STATE OF NORTH CAROLINA)
LEASE AGREEMENT
COUNTY OF FORSYTH )
THIS LEASE, (the "Lease") made and entered into this, 14 day of January,
1999, by and between Visible Goth, LLC hereinafter called "LANDLORD" and XXXXXX
TECHNOLOGIES, INC., hereinafter referred to as "TENANT".
RECITALS:
IN CONSIDERATION of the mutual covenants contained herein, the parties
agree as follows:
1. Description of Leased Premises. Landlord is the developer of a single
tenant building containing approximately 20,000 SF (the "Building") to be
located on 8 acres at Xxxxxx Xxxx Xxxxxxxxx, Xxxxxxx-Xxxxx, Xxxxxxx Xxxxxx,
Xxxxx Xxxxxxxx, 00000 being more fully described on Exhibit "A" attached hereto
and hereby made a part hereof.
The Premises shall consist of said Building (and other improvements) in the
approximate amount of 20,000 SF, being more fully described and shown on the
attached floor plan as Exhibit "B". The Premises shall be for the exclusive use
of Tenant, its agents, servants, employees and invitees for showroom and related
uses.
Landlord represents and warrants that it is the contract owner in fee
simple of the Premises and that there are no covenants, restrictions or zoning
or other regulations which prevent or are violated by, this Lease or the use of
the Premises as contemplated herein.
2. Term: The term of this Lease shall be for a period of Twenty (20) years,
beginning on date Landlord tenders premises to Tenant (in turnkey condition as
more specifically described in the attached specifications and floor plan) the
"Commencement Date" and continue for Two Hundred and Forty (240) consecutive
months through the "Termination Date". Landlord shall deliver Premises to Tenant
One Hundred Fifty (150) days following Landlord obtaining building permit.
Tenant shall have an additional thirty (30) days before commencement of rent
payment to prepare Premises for occupancy. Tenant shall have an additional
thirty (30) days before commencement of rent payment to prepare Premises for
occupancy.
3. Base Rent: Tenant shall pay for rental for the Premises in the amount
of:
Years Annual Net Rent Monthly Net Rent
1 $146,979.00 $12,248.25
2 $146,979.00 $12,248.25
3 $151,979.00 $12,664.92
4 $181,979.00 $15,164.92
5 $181,979.00 $15,164.92
6 $186,979.00 $15,581.58
7 $186,979.00 $15,581.58
8 $186,979.00 $15,581.58
9 $196,979.00 $16,414.92
10 $196,979.00 $16,414.92
11 $201,979.00 $16,831.58
12 $201,979.00 $16,831.58
13-20 $170,000.00 $14,166.67
4. Tenant to Pay Pro-Rata Share of Operating Expenses:
(A) Tenant shall pay electricity to the demised premises.
(B) The Premises contains 20,000 square feet of rentable area which comprises
100 percent of the total Building rentable area.
(C) For purposes of this section, the term "Lease Year" shall mean a period of
twelve (12) months or less, commencing with the term commencement date and
ending on the following December 31st; each successive period of twelve (12)
months or less commencing with January 1, immediately preceding the expiration
of the term.
(D) Tenant shall pay an amount equal to 100 percent of the operating expenses
for those services of the Building. For the purpose of this paragraph,
"Operating Expenses" shall mean (but not to be limited to) the following
incurred by the Landlord with respect to the Building of which the Premises form
a part: property taxes, casualty and liability insurance, water, sewer, building
maintenance and repairs to common areas and tenant premises, pest control,
security services, management fees (not to exceed 3% of base rent) and all other
expenses paid in connection with the operation of the Building properly
chargeable against income. These expenses will be itemized and billed monthly
with payment due with the following month's rent. Failure to pay these expenses
on a timely basis will be considered a material breach of this Lease entitling
Landlord to exercise any rights or remedies contained herein or provided by law
or other authority.
(E) Any refunds or credits that are received by Landlord with respect to
operating expenses billed to tenants shall be credited to each such tenant's
account in the billing cycle following the receipt of refund or credit by
Landlord.
(F) Tenant may inspect and or audit Landlord's books and records relating to
operating expenses for the Building. Tenant may conduct any reasonable
examination of the books and records at the Landlord's place of business with
provided written notice is sent to Landlord not less than 4 days prior to any
inspection.
5. Occupancy and Acceptance of Premises: Landlord shall deliver actual
possession of the Premises to Tenant on the Commencement Date. Tenant may accept
early occupancy, provided however, in such event Tenant shall pay to Landlord
base initial rental calculated on a daily basis assuming a 365 day year, for
each day Tenant shall occupy the Premises prior to the Commencement Date. If
permission is given to Tenant to occupy the Demised Premises prior to the date
of commencement of the term hereof such occupancy shall be subject to all the
provisions of this Lease except those relating to the term of this Lease.
In the event the Premises are not completed and ready for Tenant's
occupancy by the Commencement Date as set forth above, the parties hereto shall
execute an Amendment modifying this Lease to confirm the actual commencement
date and termination date of the Lease Term. In the event the Premises are not
ready by the Commencement Date, Landlord will continue to provide office space
at the current location under the same terms and conditions then in existence
and, in addition, Landlord shall give Tenant a credit of $1,000.00 per day
against future rental due under this lease until Premises are delivered.
6. Late Payment of Rent: All monthly installments of rent herein stipulated
are due in advance, without prior offset of deduction, on the first (1st) of
each month during the term hereof. All rents not received by the Landlord by the
tenth (10th) day of each month during the term hereof shall be past due and
Tenant shall be charged a late fee equal to 5% of the total monthly amount due.
Landlord shall invoice Tenant for any such past due rent charges.
7. Use: The Premises shall be used and occupied only for Office, Research
and Development, Prototype Assembly and Storage use and shall not be used or
occupied for any other purpose without the prior written consent of Landlord.
These uses are permitted pursuant to the Conditions, Covenants and Restrictions
applicable to tenants in the Centre 311 Business Park. Tenant shall not conduct,
or allow to be conducted, on or within the Premises any business or permit any
act which in any way increases the cost of fire insurance on the Building or
constitutes a nuisance or is contrary to or in violation of the laws, statutes
or ordinances of local, state or federal governments having jurisdiction. Any
violation of this provision by Tenant shall be a material breach of this lease,
entitling Landlord to exercise any rights or remedies contained herein or
provided by law or other authority.
