EXHIBIT 99.1
LEASE
THIS LEASE, made and entered into this 17th day of December 1999 by and
between Andy Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxx Xxxxxxx, Xxxxx X. Xxxxxxx of Xxxx
County Tennessee, hereinafter called Landlord, and Celerity Systems, Inc., a
Delaware Corporation, hereinafter called Tenant.
WITNESSETH, That Landlord, in consideration of the rents hereinafter
reserved, and the covenants and agreements hereinafter expressed to be kept,
performed and fulfilled by Tenant, does by these presents rent and lease unto
Tenant, and Tenant does take for a period of three (3) years beginning on the
15th day of January 2000 and ending on the 14th day of January 2003, the
following described premises, situated in Xxxx County, Tennessee, and
particularly described as follows:
Being approximately 7420 sq. ft. of office and warehouse space located
in the building at 122 A and B Perimeter Park Drive in Knoxville, Tennessee as
shown on the attached floor plan marked Exhibit A.
TO HAVE AND TO HOLD said premises, with all rights, privileges and
appurtenances thereto belonging, unto Tenant, for and during the term as
hereinbefore provided, and Landlord covenants with Tenant to keep Tenant in
quiet possession of said premises during the term of this lease, provided Tenant
shall pay the rent and keep and perform the covenants and agreements as
hereinafter provided.
1. Tenant hereby covenants and agrees to pay rental at the
annual rate of Sixty Thousand ($60,000.00) Dollars payable in equal month
installments on the FIRST day of each and every month, in advance, without
demand, at the office of Landlord or his designated agent. PENALTY CLAUSE: if
the rental as set out above is not paid within ten days after the due date a
late, charge equal to 5% of the monthly rent shall be assessed against the
Tenant and shall be due and payable on demand.
2. Tenant shall pay for janitorial service, water, gas, heat,
electricity, air-conditioning and other utilities used on said premises unless
otherwise expressly stated herein.
3. Tenant further agrees that said premises shall be used for
office and light assembly and for no other purpose.
4. Neither this lease nor any interest therein, whether legal,
or equitable, shall be mortgaged, pledged, hypothecated, assigned or transferred
by Tenant, voluntarily or by operation of law, without the consent in writing of
Landlord. Any assignment, receivership,
bankruptcy or other such proceedings by or against Tenant whether voluntarily or
involuntarily, shall at the option of the Landlord constitute a forfeiture of
this lease, and no court or officer thereof shall have the right or power to
transfer this lease, or any interest therein, without consent in writing of
Landlord. Tenant agrees that he will not sublet said premises or any part
thereof without the consent in writing of Landlord.
5. Landlord agrees to keep in good repair the roof, gutters,
downspouts, sidewalks and structural potions of the buildings, but nothing more.
Structural defects resulting from Tenant use shall be repaired at Tenant's
expense. Landlord assumes no responsibility to Tenant or third party in case of
non-repair of said roof, gutters, downspouts, structural portions and sidewalks,
or for any damage resulting from such non-repair, until Tenant has notified
Landlord of such non-repair and until landlord has had a reasonable length of
time thereafter in which to make repairs. All other repairs to lease premises
including, but not limited to, plumbing, writing, heating and air-conditioning
equipment*, light fixtures, light tube and bulb replacement, doors, windows,
floor coverings, locks, key replacement and broken glass are to be at Tenant's
expense. At the end of the term or upon forfeiture declared, Tenant agrees to
deliver leased premises peaceably to Landlord in good order and condition as
they now are, reasonable wear and tear or loss by fire (not the fault of Tenant,
his agents or assigns) excepted. Tenant agrees upon termination of this lease by
forfeiture or otherwise, to pay for all damages done to leased premises by
Tenant, his agents, servants, or assigns, which have not been properly repaired,
and further agrees to remove all rubbish and litter from the premises and to
leave the floors in a clean condition. *See Paragraph 21.
6. Tenant may not make decorations, alterations, additions and
improvements on or to the leased premises without the consent in writing of the
Landlord. All such decorations, alterations, additions and improvements made
shall become and be the property of Landlord and shall remain and be surrendered
with the premises as a part thereof upon the termination of this lease by
forfeiture or otherwise. However, any trade fixtures placed on said premises by
Tenant, not actually becoming a part of the realty, may be removed by the Tenant
during the term of this lease or at the termination thereof, provided Tenant has
fully complied with all the provisions of this lease and provided any damages
resulting therefrom shall be repaired at the expense of Tenant.
