Exhibit 10.10
LEASE AGREEMENT
Suite #
300
Sq Ft 2092
$/Sq Ft
19.50
THIS LEASE AGREEMENT
(this “Lease”) is made
effective this 27th day of February , 200 7 ,
by and between Floyd Smith Office Park LLC, as landlord
(“Landlord”), and Super Vision International,
Inc. as tenant (“Tenant”).
FOR AND IN
CONSIDERATION of the
mutual agreements contained herein, Landlord and Tenant agree as
follows:
1.
DEFINITIONS . Capitalized terms appearing in this
Lease, unless defined elsewhere in this Lease, shall have the
following definitions:
a. “Additional
Rent” shall mean all sums of money in addition to Base Rent
which shall become due from Tenant under this Lease.
b. “Building”
shall mean that certain multi-story office building having a street
address of 124 Floyd Smith Blvd., Charlotte, North Carolina 28262
and located on the Land.
c. “Common
Areas” shall mean all areas, improvements, space and special
services within the Building or on the Land provided by Landlord
from time to time in its sole discretion for the common or joint
use and benefit of all tenants, customers and invitees of the
Building, including, without limitation, any parking areas, access
roads, service drives, service areas, driveways, entrances and
exits, retaining walls, landscaped areas, truck serviceways,
loading docks or ramps, pedestrian walkways, overstreet walkways,
connecting malls, atriums, walls, ceilings, patios, courtyards,
garden areas, plaza areas, park areas, concourses, ramps,
sidewalks, corridors, washrooms, signs, maintenance buildings,
utility buildings, hallways, lobbies, elevators, elevator foyers,
escalators, stairs, common window areas, and trash, garbage or
rubbish areas.
d. “Land”
shall mean the real property upon which the Building is situated as
more particularly described on Exhibit A attached
hereto and incorporated herein.
e. “Net
Useable Area” shall mean the number of square feet of
enclosed floor area within the Building (or any portion thereof)
intended for the exclusive use by the tenant or occupant thereof
measured from the outside finished surface of the exterior walls or
permanent outer building walls and from the mid-point of any
interior or party wall. As of the execution date of this Lease, the
Total Useable Area of the Building is 35,492 square
feet.
f. “Premises”
shall mean the space shown cross-hatched on the floor plan attached
hereto as Exhibit B and incorporated
herein.
g. “Rules and
Regulations” means the rules and regulations adopted by
Landlord for the Building, the Land and the Common Areas and
attached hereto as Exhibit C and incorporated herein,
as well as any other rules and regulations which Landlord may adopt
in the future for the Building, the Land and the Common
Areas.
2.
PREMISES . Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, upon the terms and conditions
and for the purposes set forth in this Lease, the
Premises.
3.
TERM .
a. This
Lease shall commence upon signed certificate of occupancy
(“Commencement Date”), and shall continue for an
initial term of 60 months (“Initial Term”),
terminating at midnight of the last day of the 60
th
month
unless
modified or earlier terminated pursuant to the terms
hereof.
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4.
BASE RENT .
a. As
agreed, the first five (5) months are rent free. Following the
first five (5) rent free months, Tenant shall pay annual Base
Rent in advance, in twelve (12) equal monthly installments
$3,399.50 on or before the first (1st) day of each
calendar month during the Term, without notice, deduction, demand,
abatement, counterclaim or set off, at the rates set forth below.
Base Rent for any partial month shall be paid in advance and
prorated based on the number of days in such partial calendar
month. The first (1st) payment of Base Rent shall be due and
payable on or before the execution of this Lease. Base Rent and all
other sums of money due from Tenant hereunder shall be collectively
referred to hereinafter as “Rent”.
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2007
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2008
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$3,399.50
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$40,794.00
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2008
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2009
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$3,501.49
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$42,017.88
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2009
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2010
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$3,606.53
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$43,278.36
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2010
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2011
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$3,714.73
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$44,576.76
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2011
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2012
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$3,826.17
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$45,914.04
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b. Checks for
all Rent shall be made payable to Landlord and mailed or delivered
to the address set forth in Section 32 below or such other
address as Landlord may designate to Tenant in writing. To defray
administrative and handling expenses, Tenant agrees to pay an
additional charge of Fifty and No/100 Dollars ($50) for each
returned check. If any payment of Rent is not received by Landlord
within five (5) days of the due date, then Tenant shall pay
Landlord the greater of (i) five percent (5%) of the late
Rent: or (ii) Two Hundred Fifty and No/00 Dollars ($250.00).
