Exhibit 99.1
LEASE
AGREEMENT
Between
KDC-CAROLINA
INVESTMENTS 3, LP
(Landlord)
and
3D
SYSTEMS CORPORATION
(Tenant)
Dated
February 8, 2006
NOTICE IS HEREBY GIVEN PURSUANT TO THE UNIFORM ARBITRATION
ACT, SECTION 15-48-10, ET. SEQ., CODE OF LAWS OF SOUTH CAROLINA 1976 AS
AMENDED THAT THIS LEASE IS SUBJECT TO MANDATORY ARBITRATION.
TABLE OF
CONTENTS
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Page
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SECTION 1.
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LEASE OF PREMISES.
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2
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SECTION 2.
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PLANS AND SPECIFICATIONS.
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2
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SECTION 3.
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CONSTRUCTION OF IMPROVEMENTS.
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4
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SECTION 4.
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INITIAL TERM.
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7
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SECTION 5.
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BASE RENT AND ADDITIONAL RENT.
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8
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SECTION 6.
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RENEWAL OF THE TERM.
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11
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SECTION 7.
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USE.
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13
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SECTION 8.
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ALTERATIONS.
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13
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SECTION 9.
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MAINTENANCE OF PREMISES.
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15
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SECTION 10.
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UTILITIES.
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17
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SECTION 11.
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TELECOMMUNICATIONS EQUIPMENT.
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18
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SECTION 12.
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SIGNS.
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18
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SECTION 13.
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EXPANSION OPTION.
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18
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SECTION 14.
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LANDLORDS RIGHT OF ACCESS.
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22
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SECTION 15.
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TENANTS INDEMNITY.
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22
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SECTION 16.
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LANDLORDS INDEMNITY.
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23
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SECTION 17.
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INSURANCE.
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23
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SECTION 18.
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WAIVER OF SUBROGATION.
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27
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SECTION 19.
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CASUALTY.
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27
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SECTION 20.
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CONDEMNATION.
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28
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SECTION 21.
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COMPLIANCE WITH ENVIRONMENTAL LAWS.
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29
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i
SECTION 22.
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COMPLIANCE WITH PUBLIC ACCOMMODATION LAWS.
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30
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SECTION 23.
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LANDLORDS WARRANTIES.
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31
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SECTION 24.
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TENANTS DEFAULT.
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32
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SECTION 25.
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LANDLORDS REMEDIES.
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33
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SECTION 26.
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LANDLORDS DEFAULT AND TENANTS REMEDIES.
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35
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SECTION 27.
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LATE CHARGES; INTEREST ON LATE PAYMENTS.
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35
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SECTION 28.
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QUIET ENJOYMENT.
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36
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SECTION 29.
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SUBORDINATION, ATTORNMENT & NON-DISTURBANCE.
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36
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SECTION 30.
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LANDLORDS SALE OF PREMISES.
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36
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SECTION 31.
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BROKERS COMMISSIONS.
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36
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SECTION 32.
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ESTOPPEL CERTIFICATE.
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37
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SECTION 33.
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HOLDING OVER.
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37
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SECTION 34.
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ASSIGNMENT AND SUBLETTING.
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37
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SECTION 35.
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PURCHASE OPTION.
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37
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SECTION 36.
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LIMITED PURCHASE OPTION OF EXPANSION LAND.
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38
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SECTION 37.
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RIGHT OF FIRST OFFER.
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40
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SECTION 38.
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MISCELLANEOUS.
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42
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SECTION 39.
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TIME OF ESSENCE.
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45
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SECTION 40.
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VALIDITY OF AGREEMENT.
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45
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SECTION 41.
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INCENTIVES.
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45
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EXHIBITS
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Exhibit A
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The Land
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Exhibit B
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Preliminary
Project Plans and Specifications
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Exhibit C
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Preliminary Tenant
Improvements Plans and Specifications
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ii
Exhibit D
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Tenant Allowances
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Exhibit E
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Form of
Tenant Acknowledgment Letter
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Exhibit F
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Base Rent
Adjustments
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Exhibit G
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Knowledge
Individuals
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Exhibit H
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Form of
Subordination Non-Disturbance and Attornment Agreement
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Exhibit I
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Form of
Estoppel Certificate
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Exhibit J
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Economic
Development Incentives and Governmental Entitlements
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iii
NOTICE IS HEREBY GIVEN PURSUANT TO THE UNIFORM ARBITRATION
ACT,
SECTION 15-48-10, ET. SEQ., CODE OF LAWS OF SOUTH CAROLINA 1976 AS
AMENDED THAT THIS LEASE IS SUBJECT TO MANDATORY ARBITRATION.
LEASE AGREEMENT
THIS LEASE AGREEMENT (this
Lease
)
is made as of February 8, 2006 (the
Effective
Date
), by and between KDC-CAROLINA INVESTMENTS 3, LP, a Delaware
limited partnership (
Landlord
),
and 3D SYSTEMS CORPORATION, a Delaware corporation (
Tenant
).
RECITALS:
A.
Rock
Hill Economic Development Corporation (
RHEDC
)
and the City of Rock Hill (the
City
),
the County of York (the
County
),
and the State of South Carolina (the
State
)
collectively have recruited Tenant to relocate its corporate headquarters and
its main operations (the
Relocation
)
within the incorporate limits of the City by offering to Tenant a number of
economic incentives (the
Incentives
,
as said Incentives are more particularly described in
Section 41
and
Exhibit J
to this Lease).
B.
In
reliance upon the promises of the Incentives by RHEDC, the City, the County and
the State, and after identifying the Premises described below as suitable for
its Relocation objectives, Tenant agreed to make the Relocation after
development of the Premises for its purposes.
C.
With
the consent of RHEDC and the knowledge of the City, the County and State, Tenant
has selected the Landlord to develop the Premises and pursuant to the direction
of Tenant Landlord has acquired and is the owner of that certain tract or
parcel of land (the
Land
)
located in the Waterford Business Park in the City of Rock Hill, York County,
South Carolina, more particularly described on
Exhibit A
hereto, upon which for purposes of
implementing the Relocation Tenant desires Landlord to design, construct and
lease to Tenant a shell building containing approximately 80,028 rentable square
feet (the
Building
), the Tenant
Improvements (hereinafter defined) and other improvements (the Building, the
Tenant Improvements and all other improvements are sometimes referred to
collectively as the
Improvements
),
in accordance with the terms and subject to the conditions of this Lease (the
Land, less any applicable portion(s) thereof as may be sold to Tenant as
provided herein, and the Improvements
are collectively referred to herein as the
Premises
).
D.
Landlord
desires to develop, construct and lease the Premises to Tenant for the purpose
of such Relocation in accordance with the terms and subject to the conditions
contained in this Lease.
E.
Tenant
desires to lease the Premises on the terms and conditions hereinafter provided.
AGREEMENTS:
Landlord and Tenant (sometimes referred to jointly as the
parties
or individually as a
party
) agree as follows:
1
Section 1.
Lease of Premises
. Landlord
shall design, construct, and hereby leases to Tenant, and hereby leases from
Landlord, the Premises.
Section 2.
Plans and Specifications
.
(a)
The
Improvements are comprised of two parts:
(i) that part consisting of the construction of the Building
containing approximately 80,028 rentable square feet and site improvements,
including but not limited to, parking spaces, driveways, sidewalks, landscaping
and all other related site and infrastructure work (collectively, the
Project Improvements
); and (ii) that
part relating to the interior tenant improvements within the Building (the
Tenant Improvements
).
(b)
The
preliminary plans and specifications approved by Landlord and Tenant for the
Project Improvements are listed on
Exhibit B
attached hereto (the
Preliminary Project
Plans and Specifications
). Upon completion of the preliminary plans
and specifications for the Tenant Improvements, Landlord and Tenant will
prepare and initial a listing thereof and will attach same as
Exhibit C
hereto (the
Preliminary Tenant Improvement Plans and Specifications
). The Preliminary Project Plans and
Specifications and the Preliminary Tenant Improvements Plans and Specifications
shall be utilized in connection with the preparation of the final plans and
specifications for the Project Improvements and the Tenant Improvements. Landlord and Tenant intend to work
collaboratively to develop final plans and specifications for the Project
Improvements and Tenant Improvements in accordance with the provisions of this Section 2. Tenant acknowledges that certain milestones
must be met in the plan development process in order for Landlord to achieve
Tenants desired date for Substantial Completion. The time frames set forth in this Section are
intended to facilitate the parties progress towards such date.
(c)
Landlord
shall cause Merriman Schmitt/Architects, Inc. (the
Project Architect
) to prepare proposed
final plans and specifications for the Project Improvements in accordance with
the Preliminary Project Plans and Specifications, and submit the proposed final
plans and specifications to Tenant for Tenants approval. If Tenant rejects the proposed final plans
and specifications for the Project Improvements (in whole or in part), Tenant
shall specify in sufficient detail the reason(s) for Tenants rejection (or partial
rejection, as applicable). If Tenant
responds to such plan set, then such portion thereof not rejected by Tenant
shall be deemed to be approved. In the
event Tenant thereafter modifies or objects to any portion of the plan set
previously approved by Tenant, any delay caused by such modification or
objection shall be deemed to be a Tenant Delay (hereinafter defined). Following any modification or objection by
Tenant, Landlord must revise the proposed final plans and specifications and
resubmit such plans for Tenants approval as soon as reasonably
practicable. Upon Tenants approval,
Landlords proposed final plans and specifications for the Project Improvements
will constitute the
Final Project Plans and
Specifications
. In the event
the Final Project Plans and Specifications are not approved by Tenant within
ten (10) days after the Effective
2
Date, each Work Day thereafter until the same
are approved shall be deemed to be an Excused Delay (hereinafter defined).
(d)
Tenant
shall cause proposed final plans and specifications for the Tenant Improvements
to be prepared in accordance with the Preliminary Tenant Improvement Plans and
Specifications. Landlord shall have
three (3) business days after receipt within which to approve or reject
the proposed final plans and specifications.
Landlords failure to approve such plans and specifications within such
three (3) business days period shall be deemed to be an approval thereof
by Landlord. If Landlord rejects the
proposed final plans and specifications for the Tenant Improvements (in whole
or in part), Landlord must specify in sufficient detail the reason(s) for
Landlords rejection (or partial rejection, as applicable). If Landlord responds to such plan set, then
such portion thereof not rejected by Landlord shall be deemed to be
approved. In the event Tenant thereafter
modifies or objects to any portion of the plan set previously approved by
Landlord, any delay caused by such modification or objection shall be deemed to
be a Tenant Delay. Following any
modification or objection by Landlord, Tenant must revise the proposed final
plans and specifications and resubmit such plans for Landlords approval. Upon Landlords approval, the proposed final
plans and specifications for the Tenant Improvements will constitute the
Final Tenant Improvement Plans and Specifications
. In the event the Final Tenant Improvement
Plans and Specifications are not approved by Landlord by February 24, 2006
for any reason other than delays caused by Landlord, each day thereafter until
the same are approved shall be deemed to be an Excused Delay (hereinafter
defined). Landlord agrees not to
unreasonably withhold its consent to any proposed final plans and
specifications for the Tenant Improvements so long as they are consistent with
the Preliminary Tenant Improvement Plans and Specifications.
(e)
The
Final Project Plans and Specifications and the Final Tenant Improvement Plans
and Specifications are sometimes collectively referred to in this Lease as the
Final Plans and Specifications
. Only the signature or initials of an
authorized representative of Landlord referenced in Section 3.2(b) and
an authorized representative of Tenant referenced in Section 3.2(b) will
evidence approval of the Final Plans and Specifications. Tenant must appoint an employee of Tenant [if
not an authorized representative of Tenant referenced in Section 3.2(b)]
to review the plans and specifications that Landlord proposes for adoption as
the Final Plans and Specifications so as not to delay unreasonably the
completion of the Improvements. Tenants
review and approval of the Final Plans and Specifications, shop drawings,
samples or other construction related items will create no responsibility or liability
on Tenants part for their completeness (except as to compliance with the
Preliminary Project Plans and Specifications and Preliminary Tenant Improvement
Plans and Specifications), sufficiency for their intended purpose, or degree of
compliance with Legal Requirements (hereinafter defined).
3
Section 3.
Construction of Improvements
.
(a)
Landlord
shall furnish, at Landlords sole cost and expense, all of the materials,
labor, and equipment necessary for the design and construction of the
Improvements in accordance with the Final Plans and Specifications. Landlord shall construct the Improvements in
a good and workmanlike manner, and in accordance with all applicable statutes
and building codes, governmental rules, regulations and orders, and the
covenants, conditions and restrictions for the Waterford Business Park and
other restrictive covenants applicable to the Premises (collectively,
Legal Requirements
).
(b)
Landlord
appoints Larry Wilson and Wayne Angel as its representatives and Tenant
appoints Abraham N. Reichental, Ray R. Saunders and Robert M. Grace, Jr.
as its representatives, to act in its behalf in dealings with the other party
in matters relating to the construction of the Improvements. Landlord and Tenant each may replace its
representative(s) with other representative(s) at its discretion; and Landlord
and Tenant shall advise the other party of such substitution.
(c)
Landlord
shall construct the Premises in substantial accordance with the Final Plans and
Specifications and the Development Budget, including the Tenant Allowances, as
specified in
Exhibit D
attached to this Lease.
(d)
Landlord
shall commence construction of the Building and other Improvements as soon as
practicable after receipt of appropriate permits from applicable governmental
authorities. The commencement of site
grading or site excavation will constitute the commencement of construction for
purposes of the foregoing requirement.
Landlord shall diligently proceed with the construction of the Building
and other Improvements and shall use commercially reasonable efforts to
Substantially Complete (as below defined) the Improvements and deliver
possession of the Premises to Tenant on before 195 days after the Effective
Date (the
Target Commencement Date
).
Substantial
Completion
or
Substantially
Complete
means that (i) the Improvements are substantially
completed in accordance with the Final Plans and Specifications except for
minor details of construction, decoration or mechanical adjustments which do
not interfere in any material respect with Tenants access to or use or
enjoyment of the Improvements and (ii) a temporary or conditional
certificate of occupancy or its equivalent permitting fixturing and occupancy of
the Premises has been obtained.
Notwithstanding anything in this Lease to the contrary, a certificate of
occupancy from the applicable governmental authority and a certificate from
Landlords architect that the Building and other Improvements have been
completed in substantial compliance with the Final Plans and Specifications
shall confirm that Substantial Completion of the Building and other
Improvements has occurred, absent manifest error.
(e)
Landlord
and Tenant shall conduct a joint inspection of the Premises within three (3) business
days following the date Substantial Completion occurs (the
Substantial Completion Date
) and identify
in writing all punch list items
4
(
Punch
List Items
). Landlord shall
complete all Punch List Items within sixty (60) days after the establishment of
the list of such Punch List Items or within such longer period of time
following the delivery of such punch list as may be reasonably required to
accomplish completion of such item(s) if Landlord promptly commences completion
of such punch list item(s) and diligently pursues completion thereof, except
that if Tenant prevents Landlord from completing any such punch list item(s)
within such period of time, Landlords time for completing such item(s) shall
be extended one (1) day for each day of Tenant Delay (defined below).
(f)
Landlord
shall use commercially reasonable efforts to make the Building available for
entry by Tenant and Tenants employees and contractors at least 30 days prior
to the Commencement Date (as defined below) for the purpose of installing
Tenants machinery and equipment. Tenant
shall ensure that its employees and contractors do not interfere with Landlords
completion of the construction of the Improvements. Tenant shall indemnify, defend, and hold
Landlord harmless from and against any damage or delay caused by Tenants early
entry. Entry by Tenants employees and
contractors for this limited purpose will not constitute Tenants acceptance of
the Improvements or give rise to any obligation to pay Base Rent.
