NORTH CAROLINA
GUILFORD COUNTY
Exhibit 10.44
LEASE AGREEMENT
WENDOVER BUSINESS PARK- PHASE I
THIS LEASE, is made the 1st day of November, 1999, by and XXXXXXXX,
LLC, (hereinafter referred to as "Landlord") and Xxxxxxxxx & Xxxx, Inc.,
(hereinafter referred to as "Tenant"). Landlord hereby leases to Tenant and
Tenant leases from Landlord at the WENDOVER BUSINESS PARK, PHASE I, (hereinafter
referred to as the "Center"), Office/Warehouse space at 0000 X & X Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxxx, XX as appears on the Site Plan referred to hereinafter.
CERTAIN LEASE PROVISIONS
1.0 TERM: Tenant is permitted use of the premises for a term of
Sixty-three (63) months commencing November 1, 1999 and ending at 12:00 midnight
December 31, 2004.
2.0 MINIMUM RENT: The Tenant covenants to pay Landlord, without
prior demand, and without deduction or setoff, the following sum, payable
monthly, in advance, of the first day of each month of the term of this Lease to
Landlord's agent at address in Item 6.0 below.
Annual Base Rent/Lease Term: $46,303(00/100 Dollars)
Year 1 - (February 1, 2000 - January 31, 2001) - $46,303.00
Year 2 - (February 1, 2001 - January 31, 2002) - $47,500.00
Year 3 - (February 1, 2002 - January 31, 2003) - $48,696.00
Year 4 - (February 1, 2003 - January 31, 2004) - $49,963.00
Year 5 - (February 1, 2004 - January 31, 2005) - $51,229.00
Base Rent/Monthly Installments: $3,858(58/100 Dollars)
3.0 SECURITY DEPOSIT: Tenant shall pay, at the commencement of this
Lease, a deposit in the amount of $3,858.52 to be held by Landlord as security
for any default hereunder.
4.0 PREMISES: The premises are 7,037 square feet; the Center is
67,982 square feet. See Article 2 of the Special Conditions attached hereto as
Exhibit D.
5.0 EXHIBITS AND ADDENDUMS: The Lease consists of 29 articles on
twelve (12) pages, plus Exhibits A (Plans and/or Specifications), B (Site Plan),
C (Rules & Regulations), and D (Special Conditions).
6.0 NOTICES: Notices sent pursuant to this Lease shall be
delivered personally, or
by certified mail, return receipt requested, and addressed to:
IF TO LANDLORD: IF TO TENANT:
XXXXXXXX, LLC Xxxxxxxxx & Xxxx, Inc.
c/o Insignia/ESG (Property Management) Xxxxx Xxxxxx, CFO
0000 Xxxxxxxxx Xxxx XX, Xxxxx 000 000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000 Xxxxxx, XX 00000
In witness whereof this Lease Agreement has been executed as of the date set for
the above.
Signed in the presence of: Lessor:
_________________________ XXXXXXXX, LLC, a Delaware limited liability
company
_________________________ By: BRG Properties, LLC, a Delaware limited
liability company
By: /s/ Xxx Xxxxxxxxx (SEAL)
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Its: Manager
Signed in the presence of: TENANT:
/s/ Xxxxx Xxxxx Xxxxxxxxx & Xxxx, Inc.
--------------------------
-------------------------- ---------------------------
By: /s/ Xxx X. Xxxx
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ITS: President
DATE:_____________________
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NORTH CAROLINA
GUILFORD COUNTY
WENDOVER BUSINESS PARK - PHASE I
OFFICE/WAREHOUSE LEASE AGREEMENT
This Lease Agreement, made this 1st day of November 1999, by and
between XXXXXXXX, LLC (hereinafter referred to as "Landlord") and Xxxxxxxxx &
Xxxx, Inc. (hereinafter referred to as "Tenant").
WITNESSETH:
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In consideration of the covenants and agreements hereinafter set out,
Landlord hereby leases and demises to the Tenant and Tenant leases from Landlord
on the terms, conditions and covenants hereinafter set forth:
1. UTILITIES & CLEANING SERVICES. Tenant shall promptly pay all gas,
water, electricity, fuel, light, heat and power bills and all other charges and
deposits in connection with such utilities and shall pay for cleaning Services
used for the premises, or any premises used by Tenant in connection therewith.
Tenant shall pay all charges for garbage collection services or other sanitary
services rendered to the leased premises. If Tenant does not pay the same,
Landlord may pay the same and such payments shall be added to the rental of the
premises. Landlord shall not be liable for any interruption whatsoever in
utility services.
2. USE. The premises shall be used as office/warehouse or distribution
facility for the retail sale of alcoholic beverages and other related Products
for consumption off premises as allowed in Light Industrial zoning per
Greensboro zoning ordinance and for no other purpose. The premise shall not be
used for any illegal purposes, nor in violation of any regulation of any
governmental body, nor in any manner to increase the rate of insurance on the
premises.
