EXHIBIT 10.3
EXHIBIT D
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USE AND OCCUPANCY AGREEMENT
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The Use and Occupancy Agreement (this "Agreement") is made this ____ day of
_________, 1996, by and between ▇▇▇ Acquisition Corp., a Massachusetts
corporation doing business as ▇▇▇ Technologies ("▇▇▇"), whose address is ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Viisage Technology, Inc., a
Delaware corporation ("Viisage"), whose address is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. Recitals. This Agreement is made with reference to the following facts
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and objectives:
(a) ▇▇▇▇▇▇/ALI, Inc., a Massachusetts corporation, as Landlord
("Landlord"), and ▇▇▇, as Tenant, entered into a written lease dated as of
February 23, 1990 (the "Lease"), of certain premises known as ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇. ▇▇▇'▇ rights and obligations respecting such
premises under said Lease were also the subject of a Non-Disturbance,
Attornment, Estoppel & Subordination Agreement dated as of August 28, 1995
(the "Non-Disturbance Agreement"), by and among ▇▇▇, Landlord and
Landlord's mortgagee, Bank One, Arizona, NA ("Mortgagee"). Unless
otherwise defined herein, all capitalized terms used in this Agreement
shall have the same meaning as ascribed to them in the Lease or the Non-
Disturbance Agreement, as the case may be.
(b) Viisage is succeeding to the business of the division of ▇▇▇ which
develops, markets and supports facial imaging and identification systems
and services (the "Imaging Division") by virtue of the transactions
contemplated by a certain Amended & Restated Asset Transfer Agreement dated
as of August 20, 1996 by and between ▇▇▇ and Viisage.
(c) The Imaging Division had occupied, and Viisage desires to continue
to occupy, the portion of the Premises identified on Exhibit A (the
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"Space").
(d) The Imaging Division has utilized, and Viisage desires to continue
to utilize, certain furniture, fixtures and equipment located in the Space
and more particularly described in Exhibit B hereto (the "Equipment").
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(e) The Imaging Division has received, and Viisage desires to continue
to receive, certain office services from ▇▇▇ more particularly described in
Exhibit C hereto (the "Office Services").
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2. License; Subordination; Indemnity.
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(a) ▇▇▇ hereby grants Viisage a license to (1) use and occupy the
Space and (2) cross other portions of the Premises as reasonably necessary
to maintain access and egress between the Space and the Common Areas of the
Building, subject in all cases to the provisions of this Agreement.
Viisage acknowledges that ▇▇▇ licenses the Space to Viisage "as is," and
that ▇▇▇ makes no warranty, covenant or representation that the Space shall
be other than in its present existing condition. The parties expressly
acknowledge that this Agreement does not constitute a demise by ▇▇▇ of any
real property interest in or encumbrance on the Premises (including without
limitation the Space) and, consequently, Viisage shall not be entitled to
any rights or remedies to which a subtenant may be entitled at law or in
equity, unless Viisage shall have been expressly afforded such rights and
remedies pursuant to the provisions of this Agreement. This Agreement is
subject and subordinate to the Lease and the Non-Disturbance Agreement and,
consequently, if the Lease expires or terminates for any reason whatsoever,
this Agreement shall immediately terminate and Viisage's license under this
Agreement shall terminate. Viisage's failure to immediately vacate the
Space following the expiration or earlier termination of this Agreement
shall constitute a trespass and Viisage hereby indemnifies and holds
harmless ▇▇▇ from any loss, cost, liability or expense associated with such
trespass.
(b) ▇▇▇ shall provide the Office Services to Viisage on the same basis
that such services are currently provided by ▇▇▇ to the Imaging Division, such
Office Services to be performed by those employees of ▇▇▇ who perform similar
services for ▇▇▇ in the normal course of their employment.
3. License Period; Mutual Right of Termination. The period during which
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Viisage may use and occupy the Space, utilize the Equipment and receive the
Office Services, subject to the provisions of this Agreement, shall commence on
the date hereof and, subject to earlier termination as provided herein or in the
Lease, end on February 23, 1997 (the "License Period"). In addition to all
other circumstances which could result in the termination of this Agreement, the
parties shall have the following respective rights as to termination:
(a) Viisage shall have the right to terminate this Agreement, at any
time during the License Period, by giving thirty (30) days' prior written
notice to ▇▇▇; and
(b) ▇▇▇ shall have the right to terminate this Agreement, at any time
during the License Period, by giving six (6) months' prior written notice
to Viisage.