(g)
Except
as hereinafter provided, if delays in the commencement or completion of the
construction of the Building or other Improvements occur by reason of acts,
omissions, failure to timely act or respond, or interference with construction
of the Building or the other Improvements on the part of Tenant or those acting
for or under the direction of Tenant, including, without limitation, its
agents, employees, contractors, consultants, and subcontractors (all such
delays being referred to as
Tenant Delays
),
or for any other reasons beyond the reasonable control of Landlord (which
Tenant Delays and such other delays beyond the reasonable control of Landlord
are collectively referred to as
Excused
Delays
), the dates established above for the commencement of
construction, Substantial Completion and delivery of possession will be
postponed by the aggregate Work Day duration of the Excused Delays. Non-availability or shortages of labor or
materials, local strikes, lockouts, and inclement weather will constitute
Excused Delays. Any inclement weather
that prevents Landlords general contractor from working on a normal
Work Day
(which for all purposes hereof
shall mean Monday through Saturday) will constitute an Excused Delay to the
extent that the Work Days lost due to inclement weather exceed 3 Work Days per
calendar month, on a month by month basis.
Notwithstanding any provision of the foregoing to the contrary, in order
for any such Tenant Delay or other delay beyond the reasonable control of
Landlord to constitute an Excused Delay, Landlord must notify Tenant in writing
of such event(s) (setting forth such event in reasonable detail) as promptly as
reasonably practicable but in no event more than 10 business days following the
event Landlord deems to be an Excused Delay.
Such notification to Tenant may be by e-mail, in the manner provided in Section 38(j)
hereof.
5
(h)
Landlord
shall incorporate only new materials and equipment into the construction of the
Improvements. Landlord warrants the
Improvements including, without limitation, the foundations, slab, structural
frame, roof deck, and exterior walls of the Building against defective design,
workmanship, and materials, latent or otherwise, for a period of one year from
the date of Substantial Completion (the
Warranty
Period
). Landlord shall
repair or replace at its sole cost and expense any defective item of
Improvements occasioned by defective design, workmanship, or materials that
Tenant discovers during the Warranty Period.
Upon the expiration of the Warranty Period, Landlord shall cause the
material and labor warranties for the general contractor, the roof on the
Building, the window glazing and the mechanical, including HVAC, electric and
plumbing systems to be assigned to Tenant.
In addition, Landlord shall deliver to Tenant all other continuing
assignable guaranties and warranties received by Landlord in connection with
the construction of the Improvements and shall perform (or cause the
performance of) for the benefit of Tenant but at Tenants expense any
continuing, non-assignable guaranties and warranties. Notwithstanding the foregoing, Landlord has
no obligation to assign any warranty or guaranty to Tenant if Landlord is
obligated to maintain an item covered by the warranty or guaranty pursuant to Section 9
of this Lease. From and after the
expiration of the Warranty Period, Landlord shall cooperate with Tenant in
Tenants enforcement, at Tenants sole cost and expense, of any express
warranties or guaranties of workmanship or materials for the Improvements given
by subcontractors, architects, draftsmen, or materialmen that guarantee or
warrant against defective design, workmanship, or materials for a period of
time in excess of the Warranty Period.
The obligations Landlord undertakes under the terms of this subsection are
in addition to the maintenance and repair obligations that Landlord undertakes
under other terms of this Lease.
(i)
Landlord
shall complete construction and equipping of the Improvements free of mechanics
liens or other liens, and shall defend, indemnify and hold Tenant harmless from
and against all claims, actions, losses, costs, damages, expenses, liabilities
and obligations, including, without limitation, reasonable legal fees,
resulting from (A) the assertion or filing of any claim for amounts
alleged to be due to the claimant for labor, services, materials, supplies,
machinery, fixtures or equipment furnished in connection with the construction
of the Improvements, (B) the foreclosure of any mechanics or materialmens
lien that allegedly secures the amounts allegedly owed to the claimant, or (C) any
other legal proceedings initiated in connection with that claim.
(j)
Landlord
shall afford Tenant reasonable access to the Improvements during construction
for the purposes of inspecting the Improvements.
(k)
Following
Substantial Completion, the Project Architect shall measure the rentable area
of the Building (the
Building Square Footage
),
which measurement shall be final and binding upon the parties. Landlord shall provide Tenant with as-built
drawings of the Building and other Improvements within 90 days after the date
of Substantial Completion as well as all instructions and
6
operators manuals pertaining to any
equipment installed by Landlord within the Building within 10 business days
after the date of Substantial Completion.
(l)
Landlord
reserves the right to grant easements and other development related
encumbrances covering the Land as reasonably determined necessary or desirable
by Landlord with Tenants consent (not to be unreasonably withheld or delayed)
in connection with the development of the Improvements and any Expansion (as
defined in Section 13) requested by Tenant. Landlord also reserves the right to place
non-monetary encumbrances on the portion of the Land owned by Landlord at other
times; provided, however, in no event shall Landlord, without the prior consent
of Tenant, place any encumbrance on the Land that would unreasonably affect or
otherwise impact Tenants use of the Premises or the development of the
Expansion Land
(m)
Throughout
the period between the date on which Landlord commences construction of the
Improvements and the date of Substantial Completion, Landlord shall maintain in
force with respect to the Improvements a policy of multiple peril (all-risk)
builders risk insurance on a completed value basis in an amount equal to the
full replacement cost of the Improvements.
That policy must name Tenant as an additional insured, as its interests
may appear, and must provide that coverage will continue for Tenants benefit
notwithstanding any act or omission on Landlords part. The certificate of insurance evidencing that
policy must provide that no cancellation, surrender or material change will
become effective unless Tenant receives written notice at least 10 days in
advance of the time at which that cancellation, surrender or material change
becomes effective. All insurance
required to be maintained by Landlord pursuant to this Section 3(l) must
be maintained with insurers authorized to do business in the State of South
Carolina and having a Bests Key Rating of at least A-IX. Upon request, Landlord shall provide to
Tenant such certificates as may be reasonably required to establish that the
insurance coverage required by this Section is in effect from time to time
and that the insurer(s) have agreed to give the other party at least 30 days
notice prior to any cancellation of, or material modification to, the required
coverage.
Section 4.
Initial Term
.
(a)
The
term of this Lease (the
Initial Term
)
is the period that commences on the later of (i) August 1, 2006, or (ii) the
date of Substantial Completion and tender of possession of the Improvements to
Tenant (the later of such dates hereinafter referred to as the
Commencement Date
) and that expires at
11:59 p.m. (Rock Hill, South Carolina local time) on the day prior to the
15th anniversary of the Commencement Date, except that if the Commencement Date
is other than the first day of a calendar month, the Initial Term shall expire
at 11:59 p.m. (Rock Hill, South Carolina local time) on the 15th
anniversary of the last day of the calendar month in which the Commencement
Date occurs (the date of expiration being hereinafter referred to as the
Expiration Date
). As used herein, the first
Lease Year
shall be the full 12 calendar
month period beginning on the
7
Commencement Date and shall include in
addition any partial calendar month if the Commencement Date is not the first
day of a calendar month and ending on the first anniversary of the last day of
the calendar month in which the Commencement Date occurs. Each successive Lease Year shall be the 12
calendar month period commencing on the first day of the month following such
month-end and ending on the next 12-month anniversary of such month-end.
(b)
Tenant
has the right to renew the term of this Lease, as set forth in Section 6
below, and the Initial Term and any Renewal Term with respect to which Tenant
exercises that option in accordance with Section 6 are collectively called
the Term in this Lease.
(c)
Within
60 days after the Substantial Completion Date, the parties will execute an
Acknowledgment Letter
in substantially in
the form of
Exhibit E
.
The Acknowledgment Letter shall take into account the adjustments to Base Rent
required by
Exhibit F
,
including but not limited to adjustments due to Incentives received by
Landlord. To the extent that Landlord
receives any of the Incentives after the Acknowledgement Letter has been
executed, the parties will thereafter enter into a new Acknowledgment Letter
either adjusting the Base Rent for such subsequently received Incentives or, if
agreed by the parties acting reasonably, providing a credit against Base Rent
first becoming due or a net cash payment to the party to whom funds are due, as
provided in
Exhibit F
.
Section 5.
Base Rent and Additional Rent
.
(a)
Subject
to adjustment as provided in
Exhibit F
,
Tenant shall pay to Landlord base annual rent (
Base Rent
) for the Premises in monthly installments in
advance beginning 3 months following the Commencement Date (the
Rent Commencement Date
), as follows:
Lease Period
|
|
Monthly Base Rent
|
|
Months 1-3
|
|
No Base Rent
|
|
Months 4-60
|
|
$
|
58,887.27
|
|
Months
61-120
|
|
$
|
62,421.84
|
|
Months
121-180
|
|
$
|
66,156.48
|
|
The foregoing Base Rent amounts have been calculated based upon the
Total Project Cost set forth in the Development Budget, before deducting
anticipated Incentives (other than the Drainage Easement Payment described on
Exhibit D
)
and Base Rent Adjustments as required by
Exhibit F
.
Notwithstanding the foregoing, if for any reason other than an Excused
Delay or Event of Default by Tenant, (i) the Premises are not
Substantially Completed by the 20th day following the Target Commencement Date,
or (ii) Tenant is not allowed entry into the Building at least 30 days
prior to the Commencement Date
8
for purposes of installing Tenants machinery and equipment, then
Tenant shall be entitled to a credit against Base Rent amounts first becoming
due hereunder in an amount equal to 2 days Monthly Base Rent for (x) each
calendar day beyond the Target Commencement Date that Substantial Completion is
delayed, and (y) each day less than 30 days prior to the Commencement Date that
Tenant is given access to the Premises for the purpose of installing its
machinery and equipment.
(b)
If
the Rent Commencement Date occurs on a day other than the first day of a
calendar month, then the Base Rent for the month in which the Rent Commencement
Date occurs will be equal to the monthly installment amount specified above
multiplied by a fraction, the numerator of which is the number of days in the
period starting on the Rent Commencement Date and ending on the last day of
that month, and the denominator of which is the total number of days in that month. Subsequent installments of Base Rent
following the Rent Commencement Date are payable by Tenant in advance on the
first day of each calendar month during the Term.
(c)
If
a termination of this Lease occurs prior to the Expiration Date for reasons other
than Tenants default (including but not limited to a termination by Tenant
pursuant to Section 19 hereof) and if the effective date of termination is
other than the last day of a calendar month, the parties will prorate the Base
Rent payable with respect to the calendar month in which the effective date of
termination occurs based on the number of days in that month, and Landlord
shall promptly refund to Tenant, without demand, setoff or deduction, any
previously paid Base Rent attributable to any period of time following the
termination date.
(d)
From
and after the Commencement Date, Tenant shall promptly pay when due to the
applicable taxing authority any fee-in-lieu of taxes and all taxes, assessments
(including any added or special assessments), water and sewer rents, rates and
charges, transit taxes, charges for public utilities, excises, levies, vault
and all other licenses and permit fees and other governmental charges, general
and special, ordinary and extraordinary, unforeseen and foreseen, of any kind
and nature whatsoever (including without limitation all penalties and interest
thereon by reason of Tenants failure to pay Impositions as herein provided
unless Landlord has not directed the taxing authority to deliver tax statements
directly to Tenant such that the failure to timely pay any such Imposition
results solely from the failure by Landlord to deliver the statement regarding
any such Imposition(s) to Tenant at least 15 business days prior to same
becoming due and payable, in which event Landlord shall be responsible for any
such penalties and interest) which at any time prior to or during the Term may
be assessed, levied, confirmed, imposed upon or grow or become due and payable
out of or in respect of or become a lien on (i) the Premises or any part
thereof or any appurtenance thereto, (ii) any Rent reserved or payable
hereunder or any other sums payable by Tenant hereunder, (iii) this Lease
or the leasehold estate hereby created or the operation, possession, occupancy
or use of the Premises, (iv) any document to which Tenant is a party
creating or transferring an interest or estate in the Premises (all of which
are hereinafter called
Impositions
).
9
(e)
Landlord
shall file a request with all taxing authorities that issue tax bills or tax
statements for Impositions on the Premises to deliver the tax bills or tax
statements directly to Tenant. Promptly
following request from the Landlord, Tenant shall promptly deliver to Landlord
copies of all tax bills and tax statements Tenant receives directly from the
taxing authorities. Tenant shall pay all such tax bills or tax statements prior
to delinquency. At least 15 business
days prior to the date each such tax bill or tax statement would become
delinquent, Tenant, upon request by Landlord, shall deliver to Landlord a copy
of a paid receipt that the taxing authority issues or a Certificate of No Tax
Due issued by a reputable title insurance company, at Tenants expense,
demonstrating the payment of that Imposition.
If Tenant does not timely provide proof of the payment of any Imposition
as required in the prior sentence within 5 business days following request
therefor by Landlord, Landlord may pay the Imposition and bill Tenant
therefor. Except as otherwise set forth
in Section 5(d) above, Tenant will be responsible for any interest or
penalties that accrue with respect to all Impositions not timely paid by Tenant
under this Section 5(e).
(f)
The
foregoing will not require Tenant to pay any municipal, state or federal
income, net profit, excess profits or similar taxes assessed against Landlord
or any of its partners, members or holders of its equity securities, or any
municipal, state or federal capital levy, estate, succession, inheritance, transfer
or similar taxes of Landlord or any of its partners, members or holders of its
equity securities, or corporation or other franchise taxes imposed upon the
owner of the fee of the Premises.
Moreover, with respect to Impositions that may lawfully be paid in
installments over a period of years, with or without interest, the foregoing
will not require Tenant to pay any portion of those installments or interest
that become due to the taxing authority after the Expiration Date, as extended. With respect to the Impositions levied in
respect of any period of time within which either the Commencement Date or the
Expiration Date occurs, Tenant shall only be obligated to pay a proportionate
part of those Impositions, which part will bear the same ratio to the total
amount of those Impositions as the number of days in the period between the
Commencement Date and the end of that period of time or in the period between
the beginning of that period of time and the Expiration Date, whichever is
applicable, bears to the total number of days in that period of time.
(g)
Notwithstanding
anything in this Section 5 to the contrary, Tenant may contest in good
faith and at its expense the amount or validity of any Imposition that it is
obligated to pay in accordance with the foregoing and is entitled to any refund
paid as a result of that contest.
Landlord shall join in any contest undertaken by Tenant in accordance
with the foregoing at Tenants expense if the provisions of any law, rule or
regulation at the time in effect require that the proceedings be brought by or
in the name of Landlord. Notwithstanding
anything in this Lease to the contrary, during any tax contest, Tenant agrees
to comply with any jurisdictional requirements relating to payment before
contest necessary to prevent a tax foreclosure.
10
(h)
For
purposes of this Lease, (i) Base Rent and (ii) any other amounts due
from Tenant to Landlord (herein sometimes referred to as
Additional Rent
) are herein collectively
referred to as the
Rent
. All Rent is payable without notice, demand,
abatement, deduction, or setoff at the address specified in Section 36(j)
or at such other address as Landlord may from time to time designate. Subject
to any contrary instructions to which Tenant shall be subject pursuant to this
Lease or any Exhibit hereto, at Landlords request Tenant shall pay Rent
to an account designated by Landlord.
Following Commencement Date, Tenants obligation to pay Base Rent and
other amounts under this Lease is independent of the performance by Landlord of
its obligations under this Lease; provided, nothing in this sentence affects
Tenants rights to set off under Section 26.
Section 6.
Renewal of the Term
.
(a)
Except
as otherwise provided in Section 13, Tenant may renew the Term for two
successive renewal terms (
Renewal Terms
)
of 60 months each from and after the Expiration Date as extended pursuant to Section 13(c) hereof
so long as this Lease is in full force and effect and Tenant is not in default
beyond all applicable grace, notice and cure periods in respect of the
performance of any obligation it undertakes under the terms of this Lease both
at the time that Tenant exercises each renewal option and at the time the
Renewal Terms commence. Tenant will
exercise each renewal option, if at all, by delivering written notice (the
Option Notice
) to Landlord not less than
12 months prior to the Expiration Date.