3. MAINTENANCE BY LANDLORD. Tenant shall accept the premises upon
completion of construction as set forth in Article 29 herein. Landlord shall at
its expense maintain only the roof, foundation, and the structural soundness of
the exterior walls (excluding all windows, window glass, plate glass, special
store front, and all doors) of the building in good repair and condition, except
for reasonable wear and tear and except for repairs rendered necessary by the
negligence of Tenant, its agents, employees to invitees. Landlord further agrees
to care for the grounds around the building, including the mowing of grass, care
of shrubs and general landscaping and to maintain the parking areas, driveways
and alleys. Tenant shall make reasonable effort to give immediate written notice
to Landlord
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of the need for repairs of corrections (which are the responsibility of the
Landlord), and failure to report such defects shall make Tenant responsible to
Landlord for any liability incurred by Landlord by reason of such defects.
Landlord shall proceed with reasonable diligence to make such repairs or
corrections. But it is expressly understood and agreed that Landlord shall not
be liable to Tenant for any damage it may sustain to its merchandise or
equipment in or on the demised premises unless such damage is caused by the
willful negligence of the landlord or its agents and the Landlord's liability
hereunder shall be limited to the cost of such repairs or corrections.
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4. MAINTENANCE BY TENANT. Tenants shall at its own expense keep all
other parts of the premises (including but not limited to windows, glass and
plate glass, doors, any special store front, interior walls and finish work,
floors and floor covering, gutters, heating and air conditioning systems, dock
bumpers and plumbing work and fixtures) in good order and repair except those
repairs expressly required to be made by Landlord. Tenant accepts the lease
premises in their present condition and as suited for the uses intended by
Tenant and agrees to return said premises to Landlord at the expiration or prior
termination of the Lease Agreement and all renewals thereof in as good condition
and repair as when first received, natural wear and tear, damage by storm, fire,
lightning, earthquake, or other casualty alone excepted. In the event Tenant
should neglect reasonably to maintain the demised premises, Landlord shall have
the right (but not the obligation) to cause repairs or corrections to be made.
Any reasonable costs therefore shall be payable by Tenant to Landlord as
additional rental on the next rental installment date. Tenant agrees to maintain
and pay for a maintenance contract for the heating and air conditioning system
serving the premises. Such contract must provide that upon cancellation, written
notice of the same shall be given to Landlord by both parties and shall include
at least semi-annual service for the filters, motor and belts. Tenant agrees to
provide Landlord at all times with a copy of the then currently effective
service contract. If Tenant properly maintains the heating and air conditioning
system, Landlord shall replace the compressor, fan motor, housing or heat
exchanger of said equipment if necessary.
5. ALTERATIONS. Tenant shall not make any major alterations,
additions, or improvements to the premises without the prior written consent of
the Landlord. Tenant may, without the consent of the Landlord but at its own
cost and expense and in a good workmanlike manner, make such minor alterations,
additions, or improvements or erect, remove or alter such partitions, or erect
such shelves, bins, machinery and trade fixtures as it may deem advisable
without altering the basic character of the building or improvements and without
overloading or damaging such building or improvement and in each case complying
with all applicable governmental laws, ordinances, regulations, and other
improvements.
At the termination of this Lease, Tenant shall, if Landlord so elects, remove
all alterations, additions, improvements and partitions erected by Tenant and
restore the premises to their original condition; otherwise such improvements
shall be delivered to Landlord with the premises. All shelves, bins, machinery
and trade fixtures installed by Tenant will be removed by Tenant at the
termination of this Lease, provided Tenant is not in default. All such removals
and restoration shall be accomplished in a good workmanlike manner so as not to
damage the primary structure or aesthetic qualities of the building or other
improvements situated on the premises.
6. FIRE OR OTHER CASUALTY. In the event that before or during the
term of this lease, the Premises shall be damaged by fire of other casualty
which in the opinion of Landlord does not render the premises or a part thereof
untenantable and
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which shall not have been occasioned by the act of Tenant of or its servants,
agents, visitors, invitees or licensees, Landlord with at its option (subject to
the other provisions of this Article 6) repair the same with reasonable dispatch
upon receipt of written notice of the damage from Tenant and there shall be no
abatement of the rent.
In the event that before or during the term of this lease the premises of the
Building shall be damaged by fire or other casualty which in the opinion of the
Landlord renders the Building, the premises or any part of the Building of
premises untenantable and which shall not have been occasioned by the act of
Tenant or of its servants, agents, visitors, invitees or licensees, Landlord
within thirty (30) days written notice of such fire or casualty or of receipt of
written notice from Tenant of such damage (whichever shall last occur) shall
have the right to and shall either (i) serve written notice upon tenant of
Landlord's intent to repair said damage or (ii) if in Landlord's opinion said
damage renders so much of either of the premises or of the Building untenantable
that repair would not be feasible, serve written notice upon Tenant that this
lease is terminated. If landlord shall elect to repair such damage, during the
period of repair the total amount of the rent shall be reduced to an amount
which in Landlord's opinion bears the same ratio as the portion of the premises
then available for use bears to the entire premises. Upon completion of such
repair, the rent shall thereafter be paid as if no fire or other casualty had
occurred.
In the event that before or during the term of this lease the premises of the
Building shall be damaged by fire or other casualty which shall have been
occasioned by the act of Tenant or of its servants, agents, visitors, invitees
of licensees there shall be no apportionment of abatement of the rent and
without prejudice to any other rights and remedies of Landlord and without
prejudice to any rights or subrogation of any insurer of Landlord, Landlord
shall have the right but shall have no obligation to repair the premises or the
Building and Tenant shall reimburse and compensate Landlord within five (5) days
of rendition of any statement to Tenant by Landlord for any expenditures made by
Landlord in making any such repairs.
