Tenant such as
electrical
services for computers or similar items and security or telephone systems
for
the Demised Premises. All replacements shall be of equal quality and
class to
the original items replaced. Tenant shall not commit or allow to be
committed
any waste on any portion of the Demised Premises.
C. In
no
event shall Landlord be required to repair any items it is required
to do so
under Section 5.2(A) due to the gross negligence or intentional wrongful
acts of
Tenant, its employees, agents or anyone else under its direct
control.
Section
5.3.
A. Tenant
may, at its sole cost and expense, make changes, alterations, installations,
additions or improvements in or to the Demised Premises of any nature
or kind
with Landlord’s prior written consent in each instance (not to be unreasonably
withheld, conditioned or delayed), provided only that, upon its completion,
each
such change, alteration, installation or improvement will not, in Landlord’s
reasonable judgment, materially lessen the fair market value of the
Demised
Premises nor change the primary usage or character of the Demised Premises.
All
fixtures (other than trade fixtures, office furniture and removable
equipment),
fences, railings, structures, other improvements and equipment installed
in or
upon the Demised Premises at any time, either by Tenant or by Landlord
on
Tenant’s behalf, whether prior to or during the Term, shall become the property
of Landlord and shall remain upon and be surrendered with the Demised
Premises
unless (i) Landlord, by notice to Tenant no later than thirty (30)
days prior to
the date fixed as the termination of this Lease, elects to have the
same removed
or demolished by Tenant, in which event, the same shall be removed
or demolished
from the Demised Premises by Tenant forthwith, at Tenant’s expense. Nothing in
this Article shall be construed to prevent Tenant’s removal of trade fixtures
furnished or installed by Tenant, but upon removal of any such trade
fixtures
from the Demised Premises or upon removal of other installations as
may be
required by Landlord, Tenant shall immediately and at its expense,
repair and
restore the Demised Premises to the condition existing prior to such
installation and Tenant shall repair any damage to the Demised Premises
caused
by such removal. All property permitted or required to be removed by
Tenant
which remains in the Demised Premises at the end of the term shall
be deemed
abandoned and may, at the election of Landlord, either (i) be retained
by
Landlord as its property without payment therefor or (ii) be disposed
of by
Landlord without accountability to Tenant as Landlord may see fit.
Whether
Landlord retains such abandoned property as its property or disposes
of it as
aforesaid, all costs of removal and repair to the Demised Premises
incurred by
Landlord in connection with said abandoned property shall be paid by
Tenant to
Landlord on demand, which payment obligation shall survive the expiration
or
earlier termination of the Term.
5
B. Tenant
shall, before making any changes, alterations, additions, installations
or
improvements, at its expense, obtain all permits, approvals and certificates
required by any governmental or quasi-governmental bodies and (upon
completion)
certificates of final approval thereof and shall deliver promptly duplicates
of
all such permits, approvals and certificates to Landlord. Tenant agrees
to carry
and will cause Tenant’s contractors and sub-contractors to carry such worker’s
compensation, general liability, personal and property damage insurance
as
Landlord may from time to time reasonably require. Tenant agrees to
obtain and
deliver to Landlord, to the extent permitted by applicable law, written
and
unconditional waivers of mechanic’s liens upon the Demised Premises for all
work, labor and services to be performed and materials to be furnished
in
connection with such work, signed by all contractors, sub-contractors,
materialmen and laborers to become involved in such work.
C. In
accordance with the applicable provisions of the “Construction Lien Law” and
specifically Section 713.10, Florida Statutes, no interest of Landlord,
whether personally or in the Demised Premises, shall be subject to
liens for
improvements made by Tenant or caused to be made by Tenant hereunder.
Further,
Tenant acknowledges that Tenant, with respect to improvements or alterations
made by Tenant or caused to be made by Tenant hereunder, shall promptly
notify,
as required by state law, the contractor making such improvements to
the Demised
Premises of this provision exculpating Landlord's liability for such
liens. Upon
Landlord’s request, Tenant shall execute the memorandum attached hereto as
Exhibit “A” or a form with similar content prepared by Landlord.
Notwithstanding
the foregoing, if any construction lien or other lien, attachment,
judgment,
execution, writ, charge or encumbrance is filed against the Demised
Premises, or
any alterations, fixtures or improvements therein or thereto, as a
result of any
work action or inaction done by or at the direction of Tenant or any
of Tenant's
agents, Tenant will discharge the same of record within ten (10) days
after the
filing thereof, failing which Tenant will be in default under this
Lease. In
such event, without waiving Tenant's default, Landlord, in addition
to all other
available rights and remedies, without further notice, may discharge
the same of
record by payment, bonding or otherwise, as Landlord may elect, and
upon request
Tenant will reimburse Landlord for all costs and expenses so incurred
by
Landlord plus interest thereon from the date of such expenditure at
the highest
rate allowed by law.
6
ARTICLE
VI
INSURANCE
Section
6.1. Tenant
shall keep in force at Tenant’s expense so long as this Lease remains in effect
and during such other times as Tenant occupies the Demised Premises
or any part
thereof, a policy or policies of comprehensive general commercial liability
insurance, with the premiums thereon fully paid on or before the due
dates, for
Tenant’s own protection covering the Demised Premises and Tenant’s use thereof,
in reasonable amounts as reasonably determined by Landlord, or such
greater
amounts as may be reasonably required from time to time by a mortgagee.