The provisions of this Lease will govern the relationship between the
parties during each Renewal Term, except that the Base Rent for each Renewal
Term will be determined as provided below.
(b)
The
annual Base Rent payable during each Renewal Term will be equal to the product
of the Fair Market Rent (as defined below and as determined in accordance with
the procedures described in this Section 6(b)) as of the date Tenant
exercises its option to renew the Term for the ensuing Renewal Term times the
Building Square Footage (or, if Tenant has exercised an Expansion Option under Section 13,
multiplied by the sum of the Building Square Footage plus the number of
rentable square feet then existing in the Expansion(s)). Initially Landlord will determine the Fair
Market Rent by using its good faith judgment.
Landlord will use due diligence and commercially reasonable efforts to
provide written notice of its determination in that regard within 15 days after
the date Tenant sends the Option Notice, but in no event later than 30 days
after that date. Tenant will have a
period (the
Tenant Review Period
)
of 30 days following the date of its receipt of Landlords notice of the rent
it proposes as the Fair Market Rent within which to accept Landlords proposal
or to provide Landlord with Tenants objections to Landlords proposal. If Tenant objects to Landlords initial
proposal or fails to affirmatively accept that proposal in writing, the parties
will use due diligence and commercially reasonable efforts to reach agreement
with respect to the Fair Market Rent, but, if the parties fail to agree within
15 days after the expiration of the Tenant Review Period, determination of the
Fair Market Rent will be made in accordance with the terms of
11
Subsections 6(b)(i) through 6(b)(v) below. If Landlord fails to provide Tenant written
notice of its initial proposal with respect to the Fair Market Rent within the
30-day period set forth above, Tenant may commence negotiations by providing
the initial notice, in which event Landlord will have a period (the
Landlord Review Period
) of 30 days
following the date of its receipt of Tenants notice of the rent it proposes as
the Fair Market Rent within which to accept Tenants proposal or to provide
Tenant Landlords objections to Tenants proposal. If Landlord objects to Tenants initial
proposal or fails to affirmatively accept that proposal in writing, the parties
will use duly diligent and commercially reasonable efforts to reach agreement
with respect to the Fair Market Rent, but, if the parties fail to agree within
15 days after the expiration of the Landlord Review Period, determination of
the Fair Market Rent will be made in accordance with the terms of Subsections
6(b)(i) through 6(b)(v) below.
If determination of the Fair Market Rent in accordance with the
following procedures becomes necessary, each party will place in a separate
sealed envelope its final proposal as to the Fair Market Rent that will apply
during the ensuing Renewal Term.
(i)
The
parties will meet within five business days after the expiration of the Tenant
Review Period or the Landlord Review Period, whichever is applicable, exchange
the sealed envelopes and open those envelopes in the presence of each
other. If the parties do not agree upon
the Fair Market Rent within 30 days following the date on which the exchange
and opening of the envelopes occur, Tenant may rescind its exercise of the
option to renew the Term by the delivery of written notice to Landlord prior to
the expiration of that 30-day period. If
the parties do not agree upon the Fair Market Rent within that 30-day period
and if Tenant fails to rescind its exercise of the option to renew the Term in
accordance with the foregoing terms of this subsection (i), then the
parties will jointly appoint a single arbitrator within the period that expires
40 days following the date on which the exchange and opening of the envelopes
occur. The arbitrator must be a real
estate broker who, as his or her primary livelihood, has been active in the leasing
of commercial properties in the Greater Charlotte, North Carolina area
(including the Rock Hill, South Carolina area), during the 10-year period
preceding the date of his or her appointment.
Neither Tenant nor Landlord may select as an arbitrator any broker or
firm to whom it has paid commissions or fees in the three year period prior to
the proposed engagement. Prior to the
arbitrators appointment, neither party will reveal to prospective arbitrators
under consideration by the parties its opinion or the opinion of the other
party regarding the Fair Market Rent.
The sole issue submitted to the arbitrator for determination will be
which partys final proposal regarding the Fair Market Rent is closest to the
actual Fair Market Rent, as independently determined by the arbitrator.
(ii)
Within
30 days after the date of his or her appointment, the arbitrator will give the
parties written notice of its determination as to which of the parties final
proposals regarding the Fair Market Rent will apply during the ensuing Renewal
Term.
12
(iii)
The
decision of the arbitrator is final and binding on the parties.
(iv)
If
the parties fail to agree upon the appointment of an arbitrator within the time
specified above, that appointment will be made by the Charlotte, North
Carolina, Office of the American Arbitration Association.
(v)
The
party whose proposal for Fair Market Rent is not selected shall bear the entire
cost of the arbitrator.
(c)
Fair
Market Rent means the annual rental rate per square foot for renewing tenants
for comparable buildings located in the Rock Hill, South Carolina area and that
are comparable in size, design, and quality to the Building in comparable
transactions involving a tenant whose creditworthiness is comparable to that of
Tenant and whose other obligations under the lease would be comparable to those
undertaken by Tenant in this Lease. In
any evaluation of comparable transactions, the arbitrator will consider the
annual rental rates per square foot, the use to which the tenant puts the
leased premises, the extent of the tenants liability for the performance of
the covenants set forth in the lease, abatement provisions reflecting free rent
or no rent during the period of construction or subsequent to the commencement
date as to the building in question, brokerage commissions, if any, that would
be payable by the landlord, length of the lease term, size and location of
premises being leased, building standard work letter or tenant improvement
allowances, if any, and other generally applicable conditions of tenancy for
those comparable transactions. The
intent is that Tenant will obtain the same rent and other economic benefits
that a landlord would otherwise give in a comparable transaction and that
Landlord will make and receive the same economic payments and concessions that
other landlords would otherwise make and receive in comparable transactions.
Section 7.
Use
.
Tenant may use the Premises for any lawful use, except that Tenant
shall not use or occupy the Premises, or any part thereof, nor permit or allow
the Premises or any part thereof to be used or occupied, for (i) any
purpose or in any manner which is in violation of the provisions set forth in Section 21,
or (ii) in any manner which will violate any certificate of occupancy for
the Premises or makes void or voidable any insurance then in force with respect
thereto as is required pursuant to this Lease.
It is intended that Tenant will initially use the Premises for general
offices, research and development, light manufacturing, telecommunications,
computer and data support functions, or other purposes consistent with the
character of the Building and for lawful purposes related to Tenants business
and in compliance with all Legal Requirements (
Intended Use
).
Section 8.
Alterations
.
(a)
During
the Term, Tenant shall not make any alterations, additions or improvements to
the Premises (
Alterations
)
without first obtaining the prior written consent of Landlord, which consent
shall not be unreasonably withheld;
13
provided, however, that Landlords prior
written consent shall not be required for any Alterations: (i) that cost
less than $100,000, including labor and materials, in the aggregate in any 12
month period; (ii) that are not structural exterior additions or
alterations to the Premises; (iii) that are not reasonably likely to
reduce the value of the Premises; (iv) that will not adversely affect the
structural elements or roof of the Building; and (vi) that will not
adversely affect the proper functioning of the Buildings systems on a
permanent basis. In seeking approval
from Landlord of any Alterations, Tenant shall provide Landlord with full and
complete drawings and plans for the proposed Alterations prepared by a licensed
architect or engineer. Tenant shall not
have the right to seek any zoning changes or variances in connection with any
Alterations, and Tenant shall procure all necessary governmental permits and approvals
prior to commencing construction of any Alteration.
(b)
All
Alterations shall be constructed by Tenant, without expense to Landlord, in a
in a good and workmanlike manner, and in accordance with all applicable
statutes and building codes, governmental rules, regulations and orders, and the
covenants, conditions and restrictions for the Waterford Business Park and
other restrictive covenants applicable to the Premises. Promptly upon the completion of construction
of any Alteration that is permanently affixed to the Premises, Tenant shall
deliver to Landlord one complete set of as built drawings thereof (and if the
Alterations involve any change to the footprint of the Building or the erection
of a new building, an ALTA survey certified to Landlord and any mortgagee of
the Premises), proof of payment for all labor and materials, and if and to the
extent commercially obtainable, copies of warranties, if any, from all major
contractors in favor of Landlord and Tenant (jointly and separately) against
defects and deficiencies in materials and workmanship, and requiring the
correction of the same upon demand of Landlord and Tenant at the expense of
such contractor.
(c)
All
Alterations, whether temporary or permanent in character, made in or upon the
Premises either by Landlord or Tenant (other than furnishings, removable
partitions, trade fixtures, equipment and other movable personal property
installed by Tenant) shall be Landlords property upon the expiration or
earlier termination of the Term, and will remain with the Premises without
compensation to Tenant. Tenants trade
fixtures, removable partitions, furnishings, equipment and other movable
personal property in the Premises will remain Tenants property for all
purposes and Tenant may remove them at its option and expense at any time on or
before the Expiration Date. Upon the
expiration of the Term or any earlier termination of this Lease, Tenant shall
surrender the Premises in good condition and repair, except for ordinary wear
and tear, casualty damage, and damage that Landlord has the obligation to
repair under the terms of this Lease.
The foregoing covenant does not obligate Tenant to remove Alterations or
other leasehold improvements made with respect to the Premises. All Tenant Improvements and other property of
Tenant not timely removed from the Premises shall become part of the Premises
and will remain with the Premises upon the expiration of the Term or any
earlier termination of this Lease.
14
(d)
Tenant
shall defend, indemnify and save harmless Landlord against any and all mechanics
and other liens filed arising out of any work performed, materials furnished or
obligations incurred in connection with any Alterations. If Tenant does not procure the satisfaction
or discharge of all liens for which Tenant is responsible hereunder as and when
required by this Lease by bonding, payment or otherwise, Landlord may, upon 30
days prior written notice to Tenant, pay the amount of any lien or discharge
the same by deposit or, alternatively, by bond or in any manner according to
law, and the amount so paid by Landlord, together with reasonable expenses
incurred by Landlord, including all reasonable legal fees and such expenses
shall be payable by Tenant as Additional Rent hereunder within 30 days after
demand.
Section 9.
Maintenance of Premises
.
(a)
During
the Term, Landlord shall maintain only the following in good condition and
repair at its expense: the structure of
the Building, including, without limitation the roof, roof membrane,
foundation, floor slab, and load-bearing and exterior walls (the
Structural Components
). If, in order for a Structural Component of
the Building to remain in good condition, replacement of that component becomes
necessary, Landlords obligation with respect to that Structural Component
includes the obligation to replace it.
(b)
Landlord
shall accomplish all maintenance for which it is responsible as soon as
practicable following receipt of notice from Tenant. If a hazardous or emergency situation exists,
however, Landlord shall have the maintenance performed as soon as possible.
(c)
Except
as otherwise provided in this Lease, Tenant shall during the Term maintain in
good condition and repair (ordinary wear and tear excepted) at all times at its
expense the Premises and the systems serving the Premises. Moreover, during the entire Term, Tenant must
keep the parking areas and all detention pond facilities clean and in good
condition and repair, water the landscape plantings situated on the Land at
suitable intervals, and either maintain in force service contracts providing
for the routine repair and maintenance of the HVAC and other Building systems
serving the Premises (each, a
Maintenance
Contract
) or provide reasonable evidence to Landlord from time to
time upon its request that the HVAC and other Building Systems are being
maintained in accordance with the manufacturers specifications under a regular
maintenance program by a qualified maintenance technician. Promptly after receipt thereof, Tenant shall
furnish to Landlord a copy of each Maintenance Contract (and each renewal
thereof) and, upon request by Landlord, a copy of each service report received
by Tenant under any Maintenance Contract.
Tenants obligations include necessary replacements of the landscaping,
as well as repairs and replacements regarding parking areas, driveways,
sidewalks, detention pond facilities, stairs, elevators, loading dock, dock
door, and leveler, and related facilities, and the HVAC and other systems
serving the Premises and all Tenant Improvements.
15
(i)
With
respect to any proposed replacement of any portion of the heating, ventilating
and air conditioning system in the Premises (the
HVAC Replacement
) during the last 18 months of the Initial
Term or any Renewal Term of this Lease:
(1)
Tenant
must give Landlord written notice of the need for the HVAC Replacement at least
30 days prior to commencing the HVAC Replacement, which notice must include:
a.
a
detailed estimate from the service provider under the Maintenance Contract for
the HVAC system, or if none, from a qualified service technician, of the cost
to repair the HVAC system (or the applicable part thereof) without replacing
it; and
b.
bids
for the cost of the HVAC Replacement from at least three (3) reputable
HVAC providers approved by Landlord; and
(2)
Landlord
must give its prior written consent to the HVAC Replacement and the HVAC
provider who will install the HVAC Replacement, which consent may not be unreasonably
withheld, conditioned, or delayed.
Landlords failure to respond to Tenants notice within fifteen (15)
days of Landlords receipt thereof, shall be deemed to be a consent to the
proposed HVAC Replacement.
(ii)
If
Landlord consents (or is deemed to consent) to an HVAC Replacement and Tenant
does not renew or extend the Term, then, within sixty (60) days after the
expiration of the Term (or Renewal Term), Landlord shall reimburse Tenant an
amount determined by multiplying the out-of-pocket costs incurred by Tenant for
the HVAC Replacement by a fraction, the denominator of which is the anticipated
useful life (the
Useful Life
) of
the HVAC Replacement, as determined in accordance with generally accepted
accounting principles (stated in years and fractions thereof), and the
numerator of which is the Useful Life minus the number of full or partial years
remaining in the Term or Renewal Term, as applicable, at the time such HVAC
Replacement is completed, subject to the following conditions:
(1)
Tenant
must have either obtained and continued in effect at all times during the Term
a Maintenance Contract for the HVAC system, or at all times maintained the HVAC
System in accordance with the manufacturers specifications under a regular
maintenance program administered by a qualified service technician;
(2)
Tenant
must not be in default under this Lease beyond any applicable notice and cure
period at the time of reimbursement;
16
(3)
Tenant
must provide Landlord with copies of paid receipts evidencing the payment of
the costs for the HVAC Replacement; and
(4)
Landlord
may set off against its reimbursement amount any outstanding amounts owed by
Tenant to Landlord under this Lease.
By way of example only, assuming that Tenant makes an HVAC Replacement
at any time during the last year of the Initial Term, Tenant is entitled to
reimbursement under this Section 8(c), the Useful Life is determined to be
nine years, and the cost of the HVAC Replacement is $500,000, then Landlords
reimbursement to Tenant will be $444,444 [$500,000 multiplied by 8/9].
(iii)
If
Landlord disapproves Tenants request for an HVAC Replacement, Landlord must
provide reasonable evidence to Tenant that the repairs Landlord proposes will be
adequate to remediate the defect that necessitated the request for the HVAC
Replacement.
(d)
At
Tenants request, Landlord agrees, at no out of pocket cost to Landlord, to
assist Tenant in obtaining and coordinating maintenance providers for the
Premises.
(e)
Landlord
or Tenant, after providing the other party not less than 30 days prior written
notice, may perform any obligation the other party (the
Non-Performing Party
) is required to
perform pursuant to this Section 9 but has failed to perform on behalf of
such Non-Performing Party, and the Non-Performing Party shall pay to the party
performing such obligation (the
Performing
Party
) within 30 days after the date of the Non-Performing Partys
receipt of the Performing Partys invoice the full amount of the reasonable
costs and expenses the Performing Party incurs to perform such obligations,
together with the amount of any reasonable legal fees the Performing Party
incurs in instituting, prosecuting or defending any action or proceeding by
reason of any default in respect of any such obligation, except that the
Performing Party shall have no right to perform such obligation if such
obligation requires more than 30 days to perform and the Non-Performing Party
has commenced performance of the obligation within the 30-day period and is
diligently pursuing performance of that obligation. The foregoing in no way eliminates Landlords
obligation to promptly perform repairs involving hazardous or emergency
situations, as further set forth in 9(b) above, and Tenants corresponding
right of self-help if Landlord fails to do so as more specifically provided in Section 26(a) below.