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4. Changes in Office Services.
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The scope and nature of the Office Services shall be subject to change from
time to time as hereinafter provided in this Section 4:
(a) Viisage may cause any particular type of Office Services to be
removed from the Office Services, if Viisage determines in its sole
discretion to provide such class of services internally or obtain them
elsewhere, provided that Viisage shall give ▇▇▇ at least thirty (30) days'
prior written notice of any such removal.
(b) In the event that ▇▇▇ determines in its sole discretion to remove,
reduce or change a particular class of services from the office services
provided for its own internal uses then ▇▇▇ shall be permitted
correspondingly to remove, reduce, or change the nature of such class of
Office Services as provided by ▇▇▇ to Viisage under this Agreement,
provided that ▇▇▇ shall give Viisage reasonable prior written notice to
enable Viisage to obtain such services elsewhere.
(c) ▇▇▇ and Viisage may by written agreement agree to change the
extent and nature of the Office Services in general or with respect to any
particular class of the Office Services.
(d) In the event of any change in the scope or nature of the Office
Services under any provision of this Section 4, the Service Fee shall be
reasonably adjusted by mutual agreement of the parties to reflect the
impact of such change on the cost of providing the Office Services.
5. Rent and Other Charges.
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(a) Rent Reimbursement. Viisage covenants and agrees to pay ▇▇▇ for
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Viisage's Share (as hereinafter defined) of the rent payable by ▇▇▇ under
Section 4 of the Lease (the "Basic Rental Reimbursement"). Payment shall be
made on a timely basis to enable ▇▇▇ to satisfy its financial obligations
under the Lease. For purposes of this Agreement, "Viisage's Share" shall
equal the percentage obtained by dividing the net rentable area of the
Space by the net rentable area of the Premises. Additionally, Viisage shall
reimburse ▇▇▇ for all other financial obligations, if any, for which ▇▇▇ is
responsible under the Lease arising as a direct result of Viisage's use and
occupancy of the Space, including without limitation, any indemnity
required under Section 6(c) of the Lease.
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(b) Taxes, Insurance, Utilities, Etc. Viisage covenants and agrees to
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pay ▇▇▇ for Viisage's Share of ▇▇▇'▇ out-of-pocket costs for real estate
taxes, insurance premiums, utilities costs, costs of repairs and
maintenance, and other costs specifically set forth in the Lease. Payment
shall be made on a timely basis to enable ▇▇▇ to satisfy its obligations
under the Lease.
(c) Office Services. Viisage covenants and agrees to pay ▇▇▇ for the
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Office Services on the first day of each month an amount equal to
$____________ per month.
6. Landlord's Services. Viisage shall have the right to enjoy the
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services which Landlord provides to the Space pursuant to the Lease. However,
▇▇▇ shall have no liability for the obligations of Landlord under the Lease or
the Landlord's failure to fulfill such obligations in whole or in part.
7. Viisage's Covenants. Except as otherwise expressly set forth in this
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Agreement, Viisage shall, in its use and occupancy of the Space and access
thereto through the remainder of the Premises, observe and otherwise be bound by
all of the terms and conditions set forth in the Lease and in the Non-
Disturbance Agreement.
8. Independent Contractor Status. Viisage acknowledges that ▇▇▇ shall
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render and perform the Office Services to be rendered and performed by it
hereunder as an independent contractor in accordance with its own standards,
subject to its compliance with the provisions of this Agreement.
9. No Transfer. The license granted pursuant to this Agreement is
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personal to Viisage and Viisage shall have no power to transfer any of its
rights hereunder.
10. No Alterations; Surrender. Except to the extent permitted under
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Section 9 of the Lease, Viisage may not make any alterations, additions or
improvements to the Space without ▇▇▇'▇ prior consent, and subject to ▇▇▇ having
obtained Landlord's consent to the extent required under Section 9 of the Lease.
Viisage shall surrender the Space as required by this Agreement in the same
condition as it now exists, except for wear and tear which cannot reasonably be
repaired by Viisage's performance of its obligations under this Agreement.
11. Access to Space. ▇▇▇ and the Landlord shall each have the right to
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enter the Space to the extent permitted under Section 10 of the Lease.