In addition, if any payment of Rent is not received within ten
(10) days of when due, such late Rent shall bear interest at
the lesser of ten percent (10%) per annum, compounded monthly,
or the maximum rate permitted under law, from the due date of such
Rent until such late Rent and all interest accrued thereon is paid
in full. Tenant acknowledges that the aforementioned late charge
and interest are in addition to Landlord’s other rights and
remedies available under this Lease, at law or in equity, and that
such late charge and interest shall in no way limit
Landlord’s other rights and remedies. If Landlord shall at
any time accept any such Rent or other sums after the same shall
become due and payable, such acceptance shall not excuse a delay
upon subsequent occasions, or constitute or be construed as a
waiver of any of Landlord’s rights hereunder, at law or in
equity.
5.
ADJUSTMENTS IN BASE RENT .
a. Beginning
with the first (1 st
) day of the
thirteenth (13 th
) full calendar
month following the Commencement Date and annually thereafter
during the entire Term (the “Adjustment Dates”), a cost
of living adjustment shall be made to Base Rent of 3%.
6.
COMMON AREAS . Subject to the terms and conditions of
this Lease and the Rules and Regulations, Tenant and its employees
and invitees shall have the non-exclusive right to use, in common
with other tenants and occupants of the Building, the Common Areas,
as they may be designated by Landlord from time to time. Landlord
or its successors or assigns may change or modify the size, use,
shape, location or nature of any of the Common Areas, or eliminate
them altogether, all without any liability to Tenant. There is 4762
sq ft of Common area at the time of this lease
signature.
7.
UTILITIES AND OTHER SERVICES .
a. Landlord
agrees to furnish the following services:
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i.
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Hot and cold
water at those points of supply provided for general use of all the
tenants in the Building and within the Premise;
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ii.
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Central heat and air conditioning
sufficient for the comfortable occupancy of the Premises; provided,
however, heating and air conditioning service at times other than
during “Normal
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Business Hours” for the
Building (which are 8:00 a.m. to 6:00 p.m., Monday through Friday,
and 8:00 a.m. to 1:00 p.m. on Saturday, exclusive of normal
business holidays) shall be furnished only on seventy-two
(72) hours advance written request by Tenant to Landlord.
Tenant shall bear the entire cost of such additional service as
such costs are determined by Landlord from time to time. If Tenant
shall use any equipment in the Premises which affects the
temperature otherwise maintained by the central heating and air
conditioning system, then Landlord shall have the right, in its
sole discretion, to install supplemental air conditioning units and
the cost thereof, including the cost of installation, maintenance
and operation of such units, shall be paid by Tenant to Landlord
upon demand;
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iii.
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Reasonable
janitorial service, Monday through Friday only, exclusive of normal
business holidays and
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iv.
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Facilities to
provide electricity for routine lighting and the operation of
general office equipment. Tenant shall not use any electrical
equipment which in Landlord’s opinion will overload the
Building’s electrical systems or circuits.
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b. Landlord
shall have the right to require Tenant to separately meter all non
-standard or additional utilities and any or all of the utilities
set forth above, in which case Tenant shall pay, prior to
delinquency and directly to the appropriate utility company, all
costs and expenses of such utility services, including all hook-up,
user and tap fees and all other similar fees and
charges.