Section 10.
Utilities
.
Tenant shall provide or contract for and pay for all utilities and
other services furnished to the Premises commencing on the Commencement Date.
17
Section 11.
Telecommunications Equipment
.
Tenant has the right to use portions of the roof area of the Building,
or such other locations on the Land, as Tenant may reasonably select and
Landlord approves (provided Landlords approval shall not be unreasonably
withheld, conditioned, or delayed) and as Legal Requirements permit, for the
installation, operation, maintenance, security, repair, and replacement of
antennae and satellite dishes and other telecommunications equipment and
related cable connections (the
Telecommunications
Equipment
), as well as for access to risers. Tenants use of the Premises in respect to
the Telecommunications Equipment is subject to the following conditions: (i) Tenant is solely responsible for the
installation, maintenance, repair, operation, and replacement of the
Telecommunications Equipment, (ii) Tenant must install screening around
the Telecommunications Equipment to the extent required by Legal Requirements,
and (iii) any roof penetrations necessary to install the
Telecommunications Equipment shall be made so as not to invalidate or void the
roof warranty including using designated contractors, if required as a
condition of such compliance with the roof warranty. On or before the Expiration Date or within 30
days after the earlier termination of this Lease, Tenant shall remove the
Telecommunications Equipment and repair any damage to the Premises that the
removal causes. Tenant shall pay
Landlord within 30 days after Landlords demand the cost of repairing any
damage to the Premises arising from the removal and restoration.
Section 12.
Signs
.
Tenant has the exclusive right to place exterior signs on the Premises
subject only to any restrictions applicable by virtue of Legal Requirements,
other than temporary for sale or for rent signs installed by Landlord during
the last 12 months of the Term. Tenant
shall maintain its signs in good condition and shall remove them and repair any
damage to the Premises the removal causes on or before the Expiration Date or
within 30 days after any earlier termination of this Lease.
Section 13.
Expansion Option.
(a)
The
Building will be built on that portion of the Land identified on
Exhibit A
as Phase I. The remaining portion of the Land is
designated as Expansion Land. Subject to this Section 13, Tenant shall
have the right to cause Landlord to develop one or more additional buildings on
that portion of the Expansion Land, which additional buildings will become part
of the Premises, and as such additional buildings are developed the parties
shall amend
Exhibit A
(x) to reduce the Expansion Land then owned by Landlord by the land on which
the additional buildings are to be situated and a reasonable buffer agreed to
between the parties, or (y) if the Expansion Land is then owned by Tenant, to
convey such portion of the Expansion Land to Landlord, in each case taking into
account applicable zoning and planning regulations. The provisions of this Section 13
shall be applicable to each such expansion.
In the event that Tenant and Landlord cannot agree, in good faith, on
the essential terms of any such expansion provided in this Section 13,
Landlord agrees to sell to Tenant fee simple title to the Expansion Land then
owned by Landlord in accordance with the provisions of Section 36
below. The parties failure to agree
shall be evidenced by written notice (the
18
Trigger
Notice
) from Landlord or Tenant to the other party stating a desire
to discontinue negotiations regarding the proposed expansion. If either party issues a Trigger Notice and
Tenant either then owns or subsequently acquires the Expansion Land pursuant to
Section 36, Tenant shall thereafter be entitled to develop the Expansion
Land independently of Landlord. To the extent that Tenant has purchased the
Expansion Land and Tenant determines to develop the Expansion Land
independently of Landlord, Landlord and Tenant agree to reasonably cooperate
with each other to grant such easements, restrictions and other agreements (the
REAs
) reasonably necessary for
access to and development of the Expansion Land or for operation of the
Premises as (i) are reasonably necessary to allow Tenant to independently
develop the Expansion Land as an expansion to Tenants business operations in
the Building, and (ii) will not materially adversely affect Landlords
investment in the Building, mortgage loan with respect thereto or the
marketability or functionality of the Building and the portion of the Land then
owned by Landlord. Landlord and Tenant
acknowledge that the REAs and Tenants development of the Expansion Land will
need to account for the fact that any facilities built by Tenant on the Expansion
Land will be owned separately by Tenant whereas the Building will be leased
from Landlord and this Lease may expire. The REAs and the site plan and
utility development plans of Tenant with respect to the Expansion Land as such
plans impact on the REAs and the foregoing provisions of this paragraph shall
be subject to the approval of each Party and their legal counsel, which shall
not be unreasonably withheld or delayed, subject, however, to the foregoing
requirements of this paragraph.
(b)
If
(i) Tenant is not in default beyond any applicable cure period in respect
of the performance of its obligations arising under the terms of this Lease, (ii) this
Lease is in full force and effect in accordance with its terms, (iii) the
Initial Term has not been terminated, and (iv) no material adverse change
in the financial condition of Tenant has occurred since the Effective Date and
is continuing, then Tenant has the option at any time and from time to time
(each, the
Expansion Option
) to
lease additional buildings developed by Landlord on the Premises (each, an
Expansion
) as further provided in this
Section. If Tenant has suffered a
material adverse change in its financial condition that is continuing such that
Landlord notifies Tenant that the Expansion Option is not available for
exercise by Tenant, Tenant, at its option, shall be entitled to purchase in
accordance with the provisions of Section 36, all of that portion of the
Expansion Land then owned by Landlord then remaining available for
expansion. Any such notice to Tenant
that the Expansion Option is not available for exercise shall be deemed to be a
Trigger Notice for purposes of Section 36.
(c)
If
Tenant exercises the Expansion Option for the development of additional
buildings on all or any portion of the Expansion Land then owned by Landlord,
the Initial Term will automatically be extended so that it ends 15 years from
the Expansion Commencement Date (as defined below). Other than the Base Rent, all applicable the
terms of this Lease with respect to the initial Premises during the balance of
the 15-year term will remain as stated in this Lease and will apply
19
to such Expansion unless otherwise agreed by
the parties. The Base Rent payable by Tenant
with respect to the initial Premises will remain in effect until the Expiration
Date for the Expansion, with the Base Rent increasing by 6% on the first day of
the extended Term (i.e., Lease Year 16) and on the first day of each succeeding
sixth Lease Year (i.e., 21th, 26th, etc.) such that there will be a 6% increase
in Base Rent at the conclusion of each 5 Lease Year period.
(d)
If
Tenant has not theretofore exercised Expansion Option(s) with respect to all of
the Expansion Land and exercises an Expansion Option by giving written notice
of exercise to Landlord, then:
(i)
The
parties will promptly enter in good faith into an amendment to this Lease (the
Expansion Amendment
) whereby (x) Landlord
agrees to construct an Expansion upon such portion of the Expansion Land as is
then owned by or conveyed by Tenant to Landlord (provided such conveyance to
Landlord complies with applicable zoning and platting laws) as Tenant shall
have designated within 12 months or less after the execution of the Expansion Amendment,
(y) the description of the Expansion Land is revised so that it includes only
that portion, if any, of the original Expansion Land then owned by Landlord or
conveyed by Tenant to Landlord (provided such conveyance to Landlord complies
with applicable zoning and platting laws) still available for further expansion
by Tenant, and (z) the parties agree to increase the Base Rent for the
Expansion in the manner as set forth in this Section 13, payable during
the period from the date Landlord substantially completes construction of the
Expansion (the
Expansion Commencement Date
)
and that ends at 11:59 p.m. (Rock
Hill, South Carolina local time) on either the day prior to the 15th
anniversary of the Expansion Commencement Date, if the Expansion Commencement
Date occurs on the first day of a calendar month, or on the day prior to the
15th anniversary of the first day of the first full month following the
calendar month in which the Expansion Commencement Date occurs, if the
Expansion Commencement Date does not occur on the first day of a month,
whichever is applicable (the
Expansion Term
)
(ii)
Landlord
shall construct an Expansion in substantial accordance with the procedures and
mechanisms set forth in Section 2 with respect to the construction of the
Improvements, granting Tenant comparable Tenant Allowances of the same type
included in this transaction (on a per rentable square foot basis), except as
otherwise specified in
Exhibit D
.
(iii)
If
Tenant exercises an Expansion Option after the first Lease Year, the annual
Base Rent for such Expansion will be the amount determined by multiplying the
Expansion Construction Costs by the sum of (A) the interest rate on 10-year
U.S. Treasury Notes as of the Expansion Commencement Date, plus (B) a
spread determined in a manner consistent with spreads used to determine
commercial lease rates in the Charlotte,
20
North Carolina metropolitan area, and taking
into account the Tenants then-current credit standing. Within 30 days following the date of
substantial completion of the construction of the Expansion, Landlord shall
furnish to Tenant a detailed itemization of the costs by major construction
trade and the cost of any Expansion Land conveyed to Landlord by Tenant (the
Expansion Construction Costs
) that
Landlord incurred in connection with the design and construction of the
Expansion and copies of invoices, statements, contracts, subcontracts, and
other information that Tenant may reasonably request in order to confirm the
accuracy of Landlords itemization. As
used in this Section 13 with regard to the improvements to be constructed
in connection with an Expansion, the terms
substantial
completion
and
substantially
complete
shall be accorded the same meanings given to the terms Substantial
Completion and Substantially Completes with regard to the Improvements in Section 3(d).
(iv)
Landlord
shall construct the Expansion in accordance with final plans and specifications
to be mutually agreed upon by Landlord and Tenant. Landlord shall solicit bids from at least
three contractors appearing on a list of contractors jointly developed and
mutually approved by the parties. Landlord
shall award the contract for the construction of the Expansion to the lowest
qualified bidder, subject to Tenants approval, which will not be unreasonably
withheld, conditioned, or delayed.
Within sixty (60) days after Tenant exercises the Expansion Option and
Landlord and Tenant have mutually agreed upon preliminary plans and
specifications for the Expansion, Landlord shall provide Tenant with an
estimate of the Expansion Construction Costs and a proposed construction
schedule. If Tenant determines in its
sole discretion that the cost to construct the Expansion is too high, or that
the construction schedule is unacceptable, Tenant may elect to nullify its
election to exercise the Expansion at any time prior to Tenants written
approval of the construction budget for the Expansion. If, within sixty (60) days after the estimate
of Expansion Construction Costs and the construction schedule has been
received by Tenant, Tenant fails either to approve the estimate of the
Expansion Construction Costs and the construction schedule or to commence
discussions with the Landlord to value engineer the estimate of Expansion
Construction Costs and/or to refine the construction schedule, then Tenant
shall be deemed to have nullified its election to exercise the Expansion
Option, and Tenant, at its option, may elect to purchase in accordance with the
provisions of Section 36 below, all of the Expansion Land then remaining
available for expansion
(v)
On
or about the date that Landlord substantially completes the construction of the
Expansion, Landlord will cause its architect to determine the rentable square
footage of the Expansion, and the parties will promptly execute and deliver an
amendment to this Lease that confirms the addition of the Expansion to the
Premises, the Expansion
21
Commencement Date, and the Base Rent that
will be payable through the Expiration Date with respect to the Expansion and
the initial Premises.
(e)
Subject
to extension by one day for each day of Excused Delays, Landlord shall cause
the Expansion to be constructed and substantially completed and the Expansion
premises (the
Expansion Premises
)
to be delivered to Tenant in broom clean condition in accordance with all
applicable laws within the time period to be agreed upon by Landlord and
Tenant, but not longer than 365 days from the execution and delivery of the
Expansion Amendment and Tenant shall have the right to enter the Expansion
Premises not less than 30 days prior to its Substantial Completion to install
Tenants fixtures.
Section 14.
Landlords Right of Access
.
(a)
Landlord
and its authorized representatives have the right to enter the Premises during
Tenants regular business hours for the purpose of (i) determining whether
the Premises are in good condition and whether Tenant is complying with its
obligations arising under the terms of this Lease, and (ii) performing any
maintenance or repairs for which Landlord is responsible under the terms of
this Lease. Landlord has the right to
enter the Premises at all times without notice in the event of an emergency or
for the purpose of making emergency repairs; under other circumstances,
Landlord must give Tenant reasonable advance written notice of Landlords
intended entry (which need not be more than 48 hours in advance of that
entry). Tenant may condition Access to
designated areas of the Premises that contain confidential information upon the
accessing partys execution of a confidentiality agreement reasonably
acceptable to Tenant and to the right of Tenant to have a representative of
Tenant accompany such party(ies); provided, however, that notwithstanding
anything in this Lease to the contrary, in the event Tenant denies access to
all or any portion of the Premises to any contractor or agent of Landlord
seeking entry in the event of an emergency or for the purposes of making
repairs required of Landlord, Landlord shall have no liability to Tenant of any
kind or character with regard to the items or matters sought to be remedied or
otherwise addressed by the party or parties refused access by Tenant.
(b)
Landlord
shall conduct its activities in the Premises in a manner that will cause a
minimum of interference with Tenants business operations.
Section 15.
Tenants Indemnity
.
EXCEPT AS PROVIDED IN SECTION 18, TENANT SHALL INDEMNIFY, DEFEND,
AND HOLD LANDLORD HARMLESS FROM AND AGAINST ALL CLAIMS, ACTIONS, DEMANDS,
JUDGMENTS, DAMAGES, LIABILITIES AND EXPENSES, INCLUDING REASONABLE LEGAL FEES,
THAT MAY BE ASSERTED AGAINST LANDLORD OR THAT LANDLORD MAY SUSTAIN BY
VIRTUE OF THE OCCURRENCE OF THE DEATH OF OR BODILY INJURY TO ANY PERSON OR THE
LOSS OF, DAMAGE TO, OR DESTRUCTION OF, ANY PROPERTY ARISING FROM
22
TENANTS USE
OF THE PREMISES OR FROM THE NEGLIGENT OR INTENTIONAL ACTS OR OMISSIONS OF
TENANT, OR ANY OF ITS REPRESENTATIVES, AGENTS, EMPLOYEES, CONTRACTORS OR
INVITEES, INCLUDING, WITHOUT LIMITATION, ANY TENANT DELAYS OR ANY FAILURE BY
TENANT TO PERFORM ITS MAINTENANCE OBLIGATIONS UNDER SECTION 9(C) OR
ANY DAMAGE TO ANY STRUCTURAL COMPONENTS CAUSED BY TENANT, ITS CONTRACTORS,
AGENTS, EMPLOYEES OR REPRESENTATIVES THAT INCREASE THE LANDLORDS COST OF
PERFORMING ITS OBLIGATIONS UNDER SECTION 9(A), EXCEPT TO THE EXTENT THE
CLAIMS, ACTIONS, DEMANDS, JUDGMENTS, DAMAGES, LIABILITIES OR EXPENSES ARISE
FROM THE INTENTIONAL OR NEGLIGENT ACTS OR OMISSIONS OF LANDLORD OR ANY OF ITS
REPRESENTATIVES, AGENTS, EMPLOYEES, CONTRACTORS OR INVITEES. TENANTS OBLIGATIONS UNDER THIS SECTION 15
APPLY REGARDLESS OF WHETHER LANDLORD WAS CONCURRENTLY NEGLIGENT (WHETHER ACTIVE
OR PASSIVE), IT BEING AGREED BY THE PARTIES THAT IN THE EVENT OF CONCURRENT
NEGLIGENCE TENANTS RESPECTIVE LIABILITY WILL BE DETERMINED IN ACCORDANCE WITH
PRINCIPLES OF COMPARATIVE NEGLIGENCE.
Section 16.
Landlords Indemnity
.