12. Insurance. Viisage shall maintain with respect to the Space all
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insurance policies in compliance with the requirements imposed upon the tenant
as set forth in the Lease (unless ▇▇▇ chooses to maintain such insurance
policies for the Premises and
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Building and to have Viisage reimburse ▇▇▇ for Viisage's share of such cost),
except that Viisage shall deposit with ▇▇▇ all certificates of insurance which
the Lease requires to be deposited with Landlord.
13. Fire, Casualty and Eminent Domain. In the event there is casualty
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damage to the Space as contemplated in Section 11 of the Lease, or a
condemnation or taking by eminent domain of a portion of the Space as
contemplated in Section 12 of the Lease, Viisage may continue to occupy the
Space and receive its equitable portion of any abatement of rent which ▇▇▇
receives from the Landlord under Section 11 or 12, as the case may be, of the
Lease, or immediately terminate this Agreement by giving written notice to ▇▇▇.
14. Conformance with Lease Requirements. Without limitation by any other
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provision of this Agreement, Viisage shall not do, omit to do or permit to be
done or omitted anything which would constitute a default under the terms,
covenants and conditions of the Lease, or which would otherwise result in
Landlord having the right to terminate the Lease.
15. Limitations on ▇▇▇'▇ Liability. Viisage acknowledges that it has not
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relied upon any representations or warranties of ▇▇▇ or its agents with respect
to the Building or the Space. Viisage expressly acknowledges that, if Viisage
should have the right to seek recovery of any judgment from ▇▇▇ associated with
Viisage's use and occupancy under this Agreement or ▇▇▇'▇ obligations hereunder,
Viisage shall look solely to ▇▇▇'▇ interest in the Lease for recovery of any
judgment from ▇▇▇. ▇▇▇'▇ directors, officers and shareholders shall never be
personally liable for any such judgment.
16. Remedies and Damages. If this Agreement is terminated as the result
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of a default by Viisage beyond any applicable cure period, ▇▇▇ may expel and
remove Viisage from the Space, provided that such termination shall be without
prejudice to ▇▇▇'▇ power to exercise all of the rights to which it is entitled
at law or in equity by virtue of Viisage's default. If Viisage's default should
result in the termination of the Lease, Viisage shall indemnify ▇▇▇ from and
against all damages for which ▇▇▇ is liable to Landlord as a consequence
thereof, in addition to any other damages which ▇▇▇ suffers or incurs.
17. Notices. Any notice, statement, certificate, consent, approval,
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disapproval, request or demand required or permitted to be given in this
Agreement shall be in writing and delivered by hand, by facsimile (with
confirmation of receipt) or sent by United States mail, registered or certified,
postage prepaid, or by a nationally recognized overnight courier, addressed, as
the case may be as follows:
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To ▇▇▇ at the following address:
▇▇▇ Acquisition Corp.
d/b/a ▇▇▇ Technologies
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇, President
and to Viisage at the following address:
Viisage Technology, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Either party may change or add persons and places where notices are to be
sent or delivered by notice to the other. Mailed notices will be deemed served
three (3) business days after mailing as required above provided the same are
received in the ordinary course of business or upon receipt if sent by hand
delivery.
18. Entire Agreement; Construction. This Agreement contains the entire
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agreement between ▇▇▇ and Viisage with respect to its subject matter and can
only be changed by a written agreement executed by the parties. The titles of
the several Sections contained herein are for convenience only and shall not be
considered in construing this Agreement.
19. Power to Execute. ▇▇▇ and Viisage covenant, warrant and represent
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that they have full power and proper authority to execute this Agreement.
20. Covenants and Conditions. All provisions, whether covenants or
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conditions, on the part of Viisage to be performed under this Agreement shall be
deemed to be both covenants and conditions.
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IN WITNESS WHEREOF, ▇▇▇ Acquisition Corp. d/b/a ▇▇▇ Technologies and
Viisage Technology, Inc. have each caused these presents to be executed as a
sealed instrument as of the day and year first written above.
▇▇▇ ACQUISITION CORP.
d/b/a ▇▇▇ TECHNOLOGIES
By:_________________________________
Name:_______________________________
Title:______________________________
VIISAGE TECHNOLOGY, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
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EXHIBIT A
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Space
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The Space consists of the following portion(s) of the Premises:
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EXHIBIT B
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Equipment
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The Equipment consists of:
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EXHIBIT C
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Office Services
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Type of Service Method of Charge
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