8. Quiet Enjoyment: The Landlord covenants that Tenant, upon paying the
Landlord the rental stipulated herein together with all other charges reserved
herein, and performing the covenants, promises and agreements herein, shall
peaceably and quietly have, hold and enjoy the Premises and all rights,
easements, appurtenances and privileges belonging or appertaining thereto,
during the full term hereby granted and any extensions or renewals thereof.
9. Common Areas: As used in this Lease, Common Areas shall mean all areas
of the entire building which are available for the common use of Tenant and
which are not held for the exclusive use of the Tenant or other Tenants,
including but not limited to corridors, restrooms, stairs, elevators, the
parking areas and entrances and exits thereto, driveways and truck serviceways,
sidewalks, landscaped areas, access roads and other areas and facilities
provided for the common or joint use and benefit of occupants of the building,
their employees, agents, customers and invitees.
Tenant agrees to abide by and conform to Building Rules and Regulations and
shall be responsible for the compliance with same by its employees, agents,
customers and invitees. The failure of Landlord to enforce any such Rules and
Regulations shall not be deemed to be a waiver. Pursuant to Paragraph 4 Tenant
is obligated to pay Landlord it's proportionate share of any such costs.
10. Assignment and Subletting: Tenant covenants and agrees that neither
this Lease nor the term hereby granted, nor any part thereof, will be assigned,
mortgaged, pledged, encumbered or otherwise transferred, by operation of law or
otherwise, and that the Premises will not be sublet or advertised for subletting
or occupied, by anyone other than Tenant, or for any purpose other than as
hereinabove set forth, without the prior written consent of Landlord, not to be
unreasonably withheld.
11. Landlord's Repairs: The Landlord shall maintain and keep in good
condition and repair the roof, supporting walls, sewage sanitary system and
shall effect repairs necessary. The Landlord shall also maintain and repair
plumbing, mechanical, heating and air conditioning and electrical systems
installed by Landlord, floor and wallcoverings, light fixtures, window frames
and glass, window blinds, doors, door locks, and security systems, if any.
Pursuant to Paragraph 4 Tenant is obligated to pay Landlord it's proportionate
share of any such costs. However, the Landlord shall not be responsible for such
maintenance and repairs in the event the same are required as a result of the
negligence or willful act of the Tenant or its clients, customers, licensees,
assignees, agents, employees or invitees and further, in any such event, the
cost of such maintenance and repairs so required shall be the sole
responsibility of the Tenant.
12. Tenant's Repairs/Alterations: The Tenant shall submit to the Landlord
for Landlord's prior written approval all of the plans and specifications for
any structural alterations, additions or improvements in and to the Premises All
such alterations, additions or improvements shall be made in accordance with
applicable city, county, state and federal laws and ordinances, and building and
zoning rules and regulations. Tenant shall be liable for all damages or injuries
which may result to any person or property by reason of or resulting from any
alterations, additions or improvements made by it to the Premises and shall hold
the Landlord harmless with respect thereto. All additions and improvements made
by the Tenant shall become a part of the Premises and shall, upon the
termination or expiration of this Lease, belong to the Landlord.
At Landlord's option, Landlord may require that Tenant remove any or all
alterations or improvements at Tenant's expense upon termination of the Lease.
13. Subordination and Attornment: Tenant agrees that this Lease shall be
subject and subordinate to any mortgages or deeds of trust now or hereafter
placed upon the Premises and to all modifications thereto. Subordination is
conditioned upon non disturbance. Tenant agrees at any time to execute any and
all documents necessary to effectuate this subordination. Tenant agrees to
attorn to the mortgagee, trustee, or beneficiary under any such mortgage or deed
of trust or the purchaser at a sale pursuant to the foreclosure thereof. In the
event of the sale, assignment, or transfer by Landlord of its interest in the
Premises to a successor in interest who expressly assumes the obligation of the
Landlord hereunder, the Landlord shall thereupon be released or discharged from
all of its covenants and obligations hereunder, except such obligations shall
have accrued prior to any such sale, assignment, or transfer; and Tenant agrees
to look solely to any successor in interest of the landlord for performance of
any such obligations.
14. Change in Ownership of Premises: If the ownership of the Premises or
the name or address of the party entitled to receive rent hereunder shall be
changed, the Tenant shall, until receipt of proper notice of such change,
continue to pay the rent and other charges herein reserved accrued and to accrue
hereunder to the party to whom and in the manner in which the last preceding
installment of rent or other charge has paid, and each such payment shall, to
the extent thereof, exonerate and discharge the Tenant.
15. Condemnation: If the whole of the Building or such substantial portion
thereof as will make Premises unusable for the purposes referred to herein
shall, be condemned by any legally constituted authority for any public use or
purpose, then in either of said events the term hereby granted shall cease from
the time when possession thereof is taken by the condemning authority, and
rental shall be accounted for as between Landlord and Tenant as of that date. In
the event the portion condemned is such that the remaining portion can, after
restoration and repair, be made useable for Tenant's purposes, then this Lease
shall not terminate; however, the rent shall be reduced equitably to the amount
of the Premises taken. In such an event, Landlord shall make such repairs as may
be necessary as soon as the same can be reasonably accomplished. Such
termination, however, shall be without prejudice to the rights of either
Landlord or Tenant, or both, to recover compensation and damage caused by
condemnation from condemnor. It is further understood and agreed that neither
the Tenant nor Landlord shall have any rights in any award made to the other by
any condemnation authority.
16. Right of Landlord to Enter: The Tenant agrees that upon reasonable
notice the Landlord or its agents may at all reasonable times enter upon the
Premises for the purpose of inspection or repair of the Building or the Building
systems and such other purposes as Landlord may deem necessary or proper for the
reasonable protection of Landlord's interest in the Premises, the same shall be
done without interference with Tenant's use of the Premises and shall be subject
to Tenant's reasonable requirements concerning security and access. In addition,
the Landlord may enter the Premises upon reasonable notice at all reasonable
times to exhibit the Premises to prospective purchasers. During the three (3)
months immediately preceding the final expiration of the term created hereunder
or any renewal thereof, the Landlord may exhibit the Premises upon reasonable
notice to prospective Tenants and/or affix a notice that the Premises are for
rent; such notice shall not be greater than four (4) square feet in area, and
shall be affixed to a suitable part thereof, exclusive of doors and windows and
so as to not obstruct the Tenant's signs. For the purposes of this paragraph,
the term "Reasonable Notice" shall be defined as a time of not less than 24
hours unless otherwise mutually agreed upon.