Tenant
shall also keep in force fire, extended coverage and water damage insurance
for
Tenant’s personal property, including, but not confined to inventory, trade
fixtures, floor coverings, furniture and all other property of Tenant
whether
removable or not at termination of this Lease, including leasehold
betterments
and improvements; such insurance on leasehold betterments and improvements
shall
be in amounts sufficient to cover the full replacement cost of any
repair or
reconstruction from any such hazard during the entire Term, such insurance
naming the Landlord as an additional named insured as its interest
may appear.
Tenant shall also maintain business interruption insurance and employers’
liability insurance as may be customary, prudent or appropriate during
the term
of this Lease. Tenant shall maintain such worker’s compensation insurance as
statutorily required.
Section
6.2. Landlord
shall keep in force casualty, fire, extended coverage and water damage
insurance
insuring Landlord’s interest in the Demised Premises.
Section
6.3. All
insurance maintained by Tenant and Landlord pursuant to this Article
shall
provide that (i) no cancellation, material change or reduction thereof
shall be
effective until at least thirty (30) days after written notice thereof
is given
to Landlord or Tenant as applicable, (ii) the rights of the insured(s)
to
receive and collect the proceeds thereof shall not be diminished because
of any
additional insurance carried by Landlord on its own account, (iii)
all losses
shall be payable notwithstanding any act or negligence of Landlord
or Tenant
which might, absent such agreement, result in a forfeiture of all or
part of
such insurance payment and notwithstanding the occupation of the Demised
Premises for purposes more hazardous than permitted by the terms of
such policy;
(iv) be written with insurance companies authorized to do business
in Florida,
reasonably acceptable to Landlord, and having an A. M. Best Rating
of A-/VIII or
better in Best’s Insurance Guide (or a similar rating in an equivalent
publication if Best’s Insurance Guide is no longer in publication); and (v) be
written on an occurrence basis and endorsed to name Landlord and Landlord’s
mortgagee, if any, as additional insureds.
Section
6.4. At
either
Landlord or Tenant’s request at any time following the commencement of the
Initial Term, either party shall deliver to other party certificates
of
insurance and copies of the insurance policies evidencing the insurance
required
to be maintained under this Article. Landlord and Tenant also shall
deliver to
the other party at least thirty (30) days prior to the expiration date
of any
such policy or policies or any other policies required to be maintained
under
this Article (or of any renewal policy or policies), certificates for
the
renewal policies of such insurance. Each party covenants to furnish
to the other
party promptly upon the other party’s request copies of insurance policies
required to be maintained by the applicable party hereunder, certified
by the
insurance carrier or broker.
7
Section
6.5. To
the
extent permitted by law and to the extent that insurance is in force
and
collectible, Landlord and Tenant each hereby release and waive all
right each of
them would have against the other, by any of subrogation or otherwise,
arising
from or caused by any hazard covered by insurance on the Demised Premises.
Each
party shall obtain such release and waiver from each insurance company
issuing
the policies required under Lease.
Section
6.6. Tenant
shall not do or suffer to be done, or keep or suffer to be kept, anything
in,
upon or about the Demised Premises which will contravene Landlord’s policies
insuring against loss or damage by fire or other hazards, including,
but not
limited to, public liability, or which will prevent Landlord from securing
such
policies in companies acceptable to Landlord. If anything is done,
permitted to
be done or suffered to be done by Tenant or kept in, upon and about
the Demised
Premises which shall cause the rate of fire or other insurance on the
Demised
Premises in companies acceptable to Landlord to be increased beyond
the minimum
rate from time to time applicable to the Demised Premises for the permitted
use
or permitted uses made thereof, Tenant shall pay, as Additional Rent
hereunder,
the amount of any such increase promptly upon demand by Landlord and
shall cease
such action until such payment is made.
Section
6.7. Tenant
waives any rights of action against Landlord for loss or damage to
its
improvements, fixtures and personal property in the Demised Premises,
except
damage caused by the gross negligence or misconduct of Landlord, its
agents or
employees.
Section
6.8. Anything
in this Lease to the contrary notwithstanding, Landlord and Tenant
each hereby
waives any and all rights of recovery, claim, action or cause of action,
against
the other, its agents, servants, partners, shareholders, officers or
employees,
for any loss or damage that may occur to the Demised Premises or any
improvements thereto or thereon, or any personal property of such party
therein
or thereon, by reason of fire, the elements, or any other cause which
is insured
against under the terms of the standard fire and extended coverage
insurance
policies referred to in this Article, regardless of cause or origin,
including
the negligence of the other party hereto, its agents, officers, partners,
shareholders, servants or employees, and covenants that no insurer
shall hold
any right of subrogation against such other party.
ARTICLE
VII
DAMAGE
OR DESTRUCTION
Section
7.1. If
the
Demised Premises shall be (i) so damaged that substantial alteration
or
reconstruction of the Demised Premises shall, in Landlord’s opinion, be required
(whether or not the Demised Premises shall have been damaged by such
casualty);
or (ii) any mortgagee of the Demised Premises should require that the
insurance proceeds payable as a result of a casualty be applied to
the payment
of any mortgage debt on the Demised Premises; or (iii) there is any
material uninsured loss to the Demised Premises; or (iv) the Demised
Premises
shall be partially damaged by casualty during the last year of the
then current
Term, and the estimated cost of repair exceeds ten (10%) percent of
the Fixed
Rent then remaining to be paid by Tenant for the balance of the then
current
Term; either Landlord or Tenant may, within ninety (90) days after
such
casualty, give written notice to the other party of such party’s election to
cancel and terminate this Lease, and the balance of the Term shall
automatically
expire on the fifth (5th) day after such notice is delivered.
