STATE OF NORTH CAROLINA)
LEASE AGREEMENT
COUNTY OF FORSYTH )
THIS LEASE, (the "Lease") made and entered into this, 2nd day of MARCH,
1998, by and between Piedmont Institute for Research and Technology II, 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 owner of a 95,413 SF
Building (the "Building") located at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx-Xxxxx,
Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, 00000 being more fully described on Exhibit "A"
attached hereto and hereby made a part hereof.
The leased space shall consist of that portion of said Building and other
improvements in the approximate amount of 25,108 SF, located 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx, 00000, hereinafter referred to as
Premises 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 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 Tenant's approval of plans.
3. Base Rent: Tenant shall pay for rental for the Premises in the amount of:
Months Annually Monthly
------- ----------- ----------
1-36 $125,540.00 $10,461.67
37-72 $138,094.00 $11,507.83
73-120 $150,648.00 $12,554.00
121-240 $139,349.40 $11,612.45
Tenant shall have the right to expand into the contiguous basement at any
time upon 180 days notice to Landlord. Tenant shall pay for rental for this
space in the amount of
$5.00 per square foot per year or payable in monthly installments. Upon
notification by Tenant to Landlord of its intent to occupy the basement,
Landlord will at its expense upfit the space as per the plans. The level of
upfit will not exceed that of the plans and specifications provided by Xxxxxxxx
X. Xxxxxxx, Architect dated December 22, 1997 attached hereto as Exhibit "C" and
incorporated herein by reference.
In the event Tenant does not elect to expand into the basement by the
24th month after occupancy, then the rental for the Premises for the remaining
term of the lease will increase by $0.50 per square foot per year payable at
$1,046.17 per month.
4. Tenant to Pay Pro-Rata Share of Operating Expenses:
(A) Tenant shall pay electricity to the demised premises.
(B) The Premises contains 25,108 square feet of rentable area which comprises
26.31 percent of the total Building rentable area of 95,413 square feet.
(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 26.31 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 4% 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 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 10 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 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 shall have thirty (30) additional days
to complete. If the Premises are still not ready then Landlord shall provide
office space for Tenant's use for up to ten (10) persons at no cost and shall
give Tenant a credit of $345.00 per day against future rental due under this
lease.
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 10% 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 Downtown Research 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.
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 ninety (90) 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 one hundred twenty (120) 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 20
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, fifty (50) parking
spaces at the location shown on the attached Exhibit "D". Parking charges are
included in Tenant's base rent rate. Provided, however, in the event the City of
Winston-Salem, Downtown Development Corporation or Landlord construct a
structured parking garage for use by Tenants of the Downtown Research Park, the
amount, if any, of monthly parking charge in such deck in excess of Twenty-Five
Dollars ($25.00) per month shall be paid by Tenant for those spaces required by
Tenant. Landlord shall have the right to move the Tenant parking spaces from the
surface lot to a parking deck constructed in the block bounded by Belews Street,
Xxxxxxxxx Avenue, First Street and Salem Avenue or the block bounded by First
Street, Chestnut Street, Third Street and Xxxxxxxxx Avenue as long as there is
no cost to Tenant.
23. Signs: Landlord shall review and approve the design of Tenant's signage.
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.
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; 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: Piedmont Institute for Research & Technology II, LLC
c/o JDL Castle Corporation
X.X. Xxx 0000
Xxxxxxx-Xxxxx, XX 00000
TENANT: Xxxxxx Technologies, Inc.
Attn.: Xxxx Xxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx Xxxxx 000
Xxxxxxx-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 One Hundred Twenty-Five percent (125%) of the
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: 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 leave 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. The Landlord, in consideration of Tenant entering into this Lease and
without any payment by Tenant has transferred to Xxxx Xxxxxx & Xxxx Xxxxxx
(Xxxxxx) a ten percent (10%) Membership Interest in the Piedmont Institute for
Research and Technology II, LLC (PIRT II). Upon the occurrence of an event of
default by Tenant under this Lease Agreement Xxxxxx shall thereby forfeit,
without payment or other consideration, all right title and interest including
(without limitation) all of its Membership Interest (as such term is defined) in
PIRT II, LLC as a member of the LLC. This forfeiture is in addition to any of
the remedies available to Landlord under this Lease.
In consideration of Tenant occupying the contiguous lower floor (the
Expansion Space) in accordance with the terms hereof Xxxxxx shall receive an
additional Membership Interest of
two and one-half percent (2.5%) upon the occupancy of the first phase of
Expansion Space (being not less than 50% of the Expansion Space) and an
additional two and one-half percent (2.5%) at occupancy of the second phase of
Expansion Space. The expansion shall occur on or before 24 months from the date
of possession of the Premises pursuant to Paragraph 3.
In the event that Tenant remains in possession and in compliance with
the terms and conditions of the Lease Agreement for the Premises and Expansion
Space for a period of twenty (20) years the Membership Interest shall not be
subject to termination.