17. Taxes: Landlord agrees to pay, before they become delinquent, all
taxes, assessments and governmental charges of any kind and nature whatsoever
(hereinafter collectively referred to as "Taxes") lawfully levied or assessed
against the Building and the grounds, parking areas, driveways and alleys around
the Building, except any taxes attributable to the operation of Tenant's
business or Tenant's property. Pursuant to Paragraph 4 Tenant is obligated to
pay Landlord it's proportionate share of any such costs.
If at any time during the term of this Lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments or governmental charges levied, assessed or imposed on real estate
and the improvements thereof, there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received therefrom
and/or a franchise tax, assessment, levy or charge measured by or based, in
whole or in part, upon such rents for the present or any future building or
buildings on the Premises, then all such taxes, assessments, levies or charges,
or the part thereof so measured or based, shall be deemed to be included within
the term "taxes" for the purposes hereof.
18. Fire and Extended Coverage Insurance: Landlord agrees to keep in force
policies of fire and extended coverage insurance which shall insure the Building
against such perils or loss as Landlord may deem appropriate including vandalism
and malicious mischief, in an amount equal to one hundred percent (100%) of the
replacement cost of the Building and the improvements installed by the Landlord.
Pursuant to Paragraph 4 Tenant is obligated to pay Landlord it's proportionate
share of any such costs.
Tenant agrees to maintain and keep in force, at its expense and throughout
the term hereof, insurance against fire and such other risks as are from
time-to-time included in standard extended coverage endorsements including
vandalism and malicious mischief, insuring Tenant's stock-in-trade, trade
fixtures, furniture, furnishings, floor and wall coverings, special equipment
and all other items of personal property of Tenant located on or within the
Premises and all such other improvements as are made by the Tenant to the
Premises.
Landlord and Tenant hereby mutually release and discharge the other from
loss or damage to the described Premises or the contents, including any
improvements and betterments located in or on the described Premises, to the
extent such loss or damage is insured by the described fire and extended
coverage insurance.
Both Landlord and Tenant agree to furnish the other a certificate of
insurance evidencing the required fire and extended coverage insurance and
giving the certificate holder thirty (30) days notice of intent to cancel,
non-renew or amend such insurance.
If Tenant elects to satisfy this condition by self insuring, it may do so
provided it provides Landlord and Landlord's insurance agent with (1)
documentation establishing values of Tenant installed fixtures, furnishings,
equipment, inventory and process equipment or other material used in Tenant's
operation; (2) provide Landlord with financial statements and other information
evidencing Tenant's financial ability to maintain the Premises and contents as
self insured and (3) that Landlord's attorney shall prepare an agreement
regarding subrogation of claims in the event of a casualty loss of Tenant's
fixtures, furnishings and/or inventory.
19. Damage and Destruction: In the event the Premises are damaged by any
peril covered by standard policies of fire and extended coverage insurance to an
extent which is less than fifty percent (50%) of the cost of replacement of the
Premises, the damage to that portion of the Premises which Landlord is obligated
to insure pursuant to the immediately preceding paragraph hereof, shall promptly
be repaired by landlord, at Landlord's expense but in no event shall Landlord be
required to repair or replace Tenant's stock-in-trade, trade fixtures,
furniture, furnishings, special equipment and personal property which Tenant is
required to insure pursuant to the immediately preceding paragraph hereof. In
the event of such damage and (a) Landlord is not required to repair as provided
herein, or (b) the Premises are damaged to the extent of fifty percent (50%) or
more of the cost of replacement of the Premises, or (c) the Building is damaged
to the extent of fifty percent (50%) or more of the cost of replacement, or (d)
such damage is twenty-five percent (25%) or more of the cost of replacement of
the Premises and the same occurs during the last year of initial term or any
extensions or renewal terms of this Lease, then, in any such event (s), Landlord
may elect either to repair or rebuild the Premises or the Building of which the
Premises are a part, as the case may be, or to terminate this Lease upon giving
notice of such election, in writing, to Tenant within thirty (30) days after the
happening of the event causing such damage.
If such damage, repairing or rebuilding shall render the Premises
untenantable, in whole or in part, a proportionate abatement of the rent and
additional rent stipulated herein shall be allowed from the date such damage
occurred until the date Landlord completes the repairs or rebuilding, said
proportion shall be computed on the basis of the relation which the gross
leasable area of the space rendered untenantable bears to the gross leasable
area of the Premises. If Landlord is required or elects to repair the Premises
as provided herein, Tenant shall repair or replace its floor and wall coverings
pursuant to the terms hereof, in a manner and to at least a condition equal to
that prior to such damage or destruction; in addition, Tenant shall repair or
replace its stock-in-trade, trade fixtures, furniture, furnishings, special
equipment in a manner and to a condition Tenant deems appropriate and adequate
for the conduct of its business within the Premises. In addition, Tenant is
hereby given the sole option to terminate this Lease in the event repairing or
rebuilding to be effected by Landlord and required hereunder cannot be completed
within ninety (90) days from the date of the occurrence of the damage and
destruction.
20. Liability of Landlord: Tenant waives all claims against Landlord for
damages to goods or for injuries to persons on or about the Premises or common
areas from any causes arising at any time other than damages or injuries
directly resulting from Landlord's negligence. The Tenant will indemnify
Landlord on account of any damage or injury to any persons, or to the goods of
any person, arising from the use of the Premises by the Tenant, or arising from
the failure of Tenant to keep the Premises in good condition as provided herein.