The other provisions of this Article 6 notwithstanding, Landlord shall have no
obligation to replace or repair any property in the Building of on the premises
belonging to Tenant or to anyone claiming through or under Tenant nor shall
Landlord have any obligation hereunder to replace or repair any property on the
premises which landlord may require Tenant to remove from the premises.
7. INSURANCE AND INSURANCE RATES. Tenant shall carry fire, casualty
and liability insuring its interest, if any, in improvements to or in the
premises and its interest in its office furniture, equipment, supplies, store
front glass, and other property and Tenant hereby waives any claim or right of
action which it may have against Landlord for loss or damage covered by such
insurance except in the case of Landlord's gross negligence, and Tenant
covenants and agrees that it will obtain a
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waiver from the carrier of such insurance releasing such carrier's subrogation
rights as against Landlord. (See Article 14 for further insurance requirements.)
Tenant shall not do or cause to be done or permit on the premises or in the
Building anything deemed hazardous on account of fire, and Lessee shall not use
the premises of the Building in a manner which will cause an increase in the
premium rate for any insurance in effect on the Building of a part thereof. If,
because of anything done, the premium rate for any kind of insurance in effect
on the Building or any part thereof shall be raised, Tenant shall pay Landlord
the amount of any such increase in premium rate, and if Landlord shall demand
that Tenant remedy the condition which caused any such increase in an insurance
premium rate, Tenant shall remedy such condition within five (5) days after
receipt of such demand.
If after the commencement date of this Lease, the insurance premiums incurred by
Landlord shall exceed the premium for such insurance for the first full lease
year of the term hereof, Tenant shall pay to Landlord on demand Tenant's
proportionate share of such increase, calculated in the same manner as
Impositions in Article 15 herein below, and the failure to pay such
proportionate share upon demand shall be treated in the same manner as a default
in the payment of rent.
8. ASSIGNMENTS AND SUBLETTING. Tenant may not assign, pledge, transfer
or sublet the premises or any part thereof without having first obtained the
prior written consent of Landlord. Landlord acknowledges and consents to
Tenant's assignment of this Lease as a result of a merger between Liquid
Acquisition Corp. announced on September 28, 1999 in which Xxxxxxxxx & Xxxx
survives as a wholly-owned subsidiary of Liquid Holdings, Inc. Any such
assignment, pledge, transfer, or subletting shall not release Tenant from the
performance of any of the terms, covenants and conditions of this lease.
9. DEFAULT BY TENANT. The following events shall be deemed to be
events of default by Tenant under this Lease:
A. Tenant shall fail to pay any installment of the rent on the date
that same is due and such failure shall continue for a period of ten (10) days.
B. Tenant shall fail to comply with any term, condition, or covenant
of this Lease, other than the payment of rent and shall not cure such failure
cannot be thirty (30) days after written notice thereof to Tenant, or, if such
failure cannot be reasonably cured within the said thirty (30) days, Tenant
shall not have commenced to cure such failure within said thirty (30) days and
shall not thereafter with reasonable diligence and good faith proceed to cure
such failure.
C. Tenant shall become insolvent, shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
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D. Tenant shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute of the
United States or any State thereof; of Tenant shall be adjudged bankrupt of
insolvent if proceedings filed against Tenant thereunder.
E. A receiver or trustees shall be appointed for all or substantially
all of the assets of Tenant.
10. REMEDIES. Upon the occurrence of any of such events of default
described in Article 9 above, Landlord shall have the option to pursue any one
of more of the following remedies without any notice or demand whatsoever:
A. Terminate this Lease, in which event, Tenant shall immediately
surrender the premises to Landlord, and, if Tenant fails to so, Landlord may
without prejudice to any other remedy which it may have for possessions of
arrearages in rent, enter upon and take possession of the premises and expel or
remove Tenant and any other person who may be occupying such premises or any
part thereof, by force if necessary, without being liable for prosecution or any
other claim of damages therefor; and Tenant agrees to pay to Landlord on demand
the amount of all loss and damage which Landlord may suffer by reason of such
termination, whether through liability to relet the premises on satisfactory
terms or otherwise.
B. Enter upon and take possession of the premises and expel or remove
Tenant and any other person who may be occupying such premises or any part
thereof, by force if necessary, without being liable for prosecution of any
claim for damages therefor, and relet the premises and receive the rent therefor
and apply the rental first to the cost of preparing the property for reletting
and to the cost of reletting, if any; and Tenant agrees to pay to the Landlord
on demand any deficiency that may arise by reason of such reletting.
C. Enter upon the premises, by force if necessary, without being
liable for prosecution of any claim for damages for damages therefor, and do
whatever Tenant is obligated to do under the terms of this Lease; and Tenant
agrees to reimburse Landlord on demand for any expense which Landlord may incur
in thus effecting compliance with Tenant's obligations under this Lease; and
Tenant further agrees that Landlord shall not be liable for any damage resulting
to the Tenant for such action.
Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by law,
nor shall pursuit of any remedy herein provided constitute a forfeiture of
waiver of any amounts due to Landlord hereunder or of any damages occurring to
Landlord by reason of the violation of any of the terms, provisions, and
covenants herein contained. No waiver by
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Landlord of any violation or breach of any of the terms, provisions, and
covenants herein contained shall be deemed or construed a waiver of any other
violation or breach of any of the terms, provisions and covenants herein
contained. Landlord's acceptance of rental or other payments hereunder after the
occurrence of an event of default shall not be construed as a waiver of such
default, unless Landlord so notifies Tenant in writing. Forbearance by Landlord
to enforce one or more of the remedies herein provided upon an event of default
shall not be deemed or construed to constitute a waiver of default. If, on
account of any breach or default by Tenant in Tenant's obligations under the
terms and conditions of this Lease, it shall become necessary or appropriate for
Landlord to employ or consult with an attorney concerning Landlord's rights or
to enforce or defend any of Landlord's rights of remedies hereunder, Tenant
agrees to pay attorneys' fees and expenses. No act or thing done by the Landlord
or its agents during the term hereby granted shall be deemed an acceptance of
the surrender of the premises, and no agreement to accept a surrender of said
premises shall be valid unless in writing signed by Landlord. The receipt by
Landlord of rent with knowledge of the breach of any covenant or other provision
contained in this Lease shall not be deemed or construed to constitute a waiver
of any other violation or breach of any of the terms, provisions, and covenants
contained herein.
11. LATE CHARGES. Tenant shall be liable for and Landlord may collect
a late charge of Five percent (5%) of any monthly installment of rent or other
sums due hereunder in the event Tenant should fail to pay the same within ten
(10) days after the date that such installment is due. Such charge to be in
addition to and not in lieu of any other remedy of Landlord hereunder.
12. SIGNAGE. No sign, advertisement or notice shall be inscribed,
painted or affixed on any part of the outside of the building, doors of offices,
or any area of the Center, except as approved by Landlord. Door signs and signs
on front of building will be at the expense of the Tenant and shall be of the
size, color, and style as the Landlord shall determine, and written approval
must be obtained in advance from the Landlord. All signs will be uniform in
style and type.
13. ENTRY BY LANDLORD. Landlord and its authorized agents shall have
the right, but not the duty, to enter with reasonable notice to Tenant the
demised premises during normal working hours for the following purposes: (1)
inspecting the general conditions and state of repair of the premises; (2)
making of repairs required by Landlord; (3) showing of the premises to any
prospective purchaser; (4) any other reasonable purpose. If Tenant shall not
have renewed or extended this Lease prior to the final one hundred twenty (120)
day period of the Lease term, Landlord and its authorized agents shall have the
right to erect on or about the demised premises a customary sign advertising the
property for lease or sale. During said one hundred twenty (120) day period
Landlord and its authorized agents shall have the right to enter
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the demised premises during normal working hours for the showing of the
premises to prospective tenants or purchasers.
14. INDEMNITY The Tenant agrees to indemnify and save harmless the
Landlord from and against any and all claims and demands whether from injury to
person, loss of life, of damage to property, occurring within the leased
premises. Tenant shall furnish Landlord, upon execution of this Lease, a
certificate of Legal Liability Insurance having limits not less than $500,000
combined single limits, Fire Legal Liability Insurance not less than $100,000,
shall name the Landlord as an additional insured, and shall have insurer to
notify Landlord of change of cancellation of said policy a minimum of thirty
(30) days prior to cancellation. A copy of the policy or a certificate of
insurance shall be delivered to Landlord.
15. TAXES. Tenant shall pay, as additional rental, Tenant's
proportionate share of any increase in assessments or charges (hereafter
sometimes call "Impositions") paid or incurred by Landlord during each calendar
year for public betterments or improvements, ad valorem taxes, real estate
taxes, or any other tax on rents or real estate as such (other than income taxes
thereon) from time to time directly or indirectly assessed or imposed upon the
building (a) and/or the portion of the land upon which it is situated to the
extent such impositions exceed those paid or incurred by Landlord during the
"base year". The "base year" for the purposes of this paragraph shall be the
calendar year in which this Lease commences.
Tenant's proportionate share of the increase in said impositions
shall be computed by multiplying the total increase in said impositions for the
applicable year over those for the base year, if any, by a fraction, the
numerator of which shall be the number of square feet herein above stated to be
the approximate area of the premises and the denominator of which shall be the
total square feet of floor space within the Center.
The amount, if any, obtained as result of such computation for the
first calendar year following the base year shall be paid to Landlord within
thirty (30) days as additional rent pursuant to this subparagraph, the amount of
such payment shall be divided by twelve (12) and the quotient resulting from
such division shall be added to the monthly rental installments to be paid by
Tenant during each month of the next ensuing calendar year commencing with the
partial payment due on January 1st of each such calendar year. In the event the
total additional rent paid monthly pursuant to this paragraph is less than the
Tenant's proportionate share of any increase in impositions for any year, then
Tenant shall pay the deficiency to Landlord within thirty (30) days after
receiving a statement thereof from Landlord and the minimum rental installments
being paid monthly shall be adjusted as above provided.