7. If at any time the leased premises, or the building of which
the leased premises are a component part, should be damaged by fire or other
major casualty not the fault of Tenant, and if the cost of repairing the damage
should not exceed 25% of the value of the building, then the Landlord shall as
soon as practicable repair the damage caused by said fire or other casualty. If
however, the damage should exceed 25% of the value of the building, then
Landlord shall have the option of either restoring said premises as set out
above, or terminating this lease as of the date of fire or other casualty. If
the damage should render the leased premises uninhabitable, the rental from the
date of fire, or other major casualty, not the fault of Tenant, to the date of
the completion of the restoration of the premises shall be abated, such
abatement being proportionate to the loss of occupancy sustained. If the damage
is so extensive as to amount practically to the total destruction of leased
premises, either Tenant or Landlord shall
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have the right to cancel this lease by giving written notice within 90 days
after the date of damage, and the rental shall be apportioned to the date of the
damage.
8. Tenant covenants and agrees that he will not do or permit to
be done on leased premises anything that will increase the rate of fire
insurance on the premises or contents. If because of any act or omission on the
part of the Tenant the rate of fire insurance on said premises is increased,
Tenant agrees to pay on demand such increase. Tenant covenants and agrees to
comply with all laws, regulations and ordinances of the Federal, State and
Municipal governments and their Departments applicable to the leased premises,
and to comply with the requirements of the Board of Fire Underwriters.
9. Tenant covenants and agrees to maintain the leased premises
in a safe and non-negligent manner and agrees to keep the snow and ice off the
sidewalk in front of the premises. Tenant covenants and agrees that he will
indemnify and save harmless the Landlord and Landlord's agent from any and all
fines, judgments, suits, claims, demands and actions of any kind against
Landlord by reason of any breach, violation or nonperformance of any laws,
regulations or ordinances by the Tenant. Tenant shall protect, indemnify and
hold harmless the Landlord and Landlord's agent against all claims by third
persons for injuries, whether to person or property, occurring on the leased
premises. Tenant agrees to purchase and maintain insurance in a reputable
company during the period of the lease providing protection to Landlord,
Landlord's agents and Tenant in the amounts and against the liabilities as
follows:
a. Public liability insurance with limits of not less than
$1,000,000 for each occurrence. Combined Single Limit for bodily injury and
property damage. Said insurance should also cover personal injury, products
coverage, and the contractual liability of the Tenant under this section of the
lease, and contain a 30 day notice of cancellation clause.
b. Plate glass insurance covering all plate glass in the
premises in the amount of actual value of replacement.
c. The Landlord and Tenant agree to carry fire and extended
coverage on their respective property and interest in the demised premises and
mutually release each other from any claims for losses or damage which may be
covered by the Standard Tennessee Form of Fire and Extended Coverage Insurance.
Original policies or certificate of insurance will be filed with the Agent for
the Landlord, and ten days prior to expiration of policies, renewal certificates
or binders will be delivered Landlord's Agent.
10. Landlord reserves the right to control the size, character
and location of any signs that Tenant may desire to place upon said premises,
and may require Tenant to remove any sign which in the judgment of Landlord may
be either objectionable or dangerous. Landlord, in person or by Agent, shall
have the right at all reasonable times to enter the premises to inspect same or
to make such repairs, additions or alterations as Landlord deems necessary for
the
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preservation of said building or for safety, or to show the premises to
prospective Tenants or purchasers.
11. Tenant has examined the premises before signing this lease
and is satisfied with the condition thereof, excepting only as may hereinafter
be specifically provided. Tenants act of taking possession shall be conclusive
evidence against Tenant that the premises were in good order and satisfactory
condition when Tenant took possession thereunder. No promise of Landlord to
alter, remodel, improve, repair, decorate or clean the premises or any part
thereof and no representation respecting the condition of the premises or the
building has been made by Landlord or his Agent or Tenant, except as the same is
contained herein or made a part hereof.