8
Section
7.2. If
Landlord does not have the right to terminate this Lease pursuant to
Section 7.1
above, or if Landlord has the right to terminate and does not elect
to do so,
Landlord shall commence and proceed with reasonable diligence to restore
the
Demised Premises to substantially the same condition they were in immediately
prior to the happening of the casualty.
Section
7.3. Fixed
Rent, Additional Rent and other such sums payable by Tenant hereunder,
shall
xxxxx in proportion to the portion of the Demised Premises not useable
by Tenant
as a result of any casualty, as of the date on which the Demised Premises
becomes unusable. Landlord shall not be liable to Tenant for any delay
in
restoring the Demised Premises or any inconvenience or annoyance to
Tenant or
injury to Tenant’s business resulting in any way from such damage or the
repairs, Tenant’s sole remedy being the right to an abatement of Fixed Rent,
Additional Rent and other such sums payable by Tenant hereunder, or
termination
of this Lease as provided above.
ARTICLE
VIII
ASSIGNMENT
AND SUBLETTING
Section
8.1. Except
as
specifically provided in this Article VIII, Tenant may not assign,
sublet,
underlet, mortgage or encumber this Lease or any of its interests hereunder,
without the prior written consent of Landlord, which consent may be
withheld in
Landlord’s sole discretion. Any transfer of Tenant’s interest in this Lease or
the Demised Premises by operation of law, regardless of whether the
same is
characterized as voluntary or involuntary, shall be construed as an
“assignment”
governed by this Article VIII. Landlord’s written consent to any one assignment
shall not act as a waiver of the requirements of consent with respect
to any
subsequent assignment.
Section
8.2. Upon
a
permitted assignment or subletting under this Article VIII, the assignee
shall
assume all rights and obligations of Tenant under this Lease. Any assignee
of
Tenant shall deliver to Landlord an assumption agreement in a form
reasonably
satisfactory to Landlord no less than ten (10) days after the effective
date of
the proposed assignment. Notwithstanding anything to the contrary contained
in
this Lease, upon a permitted assignment of this Lease, the assigning
Tenant’s
liability under this Lease shall terminate.
Section
8.3. Notwithstanding
any contrary provision of this Article VIII, Landlord shall not withhold
its
consent to an assignment or subletting by Tenant so long as the proposed
assignee (i) agrees in writing to be bound by all of the terms and
conditions
contained herein; and (ii) demonstrates to Landlord’s satisfaction, which may
not be unreasonably withheld, adequate tangible financial resources
to meet the
obligations of Tenant under this Lease.
9
Section
8.4. Notwithstanding
any contrary provision of this Article VIII, Landlord’s consent shall not be
necessary for any assignment or subletting to any person or entity
(i) which is
an affiliate of Tenant; (ii) with which or into which Tenant has merged or
consolidated; or (iii) which acquires all, substantially all or a majority
of
Tenant’s assets or leases in the state in which the Demised Premises is located.
For purposes of this Section 8.4, an “affiliate”
of
a
person or entity shall mean any other person or entity which controls,
is
controlled by, or is under common control with such person or
entity.
ARTICLE
IX
SUBORDINATION;
NON-DISTURBANCE
Section
9.1. Tenant
agrees to subordinate its interest in this Lease to any future mortgage
or deed
of trust encumbering the Demised Premises and held by an institutional
mortgagee
by the execution of a Subordination, Non-Disturbance and Attornment
Agreement
(“SNDA”)
in
form reasonably acceptable to Tenant and mortgagee. Tenant agrees to
execute and
deliver the SNDA within ten (10) days request from Landlord. Such SNDA
should
provide that the Lease will remain in effect and the mortgagee will
recognize
the Tenant as a lessee so long as the Tenant is not in default under
the lease.
Tenant’s interest in this Lease shall not be subordinate to any future mortgage
or deed of trust until Tenant receives a fully executed SNDA from the
holder of
such mortgage or deed of trust.
ARTICLE
X
OBLIGATIONS
OF TENANT
Section
10.1. Tenant
shall promptly comply with all laws, ordinances, orders, rules, regulations,
and
requirements of all governmental or quasi-governmental authorities
or bodies
then having jurisdiction over the Demised Premises (or any part thereof)
and/or
the use and occupation thereof by Tenant, of every nature and kind,
whether any
of the same relate to or require (i) structural or non-structural changes
to or
in and about the Demised Premises or any buildings or other improvements
thereon
including, without limitation, any equipment located thereon, or (ii)
changes or
requirements incident to or as the result of any use or occupation
thereof or
otherwise, and Tenant shall so perform and comply, whether or not such
laws,
ordinances, orders, rules, regulations or requirements shall now exist
or shall
hereafter be enacted or promulgated and whether or not the same may
be said to
be within the present contemplation of the parties hereto.
Section
10.2. Any
work
performed or alterations or changes made to the Demised Premises shall
be
subject to, and performed in accordance with, the provisions of Article
V
hereof.
Section
10.3. Tenant
shall indemnify and save harmless Landlord and his agents against and
from (a)
any and all claims arising from (i) the conduct of business in the
Demised
Premises, (ii) any work or thing whatsoever done, or any condition
created in or
abut the Demised Premises by the Tenant during the Term, or (iii) any
negligent
or wrongful act or omission of Tenant or any of its subtenants or licensees
or
its or their employees, agents, or contractors, and (b) all liabilities,
costs
and expenses, including reasonable attorney’s fees and disbursements, incurred
or suffered by Landlord, in or in connection with any such claim, action
or
proceeding brought thereon. In case any action or proceeding shall
be brought
against Landlord by reason of any such claim, Tenant, upon notice from
Landlord,
shall resist and defend such action or proceeding by counsel chosen
by Tenant
who shall be reasonably satisfactory to Landlord. Tenant or its counsel
shall
keep Landlord fully apprised at all times of the status of such
defense.