The Landlord shall indemnify Tenant on account of any damage or injury to any
persons, or to goods of any person, arising from the use of the Premises by the
Landlord. Landlord shall not be liable to the Tenant for any damage by or from
any act of negligence of any other occupancy of the same Building. The Tenant
agrees to pay for all damages to the Building, as well as all damage or injuries
suffered by Tenant or occupants thereof caused by Tenant's negligence.
Landlord is specifically not responsible under any circumstance for any
damage to any computer, computer component, or computer peripheral, hardware or
software damaged by any interruption, usage or variation for whatever reason in
the electrical distribution system in the building, unless resulting from
Landlord's negligence.
21. Liability Insurance: In addition to the policies of fire and extended
coverage insurance to be kept and maintained by Landlord and Tenant pursuant to
paragraph 18 hereinabove, Landlord and Tenant shall each obtain and keep in
force during the term hereof and any extension or renewal terms, policies of
commercial general liability providing bodily injury and property damage
liability with combined single limits of not less than One Million Dollars
($1,000,000.00). The Tenant shall, in addition, name the Landlord as additional
insured under such liability policy. Pursuant to Paragraph 4 Tenant is obligated
to pay Landlord it's proportionate share of any such costs.
Both Landlord and Tenant agree to furnish the other a certificate of
insurance evidencing the required liability coverage and giving the certificate
holder thirty (30) days notice of intent to cancel, non-renew or amend such
insurance.
22. Parking: Landlord shall make available to Tenant, seventy five (75)
parking spaces for visitors and employees which will be provided on the lot upon
which the Building is constructed.
23. Signs: Landlord agrees that Tenant shall install its Tenant signage and
logo in a manner consistent with the sign ordinance of City of Winston Salem
Forsyth County Unified Development Ordinance.
24. Utilities: Tenant shall pay for water and sewer used within the
Premises. Tenant shall pay its separately metered charges for electricity and
gas used within the Premises.
25. Janitorial Services: Tenant shall provide janitorial services to the
interior of its Premises.
26. Extermination: The Landlord shall provide pest control service within
the Premises and Tenant shall pay the cost for this service. Pursuant to
Paragraph 4 Tenant is obligated to pay Landlord it's proportionate share of any
such costs.
27. Plate Glass Breakage: Landlord shall be responsible for repair and
replacement in the event of plate glass damage or breakage, except in the event
of negligence of Tenant. Pursuant to Paragraph 4 Tenant is obligated to pay
Landlord it's proportionate share of any such costs unless such damage or
breakages is due to negligence of Landlord.
28. Garbage Removal: Landlord will be responsible for providing a dumpster
for garbage and arrange for its systematic pickup. Pursuant to Paragraph 4
Tenant is obligated to pay Landlord it's proportionate share of any such costs.
29. Fire Extinguishers: In the event a fire extinguisher is provided by
Landlord on the Premises, Landlord shall be responsible for the maintenance
thereof. Pursuant to Paragraph 4 Tenant is obligated to pay Landlord it's
proportionate share of any such costs.
30. Storing of Flammable Materials: The Tenant agrees that it shall not
store nor shall it use any dangerous and/or flammable material(s) within or
around Premises in a manner which violates any law or which may cause the costs
incurred by Landlord with respect to taxes and insurance regarding the Premises
to increase in which case Tenant shall bear the cost of any such increase.
31. Replacement of Light Bulbs: The Landlord shall replace all light bulbs
within Premises. Tenant shall pay the cost of said replacement. Pursuant to
Paragraph 4 Tenant is obligated to pay Landlord it's proportionate share of any
such costs.
32. Removal of Tenant's Fixtures: The Tenant shall have the privilege at
any time, on or before vacating the Premises, of removing any or all of its
personal property, equipment and fixtures, and Tenant shall repair any damages
caused by the removal thereof and shall leave the Premises in good and clean
condition and repair.
33. Default by Tenant: In the event Tenant shall fail to pay monthly rental
by the tenth (10th) day of the month for three consecutive months or four times
during a twelve month period; or if Tenant is adjudicated a bankrupt; or if
Tenant files a petition on bankruptcy under any section or provision of the
bankruptcy law; or if an involuntary petition in bankruptcy is filed against
Tenant, and same is not withdrawn or dismissed within sixty (60) days from the
filing thereof; or if a receiver or trustee is appointed for Tenant's property
and the order appointing such receiver or trustee remains in force for thirty
(30) days after the entry of such order; or if, whether voluntarily or
involuntarily, Tenant takes advantage of any debtor relief proceedings under any
present or future law, whereby the rent or any part thereof is, or is proposed
to be, reduced or payment thereof deferred; or if Tenant makes an assignment for
the benefit of creditors; or if Tenant's effects should be levied upon or
attached under process against Tenant, not satisfied or dissolved within thirty
(30) days after written notice from Landlord to tenant to obtain satisfaction
thereof; or if Tenant shall vacate or abandon the Premises; or if Tenant shall
fail to perform or observe any other covenant, agreement, or condition to be
performed or kept by the Tenant under the terms and provisions of this Lease,
and such failure in any one such event shall continue for thirty (30) days after
written notice thereof has been given by Landlord to Tenant; then in any one of
such events, Landlord shall have the right, at the option of the Landlord, then
or at any time thereafter while such default or defaults shall continue, to
elect either: (1) to cure such defaults at the expense of Tenant and without
prejudice to any other remedies which Landlord might otherwise have, any payment
made or expenses incurred by Landlord incurring such default shall bear interest
thereon at eighteen percent (18%) per annum, or at such maximum legal rate as
permitted by North Carolina law, whichever shall be lower, to be and become
additional rent to be paid by Tenant with the next installment or rent falling
due thereafter; or (2) to re-enter the Premises and dispossess Tenant and anyone
claiming under Tenant, by summary proceedings pursuant to the laws of the State
of North Carolina, and remove their effects, and take complete possession of the
Premises and either (i) declare this Lease forfeited and the term ended, or (ii)
elect to continue this Lease in full force and effect, but with the right at any
time thereafter to declare this Lease forfeited and the term ended; or (iii)
exercise any other remedies or maintain any action permitted to Landlord
pursuant to the laws of the State of North Carolina, or any other applicable
laws. In such re-entry the Landlord may, under process of law, have all persons
and Tenant's personal property removed from the Premises. Tenant hereby
covenants in such event of default for itself and all others occupying the
Premises under Tenant, to peacefully yield up and surrender the Premises to the
Landlord. Should Landlord justifiably declare this Lease forfeited and the term
ended subject to due process, the Landlord shall be entitled to recover from
Tenant the rental and all other sums due and owing by Tenant to the date of
termination, plus the costs of curing all of Tenant's defaults existing at or
prior to the date of termination, plus the deficiency, if any, between Tenant's
rental hereunder and the rental obtained by Landlord on another Lease for the
balance of the term remaining under this Lease should Landlord, following
default as aforesaid, elect to continue this Lease in full force. Landlord shall
use its best efforts to rent the Premises by private negotiations, with or
without advertising and on the best terms available for the remainder of the
term hereof, or for such longer or shorter period as Landlord shall deem
advisable. Tenant shall remain liable for all rentals and other charges and
costs imposed on Tenant herein, in the amounts, at the times and upon the
conditions as herein provided, but Landlord shall credit against such liability
of the Tenant all amounts received by Landlord from such reletting after first
reimbursing itself for all costs incurred in curing Tenant's defaults and
re-entering, preparing and refinishing the Premises for reletting, and reletting
the Premises, and for the payment of any procurement fee or commission paid to
obtain another Tenant, and for all attorney fees and legal costs incurred by
landlord.