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If the term of this lease shall end on a date other than the first
or last day of a calendar year, the final annual charges to Tenant with respect
to the aforesaid impositions shall be prorated on a daily basis on the basis of
a three hundred sixty-five (365) day calendar year.
The foregoing provisions to the contrary notwithstanding, it is
understood and agreed that any and all assessments or charges for public
betterments or improvements, ad valorem real estate taxes or other taxes on
business or personal property or any other tax on real estate or business or
personal property as such from time to time directly or indirectly assessed or
imposed upon or with respect to any alterations, additions or improvements made
to the premises by Tenant or under its direction or with respect to any property
of Tenant therein shall be borne and paid entirely by Tenant shall reimburse
Landlord for the same immediately upon receipt by Tenant of written demand
thereof from Landlord.
16. COMMON AREA MAINTENANCE. Landlord has provided at its cost,
water, sewer and electricity into the premises and has provided telephone
service connections to the rear of the premises. Tenant shall pay as additional
rent a monthly common area maintenance charge which will be used for payment of,
but not limited to: landscape maintenance, and electricity for common area
lighting. For the term of the lease, Tenant shall pay its prorata share of
common area maintenance and utilities estimated for that year. The Tenant's
prorata share shall be defined as the ratio of the number for that year. The
Tenant's prorata share shall be defined as the ratio of the number of square
feet in the leased premises to the number of square feet in the Center (67,982
square feet). Estimated expenses shall be derived from a Common Area Budget for
the Center to be prepared and made available by Landlord before December 15 of
the year preceding the year to be estimated. Landlord estimates the common area
maintenance charge for the first lease year to be $.32 per square foot.
On or after the 15th day of January of each year, or if the figures are not
available on said date, then as soon thereafter as the information is readily
available, Landlord shall make adjustment by notifying the Tenant in writing of
Tenant's prorata share (as defined above) of any surplus or deficit comparing
the previous year's Common Area Budget for the Center with actual common area
expenditures. If a surplus has occurred, Tenant's pro rata share of such surplus
shall be credited against future common area payments due from Tenant until much
credit is discharged. If a deficit has occurred, Tenant's prorata share of such
credit is discharged. If a deficit has occurred, Tenant's prorata share of such
deficit shall be payable to the Landlord as additional rent within thirty (30)
days after notification and documentation showing calculation of such deficit
are presented to Tenant.
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Should the lease begin on a day other than January 1, or end on a
day other than December 31, the above adjustment shall be prorated on a 365
day per year basis.
For the purpose of this adjustment, this paragraph shall survive the
termination of this lease, for as long as necessary for such adjustment to be
made.
17. HOLDING OVER. If Tenant shall continue to occupy the premises
after expiration or sooner termination of this Lease, Tenant shall pay, as
liquidated damages, for each month of continued occupancy an amount equal to
one and one-half times the rent being paid for the last full month of the
Lease term. No receipt of money by the Landlord from Tenant after expiration
or termination of this Lease shall reinstate or extend this Lease or affect
any prior notice given by Landlord to Tenant.
18. CONDEMNATION.
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A. If the whole or any substantial part of the premises should be
taken for any public or quasi-public use under governmental law, ordinance,
or regulation, or by right of eminent domain, or by private purchase in lieu
thereof, this Lease shall terminate effective when the physical taking of
said premises shall occur and Tenant shall have no right to any portion of
the condemnation award except as reimbursement for Tenant's fixture or
leasehold improvements and Tenant will no longer owe rent after termination.
B. If less than a substantial part of the premises shall be taken
for any public or quasi-public use under any governmental law, ordinance, or
regulation, or by right of eminent domain, or by private purchase in lieu,
thereof, this Lease shall not terminate but a just proportion of the rent shall
xxxxx, such just proportion to be in the same proportion to the total rent as
the value of the premises taken bears to the aggregate total value of the entire
premises as finally determined in the condemnation proceedings. but, if there be
no determination of total value, then the just proportion of the rent to xxxxx
shall be determined on a basis that is fair and reasonable under all of these
circumstances.
19. SUBORDINATION. Tenant's rights shall be subject to any bona fide
mortgage or deed to secure debt which is now, or may hereafter be, placed
upon the premises by Landlord. If any mortgagee or holder of any such
security instrument shall so require, Tenant will, at any time hereafter, on
demand, execute and deliver any instruments, releases, or other documents
which may be required by any mortgagee or security instrument holder for the
purpose of subjecting and subordinating this lease to the lien and/or
security title of any such mortgage, deed to secure debt, or similar security
instrument. Within ten (10) days after request therefor by Landlord, Tenant
shall furnish to Landlord a statement detailing the status of rental
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payments upon the Lease, setting forth the fact that landlord is not in default
in the performance of the Lease on his part to be performed, if such be the
case, or detailing any default by Landlord, if such be claimed by Tenant. If
Tenant fails to comply with such request, Landlord shall have the right to
submit such requested documents in Tenant's name and same shall have the same
force and effect as if Tenant has sent them.