10
Section
10.4.
A. If
at any
time prior to, or during the Term hereof (or within the statutory period
thereafter if attributable to Tenant), any mechanic’s or other lien shall be
filed against the Demised Premises or any part thereof for work performed
by the
Tenant, Tenant shall at its sole cost and expense cause the same to
be
discharged by payment, bonding or otherwise, as provided by law, within
30 days
after receipt of notice by Tenant of the filing thereof. In default
of Tenant’s
procuring the discharge of any such lien as aforesaid, Landlord may,
without
notice, and without prejudice to his other remedies hereunder, procure
the
discharge thereof by bonding or payment or otherwise, and all cost
and expense
which Landlord shall incur shall be paid by Tenant to Landlord as Additional
Rent forthwith.
B. Landlord
shall not under any circumstances be liable to pay for any work, labor
or
services rendered or materials furnished to or for the account of Tenant
upon or
in connection with the Demised Premises, and no mechanic’s or other lien for
such work, labor or services or material furnished shall, under any
circumstances, attach to or affect the reversionary interest, of Landlord
in and
to the Demised Premises or in and to any buildings, alterations, repairs,
or
improvements to be erected or made thereon.
ARTICLE
XI
DEFAULT
BY TENANT
Section
11.1. Each
of
the following shall be deemed an event of default (an “Event of Default”) and a
material breach of this Lease by Tenant:
(a) If
the
Fixed Rent or any Additional Rent herein reserved shall not be paid
as and when
the same shall become due and payable, and such default shall continue
for a
period of ten (10) days after written notice by Landlord to Tenant.
(b) If
Tenant
shall default in the performance or observance of any of the other
agreements,
conditions, covenants or terms herein contained, and such default shall
continue
for a period of thirty (30) days after written notice by Landlord to
Tenant
(provided this 30 day cure period shall be extended for such reasonable
period
of time as is necessary to cure the default, if the alleged default
is not
reasonable capable of cure within said 30-day period and Tenant commences
and
continues to diligently cure the alleged default).
11
(c) If
Tenant
should fail to pay the Fixed Rent or any Additional Rent when due and
payable
more than three (3) times in any six (6) month period during the Term.
Section
11.2. Upon
the
occurrence of any Event of Default, Landlord shall have the right thereafter
to
terminate and end this Lease and the term hereby granted, as well as
all of the
right, title and interest of Tenant hereunder, by giving to Tenant
a written
notice of the termination of this Lease, and upon the expiration of
the time
fixed in such termination notice, which shall not be less than fifteen
(15) days
after the giving thereof, this Lease and the term hereby granted, as
well as all
of the right, title and interest of Tenant hereunder, shall wholly
cease and
expire in the same manner, and with the same force and effect (except
as to
Tenant’s liability as hereinafter provided) as if the expiration of time fixed
in such notice were the end of the Term; and Tenant shall then immediately
quit
and surrender to Landlord the Demised Premises, including any and all
buildings,
additions and improvements erected thereon, all other improvements,
and Landlord
may enter into or repossess the Demised Premises, whether by force,
summary
proceedings or otherwise; and Tenant hereby waives any and all rights
to recover
or regain possession of the Demised Premises or to reinstate or to
redeem this
Lease, as permitted or provided by or under any of the provisions of
any
statute, law or decision now or hereafter in force and effect, and
Tenant hereby
waives any and all right to any second or further trial in ejectment,
or to any
other actions, as provided by any statute, law or decision now or hereafter
in
force and effect; and Tenant hereby also waives the service of any
further
notice demanding rent, or of intention to reenter, as provided by any
present or
future statute, law or decision.
Section
11.3. In
the
event of a cancellation or termination of this Lease, other than the
early
termination permitted in accordance with Section 2.2 above, either
by operation
of law, or by the issuance of a warrant of dispossess, or by the service
of a
notice of termination as above provided, or otherwise, for any cause
or causes
whatsoever, except by fire or other casualty or condemnation by public
or
private authority as herein provided, Tenant shall, nevertheless, remain
liable
to Landlord to pay a sum equal to the Fixed Rent and Additional Rent
herein
reserved for the balance of the term herein originally demised; and
Landlord
may, without notice, repair or alter the Demised Premises in such manner
as
Landlord may deem necessary or advisable and/or let or relet the Demised
Premises, and any and all parts thereof, for the whole, or any part,
of the
remainder of the said original Term, or for any period of time beyond
the
expiration of the originally demised Term, in Landlord’s name, or as the agent
of Tenant, and, out of any rent so collected and received, Landlord
shall first
pay to himself the expense and cost of retaking, repossessing, repairing
and/or
altering the Demised Premises, and the expense of removing all persons
and
property therefrom, and second, pay to himself any cost or expense
sustained in
securing any new tenant or tenants, and third, pay to himself any balance
remaining on account of the liability of Tenant to Landlord for the
sum equal to
the rent reserved herein and unpaid by Tenant for the remainder of
the
Term.
Section
11.4. Should
any rent so collected by Landlord after the payments aforesaid, be
insufficient
fully to pay to Landlord a sum equal to the Fixed Rent and Additional
Rent
stipulated for herein, the balance or deficiency shall be paid by Tenant
on the
rent days above specified; that is, upon each of such rent days, Tenant
shall
pay to Landlord the amount of the deficiency then existing; and Tenant
hereby
agrees to be and remain liable for any such deficiency. The right of
Landlord to
recover from Tenant the amount thereof, or a sum equal to the amount
of Fixed
Rent and Additional Rent herein reserved, if there shall be no reletting,
shall
survive the issuance of any warrant of dispossess, or other termination
of this
Lease; and Tenant hereby expressly waives any defense that might be
predicated
upon the issuance of such warrant of dispossess, or other termination
or
cancellation of the hereby demised term.