34. Re-Entry by Landlord: No re-entry by Landlord or any action brought by
Landlord to oust Tenant from the Premises shall operate to terminate this Lease
unless Landlord shall give written notice of termination to Tenant, in which
event Tenant's liability shall be as above provided. No right or remedy granted
to Landlord herein is intended to be exclusive of any other right or remedy, and
cumulative and in addition to any other right or remedy hereunder or now or
hereafter existing in law or equity or by statute. In the event of termination
of this Lease, Tenant waives any and all rights to redeem the Premises either
given by any stature now in effect or hereafter enacted.
35. Waiver of Rights: No waiver by Landlord or Tenant of any provision
hereof shall be deemed to be a waiver of any other provision hereof or of any
subsequent breach by Tenant of the same or any other provision. Landlord's
consent to or approval of any act shall not be deemed to render unnecessary the
obtaining of Landlord's consent to or approval of any subsequent act by Tenant.
The acceptance of rent hereunder by Landlord shall not be a waiver of any
preceding breach by Tenant of any provision hereof other than failure of Tenant
to pay the particular rent so accepted regardless of Landlord's knowledge of
said preceding breach at the time of acceptance of such rent.
36. Notices. All notices and demands of any kind which Landlord and Tenant
may be required to give or serve upon the other party may be given and shall be
deemed to have been given by depositing one copy of it in the United States
Mail, postage paid, certified mail, return receipt requested, addressed as
follows:
LANDLORD: Visible Goth, LLC
c/o JDL Castle Corporation
X.X. Xxx 0000
Xxxxxxx-Xxxxx, XX 00000
TENANT: Xxxxxx Technologies, Inc.
Attn.: Xxxx Xxxxxx
00 Xxxx Xxxx Xxxxxx Xxxxx 0000
Xxx Xxxxx XX 00000
Either party may in addition deliver written notice by hand delivery.
Further, the parties hereto may give or receive notice by or from their
respective attorneys and may, by like notice, designate a new address to which
subsequent notice shall be directed.
37. Compliance with Laws: Tenant shall promptly execute and comply with all
laws, ordinances, rules regulations and requirements of any or all federal,
state and municipal authorities having jurisdiction over the manner in which the
Tenant's business is conducted, but only insofar as these laws, ordinances,
rules and regulations and requirements are violated by the conduct of Tenant's
business.
38. Surrender: Upon the termination of this Lease or any extensions or
renewals hereof, the Tenant shall surrender the Premises in good and clean
condition and repair as when received, excepting only normal wear and tear and
damage by fire and other casualty damage covered by insurance and paid to
Landlord. Tenant shall not remain in the Premises without the benefit of a
written Lease or Renewal Agreement executed by the parties hereto prior to the
expiration of the then existing term. No other holding over of the Premises
shall be allowed on any basis whatsoever, except as otherwise herein provided.
39. Holdover: In the event Tenant remains in possession of the leased
Premises after the expiration of the term of this Lease, without having first
extended this Lease by written agreement with Landlord, and without either party
realizing the term of this Lease has expired, such holding over shall not be
construed as a renewal or extension of this Lease. Such holding over shall be
deemed to have created and be construed as tenancy from month to month,
terminable on 30 days notice in writing from either party to the other. The
monthly rental to be paid shall be the same monthly rental payable during the
last month of the term of the Lease. All other terms and conditions of this
Lease shall continue to be applicable for both Landlord and Tenant.
If Tenant fails to surrender the Premises to Landlord on expiration of the
term as required by this paragraph, Tenant shall hold Landlord harmless from all
damages resulting from Tenant's failure to surrender the Premises, including
without limitation, claims made by the succeeding Tenant resulting from Tenant's
failure to surrender the Premises.
40. Liens: Unless an unsafe condition exists which Landlord is unable or
refuses to repair or replace in a timely manner, if Tenant shall cause any
material to be furnished to the Premises or labor to be performed thereon or
therein, Landlord shall not under any circumstances be liable for the payment of
any expenses incurred or for the value of any work done or material furnished.
All such work shall be at Tenant's expense and Tenant shall be solely and wholly
responsible to all contractors, laborers, and material men furnishing labor and
material to the Premises. Nothing herein shall authorize the Tenant or any
person dealing through, with or under Tenant to charge the Premises or any
interest of the Landlord therein or this Lease with any mechanic's liens or
other lien or encumbrance whatever. On the contrary, (and notices is hereby
given) the right and power to charge any lien or encumbrance of any kind against
the Landlord or its estate is hereby expressly denied.
41. Benefits, Burdens and Entire Agreement: This Lease is binding on and
benefits the parties hereto and their respective heirs, legal representatives,
successors, nominees and assigns. Liabilities hereunder shall be joint and
several upon all who sign this agreement. Throughout this agreement the
masculine gender shall be deemed to include the feminine, the feminine the
masculine, the singular the plural and the plural the singular.