47. Termination of Lease Agreement: Tenant shall have the right to terminate
this Lease at the end of the tenth (10th) year upon notice given to Landlord at
the end of the ninth (9th) Lease year. Tenant will remain in possession of this
space during the tenth (10th) Lease year following notice. If a replacement
Tenant acceptable to Landlord is not obtained by the end of the tenth (10th)
Lease year, Tenant will pay an additional six (6) months rent following the
termination of the Lease and vacating the Premises.
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
-----------------------------------
Xxxx Xxxxxx (SEAL)
ATTEST: /s/ Xxxxxxx X. XxXxxxxxx
------------------------
Secretary
NEW YORK
COUNTY OF NASSAU
I, Xxxxxx Xxxxx, Notary Public for said County and State, certify that Xxxxxxx
X. XxXxxxxxx 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
Xxxxxxx X. XxXxxxxxx, as its Secretary.
Witness my hand and official seal, this the 2nd day of March, 1998.
(Official Seal) Notary Public /s/ Xxxxxx Xxxxx
My commission expires October 31, 1999
--------------------------------------------------------------------------------
Piedmont Institute for Research & Technology II, LLC., LANDLORD
s/s W. Xxxxx Xxxxxxx
------------------------------------------
W. Xxxxx Xxxxxxx (SEAL)
Managing Member
STATE OF NORTH CAROLINA
COUNTY OF FORSYTH
I, Xxxxxxxx X. Xxxxxx, 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 4th day of March 1998
My Commission Expires: 5/16/99 /s/ Xxxxxxxx X. Xxxxxx
EXHIBIT "B"
WORK LETTER AGREEMENT AND SPECIFICATIONS
XXXXXX TECHNOLOGIES, INC. LEASE PREMISES
XXXXXX TECHNOLOGIES CENTER
BUILDING EXTERIOR
Structure
The building is heavy timber with brick masonry cladding. New roof will
be installed.
Glass
Windows areas will consist of an aluminum framing system pre-finished
with a color selected to compliment the building facade. Glass will
consist of double pane insulated units to enhance mechanical
performance and compliment the building exterior.
Windows adjacent to parking deck (northside of Premises) shall retain
glass block windows for security/visual aesthetics.
Executive patio areas and conference rooms on the east building facade
will be provided with operable windows and/or open window penetrations
finished with break metal trim.
GLASS BLOCK
Landscape/Hardscape/Courtyard
The site shall contain amenities including hardscaping of sidewalks and
appropriate landscape. Landscaping shall compliment the building and
its surroundings.
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. 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
Existing wood timber and ceiling shall be sand blasted and sealed to provide
open finish in those areas marked on the finished schedule and attached plans.
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 heavy duty, full flush, hollow steel
construction, insulated tempered glass or existing monumental glass
doors. 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 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. Two (2) shall utilize resilient flooring. CEO Restroom shall
have unglazed ceramic tile.
Toilet Service Areas: Unglazed ceramic tile 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
Separate toilet facilities for men and women shall be provided 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. A single
shower stall 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 mirror above the lavatory.
A toilet paper dispenser in each water closet stall.
A coat hook on inside face of door to each water closet stall.
At least one (1) paper towel dispenser, soap dispenser and waste
receptacle for every two (2) lavatories.
EXECUTIVE RESTROOMS
Landlord shall provide three (3) executive restrooms. CEO Restroom
shall have superior finishes including tile floor, vinyl covered wall
covering, incandescent can lights, commode, sink, vanity and restroom
fixtures. Two (2) Vice President and conference room restrooms shall
have resilient tile flooring, painted walls, fluorescent fixtures and
building standard accessories, equipment and plumbing fixtures.
HEATING AND AIR CONDITIONING
A new heating and air conditioning system shall be installed consisting of a
chilled water system sized to accommodate load required and ducted to provide
distribution in accordance with the floor plan attached.
Zone Control: air control will be provided for 8 zones. All areas will
be equipped 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 ten percent (10%) spare power load and circuits.
ELECTRICAL: DISTRIBUTION
See Plan Notes/Specifications attached hereto.
LIGHTING: INTERIOR
See Plan Notes/Specifications attached hereto.
Low brightness, parabolic type 2' x 4' fluorescent fixtures using no more than
2.0 xxxxx/square foot shall be provided as shown on attached Plan
Notes/Specifications.
One hundred eighteen incandescent (118) fixtures shall be provided in corridors
providing ingress and egress within the leased space.
Building entrances and parking areas will be lighted. Ballasts are to be
rapid-start, thermally protected, voltage regulating type, UL listed and ETL
approved.
Storage, open lab and warehouse area shall be lit with surface mounted
fluorescent fixtures as shown on attached Plan Notes/Specifications.
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.
SECURITY
Installation of security systems will be Tenant responsibility.