20. MECHANIC'S LIENS. Tenant shall have no authority, expressed or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the interest of Landlord in the
premises or to charge the rentals payable hereunder for any claim in favor of
any person dealing with Tenant, repairs, and each such claim shall affect and
each such lien shall attach to, if at all, only the leasehold interest granted
to Tenant by this instrument. Tenant covenants and agrees that it will pay or
cause to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
premises on which any lien is or can be validly and legally asserted against its
leasehold interest in the premises or the improvements there of and that it will
save and hold Landlord harmless from any and all loss, cost or expenses based on
or arising out of asserted claims or liens against the leasehold estate or
against the rights, titles, and interest of the Landlord in the premises or
under the terms of this Lease.
21. QUITE ENJOYMENT. Landlord agrees that Tenant, keeping and
performing the covenants herein contained on the part of Tenant to be kept and
performed, shall at all times during the term of this Lease peaceably and
quietly have, hold, and enjoy the leased premises.
22. PARTIAL INVALIDITY. If any term, covenant, condition or provision
of this Lease is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, the remainder of the provisions hereof shall remain in full
force and effect and shall in no way be affected, impaired or invalidated
thereby.
23. SUCCESSORS. Except as otherwise specifically provided, the terms,
covenants and conditions contained in this Lease shall apply to and bind the
heirs, successors, executors, administrators, and assigns of the parties to this
Lease.
24. NOTICES. Any notice given pursuant to this Lease shall be in
writing and sent by certified mail to the respective party at an address set
forth above for such party, or such other address as may be designated by such
party by notice.
25. PRIOR AGREEMENTS. This Lease instrument contains the entire
understanding and agreement of the parties, and any previous agreements in
regard to the premises, whether oral or in writing, are hereby rescinded,
canceled and rendered
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null and void. This Lease cannot be modified, unless said modification is
reduced to writing and signed by both parties.
26. ATTORNMENT. Tenant shall attorn to any successor to Landlord's
interest in the Center, whether the succession is by sale, foreclosures,
deed-in-lieu of foreclosure, assignment or otherwise, and shall purchaser an
offset statement and an Estoppel certificate if requested by Landlord, and in
the event Tenant fails to deliver hereby constitutes and appoints Landlord as
Tenant's attorney-in-fact to execute said statement and certificate.
27. ATTORNEY'S FEES. In the event Landlord intervenes in or becomes
a party or is made a party to any action or proceeding arising in connection
with this Lease in order to protect its rights, then Tenant shall pay to
Landlord the fees of Landlord's attorneys therein as fixed by the court.
28. CONSTRUCTION. Construction, if any, to be completed by Landlord
will be in accordance with the plans, specifications, and agreements approved by
both parties. Landlord will not be obligated to construct or install any
improvements or facilities of any kind other than those called for on the Plans
And/Or Specifications attached hereto as Exhibit A. Tenant agrees that Landlord
may make any changes to such Plans And/Or Specifications which may become
reasonably necessary or desirable, other than substantial changes, without the
written approval of Tenant. Landlord agrees to commence and complete such
construction with reasonable diligence. If Tenant, it's contractors or labor
cause delay in Landlord's completion of the work pursuant to Plans And/Or
Specifications, thereby delaying Tenant's occupancy of the Leased premises shall
be deemed "substantially completed" when Landlord has completed the work
contemplated in the Plans and Specifications to the extent that only minor
details of construction and mechanical adjustments remain to be done in the
Leased premises and that the elevators, if any, plumbing, heating or air
conditioning, and electric facilities are substantially available to Tenant.
Upon delivery of the Leased premises into Tenant's possession, Tenant, by
occupying the same, shall be deemed to (a) have accepted the Leased premises, b)
have acknowledged that Landlord has completed the work required of it in
accordance with the Plans and Specifications, and that the same are in condition
called for hereunder, and (c) have agreed that Landlord is not then in default
of any of its obligations under this Article. All such improvements are to be
the property of the Landlord, and upon termination of this Lease, Tenant shall
deliver the Leased premises to Landlord in good condition and repair, broom
clean, normal wear and tear excepted.
29. SPECIAL PROVISIONS.
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A. Time is of the essence.
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B. Tenant shall provide blinds at glass front of space leased by
Tenant ("Levelor" or equal) to be installed upon occupancy. (Color to match
aluminum store front.) Or, if it is agreed, nothing will be put in front of
glass. If Tenant does not install blinds, Landlord shall have the option to
provide same, at Tenant's expense, in order that all spaces shall conform.
C. Tenant Improvements: Landlord shall provide 30 tons of HVAC
installed, new paint, carpet, VCT in restrooms, rubber base, and mini blinds
only after the premises have been approved for licensing by the appropriate
governmental authorities.
D. Permit Period: Tenant shall have ninety (90) days following the
date of full execution hereof to obtain any and all necessary licenses and
permits from the appropriate authorities (the "Licenses"). If Tenant is unable
to obtain said Licenses within this ninety (90) day period, Tenant may request
and, upon a showing that all required Licenses have been applied for and
diligently pursued, shall be granted a thirty (30) days extension. If for any
reason Tenant is unable to obtain the required Licenses and Permits within the
ninety (90) day period (or 120 day period if so extended) then Tenant may
terminate this Lease in which event neither Party shall have any further
obligation to the other but, Landlord shall retain the Deposit as a termination
fee. Notwithstanding any Provisions hereof, Tenant's obligation to pay rent
hereunder shall commence on the Rent Commencement Date.