This Lease contains the entire agreement between the parties hereto with
respect to the Premises leased hereunder; further this Lease may not be
modified, altered or amended, except by an instrument in writing, executed by
the parties hereto or their respective heirs, legal representatives, successors,
nominees or assigns and which instrument shall be attached hereto as an
amendment to this Lease and shall thereby become a part hereof.
42. Attorney's Fees: If either the Landlord or Tenant files an action to
enforce any agreement contained in this Lease, or for breach of any covenant or
condition, the prevailing party in any such action, shall be reimbursed by the
other party for reasonable attorneys' fees in the action.
43. Governing Law: This Lease shall be governed by and construed under the
laws of the State of North Carolina.
44. Estoppel Certificates: Tenant may be required, from time to time, to
execute and deliver to Landlord a similar certificate for purpose of
refinancing, syndication, sale of property, etc. In such event, Tenant shall
have ten (10) days from its receipt thereof from Landlord to execute and deliver
such fully executed certificate to Landlord. Tenant's failure to execute said
certificate shall constitute a default hereunder.
45. Non Compete Clause: Landlord shall not lease any space in the Building
which houses Xxxxxx Technologies, Inc. to any competitor engaged in the research
and/or manufacture of thermal management products.
46. Termination of Lease Agreement: Tenant shall have the right to
terminate this Lease at the end of the twelfth (12th) year upon notice given to
Landlord at the end of the eleventh (11th) Lease year. Tenant will remain in
possession of this space during the twelfth (12th) Lease year following notice.
47. Xxxxxx Technologies, Inc. Option to Renew: Provided Tenant is not in
default hereunder, the term of this Lease may be extended at the option of the
Tenant for periods of time not less than five (5) years nor greater than ten
(10) years per option period. Each such option shall be exercised by written
notice to Landlord on or before the end of next-to-last Lease year of the
initial term or renewal term then in effect. The rental payments for each option
period shall be subject to negotiations immediately following Landlord's receipt
of renewal request notice.
(SIGNATURE PAGE TO FOLLOW)
IN TESTIMONY WHEREOF, this lease has been executed by the parties hereto, in
duplicate originals, as of the date first above written.
Xxxxxx Technologies, Inc., TENANT
BY: /s/ Xxxxxxx X. Xxxxxx(SEAL)
---------------------------
Xxxx Xxxxxx, President
ATTEST:/s/ Xxxxxxx XxXxxxxxx
---------------------
Secretary
NEW YORK
COUNTY OF SUFFOLK
I, Xxxxxx X. Xxxxx, Notary Public for said County and State, certify that
personally came before me this day and acknowledged that he/she is the Secretary
of Xxxxxx Technologies, Inc. the foregoing instrument was signed in its name by
its Chairman sealed with its corporate seal, and attested by as its Secretary.
Witness my hand and official seal, this the 12th day of January, 1999.
(Official Seal) Notary Public
My commission expires December 31, 1999. /s/Xxxxxx X. Xxxxx
------------------
--------------------------------------------------------------------------------
Visible Goth, LLC., LANDLORD
/s/ W. Xxxxx Xxxxxxx
------------------------------------------
W. Xxxxx Xxxxxxx (SEAL)
Managing Member
STATE OF NORTH CAROLINA
COUNTY OF FORSYTH
I, Xxxx Xxx Xxxxx, a Notary Public in and for the aforesaid County and
State do hereby certify that W. Xxxxx Xxxxxxx personally appeared before me this
date and acknowledged the due execution of the foregoing instrument for the
purpose therein expressed.
WITNESS my hand and Notarial Seal, this the 15th day of January, 1999.
My Commission Expires: November 9, 2001
EXHIBIT "A"
(Survey)
This exhibit is appended to the Lease Agreement for reference purposes and will
be substituted for an Exhibit "A" which shall show the construction site plan
and legal description for the leased premises.
EXHIBIT "B"
WORK LETTER AGREEMENT AND SPECIFICATIONS
XXXXXX TECHNOLOGIES, INC. LEASE PREMISES
XXXXXX TECHNOLOGIES CENTER
BUILDING EXTERIOR
Structure
The building is steel with brick masonry cladding.
Glass
Windows areas will consist of an aluminum framing system pre-finished
with a color selected to compliment the building facade as shown on
the attached elevation. Glass will consist of double pane insulated
units to enhance mechanical performance and compliment the building
exterior.
Landscape/Hardscape/Courtyard/Patio
The site shall contain amenities including hardscaping of sidewalks
and appropriate landscape. Landscaping shall compliment the building
and its surroundings and will be at a minimum consistent with the
appearance of other buildings in the Park.
CEILINGS AND INTERIOR FINISHES
Ceilings must be at least nine feet (9') in offices clear from floor to the
lowest obstruction. With the exception of areas shown on finished schedule,
ceilings will receive acoustical treatment. Protrusions of fixtures into traffic
ways shall be avoided. Ceiling will be 15' in sections 1a, 8, 9, 17, 19, 20 and
25. Ceiling will be 10' in Section 13a, 14a & 15. Ceiling will be 18' in Section
16. Ceilings must be a flat plane in each room and suspended with fluorescent
recessed fixtures and finished as follows.
Restrooms: Acoustical tile or lay in panels with textured or patterned
surface.
Offices and Conference Rooms: Acoustical tile or lay in panels with
textured or patterned.
Breakroom Areas: Acoustical tile will be provided.
CORRIDORS/OPEN OFFICES
Wall Coverings
Prior to occupancy, all wall space will be covered as provided for in
the attached finish schedule.
Doors: Exterior
Exterior doors must be 8 ft high heavy duty, full flush, hollow steel
construction, insulated tempered glass. Exterior doors shall be
weather-tight, equipped with automatic door closures and open outward.
Hinges, pivots, and pins shall be installed in a manner which prevents
removal when the door is closed and locked.
Doors: Interior
Doors will have heavy duty hardware with hardware stops. Building
standard doors shall be 8 ft high solid core wood with lever hardware.
Passage locks will be provided. Doors to private offices shall be
master keyed. Hardware for doors in the means of egress shall conform
to NFPA Standard No. 101.
Partitions
Partitions and dividers will be provided as shown on floor plans
attached.