12
Section
11.5. A
suit or
suits for the recovery of such deficiency or damages, or for a sum
equal to any
installment or installments of the Fixed Rent or Additional Rent due
hereunder,
may be brought by Landlord, from time to time, at his election, and
nothing
herein contained shall be deemed to require Landlord to await the date
whereon
this Lease, or the term hereof, would have expired by limitation, had
there been
no such default by the Tenant or no such termination or
cancellation.
ARTICLE
XII
REMEDIES
OF LANDLORD
Section
12.1. In
the
event that Tenant shall fail to pay any of the items required to be
paid by
Tenant pursuant hereto (other than the Fixed Rent), Landlord may, but
shall not
be required to, pay any such items, premiums or sums, and shall thereupon
become
entitled to repayment from Tenant, on demand, of any amount so
paid.
Section
12.2. No
performance by Landlord of any of the obligations on Tenant’s part to be
performed hereunder shall be or be deemed to be a waiver of Tenant’s default in
the failure to perform the same nor shall the performance thereof by
Landlord
release or relieve Tenant from any obligations on Tenant’s part to be performed
under this Lease.
Section
12.3. Landlord
shall at all times during the Term, upon reasonable notice given to
Tenant, have
the right and privilege to enter the Demised Premises and the buildings,
additions and improvements thereon at reasonable times for the purpose
of
inspecting the same to prospective purchasers or mortgagees thereof.
Also,
provided Landlord provides tenant with reasonable advance notice, Landlord
shall
also have the right and privilege during the last ninety (90) days
prior to the
Expiration Date (i) to enter the Demised Premises and the buildings,
additions
and improvements thereon at reasonable times during business hours
for the
purpose of exhibiting the same to prospective new tenants; and (ii)
to display
the customary “To Let” and “For Sale” signs on said buildings. Landlord shall,
during the Term, have the right and privilege to enter the Demised
Premises at
any time without notice in the event of an emergency.
Section
12.4. Landlord
shall, at all times during the Term, upon reasonable notice given to
Tenant,
have the right to enter the Demised Premises or any part thereof, for
the
purpose of making such repairs or alterations therein as Landlord deems
necessary, but such right of access shall not be construed as obligating
Landlord to make any repairs to or replacements of said building or
buildings,
additions or improvements or as obligating Landlord to make any inspection
or
examination of said building or buildings, additions or
improvements.
13
Section
12.5. The
rights and remedies given to Landlord in this Lease are distinct, separate
and
cumulative, and no one of them, whether or not exercised by the Landlord,
shall
be deemed to be in exclusion of any of the others, or of any rights
or remedies
otherwise provided at law or in equity.
Section
12.6. In
addition to and cumulative with any other remedy herein, Landlord shall
have the
right to impose a late fee of five percent (5%) on any payment of Fixed
Rent,
Additional Rent or any other sum due hereunder which is not paid within
thirty
(30) days of the date due. If after such thirty (30) day period any
payment of
Fixed Rent, Additional Rent or other such amount due hereunder shall
bear
interest at the annual rate equal to the lower of eighteen percent
(18%) or the
highest rate allowed by law.
ARTICLE
XIII
DEFAULT
BY LANDLORD
Section
13.1. Landlord
shall be in default under this Lease if Landlord fails to perform any
of its
obligations or breaches any of its covenants contained in this Lease
and said
failure or breach continues for a period of thirty (30) days after
written
notice from Tenant to Landlord (this thirty (30) day period shall be
extended
for such reasonable period of time as is necessary to cure the default,
if the
alleged default is not reasonably capable of cure within the thirty
(30) day
period and Landlord commences and continues diligently to cure said
default).
ARTICLE
XIV
TENANT’S
REMEDIES
Section
14.1. Upon
a
default by Landlord, Tenant shall have the right to terminate this
Lease or
vacate the Demised Premises in the event of a breach by Landlord which
is not
timely cured. In addition, if Landlord is in default under this Lease,
Tenant
may commence an independent action against Landlord for any remedy
available to
Tenant at law or in equity, all such remedies to be cumulative and
non-exclusive. In addition, should Tenant obtain a final, unappealable
monetary
judgment against Landlord, Tenant may offset such judgment against
all Fixed
Rent and Additional Rent and other sums next due under this Lease until
Tenant
has fully recovered the amount of such judgment. In all events, Landlord’s
liability under this Lease shall be limited to Landlord’s interest in the
Demised Premises.
ARTICLE
XV
NO
WAIVER BY LANDLORD
Section
15.1. No
receipt of moneys by Landlord from Tenant after the termination or
cancellation
of this Lease shall reinstate, continue or extend the Term, or affect
any notice
theretofore given to Tenant, or operate as a waiver of the right of
Landlord to
enforce the Fixed Rent or Additional Rent then due, or thereafter falling
due,
or operate as a waiver of the right of Landlord to recover possession
of the
Demised Premises by proper suit, action, proceeding or remedy, except
as in this
Lease otherwise specifically stated; it being agreed that after the
service of
notice to terminate or cancel this Lease, or the commencement of suit,
action or
summary proceedings, or any other remedy, or after a final order or
judgment for
the possession of the Demised Premises, Landlord may demand, receive
and collect
any moneys due, or thereafter falling due, without, in any manner,
affecting
such notice, proceeding, suit, action, order or judgment; and any and
all such
moneys collected shall be deemed to be payments on account of the use
and
occupation of the Demised Premises or, at the election of Landlord,
on account
of Tenant’s liability hereunder.