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XXXXXXXX XXXXXXXX XXXX - XXXXX I
Exhibit A - Floor Plan
To Office/Warehouse Lease
BETWEEN XXXXXXXX, LLC, LANDLORD
AND XXXXXXXXX & XXXX, INC., TENANT
See Attached Plans And/Or Specifications of Suite #3408 M & N
Which Includes all of Landlord's obligations.
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XXXXXXX & COMPANY
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (336) 6l6-lll9
X.X. Xxx 00000
Wine Distributor (old American Racing)
0000 -X Xxxxxxxx Xxx.
Xxxxxxxxxx X.X. 00000
Carpet 12 X 75 $1075.
Cove Base 196.
Remove Carpet 75.
Patch Walls 75.
Paint Unit 650.
Paint Trim, Doors 175.
New Min, Blinds 2500.
Electrical 4 rec, 2 sw 300.
VCT. Flooring Baths 250.
Paint Bathrooms 150.
Lights 1 case 85.
Electrical Covers 25.
Clean Unit 250.
Tint Door, Panel 185.
Total $5806.00
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Xxxxxx Heating And Air Conditioning
X.X. Xxx 00000
Xxxxxxxxxx. XX 00000
Tel. (000) 000-0000
Pager (000) 000-0000
Equipment Installation Proposal
Customer: Job Location:
Weaver, Grubar, & Black 0000 X. Xxxxxxxx
Xxxx: Xxxxx Xxxxxxx
Date: 08/31/99
We respectfully submit the following specifications and estimates for Install
(3) Trane 10 Ton gas package units with concentric duct lay out. Provide gas
piping and electrical.
Guarantee with all systems operating that space will not rise above 73
degrees providing that doors and windows are not opened frequently and/or
left open 1 Year parts and labor limited warranty
We offer to furnish materials and labor and complete the above in accordance
with the above specifications for the sum of:
Dollars ($30,000.00)
Payments as follows: _60% Upon Rough, Remainder upon completion. _________
---------------------------------------------------------------------------
All material is guaranteed to be as specified. All work to be completed in a
workmanlike manner according to standard practices. Any alterations or
deviation from the above specifications involving extra cost will be charged
as an extra cost over and above the cost of the estimate. All agreements
contingent upon the suppliers ability to provide materials as quoted,
accidents, and delays beyond our control. Owners to carry fire and other
necessary insurance. Our workers are fully covered by xxxxxxx'x compensation
insurance.
Authorized Signature:_____ Xxxx Naylor____________
Offer May Be Withdrawn If Not Excepted Within _____ Days
----------------------------------------------------------------------------
Acceptance: the above prices, specifications and conditions are satisfactory
and are hereby accepted. You are authorized to do the work as specified.
Payment will be as outlined above.
----------------------------------------------------------------------------
Name:_____________________ Signature:________________ Date:_______
Name:_____________________ Signature:________________ Date:_______
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XXXXXXXX XXXXXXXX XXXX - XXXXX I
Exhibit B - Site Plan
To Office/Warehouse Lease
BETWEEN XXXXXXXX, LLC, LANDLORD
AND XXXXXXXXX & XXXX, INC., TENANT
*See Attached Site Plan
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XXXXXXXX XXXXXXXX XXXX
[SITE PLAN]
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XXXXXXXX XXXXXXXX XXXX- XXXXX I
Exhibit C - Rules and Regulations
To Office/Warehouse Lease
BETWEEN XXXXXXXX, LLC, LANDLORD
AND XXXXXXXXX & XXXX, INC., TENANT
Tenants use of the premises and the common areas surrounding the
premises shall be subject at all times during the term of this Lease to
reasonable rules and regulations adopted by Landlord not in conflict with any of
the express provisions hereof governing the use of the parking areas, driveways,
passageways, signs, exteriors of buildings, lighting and other such matters
affecting other tenants in and the general management and appearance of the
premises. Tenant agrees to comply with all such rules and regulations upon
notice to Tenant from Landlord. Tenant expressly agrees as follows:
1. The sidewalks, entries, passages, and stairways shall not be
obstructed by the Tenant or its agents, or used by them for any purpose other
than ingress and egress to and from their premises.
2. Truck traffic shall be allowed in the service areas only for
pickup and delivery.
3. Garbage and refuse shall be kept in the kind of container
specified by Landlord and shall be placed at the location within the premises
designated by Landlord, for collection at the times specified by Landlord.
Tenant shall store soiled or dirty linen in approved fire rated containers.
4. Tenant shall keep the premises at a temperature sufficiently high
to prevent freezing of water in pipes and fixtures.
5. The outside areas immediately adjoining the premises shall be
kept clean and free from snow, ice, dirt and rubbish by Tenant and Tenant shall
not place, suffer or permit and obstruction or merchandise in such areas.
6. Tenant shall not use the public or common areas in the premises
for business purposes.
7. Plumbing facilities shall not be used for any other purpose than
that for which they are constructed and no foreign substance of any kind will be
thrown therein.
8. It is the Tenant's responsibility and obligation to contract with
a pest exterminator to remove any pests which are found within the demised
premises.
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9. If Tenant desires blinds or window coverings of any kind, the
same must be of such shape, color and materials as prescribed by Landlord and
shall be erected with Landlord's consent but at the expense of Tenant. No awning
shall be placed on said buildings. No radio or television serial or other device
shall be erected on roof or the exterior walls of the building in which the
premises are located. No, radio phonograph, or similar device shall be used in a
manner so as to be heard or seen outside the premises.