EXCEPT AS PROVIDED IN SECTION 18, LANDLORD SHALL INDEMNIFY,
DEFEND, AND HOLD TENANT HARMLESS FROM AND AGAINST ALL CLAIMS, ACTIONS, DEMANDS,
JUDGMENTS, DAMAGES, LIABILITIES AND EXPENSES, INCLUDING REASONABLE LEGAL FEES,
THAT MAY BE ASSERTED AGAINST TENANT OR THAT TENANT MAY SUSTAIN BY
VIRTUE OF THE OCCURRENCE OF THE DEATH OF OR BODILY INJURY TO ANY PERSON OR THE
LOSS OF, DAMAGE TO, OR DESTRUCTION OF ANY PROPERTY ARISING IN CONNECTION WITH
ANY LATENT OR PATENT DEFECT IN THE CONDITION OF THE PREMISES EXISTING AS OF THE
COMMENCEMENT DATE, OR ARISING FROM THE NEGLIGENT OR INTENTIONAL ACTS OR
OMISSIONS OF LANDLORD, OR ANY OF ITS REPRESENTATIVES, AGENTS, EMPLOYEES,
CONTRACTORS OR INVITEES, EXCEPT TO THE EXTENT ANY SUCH CLAIMS, ACTIONS,
DEMANDS, JUDGMENTS, DAMAGES, LIABILITIES OR EXPENSES ARISE FROM THE INTENTIONAL
OR NEGLIGENT ACTS OR OMISSIONS OF TENANT OR ANY OF ITS REPRESENTATIVES, AGENTS,
EMPLOYEES, CONTRACTORS OR INVITEES.
LANDLORDS OBLIGATIONS UNDER THIS SECTION 16 APPLY REGARDLESS OF
WHETHER TENANT WAS CONCURRENTLY NEGLIGENT (WHETHER ACTIVE OR PASSIVE), IT BEING
AGREED BY THE PARTIES THAT IN THE EVENT OF CONCURRENT NEGLIGENCE LANDLORDS
RESPECTIVE LIABILITY WILL BE DETERMINED IN ACCORDANCE WITH PRINCIPLES OF
COMPARATIVE NEGLIGENCE.
Section 17.
Insurance
.
(a)
Commencing
on the Commencement Date and continuing for the balance of the Term, Tenant
shall provide and maintain a special form insurance policy (including fire
and standard extended coverage perils, leakage from fire protective devices and
other water damage, excluding flood) covering loss or damage to the
23
Improvements and the Tenant Improvements
(including, without limitation, to the extent applicable the Expansion Premises
and any alterations made to the Premises from time to time) on a full
replacement cost basis, excluding excavations, footings and foundations and
providing for a deductible of no greater than $25,000. In the event of a casualty, Tenant shall pay
to Landlord the lesser of the amount of the deductible or the full amount of
the loss in the case of a loss in an amount less than the deductible, which
payment shall be treated in the same manner as insurance proceeds. Such insurance shall include an agreed amount
endorsement and no co-insurance provisions and contain no exclusions for
vandalism, malicious mischief, sprinkler leakage, or act of terrorism (as
such term is defined in the Terrorism Risk Insurance Act of 2002). Tenant shall
further procure and carry business interruption insurance in an amount
sufficient to provide for the payment of Rent during the continuation of any
interruption of the Tenants business for a period of at least 12 months.
Notwithstanding the foregoing, upon any casualty to the Premises allowing
Tenant to terminate this Lease pursuant to Section 19 hereof, Landlord
shall have no claim against the business interruption insurance proceeds of
Tenant after the date of termination. Boiler and Machinery Coverage shall be
procured either by endorsement to the property policy or under a separate placement
in an amount no less than 100% of the replacement cost or as otherwise approved
in writing by Landlord. The property
insurance shall (1) have a restoration period of no less than 12 months
and an extended period of indemnity of not less than 12 months; (2) cover
loss sustained when access to all or a portion of the Building is prevented due
to an insured peril at a location in the vicinity of the Premises; (3) cover
loss sustained due to the action of a public authority preventing access to the
Building due to imminent or actual loss or destruction arising from an insured
peril at a location in the vicinity of the Premises; (4) cover acts of
terrorism (as such term is defined in the Terrorism Risk Insurance Act of
2002), unless otherwise agreed to in writing by the Landlord; (5) name
Landlord as the loss payee and contain a non-contributory standard lender
clause and a lender loss payee endorsement; and (6) contain an endorsement
providing coverage for cleanup of sudden and accidental pollution releases,
with a sublimit of at least $25,000.
Tenant shall also provide and maintain throughout the Term, at its
expense, such property insurance covering Tenants machinery, equipment,
furniture, fixtures, personal property (including also property under the care,
custody, or control of Tenant) and business interests which may be located in,
upon or about the Premises in such amounts as Tenant may from time to time deem
prudent. Tenant shall cause all such
property policies to permit Tenants waiver of claims against Landlord under Section 18
for matters covered thereby. Tenant
shall cause Landlord and its lender holding a first lien against the Premises
(if Landlord has notified Tenant of the name and address of its lender) to be
named as additional insureds, as their interests may appear, on all such
property policies (excluding any policies that cover only Tenants equipment) ,
as their interests may appear, and shall cause the coverage to continue for
Landlords benefit notwithstanding any act or omission on Tenants part.
24
(b)
Commencing
on the Commencement Date and continuing for the balance of the term, Tenant
shall provide and maintain the following insurance, in the amounts specified
below:
(i)
bodily
injury and property damage liability insurance, with a combined single
occurrence limit of not less than $2,000,000; such insurance will be on
commercial general liability form CG 0001 (or its equivalent) including,
without limitation, personal injury and assumed contractual liability with
regard to the indemnity agreements of Tenant set forth in Section 15;
Tenant shall cause Landlord and its lender to be named as an additional
insureds under such liability insurance, as their interests may appear, and
shall cause such coverage to include cross liability and severability of
interests clauses and, unless otherwise approved in writing by Landlord, to
have a deductible of $25,000 or less and no retention or self-insurance
provision;
(ii)
workers
compensation insurance insuring against and satisfying Tenants obligations and
liabilities under the workers compensation laws of the State of South Carolina
and employers liability insurance in the limit of $100,000/500,000/100,000
(provided that Tenant may self-insure this obligation pursuant to a program of
self-insurance);
(iii)
if
Tenant operates owned, hired or nonowned vehicles on the Premises,
comprehensive automobile liability will be carried at a limit of liability not
less than $1,000,000 combined bodily injury and property damage; and
(iv)
umbrella
or excess liability insurance written on an occurrence basis and covering
claims in excess of the underlying insurance described in the foregoing
subsections (i), (ii) and (iii) above, with a $15,000,000 minimum
limit per occurrence. Such insurance
shall contain a provision that it will not be more restrictive than the primary
insurance and shall drop down as primary insurance in the event that the
underlying insurance policy aggregate is exhausted.
Each coverage in this Section 17(b) shall include waiver of
subrogation endorsement in favor of Landlords lender.
(c)
All
insurance required to be maintained by Tenant pursuant to this Section 17
must be maintained with insurers licensed to do business in the State of South
Carolina and having a Bests Key Rating of at least A-:IX.
(d)
Tenant
may provide the insurance required by virtue of the terms of this Lease by
means of a combination of primary and excess or umbrella coverage and by means
of a policy or policies of blanket insurance so long as (i) the amount of
the total insurance allocated to the Premises under the terms of the blanket
policy or policies furnishes protection equivalent to that of separate policies
in the amounts
25
required by the terms of this Lease, and (ii) the
blanket policy or policies comply in all other respects with the other
requirements of this Lease.
(e)
The
required deductibles, limits and coverages of all insurance set forth in this Section 17
may be reasonably adjusted by Landlord from time to time (but not more
frequently than once every 5 years) in conformity with the then prevailing
custom of insuring liability in the city in which the Premises are located or
of securitized mortgage lending.
(f)
Prior
to the Commencement Date and at least 5 days prior to each policy anniversary,
Tenant shall furnish the Landlord and its lenders with certificates of
insurance or binders, in a form reasonably acceptable to Landlord evidencing
that all of the insurance required by the provisions of this Lease for the
benefit of Landlord and required to be in force by the provisions of this Lease
and that the insurer(s) have agreed to give the other party at least 10 days
notice prior to cancellation for nonpayment of premiums and 30 days notice
prior to any other cancellation of, or any material modification to, the
required coverage. Such certificates of
insurance/binders shall be executed by each insurer or by an authorized
representative of each insurer where it is not practical for such insurer to
execute the certificate itself. Such
certificates of insurance/binders shall identify underwriters, the type of
insurance, the insurance limits and deductibles and the policy term and shall specifically
list the special provisions enumerated for such insurance required by this
Lease. Concurrently with the renewal of
each policy, Tenant shall furnish Landlord with a report of an independent
broker stating that the insurance required under this Section 17 is in
effect, that all premiums have been paid, and attaching an updated copy of the schedule of
insurance. Landlord and Tenant shall
cooperate with each other in the collection of any insurance proceeds which may
be payable in the event of any loss, including the execution and delivery of
any proof of loss or other actions required to effect recovery. Tenant shall cause all commercial general
liability and property policies maintained by Tenant to be written as primary
policies, not contributing with and not supplemental to any coverage that
Landlord may carry.
Notwithstanding anything herein to the contrary, in the event any of
the insurance coverage set forth herein as required coverage to be maintained
by Tenant becomes unavailable, or if available but only at such rates as to be
commercially unreasonable and are no longer typically required to be carried
regarding premises comparable to the Premises, Landlord and Tenant shall
cooperate in good faith to revise the applicable insurance coverage
requirements to reflect then current market considerations. Tenant acknowledges that Landlords lender
must approve any such revision of applicable insurance coverages.
(g)
Notwithstanding
any provision hereof to the contrary, Landlord shall have rights to claim the
proceeds of Tenants business interruption insurance only if and to the extent
that Tenant does not pay its Rent as required by this Lease.
26
Section 18.
Waiver of Subrogation
.
Notwithstanding anything to the contrary set forth in this Lease,
neither Landlord nor Tenant shall be liable (by way of subrogation or
otherwise) to the other party (or to any insurance company insuring the other
party) for any loss or damage to the property of the releasing party to the
extent the loss or damage is covered by property insurance carried or required
by this Lease to be carried by the releasing party
even though such loss might have been occasioned by the negligence or
willful acts or omissions of Landlord or Tenant or their respective employees,
agents, contractors or invitees.
Landlord and Tenant shall give each
insurance company which issues policies of insurance, with respect to the items
covered by this waiver, written notice of the terms of this mutual waiver, and
shall have such insurance policies properly endorsed, if necessary, to prevent
the invalidation of any of the coverage provided by such insurance policies by
reason of such mutual waiver. For the
purpose of the foregoing waiver, the amount of any deductible or self-insured
retention applicable to any loss or damage shall be deemed covered by, and
recoverable by the insured under the insurance policy to which such deductible
or self-insured retention relates.
Section 19.
Casualty
.
(a)
If
damage caused by a fire or other casualty renders the Building fully or
partially untenantable, subject to Tenants rights to terminate this Lease as
set forth in this Section 19, neither the Base Rent nor any other amounts
payable under this Lease will abate for the period during which the Building is
wholly or partially untenantable.
(b)
If
a fire or other casualty renders the Premises untenantable, in whole or in
part, and the estimated time for the restoration of the Improvements and the
Tenant Improvements exceeds the period that will expire on the date that is 270
days after the date of the occurrence of the fire or casualty, Tenant may
terminate this Lease by the delivery of written notice to Landlord within 15
days following the date on which Landlord notifies Tenant of the estimated time
for the restoration of the Improvements.
Landlord must provide that estimate within 60 days following the date of
the casualty. If a termination of this
Lease does not occur in accordance with the foregoing provisions of this Section 19(b),
but Landlord fails to complete the restoration of the Improvements by the date
that is 60 days after the date of the expiration of the period within which
Landlord estimated the restoration would be completed, Tenant may,
notwithstanding anything in this Lease to the contrary, terminate this Lease by
the delivery of written notice to Landlord at any time following the expiration
of that 60-day period, but prior to the date on which Landlord completes the
restoration of the Improvements. If a
termination of this Lease occurs in accordance with the terms of this Section 19,
then Tenant shall cause its insurance carriers to pay to Landlord all proceeds
payable in respect of the insurance that Tenant maintains in accordance with
the terms of Section 17(a) allocable to the Improvements to the
extent not previously disbursed to Landlord in connection with the restoration
of the Improvements. Notwithstanding the
foregoing, upon any casualty to the Premises allowing Tenant to terminate this
Lease pursuant to this Section 19 hereof, Landlord shall have no claim
against the
27
business interruption insurance proceeds of
Tenant after the date of termination. Excusable Delays shall not extend any of
the time periods set forth in this Section 19(b) for more than one
hundred eighty (180) days in the aggregate.
(c)
If
fire or other casualty damages the Premises and a termination of this Lease does
not occur under subparagraph (b) of this Section 19, so long as
Tenant is not in default beyond all applicable grace, notice and cure periods
under the terms of this Lease, Landlord shall restore the Improvements to
substantially the condition that existed prior to the occurrence of the fire or
other casualty; provided, however, that with respect to the Tenant
Improvements, Landlord shall only be obligated to restore the Tenant
Improvements to the condition reflected in the most recent as-built plans for
the Tenant Improvements in Landlords possession, unless the casualty occurs
prior to completion of the Tenant Improvements, in which event, Landlord shall
restore the Tenant Improvements in substantial accordance with the Final Tenant
Improvements Plans and Specifications.
Landlord and Tenant shall each pursue the restoration required by this
subparagraph (c) of this Section 19 with diligence and continuity
upon and subject to receipt of the insurance proceeds covering such casualty
with the understanding that Tenant shall cause its insurance carriers to pay to
Landlord disbursements of the proceeds payable in respect of the casualty
insurance for the Improvements that Tenant maintains in accordance with the
terms of Section 17(a) above as restoration progresses in order to
reimburse Landlord for the costs Landlord reasonably incurs in connection with
the restoration of the Improvements. In
completing the restoration, Landlord and Tenant shall each comply with all applicable
Legal Requirements. In performing their
respective restoration obligations, Landlord and Tenant must each restore their
respective portions of the Premises so that they comply with Legal Requirements
applicable at the time of the restoration and not just the Legal Requirements
that were applicable at the time of original construction of the Premises. If the aggregate amount of those insurance
proceeds allocable to the Improvements exceeds the aggregate amount of the
costs Landlord reasonably incurs in connection with the restoration of the
Improvements, Tenant is entitled to the excess.
Tenant is responsible for any excess costs incurred by Landlord in
restoring the Improvements.
Section 20.
Condemnation
.
(a)
If
any part of the Premises or all legal access to the Premises is taken for
public use by condemnation, eminent domain or other similar action and the
taking materially and adversely affects Tenants operations in the Building,
Tenant may immediately terminate this Lease by delivering notice to
Landlord. Upon such termination, Tenant
shall after termination have no further obligation to pay Rent to Landlord and
Landlord shall look to the proceeds of the condemnation, eminent domain or
other similar action for compensation for such taking.
(b)
If
any part of the Premises is taken and Tenant does not terminate this Lease,
Base Rent will be equitably adjusted on the basis of the rent calculation
formula set forth in
Exhibit F
,
and Landlord shall restore the remainder of the Premises at its
28
expense as necessary to render them suitable
for Tenants use, so long as Tenant is not in default under the terms of this
Lease.
(c)
The
entire award with respect to any taking shall be paid to Landlord, except that
Tenant shall be entitled to any award which the condemning authority may make,
and which shall be provided for by law, specifically for Tenants moving
expenses and business dislocation damages and the value of Tenants fixtures,
alterations, installations and improvements which do not become part of the
Premises or property of Landlord, provided that same are not deducted from the
award otherwise payable to Landlord.
Section 21.
Compliance with Environmental Laws
.