12. No waiver by Landlord at any time or any forfeiture for the
breach of any covenant by Tenant shall impair the right of Landlord to rely upon
such forfeiture for any subsequent breach, and acceptance by the Landlord of a
potion of all of rent past due shall not constitute a waiver of the forfeiture
or of the breach of any covenant or condition or of any damages due Landlord by
Tenant. No waiver of any of the provisions of this lease shall be binding upon
landlord unless in writing, signed by him or his authorized agent.
13. In the event that Tenant shall not pay the rent within ten
days after same becomes due, or shall violate or fail to perform any of the
covenants, agreements, or conditions of this lease, or shall abandon the
premises or leave them vacant, or discontinue using premises for purpose
provided herein, the landlord shall have the right, at his option, immediately
to terminate this lease as fully as though the term thereof had expired, by
mailing a written notice addressed to Tenant at the premises, which shall be
immediately binding upon Tenant; and Landlord, by himself or his Agents may
re-enter said premises by summary proceedings, by force, or otherwise, take
possession thereof, and remove all persons and property therefrom, and Tenant
shall not thereby be released from the rent past due, or from the payment of
damages for the breach of this lease by Tenant, which damages including
reasonable attorney's fee, Landlord shall have the right to recover. If Landlord
shall rightfully seek to obtain possession of leased premises, and shall be
obstructed therein by Tenant, his agents or assigns, and suit shall result in
which suit Landlord is successful, Tenant shall pay to the Landlord a reasonable
attorney's fee and cost incurred by Landlord in prosecuting said suit. Landlord
shall have a lien upon all fixtures and other property of Tenant found in said
premises to secure the payment of rentals, damages, attorney's fees and costs
due Landlord by Tenant.
14. Should Tenant occupy said premises after the termination of
this lease, such occupancy shall in no event constitute a renewal of this lease,
but shall be a month to month agreement subject to and in accordance with the
terms of this lease. During the month to month agreement, either party can
cancel this agreement by giving the other party 30 days advance written notice
from the date the rent is paid to.
15. If the whole or any part of demised premises shall be taken
or condemned by a competent authority for any public or quasi-public use or
purpose, then, and in that event, the term of this lease shall cease and
terminate from the date when the possession of the part so
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taken shall be required for such use or purpose, and without apportionment of
the award. The current rental however, shall in any case be apportioned.
16. If unsuccessful legal action is taken for any reason by
Tenant against Landlord or Landlord's agent then Tenant shall pay all attorney
fees and costs resulting therefrom.
17. Whenever either party desires or is required to give any
notice to the other party hereunder, such notice shall not be deemed to have
been duly given unless in writing and forwarded by registered mail addressed as
follows:
To the Landlord at (address) Xxxx and McCallie, Inc., Xxxx
Xxxxxx Xxx 00000, Xxxxxxxxx, Xxxxxxxxx 00000.
To the Tenant at (address) Celerity Systems, Inc., 000 X
Xxxxxxxxx Xxxx Xxxxx, Xxxxxxxxx, XX.
18. The burden of any commercial lease rental tax which may be
hereinafter lawfully imposed by government authority shall be borne by Tenant.
19. Tenant agrees to pay annually its pro rata share of any
increase in property taxes and fire insurance premium levied against the
premises over and above the property taxes and insurance premiums paid for the
year 2000. Tenant shall pay the pro rata share of any increase in taxes and fire
insurance premiums within thirty (30) days after the Landlord has presented
Tenant with evidence of payment of taxes and insurance premiums.
20. The rear 3920 sq. ft. of warehouse space will be available
not later than February 1, 2000. The second month's rental will be prorated
according to the date Tenant occupies the rear warehouse space based on $1500.00
per month.
21. Landlord will maintain the HVAC system for the first year of
the lease except for normal monthly maintenance which shall be paid by Tenant.
Starting the second year of the lease, Tenant's maximum cost for HVAC
maintenance will be $500.00 per year not including normal monthly maintenance.
Tenant must obtain Landlord's approval for all HVAC maintenance expenditures
above $500.00 per year. Tenant will maintain the landscaping. Landlord will pay
for major parking lot repairs.