LAN/WAN/TELEPHONE/DATA
Installation of wiring shall be the responsibility of the Tenant.
XXXXXX TECHNOLOGIES, INC. LEASE PREMISES
PLAN NOTES/SPECIFICATIONS
Tenant Allowances for Signage: Lobby/Reception and Conference area:
Design elements of these allowances controlled by Xxxxxx except building
Signage subject to provisions and regulations of the Conditions
Covenants and Restrictions applicable to the Downtown Research park;
Allowance amounts and method of providing are set forth in Letter
Agreement of even date;
Tenant selections for paint, carpet color, base color (carpet or rubber cove)
resilient tile and ceramic tile floor coverings will be made from sample
material provided by Landlord within 60 days following execution of Lease
Agreement;
Tenant installation of LAN/WAN/Telephone and Data lines at Tenant expense.
Landlord will coordinate with Tenant vendor and provide access during
construction;
Executive restrooms - 3 total - shall be provided. CEO bath superior quality
finishes. VP and Conference bath standard finishes as set forth in Finish
Schedule.
Electric:
Provision for connected load required for Tenant and 20% expansion
Quantities of electric fixtures by type. Additional fixtures/receptacles
are available at Tenant request and subject to Change Order Charge as
outlined in the Attached Unit Price for Change Orders:
Duplex Receptacles 140
GFIC Receptacles - Wet Areas 11
Surface Fluorescent Fixtures 109
Lay in fluorescent Fixtures 116
Surface Incandescent 118
Lay in Incandescent 1
HVAC: 8 Thermostat control zones with appropriate dampers, ducting, return air
and control.
Partitions: Partitions as shown on the floor plan marked to identify Floor to
Deck (Full Ht) and 9'0" partitions. Additional partitions will be provided at
Tenant request and subject to change Order Charge as outlined in the attached
Unit Price for Change Orders.
Flooring: Marked on attached floor plan and set forth in finish Schedule.
XXXXXX TECHNOLGIES INC. LEASE PREMISES
FINISH SCHEDULE
The Schedule below lists rooms as shown on the Xxxxxx Technologies Inc. Lease
Plan dated February 27, 1998 shows interior finishes for each area. The Plan
Notes and Specifications quantities for interior installations and unit costs
for Tenant requested changes.
PLAN AREA FLOOR BASE WALLS CEILINGS LIGHTING
--------- ----- ---- ----- -------- --------
Lobby/Reception W W SRP W ICS
Display W W SRP AT ICS
Director Tech Dev C CAR SRP AT LF
Administration/Open C CAR SRP W SF
VP Marketing W W SRP W ICS
VP Tech W W SRP W ICS
Conference E W W SRP W ICS
CEO W W SRP W ICS
Multi Purpose C CAR SRP AT LF
Office-N C CAR SRP AT LF
Office-N C CAR SRP AT LF
Office-N C CAR SRP AT LF
Conference-N C CAR SRP AT LF
Breakroom C CAR SRP AT LF
Restroom/Shower RT RC SRP AT LF
Open Lab W W SRP W SF
Storage W W SRP W SF
Conference W C CAR SRP AT LF
Office-W C CAR SRP AT LF
Office-W C CAR SRP AT LF
Office-W C CAR SRP AT LF
Office-W C CAR SRP AT LF
Office-S C CAR SRP AT LF
App Eng/Marketing C CAR SRP W SF
Wet lab and Office RT RC SRP AT LF
QA and Office RT RC SRP AT LF
Warehouse W W SRP W SF
Climate Controlled W W SRP W SF
Halls - Circulation W NA SRP W ICS
CEO Restroom CT CT Wains SRP AT ICL
VP Restrooms RT RC SRP AT LF
ABBREVIATIONS AND SPECIFICATIONS NOTES
Base: Flooring:
RC Rubber Cove W refinished wood with two finish coats
CT Ceramic Tile Base C Building standard 28 oz. carpet
XX Xxxx Base RT Vinyl composition tile
CAR Carpet Base CT Ceramic Tile
NOTE: Wood base will be installed along perimeter brick walls
Ceilings: Lighting:
AT Acoustical tile Lay In LF Law in fluorescent 2 x 4 fixture
W Sandblasted/sealed wood SF Surface mounted fluorescent 2 fixture
ICS Surface mounted incandescent can light
ICL Lay in incandescent can light
Walls:
SRP Sheetrock Painted
CT Wains Ceramic Tile Wainscot
NOTE: All perimeter walls are sandblasted and sealed brick
EXHIBIT "B"
[GRAPHIC OMITTED]
EXHIBIT "A"
(Building Description)
[GRAPHIC OMITTED]
EXHIBIT "C"
(Floor Plan and Specification of Expansion Space)
[GRAPHIC OMITTED]
EXHIBIT "D"
(Parking Layout)
[GRAPHIC OMITTED]