(a)
Landlord
warrants and represents to Tenant that, to Landlords knowledge, the Land and
the Improvements are, and covenants that upon the Commencement Date will be, in
full compliance with all applicable environmental laws, rules, requirements,
orders, directives, ordinances and regulations of the United States of America
or any state, city or municipal government or other lawful authority having
jurisdiction over the Premises (collectively
Environmental
Laws
), except as indicated in the environmental site assessment, if
any, covering the Land (the
Environmental Report
). Except as set forth in Section 21(c),
Landlord shall take at its expense all action necessary, including all
remediation and clean up work, to ensure that the Premises comply at all times
with all Environmental Laws and that the Premises are safe for use and
occupancy at all times.
(b)
Except
as set forth in Section 21(c), Landlord shall defend, indemnify and save
Tenant and its directors, officers, agents, employees and contractors harmless
from and against all claims, obligations, demands, actions, proceedings,
judgments, losses, damages, liabilities, fines, penalties and expenses
(including, without limitation, sums paid on settlement of claims, reasonable
legal fees, and reasonable consultant and expert fees and expenses) that any
one or more of them may sustain in connection with any failure of the
Improvements to comply with Environmental Laws or in connection with any
environmental condition affecting the Premises not caused by Tenant or its
agents, contractors, subcontractors, employees, licensees or invitees.
(c)
Except
as provided in Sections 21(a) and 21(b) above, Tenant shall timely
comply at its cost and expense with all rules, requirements, orders,
directives, ordinances and regulations applicable to Tenants use, occupancy
and maintenance of the Premises, including, without limitation, the
Environmental Laws, and shall defend, indemnify and hold Landlord and its
partners and their respective members, directors, officers, agents, employees,
and contractors harmless from and against all claims, obligations, demands,
actions, proceedings, judgments, losses, damages, liabilities, fines, penalties
and expenses (including, without limitation, sums paid on settlement of claims,
reasonable legal fees, and reasonable consultant and expert fees and expenses)
that any one or more of them
29
may sustain by virtue of any environmental
condition that Tenants use, occupancy and maintenance of the Premises causes
and the continued existence of which violates the Environmental Laws.
(d)
Notwithstanding
the foregoing apparently to the contrary, if any environmental condition
encompassed within this Section 21 and not attributable to Tenants use,
occupancy and maintenance of the Premises is not susceptible to being corrected
within 180 days after the date of its discovery or if Landlord fails within 180
days after the date of its discovery to correct a condition that is susceptible
to being corrected within that period of time, Tenant may terminate this Lease
by the delivery of written notice to Landlord at least 30 days in advance of
the effective date of termination specified in that notice. Further, if the correction of any
environmental condition not attributable to Tenants use, occupancy and maintenance
of the Premises partially or totally impairs Tenants use of the Premises,
Tenants obligation to pay Base Rent will abate during the period the
corrective activity takes place in proportion to the diminished utility of the
Premises in the conduct of Tenants business.
(e)
The
indemnities of Landlord and Tenant contained in this Section 21 will not
extend to loss of business, lost rentals, diminution in property value, or
incidental, indirect or consequential damages.
(f)
The
provisions of this Section 21 survive the expiration of the Term or the
earlier termination of this Lease.
(g)
Except
as used by Tenant in the ordinary course of Tenants business, including,
without limitation, uses for general offices, research and development, light
manufacturing, telecommunications, computer and data support functions, or
other purposes consistent with the character of the Building, and any such use
by Tenant being in accordance with applicable Legal Requirements (the foregoing
uses not requiring Landlords consent), Tenant shall not cause or permit any
Hazardous Substances (as defined below) to be brought upon, kept or used in or
about the Premises or the Building, without the prior written consent of
Landlord.
(h)
Hazardous
Substance(s) shall mean any and all substances (whether solid, liquid or gas)
defined, listed, or otherwise classified as pollutants, hazardous wastes,
hazardous substances, hazardous materials, extremely hazardous wastes, or words
of similar meaning or regulatory effect under any present Environmental Laws
including but not limited to petroleum and petroleum products, asbestos and
asbestos-containing materials, polychlorinated biphenyls, lead, radon,
radioactive materials, flammables and explosives.
Section 22.
Compliance with Public Accommodation Laws
.
(a)
Landlord
warrants that, when constructed, the Improvements will comply with all
applicable laws, regulations, and building codes governing nondiscrimination in
commercial facilities (
Public Accommodation
Laws
), including, without
30
limitation, the requirements of the Americans
with Disabilities Act (42 U.S.C. § 12101) and all rules and
regulations made on the basis of authority granted in that Act. Subject to Section 22(b), Landlord
covenants that the portions of the Improvements Landlord is required to
maintain under Section 9(a) will remain in compliance with all Public
Accommodation Laws throughout the Term and Landlord, at Landlords sole
expense, shall promptly complete any and all alterations, modifications
thereto, including, without limitation, remodeling, renovation, rehabilitation,
reconstruction, changes or rearrangements in structure and changes or
rearrangements in wall configuration or full-height partitions, that are or
become necessary with respect to such Improvements in order to comply with all
Public Accommodation Laws.
(b)
Tenant
shall be responsible for ensuring that all portions of the Improvements Tenant
is required to maintain under Section 9(c) remain in compliance with
all Public Accommodation Laws throughout the Term.
(c)
Tenant,
at Tenants sole expense, shall promptly complete any and all alterations,
modifications to the Improvements, including, without limitation, remodeling,
renovation, rehabilitation, reconstruction, changes or rearrangements in
structure and changes or rearrangements in wall configuration or full-height
partitions, that are or become necessary in order to comply with all Public
Accommodation Laws with respect (i) to the Improvements Tenant is required
to maintain under Section 9(c) above, and (ii) except as
provided in the first sentence of Section 22(a), to the Premises because
of the particular use of, or alterations in, the Premises by Tenant during the
Term.
(d)
Landlord
shall use commercially reasonable efforts to accomplish any and all
alterations, modifications or improvements undertaken by Landlord in accordance
with this Section 22 in a manner that will not substantially interfere
with Tenants use or possession of the Premises.
Section 23.
Landlords Warranties
.
Landlord represents and warrants that:
(a)
Landlord
does not have knowledge of any pending condemnation or similar proceeding
affecting any part of the Premises;
(b)
Landlord
does not have knowledge of any legal actions, suits, or other legal or
administrative proceedings that are now pending or threatened against either
Landlord or the Premises;
(c)
Landlord
has neither granted any leases or occupancy licenses nor created any tenancies
affecting the Premises and there are no parties in possession of any portion of
the Premises as trespassers or otherwise;
31
(d)
Landlord
does not have knowledge of any pending or threatened governmental or private
proceedings that would impair or result in the termination of access from the
Premises to abutting public highways, streets, and roads;
(e)
Landlord
does not have knowledge, except as disclosed in the Environmental Report,
that: (A) there are any
environmental hazards or defects affecting the Land, (B) there are any
polychlorinated biphenyls (
PCBs
)
or substances containing PCBs on the Land; (C) the Land is now or has been
the site of any place of business engaged in operations that involve the
generation, manufacture, refining, transportation, treatment, storage, handling
or disposal or release of hazardous or toxic substances, material or wastes
on-site, whether above or below ground; and (D) there are any above-ground
or underground storage tanks located on the Land;
(f)
Except
as reflected in the Environmental Report, Landlord knows of no releases of, or
the presence of, any hazardous or toxic material, substance or waste on or
about the Land; and
(g)
the
Land is zoned in conformity with applicable laws in a manner permitting the use
of the facilities constructed thereon for the Intended Use.
For purposes of this Section 23, the phrase
Landlords knowledge
and similar phrases
mean the current, actual knowledge of the individuals listed on
Exhibit G
attached to this Lease,
which individuals are the persons affiliated with Landlord having direct
supervisory responsibility for the transaction contemplated with this Lease.
Section 24.
Tenants Default
.
The occurrence of any one or more of the following events (inclusive of
any applicable notice and cure period(s) hereinafter referred to as
Event(s) of Default
) will constitute a
default and breach of this Lease by Tenant:
(a)
Tenants
failure to pay any Base Rent or Additional Rent (including, without limitation,
the Impositions) when due and the continuance of that failure for more than 5
business days after the date on which Landlord gives Tenant written notice of
the delinquency, provided that Landlord is required to give notice of such
failure only twice in any 12-month period and Landlord is not required to give
Tenant notice of default for the third and subsequent Rent and other payment
defaults during any 12-month period so that for those defaults, an Event of
Default occurs if Tenant fails to pay any Rent when due and the failure
continues for a period of five (5) business days;
(b)
Tenants
failure to observe or perform any of the covenants, conditions or provisions of
this Lease that Tenant must observe or perform, other than the payment of Base
Rent or Additional Rent or as specified in Section 24(c), where the
failure continues for a period of 30 days after Tenants receipt of written
notice from Landlord; but if the nature of the obligation that Tenant has
failed to perform is such that more than 30 days are reasonably required for
its
32
rectification, then an Event of Default will
not occur so long as Tenant commences the rectification within the initial 30-day
period and diligently and continuously prosecutes the rectification to
completion; or
(c)
Tenants
failure to maintain the insurance required pursuant to Section 17.
If Landlord and Tenant are in dispute over whether Tenant is in default
(which for purposes of this paragraph only shall be before any applicable
notice and cure period) of a non-monetary obligation and no emergency condition
requiring immediate action exists as a result of, or directly or indirectly
related to, the alleged default, the parties respective representatives with
authority to settle the matter shall meet within 2 business days after request
by either party in order to attempt to resolve the dispute. Unless otherwise agreed by Landlord and
Tenant, the meeting shall take place at the Premises. Notwithstanding anything
herein to the contrary, in the event it is determined pursuant to such
resolution discussions that Tenant is in default of any such nonmonetary
matter, such matter shall not constitute an Event of Default if Tenant
subsequently remedies such default within the time frame(s) set forth in Section 24(b) above
following such determination.
Section 25.
Landlords Remedies
.
(a)
At
any time after the occurrence of an Event of Default, with or without
additional notice or demand, Landlord may do one of the following:
(i)
terminate
Tenants right to possession of the Premises and repossess the Premises by any
lawful means without terminating this Lease and relet, upon reasonable terms,
all or a portion of the Premises (if Landlord elects to enter and relet the
Premises, Landlord may at any time thereafter elect to terminate this
Lease). For the purposes of re-letting,
Landlord may repair, remodel, or alter the Premises. If Landlord fails to re-let the Premises,
then Tenant shall pay to Landlord the Base Rent and Additional Rent reserved in
this Lease for the balance of the Term as those amounts become due in
accordance with the terms of this Lease.
If Landlord re-lets the Premises but fails to realize a sufficient sum
from the re-letting to pay the full amount of Base Rent and Additional Rent
reserved in this Lease for the balance of the Term as those amounts become due
in accordance with the terms of this Lease, then Tenant shall pay to Landlord
the amount of any deficiency within 30 days of Tenants receipt of Landlords
demand;
(ii)
terminate
this Lease and repossess the Premises by any lawful means. In that event, Landlord may recover from
Tenant as damages (i) all Base Rent and Additional Rent (plus the cost
necessary to satisfy Tenants obligation to maintain and insure the Premises,
as set forth under Sections 9 and 17, respectively, of this Lease) that
became due prior to the termination and that remains unpaid, (ii) the
discounted present value (determined based on then commercially reasonable
rates) of the amount, if any, by which (I) the Base Rent reserved under the
terms of this Lease
33
for the balance of the Term that remained as
of the effective date of the termination exceeds (II) the fair market rent (but
not less than the amount for which the Premises has been relet) for the
Premises for the balance of the Term after deduction of all anticipated
reasonable expenses of re-letting for that period, and (iii) all
reasonable costs and expenses Landlord reasonably incurs in connection with the
enforcement of Tenants obligation to pay those damages, including, without
limitation, reasonable legal fees. If
the amount described in clause (II) above exceeds the amount described in
clause (I) above, then Landlord has no obligation to pay Tenant any part of the
excess or to credit any part of the excess against any other sums or damages
for which Tenant may be liable to Landlord at the time of the termination;
(iii)
in
the case of an Event of Default under Section 24(c) above, obtain the
required insurance for Tenant, and Tenant shall be liable for the reasonable
cost thereof; or
(iv)
pursue
any other remedy available to Landlord under the laws of the State in which the
Premises are located.
(b)
Unless
required by applicable law, Landlord shall have no obligation to mitigate
damages upon the occurrence of an Event of Default by Tenant. However, if Landlord is required by
applicable law to mitigate Tenants damages, Landlords obligation shall be
satisfied in full if Landlord undertakes to lease the Premises to another
tenant (a
Substitute Tenant
) in
accordance with the following criteria: (1) Landlord
shall have no obligation to solicit or entertain negotiations with any other
prospective tenants for the Premises until Landlord obtains full and complete
possession of the Premises including, without limitation, the final and
unappealable legal right to relet the Premises free of any claim of Tenant; (2) Landlord
shall not be obligated to lease or show the Premises, on a priority basis, or
offer the Premises to a prospective tenant when other premises in any other
building owned by Landlord within a 3 mile radius of the Building suitable for
that prospective tenants use are (or soon will be) available; (3) Landlord
shall not be obligated to lease the Premises to a Substitute Tenant for a rent
less than the current fair market rent then prevailing for similar uses in
comparable buildings in the Rock Hill, South Carolina area; (4) Landlord
shall not be obligated to enter into a lease with a Substitute Tenant whose use
would: (i) adversely affect the
reputation of the Building; or (ii) be incompatible with the operation of
the Building; and (5) Landlord shall not be obligated to enter into a
lease with any proposed Substitute Tenant which does not have, in Landlords
reasonable opinion, sufficient financial resources to operate the Premises in a
first class manner and to fulfill all of the obligations in connection with the
lease thereof as and when the same become due.
(c)
Pursuit
of any of the above stated remedies by Landlord after an Event of Default by
Tenant shall not preclude pursuit of any other remedy provided in this Lease or
law or equity, nor shall pursuit of any remedy constitute forfeiture or waiver
of
34
any payment due to Landlord. No waiver by Landlord of any violation or
breach of any of the terms, provisions and covenants herein contained shall be
deemed or construed to constitute a waiver of any other violation or breach of
any of the terms, provisions and covenants herein contained. Forbearance by Landlord to enforce one or
more of the remedies herein provided upon an Event of Default by Tenant shall
not be deemed or construed to constitute a waiver of any other violation or
default.
Section 26.
Landlords Default and Tenants Remedies
.
(a)
If
Landlord defaults in the performance of any of Landlords obligations set forth
in this Lease, and if (i) Landlords default creates or increases the risk
of imminent danger of bodily injury to or death of persons or damage to or
destruction of property, including, without limitation, the Building or Tenants
property, and either Landlord does not commence the rectification of its
default promptly upon Tenants delivery of oral or written notice of the
default to Landlord or Landlord fails to pursue the rectification of its
default with diligence and continuity or (ii) Landlords default does not
create or increase the risk of imminent danger of bodily injury to or death of
persons or damage to or destruction of property, including, without limitation,
the Building or Tenants property and Landlord fails to rectify its default
within 30 days after Tenants delivery of written notice of the default to
Landlord or within such longer period of time following the delivery of that
notice as may be reasonably required to accomplish the rectification of the
default through the exercise of prompt, diligent and continuous efforts, then
Tenant may perform the obligation on behalf of Landlord. Landlord shall pay to Tenant within 30 days
after the date of Landlords receipt of Tenants invoice the full amount of the
reasonable cost and expense Tenant incurs in performing the obligation on
behalf of Landlord, together with the amount of any reasonable legal fees
Tenant incurs in instituting, prosecuting or defending any action or proceeding
by reason of any default in respect of any obligation Landlord has undertaken
under the terms of this Lease.