14
Section
15.2. The
failure of Landlord to enforce any agreement, condition, covenant or
term, by
reason of its breach by Tenant, shall not be deemed to void, waive
or affect the
right of Landlord to enforce the same agreement, condition, covenant
or term on
the occasion of a subsequent default or breach.
Section
15.3. The
specific remedies to which Landlord may resort under the terms of this
Lease are
cumulative and are not intended to be exclusive of any other remedies
to which
Landlord may be lawfully entitled in case of any breach by Tenant of
any of the
terms, covenants and conditions of this Lease. The failure of Landlord
to insist
in any one or more case upon the strict performance of any of the terms,
covenants and conditions of this Lease, or to exercise any right or
remedy
herein contained, shall not be construed as a waiver or relinquishment
for the
future of such terms, covenants and conditions. The receipt by Landlord
of rent
with knowledge of the breach of any of such terms, covenants and conditions
shall not be deemed a waiver of such breach. The acceptance of any
check or
payment bearing or accompanied by any endorsement, legend or statements
shall
not, of itself, constitute any change in or termination of this Lease.
No
surrender of the Demised Premises by Tenant (prior to any termination
of this
Lease) shall be valid unless consented to in writing by Landlord.
ARTICLE
XVI
CONDEMNATION
Section
16.1. If
(i)
the entire Demised Premises shall be taken in or by condemnation or
other
eminent domain proceedings pursuant to any law, general or special,
or (ii) any
portion of the Demised Premises, or the use or occupancy thereof, shall
be taken
in or by such proceedings so as to (A) render the remaining portion
thereof
unsuitable for the conduct of Tenant’s business or for Tenant’s use or (B)
prevent Tenant from carrying on its normal operations at the Demised
Premises
for a period of four (4) consecutive months, then Tenant shall, not
later than
60 days after any such taking, give notice to Landlord of its intention
to
terminate this Lease on any business day specified in such notice which
occurs
not less than 60 nor more than 180 days after the giving of such notice
by
Tenant and this Lease shall thereupon terminate on the date specified
in such
notice.
Section
16.2. If
Tenant
fails to terminate this Lease within the time and in the manner set
forth in
Section 16.1 above, or elects not to terminate this Lease, this Lease
shall
continue in full force and effect but Fixed Rent and Additional Rent
or other
sums payable by Tenant hereunder shall xxxxx in direct proportion to
the number
of rentable square feet of space of the Demised Premises so taken.
15
Section
16.3. In
any
case in which this Lease shall not terminate, but shall continue with
respect to
the portion of the Demised Premises remaining after the taking, Landlord
shall
restore that portion of the Demised Premises so remaining to as near
a complete
architectural unit as is practical; provided, however, that if Landlord’s costs
and expenses incurred or to be incurred in connection with such restoration
are
reasonably estimated by Landlord to exceed the award to be received
by Landlord,
Landlord, regardless of whether Landlord and Tenant have earlier elected
to
continue this Lease as to the remaining Demised Premises, may nevertheless
terminate this Lease by written notice to Tenant within thirty (30)
days
following Landlord’s receipt of payment representing full compensation for the
Demised Premises so taken or damaged by such taking.
Section
16.4. Except
to
the extent set forth in Section 16.5 below, all awards in condemnation,
whether
recovered as a result of litigation, or in settlement thereof, or as
part of a
private purchase in lieu of condemnation, and whether termed compensation
or
damages, but payable in any event for the taking of all or a portion
of the
Demised Premises shall belong solely to Landlord. Tenant assigns to
Landlord all
of Tenant’s right, title, and interest, if any, in and to such awards in
condemnation, and all rights to an apportionment thereof. Tenant consents
to
Landlord’s withdrawal of any sum deposited into the court registry of any court
of competent jurisdiction by a condemning authority, at any time during
the
pendency of condemnation proceedings, should such proceedings be initiated
against Landlord, except to the extent to which any sums so deposited
represent
damages or compensation which belong to Tenant pursuant to the provisions
of
Section 16.5 below.
Section
16.5. Tenant
shall have the right to claim and recover, provided Tenant asserts
and pursues
such claims against the condemning authority, only that compensation
or damage
representing Tenant’s moving and relocation expenses and the value of personal
property and trade fixtures owned by Tenant and which do not become
the property
of Landlord upon the expiration or sooner termination of this Lease.
Tenant may
also pursue its business damage claim against the condemning
authority.
ARTICLE
XVII
ESTOPPEL
CERTIFICATE
Section
17.1. At
any
time and from time to time either party, upon request of the other
party, will
execute, acknowledge and deliver an instrument, stating, if the same
be true,
that this Lease is a true and exact copy of the Lease between the parties
hereto, that there are no amendments hereto (or stating what amendments
there
may be), that the same is then in full force and effect and that, to
the best of
its knowledge, there are no offsets, defenses or counterclaims with
respect to
the payment of Rent hereunder or in the performance of the other terms,
covenants and conditions hereof on the part of Tenant or Landlord,
as the case
may be, to be performed, and that as of such date no default has been
declared
hereunder by either party or if so, specifying the same. Such instrument
will be
executed by the other party and delivered to the requesting party within
fifteen
(15) days of receipt of a written request therefor.