c. Landlord
shall not be obligated to furnish any services or utilities other
than as set forth in this Section 7; provided, however, if
Landlord elects to furnish additional services or utilities, and
the Tenant agrees to accept them for the Premise, then Tenant shall
pay Landlord the costs of such additional services or utilities, or
Tenant’s pro-rata share thereof, as determined by Landlord
and presented to the Tenant as an signed and agreed to addendum to
the Lease. Notwithstanding the foregoing, Landlord shall have the
right to interrupt any utilities or other services provided for in
this Section 7 for such periods of time as Landlord deems
necessary for repairs, alterations and improvements, and Landlord
shall not be responsible for the stoppage or interruption of any
such utilities or other services and no such interruption shall
result in an abatement of Rent. The failure by Landlord to furnish,
or the interruption or termination of such utilities or other
services in whole or in part resulting from causes beyond the
reasonable control of Landlord (including, without limitation,
Force Majeure (as defined below)) shall not render Landlord liable
in any respect or be construed as an eviction of Tenant, or work an
abatement of Rent, or relieve Tenant from any of its obligations
hereunder. If Tenant fails to pay for any utilities or services
provided by Landlord hereunder within 3 calendar days of when the
invoice for utilities/services is due, then Landlord shall have the
right, without any notice to Tenant and in addition to
Landlord’s other rights and remedies hereunder, to
discontinue any or all of such utilities or services.
8.
TAXES AND ASSESSMENTS . Landlord shall pay all ad
valorem taxes assessed on the Land and/or the Building. Tenant
shall pay, prior to delinquency, all taxes, assessments,
impositions and charges assessed against or attributable to
Tenant’s use and occupancy of the Premises, and assessed
against all personal property, equipment, inventory and trade
fixtures located within the Premises and owned by the Tenant.
Tenant shall pay Landlord upon demand all taxes and assessments and
other governmental impositions and charges of every kind and nature
whatsoever, extraordinary as well as ordinary, whether or not now
customary or within the contemplation of the parties hereto, which
are levied upon or measured by the rental or any other sum payable
hereunder, including, without limitation, any excise tax levied by
any governmental body with respect to the receipt of such rental or
such other sum. Any taxes, assessments, impositions or charges
assessed with respect to the Land, the Premises or the Building as
a result of alterations, additions or improvements to the Premises
made by, for or at the direction of Tenant shall be reimbursed by
Tenant to Landlord upon receipt by Tenant of written demand
therefore from Landlord.
9. USE
OF THE PREMISES. Tenant shall continuously use and occupy
the Premises only for general business office purposes and for no
other purpose. Tenant shall, at its own cost, promptly comply with
all
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applicable laws, rules, regulations and
ordinances with respect to the use and occupancy of the Premises.
Tenant shall comply with, and shall cause its employees, invitees,
customers and agents to comply with, all Rules and Regulations, and
Landlord shall have no liability to Tenant for the non-compliance
by other tenants and occupants of the Building of the Rules and
Regulations, however, Landlord shall have a duty to endeavor to
cause all other tenants to comply with the Buildings Rules and
Regulations to the best of their ability. Tenant shall not use or
permit the use of the Premises for any purpose that is illegal,
immoral or improper, or is in violation of any Rule or Regulation
or any applicable legal, governmental or quasi-governmental
requirement, law, ordinance or rule, or that, in Landlord’s
opinion, creates a nuisance, disturbs any other tenant of the
Building or injures the reputation of the Building. Tenant
acknowledges and agrees that Landlord has made no representation or
warranty (either expressed or implied) as to the suitability of the
Premises for Tenant’s intended use of the
Premises.
10.
PARKING. During the Term, Tenant shall have the
non-exclusive right to use, in common with Landlord and other
tenants and occupants of the Building and their respective guests,
employees and invitees, the non-reserved common automobile parking
areas, driveways and footways located adjacent to the Building, as
such areas are designated and/or modified by Landlord from time to
time in its sole discretion. Landlord shall have the right to
reserve parking spaces as it elects and condition the use thereof
on such terms as it elects, all in its sole discretion. Tenant
shall always have a minimum of fifteen (15) parking spaces in
reasonable proximity to the building available to the Tenant for
its employees and visitors.
11.