Partitions: Permanent
Permanent partitions will be provided as necessary to surround
corridors, toilet rooms and janitor closets and will extend from the
structural slab to the structural ceilings above.
Partitions: Subdividing
Office subdividing partitions will extend from the finished floor to
the finished ceiling.
FLOOR COVERING AND PERIMETERS
Floor covering may be either resilient flooring, carpet or wood as shown on
finished schedule.
Office Areas/Carpet: Prior to occupancy carpet will cover all office
areas as shown on the attached Finished Schedule.
Breakroom/Wet Lab/Lounge/QA: Resilient flooring will be used in these
areas.
Executive Restrooms: Three (3) executive restrooms will be provided.
Restrooms shall have ceramic tile.
Toilet Service Areas: Ceramic tile or VCT shall be used in all toilet
areas.
Carpet - Physical Requirements:
Carpet pile construction: Level loop, textured loop, level cut pile,
or level cut/uncut pile
Pile weight: Twenty-eight (28) ounces per square yard
Secondary Back: Synthetic fiber or jute for glue-down installation.
Static Buildup: 3.5 KV maximum with built-in static dissipation is
recommended: "Static-Controlled" is acceptable.
Carpet - Installation: Carpet must be installed in accordance with
manufacturing instructions to lay smoothly and evenly.
DRINKING FOUNTAINS
The Lessor shall provide 2 or more drinking fountains.
RESTROOMS on each floor. Each toilet room shall have sufficient water closets
enclosed with stall partitions and doors, urinals (in Men's Room), and hot and
cold water. Two shower stalls shall be provided in each restroom. Water closets
and urinals shall not be visible when the exterior door is open. Each main
toilet room shall contain:
Equipment:
A lavatory for each water closet.
A single full width mirror spanning the entire distance from sink to sink
3GCFI plugs along the sink bank in each restroom
A continuous shelf located approximately 18 inches above sink height for
placement of toiletries.
A toilet paper dispenser in each water closet stall
A dual access partition mounted dual roll toilet paper dispenser stainless
steel for each water stall
A coat hook on inside face of door to each water closet stall
One (1) paper towel dispenser, and waste receptacle at each end of both the
Woman's and Men's lavatories
One surface mounted horizontal liquid soap dispenser for each lavatory
One recessed dual napkin/tampon dispenser and disposal in each Women's
lavatory
A recessed toilet seat covers dispenser in each water stall
Full continuous vanities with cabinets will be provided in each restroom
spanning the entire distance from sink to sink. (Material and colors TBD.)
Fixtures including ceramic tile.
EXECUTIVE RESTROOMS
Landlord shall provide three (3) executive restrooms. Restrooms shall
have superior finishes including ceramic tile floor, vinyl covered wall
covering, incandescent can lights, commode, sink, vanity and restroom
fixtures.
HEATING AND AIR CONDITIONING
A new heating and air conditioning system shall be installed sized to
accommodate load required and ducted to provide distribution in accordance with
the floor plan attached.
Zone Control: Individual air control will be provided for 12 zones. All
areas will be equipped with override controls for extended hours of
operation.
VENTILATION
Outside air shall be provided to all office space for a minimum of fifteen (15)
cubic feet per minute (CFM) for each person or 0.2 CFM per square foot,
whichever is greater. Economizer cycle free cooling, using outside air, may be
used for cooling.
ELECTRICAL: GENERAL
The Lessor shall be responsible for meeting the applicable requirements of the
National Electric Code, the National Electric Safety Code, Standards of the
National Electric Manufacturers' Association, Insulated Power Cable Engineers'
Association, the American Institute of Electrical Engineers, and local codes and
ordinances. Main service facilities will be enclosed. Distribution panels must
be circuit breaker type with twenty percent (20%) spare power load and circuits.
LIGHTING: INTERIOR
Low brightness, parabolic type 2' x 4' fluorescent fixtures using no more than
2.0 xxxxx per square foot shall be provided and shown on Plan
Notes/Specifications to be provided.
Ballasts are to be rapid - start, thermally protected, voltage regulating type,
UL listed and ETL approved.
CEO Office, CFO Office and Executive Station, Board Room, Reception and Display
in each area recessed incandescent lights as appropriate.
CEO and executive area closet, a light will be provided inside.
Storage, open lab and warehouse area shall be lit with surface mounted
fluorescent fixtures. Open lab will have a higher level of lighting.
Building entrances and parking areas will be lighted.
JANITORIAL SERVICES
Will be located by the loading dock and contain a plumbing and a wash-sink.
NETWORK ROOM
Shall be located by the Mechanical room and have air conditioning piped directly
in.
PORTABLE FIRE EXTINGUISHERS
Portable type fire extinguishers meeting requirements of NFPA Standard No. 10
shall be provided. Inspection (quick check) and maintenance (thorough check) of
these extinguishers shall be done in accordance with NFPA Standard No. 10.
EXIT AND EMERGENCY LIGHTING
Emergency lighting must provide at least 0.5 foot candle of illumination
throughout the exit path, including exit access routes, or other routes such as
passageways to the outside of the building.
FIRE SYSTEM
Shall include sprinklers and smoke detectors were applicable.
LAN/WAN TELEPHONE DATA, ETC.
The Lessor will provide the required conduit.
ELECTRICAL
Engineering/Marketing: Each station has three duplex receptacles (one dedicated
and two shared) either wall fed or power pole. Landlord will provide 3 linear
feet of overhead and base cabinets with sink.
Administrative: Each station had three duplex receptacles (one dedicated and two
shared). Four stations can be fed from each doghouse or power pole connection.
Four (4) doghouse connector feeds are required. The A coffee machine and
refrigerator will be placed in this area. The Lessor will provide matching
built-ins for floor and overhead cabinets approximately six (6) feet long and
three (3) feet deep and will consist of a wet-sink with hot and cold running
water. The unit will be installed in the file, fax repro room adjacent to the
Administration area. It will also have running hot and cold water.
Reception: Reception and desk will be installed by Tenant between two single
door entries from reception to lease space. It will require 38 inches of
clearance from the sheet rock wall to the corner containing the lateral file.
The feeds will be installed by routing or using flat wire. Additional
requirements for seating area will be required.