16
ARTICLE
XVIII
QUIET
ENJOYMENT
Section
18.1. Tenant,
upon payment of the rents herein reserved and upon the due performance
and
observance of all the covenants, conditions and agreements herein contained
on
Tenant’s part to be performed and observed, shall and may at all times during
the term hereby granted peaceably and quietly have, hold and enjoy
the Demised
Premises without any manner of suit, trouble or hindrance of and from
any person
whatsoever.
ARTICLE
XIX
SURRENDER
Section
19.1. Tenant
shall, on the last day of the term hereof, or upon the sooner termination
of the
term hereof, quit and surrender to Landlord the Demised Premises vacant,
free of
all furniture and other personal property, and in good order and condition,
ordinary wear and tear and obsolescence excepted, and Tenant shall
remove or
demolish all of the fixtures, fences, railings, structures and other
improvements which Landlord shall elect pursuant to and in accordance
with
Section 5.4 hereof. Tenant’s obligation to observe and perform this covenant
shall survive the expiration or earlier termination of the Term.
Section
19.2. Upon
the
expiration of the Term, all Fixed Rent and Additional Rent and other
items
payable by Tenant under this Lease shall be apportioned to the date
of
termination. Tenant’s obligation to pay such amounts shall survive the
expiration or earlier termination of the Term.
ARTICLE
XX
UTILITIES
Section
20.1. Tenant
shall pay for all utility services, including electricity, water, garbage,
sewage, and other charges and expenses in connection with the Demised
Premises.
ARTICLE
XXI
SECURITY
DEPOSIT
Section
21.1. As
a
condition precedent to Landlord’s obligations under this Lease, Tenant shall
deposit with Landlord upon the execution of this Lease by Landlord
and Tenant,
the sum of one month’s rent, representing a security deposit (“Security
Deposit”), to secure Tenant’s full and faithful performance of all of the terms,
covenants and conditions of this Lease. The Security Deposit shall
be held by
Landlord as security for Tenant’s full and faithful performance of the terms,
covenants, and conditions of this Lease including the payment of Fixed
Rent and
Additional Rent. The Security Deposit shall not be considered an advance
payment
of Rent and shall never constitute liquidated damages for any default
by Tenant.
The Security Deposit may be commingled with other funds of Landlord
and Landlord
shall pay to Tenant any and all interest that may accrue on the Security
Deposit
during the Term.
17
Section
21.2. Notwithstanding
anything to the contrary in Section 21.1, Landlord hereby agrees to
waive the
requirement of the Security Deposit. However in the event Tenant is
permitted to
assign or sublet in accordance with the terms and conditions of this
Lease, the
provisions of Section 21.1 shall apply to the permitted assignee.
ARTICLE
XXII
FORCE
MAJEURE
Section
22.1. Notwithstanding
anything in this Lease to the contrary, if Landlord or Tenant shall
be delayed
or hindered in, or prevented from the performance of, any act required
under
this Lease (other than the payment of Rent by Tenant) by reason of
strike,
lockout, civil commotion, warlike operation, invasion, rebellion, hostilities,
military or usurped power, sabotage, government regulations or controls,
inability to obtain any material, utility, service, or financing, through
hurricanes, floods, other natural disasters, or acts of God, or for
any other
cause beyond the direct control of the party who is seeking additional
time for
the performance of such act, then performance of such act shall be
excused for
the period of the delay and the period for the performance of any such
act shall
be extended for a reasonable period, in no event to exceed a period
equivalent
to the period of such delay.
ARTICLE
XXIII
BROKER
Section
23.1.
Landlord
and Tenant represent and warrant that they neither consulted nor negotiated
with
any broker or finder with respect to the Demised Premises. Landlord
and Tenant
agree to indemnify, defend, and save the other harmless from and against
any
claims for fees or commissions from anyone with whom they have dealt
in
connection with the Demised Premises or this Lease including attorneys’ fees
incurred in connection with the defense of any such claim.
ARTICLE
XXIV
HAZARDOUS
SUBSTANCES
Section
24.1. The
term
“Hazardous Substances” shall mean pollutants, contaminants, toxic or hazardous
wastes, or any other substances, the removal of which is required,
or the use of
which is restricted, regulated, prohibited or penalized by any “Environmental
Law” which term shall mean any federal, state or local law or ordinance
relating
to pollution or protection of the environment. Tenant agrees that (a)
no
activity will be conducted on the Demised Premises that will produce
any
Hazardous Substance, except for such activities that are part of the
ordinary
course of Tenant’s business activities (the “Permitted Activities”), provided
said Permitted Activities are conducted in accordance with all Environmental
Laws and have been approved in advance in writing by Landlord; (b)
the Demised
Premises will not be used in any manner for the storage of any Hazardous
Substances except for the temporary storage of such materials that
are used in
the ordinary course of Tenant’s business (the “Permitted Materials”), provided
such Permitted Materials are properly stored in a manner and location
meeting
all Environmental Laws and approved in advance in writing by Landlord;
(c)
Tenant will not install any underground tanks of any type; (d) Tenant
will not
allow any surface or subsurface conditions to exist or come into existence
that
constitute, or with the passage of time may constitute, a public or
private
nuisance; (e) Tenant will not permit any Hazardous Substances to be
brought onto
the Demised Premises, except for the Permitted Materials, and if so
brought or
found located thereon, the same shall be immediately removed, with
proper
disposal, and all required cleanup procedures shall be diligently undertaken
pursuant to all Environmental Laws. If, at any time during or after
the Term,
the Demised Premises are found to be so contaminated or subject to
said
conditions, Tenant shall indemnify, defend, and hold Landlord harmless
from all
claims, demands, actions, liabilities, costs, expenses, damages and
obligations
of any nature arising from or as a result of the use of the Demised
Premises by
Tenant. The foregoing indemnification shall survive the termination
or
expiration of this Lease
18
ARTICLE
XXV
HOLDOVER
Section
25.1. Tenant
agrees to quit and surrender vacant, full, broom-clean possession of
the
Premises to Landlord on the Expiration Date free and clear of any leases,
tenancies, and rights of occupancy in anyone claiming through Tenant.