(b)
If
Landlord does not pay any amounts owing to Tenant under Section 9(e) or
Section 26(a) and Tenant obtains a final, non-appealable judgment
against Landlord in a court of competent jurisdiction, then Tenant may set off
the amount of the judgment, including, without limitation, reasonable legal
fees and court costs included in the judgment, against the next installments of
Base Rent coming due under this Lease.
Section 27.
Late Charges; Interest on Late Payments
.
If Tenant becomes delinquent with respect to the payment of any Rent
becoming due under the terms of this Lease and the default continues for more
than five days after the due date, then Tenant shall pay to Landlord with the
late payment a late fee equal to 4% of the amount of the payment; provided,
however that such late fee shall not be due the first time such delinquency
occurs during any successive twelve (12) month period. Any past due payment of Rent under this Lease
will bear interest from the date due until the date paid at the rate of the
35
interest rate
announced from time to time by Bank of America as its prime rate or reference
rate, plus 2% per annum (the Default Rate).
Any amount with respect to which Landlord becomes delinquent in making
payment to Tenant as required by this Lease will also bear interest from the
date due until the date paid at Default Rate.
Section 28.
Quiet Enjoyment
.
Landlord warrants that, so long as Tenant pays all Base Rent and
Additional Rent that becomes due under the terms of this Lease and is not
otherwise in default beyond any applicable cure period in respect of the
performance of any obligation it undertakes under the terms of this Lease,
Tenant may peaceably and quietly enjoy the Premises at all times during the
Term without disturbance by anyone claiming by, through or under Landlord
(including, without limitation, any applicable mortgagee of Landlords interest
in the Lease or the Premises).
Section 29.
Subordination, Attornment &
Non-Disturbance
.
At Landlords request, and subject to the immediately succeeding
sentence, Tenant shall subordinate its rights under this Lease to the lien of
any first mortgage or first deed of trust hereinafter executed in favor of any
bank, insurance company or other lending institution against the Premises. As a condition to any subordination that
Landlord requests, the mortgage holder must execute an agreement in
substantially the form attached to this Lease as
Exhibit H
.
Simultaneously with the execution of this Lease by Landlord, Landlord
shall deliver to Tenant a Subordination, Non-Disturbance and Attornment
Agreement (
SNDA
) in the form of
Exhibit H
executed by the holder
of any mortgage encumbering the Premises as of the Effective Date.
Section 30.
Landlords Sale of Premises
.
Provided the Improvements and the Tenant Improvements have been
completed and delivered to Tenant as herein provided and the Commencement Date
of this Lease shall have occurred, if Landlord subsequently sells the Premises,
the purchaser shall expressly assume the obligations Landlord undertakes under
the terms of this Lease and Landlord shall thereupon be relieved from liability
arising under the terms of this Lease by reason of any act, occurrence or
omission occurring after the consummation of the sale. The parties do not intend the foregoing to
relieve Landlord from those obligations that the terms of this Lease require
Landlord to perform prior to the sale.
Section 31.
Brokers Commissions
.
Each party represents to the other that the only broker used in
connection with this Lease is The Staubauch Company, whose commission Landlord
shall pay, pursuant to a separate written agreement. Each party shall defend and indemnify the
other from and against any claims, demands and actions brought by any broker or
other finder to recover a brokerage commission or any other damages on the
basis of alleged dealings with the indemnifying party contrary to the foregoing
representation.
36
Section 32.
Estoppel Certificate
.
Within 30 days after a partys receipt of a written request from the
other party, the requested party shall execute and deliver to the requesting
party a statement in substantially the form of the attached
Exhibit I
that (i) certifies
that this Lease is unmodified and in full force and effect (or, if modified,
states the nature of the modification and certifies that this Lease as so
modified is in full force and effect) and the date to which Base Rent is paid
in advance, if any, and (ii) acknowledges that, to the requested partys
knowledge, there are no uncured defaults on the part of either party or
specifies such defaults if the requested party claims any.
Section 33.
Holding Over
.
Except as set forth below, if Tenant continues to occupy the Premises
after the expiration or other termination of this Lease or the termination of
Tenants right of possession, such occupancy shall be that of a tenancy at
sufferance. Tenant shall, throughout the
entire holdover period, be subject to all the terms and provisions of this
Lease (other than provisions relating to length of the Term) at a Base Rent equal to 150% of the Base Rent
payable during the month in which the Expiration Date occurs. Except as set forth below, no holding over by
Tenant or payments of money by Tenant to Landlord after the expiration of the
Term shall be construed to extend the Term or prevent Landlord from recovery of
immediate possession of the Premises by summary proceedings or otherwise. Notwithstanding the foregoing provisions of this
Section, if Tenant should find it necessary to hold over, Tenant may give
written notice (the
Hold Over Notice
)
to Landlord that it intends to hold over not less than 9 months prior to the
expiration or termination of the Term.
If Tenant timely provides the Hold Over Notice, Tenant may hold over and
continue to occupy the Premises for the period of 3 months at the Base Rent
payable during the month in which the Expiration Date occurs.
Section 34.
Assignment and Subletting
.
So long as the Premises are used for the Intended Use, Tenant may
transfer or assign its interest in this Lease and may sublet all or a portion
of the Premises without first obtaining Landlords written consent. If Tenant desires to assign this Lease or
sublet all or a portion of the Premises to an entity or person that intends to
use the Premises for other than the Intended Use, then Tenant must obtain
Landlords written consent prior to such assignment or sublease. Landlord may not unreasonably withhold,
condition, or delay its consent. No
subletting, assignment of rights, or delegation of duties that Tenant may make
will relieve Tenant from liability for the performance of the obligations
Tenant undertakes under the terms of this Lease, unless Landlord, in its sole
discretion, grants such relief. Landlord
has no recapture rights in connection with any assignment or sublease.
Section 35.
Purchase Option
.
(a)
Tenant
shall have the right and option to purchase the Premises from Landlord by
exercising such option and providing notice to Landlord at any time within 90
days of the Effective Date, with the closing to occur within 30 days of the
date of Substantial Completion. The
purchase price for the Premises will be in the
37
amount agreed upon by the parties, but in no
event less than 107.5% of Landlords Total Costs (as defined below).
(b)
In
the event Tenant purchases the Premises from Landlord pursuant to the terms of
this Section 35, Landlord shall, upon receipt from Tenant of the
applicable purchase price, together with full payment of any unpaid Rent due
and payable with respect to any period ending on or before the date of the
purchase, deliver to Tenant an appropriate special warranty deed or other
instrument of conveyance conveying the entire interest of Landlord in and to
the Premises to Tenant in their then current condition, free and clear of all
monetary liens not caused by or attributable to Tenant, but subject to all
matters affecting the Premises on or as of the Commencement Date. As used herein, the term
Landlords Total Costs
means the sum of the Amended Project Costs
(as defined in
Exhibit F
),
plus all closing costs and all expenses, including reasonable legal fees,
incurred in connection with the sale to Tenant.
The purchase price shall be paid absolutely net to Landlord (before
taxes that pursuant to Section 5(f) hereof are the responsibility of
Landlord) so that, unless otherwise agreed by the parties, the purchase shall
yield to Landlord 107.5% of the sum of the Landlords Total Costs. The conveyance of the Premises to Tenant
shall be AS IS, WHERE IS, WITH ALL FAULTS pursuant to the terms of a special
warranty deed subject to the Permitted Exceptions (hereinafter defined) and
such other intervening encumbrances approved by Tenant, which approval shall
not be unreasonably withheld, conditioned or delayed.
Section 36.
Limited Purchase Option of Expansion Land
.
(a)
Landlord
agrees to sell all, but not less than all, of the Expansion Land to Tenant for
a purchase price equal to $33,900 per acre, plus any other costs incurred by
Landlord in connection with the sale of the Expansion Land to Tenant, which
costs have not been reimbursed by Tenant to Landlord upon and subject to the
terms and conditions set forth in this Section 36. The Expansion Land shall include (i) all
right, title and interest, if any, of Landlord, in and to any appurtenant
easements across or adjacent to the Expansion Land, existing or abandoned, (ii) all
right, title, and interest, if any, of Landlord, in and to any strips or gores
located between the Expansion Land and the Land, (iii) all improvements
located on the Expansion Land, (iv) all of Landlords right, title, and
interest in and to and under all governmental permits or approvals granted for
the Expansion Land with respect to the ownership, use and operation of the
Expansion Land, (v) all of Landlords right, title and interest in and to
all plans, drawings, specifications, surveys, engineering, inspection or
similar reports and other technical descriptions relating to the Expansion
Land, and (vi) an access easement over the Premises if reasonably
necessary for access to the Expansion Land so long as the granting of such
easement does not impair the marketability of the Premises or title thereto. As
a precondition to the closing of the sale of the Expansion Land from Landlord
to Tenant, Tenant shall cause the Expansion Land to be separately platted in
accordance with local planning and zoning laws and
38
shall cause the Expansion Land to become a
separate tax parcel, all to Landlords reasonable satisfaction.
(b)
Tenant
shall exercise the option to purchase all, but not less than all, of the
Expansion Land by giving Landlord written notice (the
Purchase Option Notice
) either (i) at
any time that Tenant elects to purchase the Expansion Land, or (ii) not
later than 90 days after the delivery of a Trigger Notice by either Landlord or
Tenant pursuant to Section 13, failing which, in the case of this clause (ii) Tenants
option to purchase the Expansion Land under this Section 36 shall expire
and be of no further force or effect. In either case, Tenant shall have 90 days
following the date of Tenants notice to investigate the physical condition of
the Expansion Land to determine if the Expansion Land is suitable for Tenants
intended development and use of the Expansion Land. Prior to the expiration of such 90-day
period, Tenant may conduct any and all studies and investigations that Tenant
deems appropriate in its sole discretion.
Tenant shall indemnify, protect, defend and hold Landlord harmless
against any and all claims for property damage or bodily injury resulting
from-any such inspections. Prior to the
end of such 90-day period, Tenant must notify Landlord whether it accepts the
condition of the land and title, and if so shall state in such notice (the
Option Acceptance Notice
) that Tenant will
purchase the Expansion Land. The closing
of the Expansion Land shall occur on a date mutually agreed to by Landlord and
Tenant, but not later than 30 business days following the date of Tenants
Option Acceptance Notice. At the
closing, Landlord shall execute and deliver (i) a duly executed and
acknowledged special warranty deed, subject only to the easements necessary for
the development of the Improvements and the Schedule B exceptions
contained in Landlords owners title policy of insurance (collectively, the
Permitted Exceptions
) and such other
intervening encumbrances approved by Tenant, which approval shall not be
unreasonably withheld, conditioned or delayed, conveying the fee simple title
to the Expansion Land to Tenant, (ii) evidence of Landlords authority to
sell the Expansion Land and such other certificates or documents as may be
reasonably required by the title company to issue the title policy, (iii) the
title companys standard mechanics lien and indemnity agreements required to
induce the title company to delete standard printed exceptions from the title
policy, a tax proration agreement, a real property transfer declaration and
settlement statements, all prepared by the title company, (iv) an
affidavit of non-foreign status pursuant to Section 1445 of the Internal
Revenue Code, (vi) the REAs, and (vi) such additional documents as
shall be reasonably required to consummate the sale of the Expansion Land. At closing, Tenant shall deliver the purchase
price, evidence of Tenants authority to purchase the Expansion Land and such
other certificates or documents a may be reasonably required for the title
company to issue the title policy, and any additional funds and/or documents as
shall be reasonably required to consummate the purchase of the Expansion Land.
(c)
Within
15 business days following Landlords receipt of the Purchase Option Notice,
Tenant shall, at Tenants expense, cause the title company to provide Tenant
and Landlord with a commitment for an ALTA policy of owners title
39
insurance committing to insure, at Tenants
expense, fee title to the Expansion Land in Tenants name or the name of Tenants
assignee, subject to the standard printed exceptions, the Permitted Exceptions
and such other intervening encumbrances approved by Tenant, which approval
shall not be unreasonably withheld, conditioned or delayed. Landlord shall cause any lienholders to
release the Expansion Land from all lien(s) or encumbrance(s) encumbering the
Expansion Land, provided such lien(s) or encumbrance(s) were not created by the
acts or omissions of Tenant or any Tenant-Related Party.
Tenant-Related
Party
means (i) any officer, employee, agent, representative,
contractor or invitee of Tenant and any affiliate or officer, employee, agent,
representative, contractor or invitee of such affiliate, and (ii) all
sublessees, concessionaires or assignees of Tenant. The conveyance of the Expansion Land to
Tenant shall be AS IS, WHERE IS, WITH ALL FAULTS pursuant to the terms of a
special warranty deed subject to the Permitted Exceptions and such other
intervening encumbrances approved by Tenant, which approval shall not be
unreasonably withheld, conditioned or delayed.
(d)
In
the event Tenant purchases the Expansion Land, Landlord and Tenant shall
execute an amendment to this Lease amending the legal description for the
Premises to exclude the Expansion Land.
Since the initial Base Rent was calculated based upon the Development
Budget (as defined in
Exhibit D
)
and may be adjusted as provided in
Exhibit F
,
which include the purchase price for the Land,
the amendment shall reflect a reduction in Base Rent from the date of
Tenants purchase of the Expansion Land forward to the amount that Base Rent
would have been had the initial purchase price for the Land been reduced by an
amount equal to the Expansion Land Release Price and thereafter periodically
increased by 6% at the end of each 60 month period as set forth in Section 5(a).
Section 37.
Right of First Offer
.
(a)
If
during the final Lease Year of the Initial Term, Landlord receives a proposal
outlining the purchase price and general business terms upon which a
prospective purchaser desires to purchase the Premises, or if Landlord expects
to make a proposal to a prospective purchaser outlining the purchase price and
other general business terms upon which Landlord is willing to sell the
Premises to the prospective purchaser, and if on the basis of either such
proposal (the
Proposal
) Landlord
intends and desires to enter into further negotiations for a more definitive
purchase and sale agreement with the prospective purchaser, then Landlord
shall, prior to entering into negotiations for a more definitive purchase and
sale agreement, submit the Proposal to Tenant with an offer to enter into a
sales contract with Tenant on the Proposed Terms (as defined below). If Tenant fails to accept such offer in
writing within 10 business days after receipt of the Proposal and the offer,
Landlord shall be entitled to sell the Premises to the other prospective purchaser
on the terms set forth in the Proposal or on other terms which when considered
in the aggregate are not materially less favorable to Landlord. Any such sale to the other prospective
purchaser shall be subject to this Lease, except that following any sale to the
other prospective purchaser Tenant
40
shall have no further rights under this
Section. If Tenant accepts Landlords
offer within such 10 business day period, Landlord shall cause a sales contract
(the
Contract
) to be prepared
providing for the sale of the Premises to Tenant upon the Proposed Terms. Landlord may terminate Tenants rights under
this Section if Tenant fails to execute the Contract within 5 business
days after it is submitted to Tenant, provided that the Contract is consistent
with the requirements of this Section in all material respects.
(b)
As
used in this Section, the
Proposed Terms
means the purchase price and general business terms outlined in the Proposal
submitted to Tenant with Landlords offer to sell the Premises, provided that
notwithstanding anything to the contrary in the Proposal, the following shall
be included in the Proposed Terms and made a part of the Contract:
(i)
Under
no circumstances will Landlord be required to provide seller financing to Tenant,
even if Landlord is willing to provide financing to the proposed prospective
purchaser.
(ii)
Landlord
will, subject to the closing conditions applicable under the Contract, convey
indefeasible title to Tenant by Special Warranty Deed subject to all matters of
record affecting the Premises and other matters apparent from an inspection of
the Premises (to the extent such matters are valid and subsisting).
(iii)
The
conveyance of the Premises to Tenant shall be AS IS, WHERE IS, WITH ALL FAULTS
pursuant to the terms of a special warranty deed subject to the Permitted
Exceptions (hereinafter defined) and such other intervening encumbrances
approved by Tenant, which approval shall not be unreasonably withheld,
conditioned or delayed.