MAINTENANCE BY LANDLORD. Landlord shall be
responsible for maintaining and repairing the roof, foundations,
exterior walls, all structural parts of the Building and all
electrical, plumbing and heating, air conditioning and ventilation
systems not exclusively serving the Premises including all common
areas. Landlord shall not be responsible for any inconvenience or
annoyance to Tenant caused by any such repairs or maintenance, and
Tenant shall not reduce or withhold any portion of any Rent payment
without a prior final judicial determination of Tenant’s
right to do so. However, Landlord shall diligently endeavor to
avoid interrupting service for maintenance during the buildings
operating hours. In the event any of the foregoing repairs or
maintenance is required because of any act or omission of Tenant or
its employees, agents, invitees or representatives, then Tenant
shall pay Landlord upon demand all costs and expenses incurred by
Landlord in performing such repairs or maintenance. Neither
Landlord nor its agents have made any representations or warranties
(either express or implied) with respect to the Premises or the
condition thereof, and Tenant accepts the Premises in “AS
IS” and “WHERE IS” condition. Tenant
agrees that, by leasing the Premises, Tenant has examined the
Premises and has approved all matters concerning the Premises which
Tenant deems material to Tenant’s leasing and use of the
Premises. Landlord shall have no obligation to make any
improvements, alterations, repairs or maintenance to the Premises
prior to or during the Term except as specifically set forth
herein.
12.
ALTERATIONS.
a. Tenant
shall not make any alterations, additions or improvements to any
portion of the Premises, either inside or outside, without
Landlord’s prior written consent in each instance. Upon any
request by Tenant to make any alterations, additions or
improvements, Landlord reserves the right to require Tenant to
submit to Landlord plans and specifications for Landlord’s
approval. Any alterations, additions or improvements (except for
movable equipment and furniture owned by Tenant) installed in the
Premises by or on behalf of Tenant shall, at Landlord’s
option, become a part of the Premises and Landlord’s property
upon the expiration or earlier termination of this Lease unless
otherwise stated by Landlord in writing; provided, however,
Landlord shall have the right to require Tenant to remove any such
alteration, addition or improvement at Tenant’s expense upon
the expiration or earlier termination of this Lease. In the event
that Landlord so elects, and Tenant fails to remove such
alteration, addition or improvement, Landlord may remove such
alteration, addition or improvement at Tenant’s cost, and
Tenant shall pay Landlord on demand the cost of restoring the
Premises to the condition it existed as of the Commencement Date,
ordinary wear and tear excepted. Tenant shall reimburse Landlord
upon demand for all costs and expenses incurred by
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Landlord in repairing or replacing
any damage to the Building, Premises or Common Areas caused by
Tenant or Tenant’s agents, employees, invitees, or visitors
except to the extent covered by insurance.
b. If any
such alterations, additions or improvements are consented to by
Landlord, Tenant, at its sole cost and expense, shall perform such
work in a good and workmanlike manner, and shall obtain all
necessary governmental permits and certificates necessary for the
commencement and completion of such alterations, additions and
improvements, and shall cause such alterations, additions and
improvements to be performed in compliance therewith and with all
applicable laws, ordinances, requirements, orders, rules and
regulations.
13.
ASSIGNMENT AND SUBLETTING. Tenant shall not assign or
otherwise transfer this Lease or sublet any or all of the Premises
without Landlord’s prior written consent, which consent
Landlord may withhold in its sole discretion. Such consent shall
not be unreasonably withheld. The sale, transfer or issuance of the
stock, membership interest or partnership interest of Tenant shall
be deemed an assignment of this Lease which shall require
Landlord’s written consent, which will not be unreasonably
withheld. If Landlord consents to any such assignment, sublet or
transfer, (i) Tenant shall not be released from any
obligations or liabilities under this Lease; (ii) Landlord
shall receive all sums and other consideration paid or payable to
Tenant by such assignee, transferee or subtenant; and
(iii) Tenant shall reimburse Landlord for all costs and
expenses incurred by Landlord in reviewing any such request. The
acceptance of Rent by Landlord shall not be deemed to be a consent
by Landlord to any such assignment, sublet or other transfer, nor
shall the same be deemed a waiver of any right or remedy of
Landlord under this Lease, at law or in equity. Consent to one
assignment or sublease by Landlord shall not be deemed a consent to
future assignments or subleases.
14.
DAMAGE AND LOSS. Tenant shall
use the Premises and all facilities of the Premises at
Tenant’s risk. Landlord shall not be liable to Tenant or
Tenant’s employees, licensees, invitees or guests or any
other person for any loss, injury or damage to any property or
person occasioned by theft, Force Majeure or any other cause beyond
the control of Landlord, whether or not due to negligent acts or
omissions of Tenant or Tenant’s employees, licensees,
invitees or guests or by any other third parties. All property
placed on, in or about the Premises by, at the direction of, or
with the consent of Tenant or its employees, agents, licensees or
invitees shall be at the risk of Tenant or the owner thereof, and
Landlord shall not be liable for any loss of or damage to said
property resulting from any cause whatsoever.