22. Tenant will pay landlord the first month's rental when this
lease is signed. In addition, when the lease is signed, Tenant will pay Landlord
a $20,000 non refundable security deposit which will be used as the last four
month's of the original lease term. Landlord has the right to apply said sum
towards any previous month's rent in the event of an earlier default by Tenant.
23. Tenant has the option to renew this Lease for a three year
period from January 15, 2003 thru January 14, 2006 under the same terms and
conditions of the original lease except
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the rental will be $5,450 per month. Tenant must notify Landlord in writing by
July 15, 2002 of their desire to exercise said option.
24. If Tenant exercises the first option, then Tenant has an
additional three year option to renew from January 15, 2006 thru January 14,
2009 under the same terms and conditions of the original lease except the
rental will be $5,940.50 per month. Tenant must notify Landlord in writing by
July 15, 2004 of their desire to exercise said option.
It is agreed by all parties that the rents herein mentioned
shall be paid through Xxxx and McCallie, Inc. or their assigns, who shall retain
a 3% commission as their Agency fee on all rents accruing under this lease,
including any extension thereof or the term of any option mentioned herein. It
is understood that Xxxx and McCallie, Inc. is acting solely in the capacity of
Agent for Landlord to whom Tenant must look as regards all covenants, agreements
and warranties herein contained, and said Xxxx and McCallie, Inc. shall never be
liable to Tenant as regards any matters which may arise by virtue of this lease.
IN WITNESS WHEREOF, the parties have hereunto signed their names and
affixed their seals the day and year first above written.
LANDLORDS TENANT:
/s/ Andy Xxxxxxx Xxxxxxx CELERITY SYSTEMS, INC.
------------------------
ANDY XXXXXXX XXXXXXX
BY:/s/ Xxxxxxx X. Van Meter
/s/ Xxxxxx Xxxxx Xxxxxxx ------------------------
------------------------ President/CEO
XXXXXXX XXXXX XXXXXXX
/s/ Xxxxx X. Xxxxxxx
-----------------------
XXXXX X. XXXXXXX
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If for 3 years or more lease must be acknowledged and placed of record.
STATE OF TENNESSEE
COUNTY OF XXXX
Personally appeared before me Xxxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxx
Xxxxxxx, a Notary Public in and for said County the within named bargainor
______________________ with whom I am personally acquainted, and who
acknowledged that _____________ he executed the within instrument for the
purposes therein contained.
Witness by hand and official seal at office, this 20th day of December 1999.
My commission expires 2-27-2002
/s/ Xxxxx Xxxx Xxxxxxxx
-----------------------
Notary Public
STATE OF TENNESSEE
COUNTY OF XXXX
Personally appeared before me Xxxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxx
Xxxxxxx, a Notary Public in and for said County the within named bargainor
_______________________ with whom I am personally acquainted, and who
acknowledged that __________________ he executed the within instrument for the
purposes therein contained.
Witness by hand and official seal at office, this 20th day of December 1999.
My commission expires 2-27-2002
/s/ Xxxxx Xxxx Xxxxxxxx
-----------------------
Notary Public
STATE OF
COUNTY OF
On this the ____ day of ___________________19__, before me appeared
____________________to me personally known, who being by me duly sworn, did say
that is the _______________________ President of the _________________________
and that the seal affixed to said instrument is the corporate seal of said
corporation and that said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and said acknowledged said
______________________________ instrument to be the free
act and deed of said corporation.
Witness by hand and official seal at office, this ___ day
of ______________19____.
My commission expires_____________________________________________Notary Public
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XXXXX XX XXXXXXXXX
XXXXXX XX XXXX
Xx this the 17th day of December 1999, before me appeared Xxxxxxx X.
Xxx Xxxxx to me personally known, who being by me duly sworn, did say that is
the President of the Celerity Systems, Inc. and that the seal affixed to said
instrument is the corporate seal of said corporation and that said instrument
was signed and sealed in behalf of said corporation by authority of its Board of
Directors, and said President acknowledged said instrument to be the free act
and deed of said corporation.
Witness by hand and official seal at office, this 17th day of December 1999.
My commission expires 3-27-02
/s/ X Xxxxxxx
--------------
Notary Public
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