If Tenant
shall fail or refuse to surrender vacant, full, broom-clean possession
of the
Demised Premises to Landlord on or before the expiration of this Lease,
then
Tenant shall pay to Landlord for each day or fraction of a day that
Tenant shall
fail to surrender such vacant, full, broom-clean possession of the
Demised
Premises to Landlord an agreed-upon sum equal to two (2) times the
quotient
obtained by dividing (i) the sum of the monthly installments of Fixed Rent
then payable under this Lease by (ii) 30. In addition Tenant shall pay to
Landlord for each day or fraction of a day that Tenant shall fail to
surrender
such vacant, full, broom-clean possession of the Premises to Landlord
an
agreed-upon sum equal to the quotient obtained by dividing (i) one-twelfth
of all Additional Rent then payable under this Lease; by (ii) 30.
ARTICLE
XXVI
RULES
AND REGULATIONS
Section
26.1. Tenant
acknowledges that the Demised Premises are located within an office
park and
that there is an office park association which has promulgated such
rules and
regulations governing buildings located in the office park. Tenant
agrees that
all activities conducted by Tenant, its employees, agents and invitees
on the
Demised Premises will comply with the rules and regulations promulgated
by the
office park association.
19
ARTICLE
XXVII
MISCELLANEOUS
PROVISIONS
Section
27.1. It
is
mutually agreed by and between Landlord and Tenant that the respective
parties
shall and they hereby do waive trial by jury in any action, proceeding
or
counterclaim brought by either of the parties hereto against the other
on any
matters whatsoever arising out of or in any way connected with this
Lease or
Tenant’s use or occupancy of the Demised Premises.
Section
27.2.
(a) The
term
“Landlord” as used herein shall mean only the owner or the mortgagee in
possession for the time being of the Demised Premises, so that in the
event of
any sale, transfer or conveyance of the Demised Premises, Landlord
shall be and
hereby is entirely freed and relieved of all agreements, covenants
and
obligations of Landlord hereunder.
(b) The
term
“Tenant” as used herein shall mean the tenant named herein, and from and after
any valid assignment or transfer in whole of said Tenant’s interest under this
Lease pursuant to the provisions of Article VIII, shall mean only the
assignee
or transferee thereof.
(c) The
words
“re-enter” and “re-entry” as used herein shall not be restricted to their
technical legal meaning.
Section
27.3. The
headings herein are inserted only as a matter of convenience and for
reference
and in no way define, limit or describe the scope or intent of this
Lease nor in
any way affect this Lease.
Section
27.4. This
Lease shall be governed by and construed in accordance with the laws
of the
State of Florida.
Section
27.5. This
Lease contains the entire agreement between the parties and may not
be extended,
renewed, terminated or otherwise modified in any manner except by an
instrument
in writing executed by the party against whom enforcement of such modification
is sought.
Section
27.6. The
agreements, terms, covenants and conditions herein shall bind and inure
to the
benefit of Landlord and Tenant and their respective heirs, personal
representatives, successors and permitted assigns.
Section
27.7. Notice
wherever provided for herein shall be in writing and shall be given
either by
personal service with acknowledgment of receipt, by certified or registered
mail, return receipt requested, by overnight courier or by facsimile,
to the
persons and at the addresses hereinabove set forth, or to such other
persons or
at such other addresses as may be designated by written notice from
either party
to the other. Notices shall be deemed given on the date of the mailing
or
personal service thereof.
20
Section
27.8. If
any
provision of this Lease shall be invalid or unenforceable, the remainder
of the
provisions of this Lease shall not be affected thereby and each and
every
provision of this Lease shall be enforceable to the fullest extent
permitted by
law.
Section
27.9. This
Lease shall not become binding upon Landlord, unless and until Landlord
shall
have unconditionally delivered a fully executed copy of this Lease
to
Tenant.
Section
27.10. RADON
IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS ACCUMULATED
IN A
BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT HEALTH RISKS TO PERSONS
WHO ARE
EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL AND STATE
GUIDELINES HAVE BEEN FOUND IN BUILDINGS. ADDITIONAL INFORMATION REGARDING
RADON
AND RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT.
LANDLORD
DOES NOT MAKE ANY REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE PRESENCE
OR
ABSENCE OF RADON GAS AT THE DEMISED PREMISES.
IN
WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and
year first above set forth.
|
WITNESSES:
|
||||
|
“Landlord”
|
||||
|
Xenon
Research, Inc.,
a
Florida corporation
|
||||
|
Name:
|
||||
|
By:
|
/s/
Xxxxx Xxxx
|
|||
|
Name:
|
Xxxxx
Xxxx
|
|||
|
Title:
|
President
|
|||
|
Name:
|
||||
|
“Tenant”
|
||||
|
FARO
Technologies, Inc.,
a
Florida corporation
|
||||
|
|
||||
|
By:
|
/s/
Xxx Xxxxxxxx
|
|||
|
Name:
|
Name:
|
Xxx
Xxxxxxxx
|
||
|
Title:
|
Co-CEO
|
|||
|
Name:
|
21