10. The Tenant shall have cleaned, at their expense, not less than
semiannually, the carpet that has been provided by the Landlord for Tenant's
use, utilizing the cleaning company normally employed by the Landlord to do this
work.
11. The Tenant shall not perform or permit any act nor carry on or
permit any practice which may damage, mar or deface the premises or any other
part of the premises.
12. Tenant shall not place a load on any floor in the premises
exceeding the floor load limit which such floor was designed to carry nor shall
Tenant install, operate or maintain in the premises any heavy item or equipment
except in such manner as to achieve a proper distribution of weight. Landlord
acknowledges and approves the use of a forklift on the floor, and the storage of
wine on the same floor.
13. Tenant shall not install, operate or maintain in the premises or
in any other area of the premises any electrical equipment which does not bear
the underwriter's approval, or which would overload the electrical system or any
part thereof beyond its capacity for proper and safe operation as determined by
Landlord.
14. No additional lock or locks shall be placed by the Tenant on any
door in the building unless written consent of the Landlord shall first be
obtained. Each Tenant must, upon the termination of the within Lease, return all
keys to suites and mechanical rooms to the offices of the Landlord.
15. The use of oil, gas or inflammable liquids for heating,
lighting, or any other purpose in expressly prohibited. Explosives or other
articles deemed extra hazardous shall not be brought into the building. Vehicles
are not to be stored in the buildings.
16. The Landlord shall at all times have the right by its officers
or agents to enter with reasonable notice the demised premises to inspect and
examine the same and to show the same to persons wishing to lease, purchase, or
mortgage them.
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XXXXXXXX XXXXXXXX XXXX - XXXXX I
Exhibit D - Special Conditions
BETWEEN XXXXXXXX, LLC, LANDLORD
AND XXXXXXXXX & XXXX, INC., TENANT
1. "PHASE I" AND "PHASE II" ISSUE. Prior to September 8, 1999, the
aforementioned "PHASE I" "PHASE II" was owned by separate entities.
On September 8, 1999 the Landlord purchased both PHASE I and
PHASE II of the Center and the separate ownership merged under the
single ownership of the Landlord. For purposes of continuity the
separate designation of PHASE I and PHASE II will initially be
maintained in this Lease and this PHASING ISSUE shall be subject to
the provisions of Article 2 below.
2. LANDLORD'S RIGHT TO COMBINE PHASE I WITH PHASE II.
Due to the recent merging of the ownership entities of PHASE I and
PHASE II, the Landlord is hereby reserving unto itself the right, at
some time in the future, to commence accounting for expenses on an
aggregated basis (combining PHASE I with PHASE II). Currently the
existing leases are written on the basis of PHASE I and PHASE II
only. In the future, at the election of the Landlord, the Landlord
may combine the two PHASES into one for the purposes of combining
the total expenses and computing each Tenant's proportionate share
while utilizing the greater square footage as the new denominator.
In that event, PHASE I which currently contains 67,950 square feet
(and is shown as Buildings 3408 and 3410 on Exhibit B attached
hereto) and PHASE II which currently contains 80,140 square feet
(and is shown as Buildings 3400, 3402 and 3404 on Exhibit B attached
hereto) will be combined. The total square footage of both PHASES is
148,090. For the purposes of this Lease, this change, if and when
instituted, will impact the following:
(1) The term Center as used throughout this Lease will refer
to the new total square footage of 148,090 and not to the
above referenced respective square footages of PHASE I and
PHASE II;
(2) The Tenant's proportionate share of increases for Insurance
and Real Estate taxes will then be computed using the new
total square footage of 148,090 as the denominator of a
fraction and the numerator of which shall be the number of
square feet herein above stated to be the approximate area of
the Premises. This newly formed fraction would be applied to
any Insurance
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increase in excess of the premium for such Insurance for the
first full lease year of the term hereof;
(3) The Tenant's proportionate share of increases for Common
Area Maintenance will then be computed by using the new
total square footage of 148,090 as the denominator of a
fraction and the numerator of which shall be the number of
square feet herein above stated to be the approximate area
of the Premises. This newly formed fraction would be applied
to the Common Area Budget for the Center.
3. INTERRUPTION OF UTILITIES. The last sentence of Article 1 states
"Landlord shall not be liable for any interruption whatsoever in
utility services". Due to the nature of Tenants business, it is a
condition of this Lease that the Landlord install additional Heating
Ventilation & Air Conditioning equipment to heat and cool the
balance of the Premises. Further to the above referenced sentence
concerning interruption of utility services. Tenant is placed on
notice that:
(1) the Landlord specifically states it is not now nor will it be
in the future liable for the interruption of utility services
whether it is the provision of (and shall not to be limited
to) water, electricity, sewer, telephone, storm water
drainage or any other utility or service now provided or
provided in the future;
(2) the electric service is provided by Duke Power and that any
concerns that the Tenant may have in regards to the
interruption of electrical services should be addressed with
Duke Power directly;
(3) the Tenant may want to consider the installation of a
portable generating system to provide electricity in the
event electric services are in fact interrupted.
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