15.
INSURANCE.
a. Throughout
the Term, Tenant shall maintain, at its own expense, the following
types of insurance:
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i.
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commercial
general public liability insurance, which shall include coverage
for personal liability, contractual liability, Tenant’s legal
liability, bodily injury (including death) and property damage, all
on an occurrence basis, with respect to the business carried on
from the Premises and Tenant’s use and occupancy of the
Premises in an amount not less than $1,000,000.00 per occurrence,
with an umbrella liability policy of $3,000,000.00 in excess of
said liability insurance, with Landlord, Landlord’s mortgagee
(if any ) and Landlord’s designees named as additional
insureds thereunder;
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ii.
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special
extended coverage form property damage insurance with respect to
Tenant’s property, equipment, inventory and fixtures located
in or about the Premises, at the full replacement cost
thereof;
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iii.
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worker’s
compensation insurance as required by law; and
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iv.
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any other
insurance which Landlord reasonably requires.
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b. All such
insurance policies shall:
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i.
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provide that
they shall not be canceled or the coverage reduced without thirty
(30) days prior written notice to Landlord and
Landlord’s designees and mortgagee (if any);
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ii.
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provide that
such insurance shall be primary with respect to any policies
carried by Tenant and that any coverage by Landlord shall be excess
insurance;
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iii.
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be issued by
insurance companies authorized and licensed to do business in the
State where the Premises are located and approved by Landlord, with
a policy holders rating of no less than “A-VIII” in the
most current edition of Best’s Insurance Reports
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iv.
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contain a
waiver of subrogation endorsement acceptable to Landlord;
and
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v.
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contain
deductible amounts acceptable to Landlord, but in no event greater
than $5,000.00.
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c. A copy of
each insurance policy required to be maintained hereunder shall be
delivered to Landlord prior to the Commencement Date and not less
than thirty (30) days prior to any renewal of such insurance
policy. If Tenant fails to procure any of the insurance required
under this Section 15 and fails to maintain the same in full
force and effect continuously during the Term, then Landlord shall
have the right to obtain such insurance, and Tenant shall
immediately reimburse Landlord for all costs and expenses of
obtaining such insurance.
d. Anything
in this Lease to the contrary notwithstanding, Landlord and Tenant
each hereby waive any and all rights of recovery, claims, actions
or causes of action against the other, its agents, officers, or
employees, for any loss or damage that may occur to the Premises or
a part thereof, or any improvements thereto, or any personal
property of such party therein, by reason of fire, the elements, or
any other cause which is insured against under the terms of the
insurance policies referred to in this Section 15, regardless
of cause or origin, including negligence of the other party hereto,
its agents, officers, or employees. All insurance policies carried
with respect to this Section 15, if permitted under applicable
law, shall contain a provision whereby the insurer waives all
rights of subrogation against Landlord and Tenant.
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INDEMNIFICATION. Tenant agrees to indemnify, defend
and hold Landlord and its employees, agents, officers or
representatives harmless from and against any and all suits,
actions, claims, costs, damages, liabilities and expenses
(including attorney’s fees and court costs) caused in whole
or in part, or arising directly or indirectly out of any negligent
act or omission or willful misconduct of Tenant or Tenant’s
agents, employees, customers, invitees or contractors; or
(iii) any breach by Tenant of its obligations under this
Lease.
17.
CASUALTY.
a. In case of
damage to or destruction of the Building or the Premises by fire or
other casualty, Tenant shall give immediate written notice to
Landlord. In such event, Landlord may terminate this Lease upon
written notice to Tenant within ninety (90) days of the date
of such casualty. In the event Landlord does not elect to terminate
this Lease, after receipt of sufficient insurance proceeds,
Landlord shall restore, repair and rebuild the Premises as nearly
as practical to the condition the Premises was in immediately prior
to such casualty, and Base Rent shall equitably abate based on the
nature and extent of the Premises so damaged from the date of the
casualty until the date that the Premises is substantially repaired
or restored. All insurance proceeds in connection with any casualty
shall be payable to Landlord. In no event shall Landlord be
required t