CEO Administration: Feed to be determined . Landlord will provide three linear
feet of overhead and base cabinets with sink.
Typical Office Layout for VP's, Directors and Managers: Typical layout will
require two duplex receptacles located on the same wall as the U shaped station
and additional duplex receptacles for credenza and chairs.
File Room, Fax, Repro, etc. Each will require duplex receptacles for fax, repro,
coffee machines, etc., in addition to normal requirements.
Break Room: Will require outlets for coffee machine, microwave, refrigerator,
etc. Landlord will provide six linear feet overhead and base cabinets with sink
in the breakroom.
Conference Rooms: Provide floor mounted duplex receptacles to allow power to
desk unit location to be confirmed via furniture layout. Board Room: Provide two
(2) doghouse connectors to provide power to conference room via under table
connections.
CEO's Office: Provide floor mounted duplex receptacles to allow power to desk
unit location to be confirmed via furniture layout and workstation to be located
behind the desk.
Dock Level Freight: Freight will be brought directly from the dock into the
Warehouse through a roll up door.
Open Lab: Provide blocking and installation and installation for basketball
hoop.
LAB REQUIREMENTS
Loading dock space to accommodate freight trucks (53 foot trailers plus cab)
with floating dock: also, loading ramp for other truck deliveries (2 garage
doors total)
Required Electrical: 600 A service; adequate 110 V outlets for all areas; all
220 V (single phase, 20A except where noted) outlets to have twistlock
receptacles; other special electrical requirements - see below.
Required plumbing: Hook ups for 2 sinks (hot and cold water) for wet lab
benchtop, placement depending on final benchtop layout; hook-ups for water (cold
only) in each hood; hook ups for washing machine and utility sink (open lab).
Required air: 2 hook ups for air in each hood, air stubbed out at least three
places above lab benches top; air stubbed out at least three places in the open
lab, QA and warehouse. Required safety: 2 eye wash stations, one shower, all to
be located in wet lab area near hoods; fire extinguishers and sprinkler system
per code.
Wet Lab Area: Approximately 50 ft of wall space will be needed for benchtop
furniture with two corners. Electrical wire molding to be run 44 inches off the
floor (above the benchtop); this wire molding to carry (at least) three separate
110 circuits and one 220 circuit (twistlock receptacles for 220 V service) air
access; tiled floor with drains; separate AC zone
QA Area: 110 V in walls; air access; tiled floor with drains; separate AC zone
Open Lab Area: 110 V and 220 V in walls around periphery; exact number depends
on area and wall space. High ceiling ideal (greater than 15 feet ) to
accommodate racks to hold products; access; separate AC zone; special 100A
service to be located here (see below) to operate shop machinery.
SPECIAL REQUIREMENTS/EQUIPMENT: Provided by Tenant. Landlord to provide outlets.
Environmental Chamber (Walk-In)
o To be placed in open lab area
o Overall dimensions: 196 inch width* 152 inch depth*106 inch height
o Electrical: 460V, 3 phase 60 HZ 100 A service
o Plumbing: .075 inch NPT (one inlet, one outlet) cooling water
o Plumbing: .075 inch FPT (one inlet, one outlet) humidity water
o Drain: 1.00 inch PVC socket (minimum three outlets)
o Vent connection: flanged fitting for dryer air
Air Compressor; 240 V 3 phase, 30 A service; lines to open lab QA, wet lab,
and warehouse areas; separate room or storage area to house unit (due to noise)
or locate outside.
Lab Hood Venting: Circular duct needed for two fumehoods to draw air
outside: one eight inch duct (35 CFM exhaust) and one ten inch duct (1100 CFM
exhaust at 0.1 inches w.g. static pressure.
Washing Machine and Dryer (excellent residential quality grade): standard
plumbing and electrical requirements. Landlord will provide washing machine and
dryer.
Provide 40 volt three phase 200 amp service panel in warehouse.
Chiller. 240 V 3 phase, 100 A service needed to accommodate 15 ton chiller
in open lab (ideally located near penetrable outside wall).
Exhaust Fan: Depending on building layout, one wall mounted exhaust fan may
be needed in open lab or special ventilation accommodation should be made for
open area. Landlord will install.
Provide 460 volt 3 phase 200 amp service panel in warehouse.
SECURITY SYSTEM
Landlord shall provide a security system that includes coded card entry at all
external and internal entrances accessible to the public and which is
consistent
with the requirements contracted for during June and July 1998 with Radar
Security Alarm, Inc., Winston-Salem, NC.
ALLOWANCES
Sign: $ 6,000.00
Lobby $ 15,000.00
CEO/Board Room $ 10,000.00
The total of $31,000.00 to be used at Tenant's discretion.
EXHIBIT "C-2"
Marked up copy of Building Floor Plan Schematic marked by Tenant to show
proposed changes which will be incorporated into construction drawings.
Xxxxxx Technologies Inc.
Facility Finish Schedule
ID ITEM FLOOR WALL CVR
-- ---- ----- --------
0x XXX Xxx X
0x XXX Xxxx XX X
0x XXX Xxxxxx Xxx X
0 XXX Xxx X
0 VP Carpet P
4 Directors Carpet P
5 Managers Carpet P
6a Engineering Carpet P
6b Fileroom/Fax VCT P
7a Administrative Carpet P
7b Fileroom/Fax VCT P
8a Executive Station Oak P
9 Boardroom Oak V
10 Breakroom VCT P
11a Conference Room Carpet V
(Exec. Area)
11b Conference Room Carpet V
(Eng./Mktg Area)
12 Executive Baths CT V
13a Wet Lab VCT P
13b Lab Office (Wet) VCT P
14a Dry Lab VCT P
14b Lab Office (Dry) VCT P
15 Small Open Lab VCT P
16 Open Lab (Large) Oak/VCT P
17 Warehouse Cement P
18 Warehouse Office VCT P
19 Reception Oak V
20 Display Oak V
21 Environmental VCT P
Chamber Area
22 General Washroom CT P
(M/F)
23 Janitorial VCT P
24 Network Room VCT P
25 Executive Reception Oak P
Area
26 Short Hallway to Oak P
Restroom &
Breakroom