(iv)
The
sale shall not be subject to any feasibility or inspection period, but shall be
subject to Tenants receipt of a reasonably acceptable title commitment and
survey. Any title commitment and copies
of exceptions shown therein and any survey required shall be delivered to
Tenant no later than 14 business days after the Contract is executed. Tenants objections thereto, if any, must be
made no later than 7 business days after receipt.
(v)
Closing
under the Contract will be scheduled on the first business day following 30
days after the Contract is fully executed, and prior to Closing Tenants
occupancy of the Premises shall continue to be subject to the terms and
conditions of this Lease, including the terms setting forth Tenants obligation
to pay rent. Closing shall take place at
the offices of the title company, which will be selected by Landlord.
(vi)
(vi)
Tenant
shall be required, as a condition to its rights under the Contract, to deposit
earnest money with the title company equal to ten
41
percent (10%) of the purchase price for the
Premises no later than 10 business days after execution of the Contract.
(c)
Tenants
rights under this Section are subject to the conditions that no Event of
Default by Tenant exists at the time Tenant receives the Proposal from Landlord
or at the time Tenant is to sign the Contract.
Tenants rights under this Section shall also be subject to the
condition that Tenant does not assign this Lease to any party other than a
Related Entity; it being agreed that no assignee or subtenant of Tenant other
than a Related Entity shall have the right to purchase the Premises under the
terms of this Section. Further, if
Tenant enters into a Contract and fails to close in a timely manner for any reason
whatsoever other than Landlords default under the Contract (including any
failure to close because of title objections by Tenant), Tenant shall have no
further rights under this Section; and if such failure constitutes a default by
Tenant under the Contract, it shall also constitute an Event of Default by
Tenant under this Lease. Under no
circumstances whatsoever will Landlord be required to incur any cost to cure
any title objections by Tenant in connection with any sale of the Premises
(other than the satisfaction of any monetary lien or other monetary encumbrance
created or caused by Landlord and any encumbrance requiring Tenants consent
under Section 3(m)).
Section 38.
Miscellaneous
.
(a)
This
Lease inures to the benefit of and binds each of the parties and their
respective successors and assigns.
(b)
All
section headings and captions used in this Lease are purely for
convenience and do not affect the interpretation of this Lease.
(c)
All
Exhibits referenced in this Lease are incorporated in and made a part of this
Lease, even if they are not physically attached to this Lease.
(d)
This
Lease will be governed by and interpreted in accordance with the laws of the
State where the Premises are located, and the parties submit to the
jurisdiction of any appropriate state court within that State for adjudication
of disputes arising from this Lease.
(e)
Except
as otherwise provided, the parties may amend this Lease only by means of
written agreements signed on behalf of Tenant and Landlord by their respective
authorized signatories.
(f)
This
Lease supersedes all prior understandings, representations, negotiations, and
correspondence between the parties and constitutes the entire agreement between
them with respect to the matters described in this instrument. No course of dealing, course of performance,
or usage of trade will modify or affect this Lease.
42
(g)
The
invalidity, illegality, or unenforceability of any provision of this Lease will
not affect or impair the validity, legality, and enforceability of the
remaining provisions.
(h)
The
failure of either party at any time to require performance by the other of any
provision of this Lease will not affect that partys right to enforce that
provision, nor will the waiver by either party of any breach of any provision
of this Lease constitute a waiver of any further breach of the same provision
or any other provision.
(i)
The
parties may execute this Lease in any number of counterparts and all those counterparts
taken together will constitute a single agreement. Facsimile signatures provided by any party to
this Lease will be treated as original signatures of the party providing the
facsimile signature.
(j)
All
notices, demands, requests, approvals, or other communications required or
permitted under this Agreement must be in writing and, unless personal delivery
is effected earlier, will be deemed delivered: (i) three business days
after deposit in the United States Mail, postage prepaid, registered or
certified mail, return receipt requested, on a business day; or (ii) one
business day after delivery to any nationally-recognized overnight delivery
service on a business day for prepaid delivery on the next business day; or (iii) on
the business day sent, if sent by facsimile (and the sending facsimile
generates a written confirmation of sending) or e-mail prior to 4:00 p.m.,
Rock Hill, South Carolina time, with a confirming copy being sent by one of the
other specified methods on the same business day; in each case addressed as
follows:
If to
Landlord:
KDC-Carolina Investments 3, LP
c/o Koll Development Company
8411 Preston Road, Suite 700
Dallas, Texas 75225
Attention: Tobin C. Grove, President
Fax: (214) 373-3108
E-mail:
tgrove@kolldevelopment.com
with a copy
to:
Munsch Hardt Kopf &
Harr, P.C.
3800 Lincoln Plaza
500 N. Akard Street
Dallas, Texas 75202
Attention: Robert H. Voelker
Fax: (214) 978-4379
E-mail: rvoelker@munsch.com
43
If to Tenant:
3D Systems Corporation
26081 Avenue Hall
Valencia, CA 91355
Attention: Robert M. Grace, Jr, Vice President,
General Counsel and Secretary
Fax: (661) 294-7966
E-mail: GraceB@3DSystems.com
with a copy
to:
Kennedy Covington Lobdell &
Hickman, LLP
Hearst Tower, 47th Floor
214 North Tryon Street
Charlotte, NC 28202
Attention: Peter McLean
Fax: (704) 353-3121
E-mail: pmclean@kennedycovington.com
A party may change the address to which it wishes notices to be sent by
delivering notice of the change of address to the other party in accordance
with the terms of this Section 38(j).
(k)
Except
as provided below, Tenant may not seek to satisfy any judgment that Tenant
obtains against Landlord by reason of the negligence of Landlord or any of its
shareholders, partners, directors, officers, agents, employees, or contractors
or Landlords failure to perform any of the obligations it has undertaken under
the terms of this Lease from any source other than Landlords interest in the
Premises including all insurance and condemnation proceeds and the revenue
generated by the operation of the Premises and no asset of any shareholder,
director, officer, employee, or agent of Landlord or any of the successors or
assigns of any of the foregoing will be subject to attachment or execution to
satisfy the judgment. Notwithstanding
any provision of this Lease apparently to the contrary, Tenant may also satisfy
any final, non-appealable judgment against Landlord related to this Lease by
setting off the amount of the judgment against Base Rent the amount of the
judgment.
(l)
If
Landlord or Tenant is a corporation, partnership, or limited liability company,
each individual executing this Lease on behalf of that party represents and
warrants that that party is a duly formed and existing entity qualified to do
business in South Carolina, that that party has full right and authority to
execute and deliver this Lease, that each person signing on behalf of that
party is authorized to do so, and that all necessary corporate or partnership
action has been taken.
44
(m)
Whenever
necessary or appropriate, the neuter gender as used herein shall be deemed to
include the masculine and feminine; the masculine to include the feminine and
neuter; the feminine to include the masculine and neuter; the singular to
include the plural; and the plural to include the singular.
(n)
This
Lease may be executed in one or more counterparts, each of which shall
constitute an original, but all of which, taken together, shall be considered
one and the same agreement.
(o)
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS,
EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES THE RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS LEASE, ARISING OUR OF,
UNDER, OR IN CONNECTION WITH THIS LEASE, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN), OR ACTION BETWEEN THE PARTIES
OR ANY EXERCISE BY ANY PARTY OF ANY OF ITS RESPECTIVE RIGHTS UNDER THIS LEASE
OR IN ANY WAY RELATING TO THE PREMISES.
THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS
LEASE. THIS WAIVER SURVIVES THE
EXPIRATION OR TERMINATION OF THIS LEASE.
(p)
The
term business day when used herein shall mean all calendar days other than
Saturdays, Sundays and any days on which banks in Dallas, Texas are not open to
transact business with customers.
Section 39.
Time of Essence
.
Time is of the essence with respect to this Lease. If the final day of any period of time
described in this Lease is a Saturday, Sunday or a legal holiday under the laws
of the United States or the State where the Premises are located, that period
is extended to the next day that is not a Saturday, Sunday or legal holiday.
Section 40.
Validity of Agreement
.
This Lease will not be valid or bind Landlord or Tenant unless an
authorized signatory of Landlord or Tenant has signed it on behalf of the
respective party.
Section 41.
Incentives
.
Tenant expects to receive certain economic incentives and/or entitlements
(collectively, the
Incentives
)
from the State of South Carolina, the City of Rock Hill, South Carolina, York
County, South Carolina and from perhaps other sources as well, in connection
with the construction of the Improvements and the location of Tenants business
within the City of Rock Hill, South Carolina, and as between Tenant and
Landlord, Tenant shall be entitled to the sole and exclusive benefit of each of
such incentives and entitlements.
Landlord shall cooperate to the extent Tenant reasonably requests and at
no cost to Landlord, with Tenant, the RHEDC, the City, the County and the State
in order to satisfy any condition established in
45
connection
with Tenants receipt of the benefit of the Incentives, including, without
limitation, entering into any required agreements, supplying any necessary
information, executing required forms, and any other actions that are required
to enable Tenant to receive the benefit thereof. Tenant agrees to indemnify, defend and hold
harmless Landlord from any cost, loss, expense or liability that Landlord may
incur by reason of assisting Tenant in securing the Incentives, and Tenant
shall promptly pay Landlords reasonable legal fees associated therewith. The parties
intend that Tenant and not Landlord will receive all economic benefits derived
from participation in such programs, both in connection with the initial
development of the Improvements as well as from any future expansion thereof. A listing of certain of the possible sources
of such incentives and/or entitlements is set forth in
Exhibit J
attached hereto.
[Signature
pages follow.]
46
The parties have signed this Lease on the date first above written.
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LANDLORD:
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KDC-CAROLINA
INVESTMENTS 3, LP,
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a Delaware
limited partnership
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By:
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KDC-Carolina
Investments 3 GP, LLC,
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a Delaware
limited liability company,
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its General
Partner
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By:
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Koll
Development Company I, LP,
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a Delaware limited
partnership,
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its Sole
Member
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By:
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SWV, LLC,
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a Delaware
limited liability
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company,
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its General
Partner
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By:
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/s/ Tobin C.
Grove
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Tobin C.
Grove,
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President
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TENANT:
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3D SYSTEMS
CORPORATION,
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a Delaware
corporation
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By:
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/s/
Robert M. Grace. Jr.
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Name:
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Robert
M. Grace, Jr.
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Title:
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Vice
President, General Counsel & Secretary
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47
All that certain piece, parcel or tract of land lying and being
situated in the City of Rock Hill, York County, South Carolina and being more
fully described as follows:
Beginning at a corner on the northern right of way of S.C. Highway No. 161,
also being on the south end of a sight triangle with Overview Road, thence
along the right of way of S.C. Highway No. 161, N 52°0700W, 525.10 feet
to a #4 Rebar Found, thence leaving said right of way along a common line with
The Links at Waterford LLC property N 01°2536 E, 573.51 feet to a #4 Rebar
Found, thence N 18°0827 W, 381.33 feet to a #4 Rebar Found, thence N 12°5115
E, 62.13 feet to a #4 Rebar Found, thence N 58°1258 E, 480.00 feet to a #4
Rebar Found, thence S 43°4244 E, 594.87 feet to a #4 Rebar Set, thence S
58°0731 E, 440.71 feet to a #4 Rebar Found, thence S 34°1226 W, 169.41 feet
to a #4 Rebar Found on the right of way of Overview Drive, thence with said
right of way S 33°5256 W, 370.64 feet to a Nail in Concrete Found, thence S
85°4852 W, 44.85 feet to a #4 Rebar Found, thence S 34°3637 W, 66.05 feet
to a #4 Rebar Found, thence S 05°5244 E, 46.10 feet to a #4 Rebar Found,
thence S 34°3519 W, 62.10 feet to a Nail in Concrete Found, thence S 37°2842
W, 200.00 feet to a Nail in Concrete Found, thence S 34°3749 W, 174.91 feet
to a #4 Rebar Found at the beginning of a sight triangle with S.C. Highway No. 161,
thence with the sight triangle S 85°5307 W, 52.64 feet to the Point of
Beginning.
Said Tract containing 1,074,111 Square Feet, 24.66 Acres.
[OVERALL SITE PLAN
INTENTIONALLY OMITTED]
A-1
EXHIBIT B
PRELIMINARY PROJECT PLANS AND SPECIFICATIONS
B-1
CONTRACT
DOCUMENT LOG - DRAWINGS
3-D SYSTEMS
3-D SYSTEMS
DESCRIPTION
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DRAWING
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LATEST
ISSUE
(DATE)
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ORIGINAL
ISSUE
(DATE)
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LATEST
REVISION
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SUPPLEMENT
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COMMENTS
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COVER SHEET
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GOOI
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18-Jan-06
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18-Jan-06
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CIVILS
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COVER SHEET
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0001
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27-Dec-05
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23-Dec-05
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1
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PER ROCK HILL CITY COMMENTS
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OVERALL SITE PLAN
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C100
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27-Dec-05
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23-Dec-05
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1
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PER ROCK HILL CITY COMMENTS
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GRADING PLAN
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C200
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27-Dec-05
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23-Dec-05
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1
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PER ROCK HILL CITY COMMENTS
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STORM DRAINAGE
PLANS
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C300
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27-Dec-05
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23-Dec-05
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1
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PER ROCK HILL CITY COMMENTS
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DRAINAGE AREA MAP
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C400
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27-Dec-05
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23-Dec-05
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1
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PER ROCK HILL CITY COMMENTS
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OVERALL EROSION
CONTROL PLAN
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C500
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27-Dec-05
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23-Dec-05
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1
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PER ROCK HILL CITY COMMENTS
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EROSION CONTROL
DETAILS
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C700
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27-Dec-05
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23-Dec-05
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1
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PER ROCK HILL CITY COMMENTS
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EROSION CONTROL
DETAILS
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C701
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27-Dec-05
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23-Dec-05
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1
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PER ROCK HILL CITY COMMENTS
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SITE DETAILS
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C800
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27-Dec-05
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23-Dec-05
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1
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PER ROCK HILL CITY COMMENTS
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STRUCTURALS
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GENERAL NOTES
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S001
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18-Jan-06
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18-Jan-06
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FOUNDATION &
FLOOR SLAB PLAN
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S101
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18-Jan-05
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18-Jan-05
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ROOF FRAMING PLAN & HIGH ROOF
FRAMING PLAN
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5201
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18-Jan-06
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18-Jan-06
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FOUNDATION
SECTIONS & DETAILS
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S301
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18-Jan-06
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18-Jan-06
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FRAMING SECTIONS &
DETAILS
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S401
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18-Jan-06
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18-Jan-06
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ARCHITECTURALS
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ILLUSTRATIVE SITE
PLAN
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A101
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18-Jan-06
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18-Jan-06
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FIRST FLOOR SHELL
PLAN
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A102
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18-Jan-06
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18-Jan-06
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ROOF PLAN
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A103
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18-Jan-06
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18-Jan-06
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ELEVATIONS
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A201
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18-Jan-06
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18-Jan-06
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WALL
SECTIONS & DETAILS
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A301
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18-Jan-06
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18-Jan-06
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WALL
SECTIONS & DETAILS
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A302
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18-Jan-06
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18-Jan-06
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WALL
SECTIONS & DETAILS
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A303
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18-Jan-06
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18-Jan-06
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STAIR DETAILS
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A501
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18-Jan-06
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18-Jan-06
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EXHIBIT B
SCOPE OF WORK
DIVISION I
- GENERAL REQUIREMENTS
SECTION 01010 - SUMMARY OF THE WORK
I.
GENERAL
SCOPE
A.
The
Project shall consist of a 79,785 square foot 18clear height production
facility which includes R&D, Warehouse and Lab space (
SHELL ONLY)
.
Buildings will utilize a structural steel frame with non-insulated tilt-up
concrete wall panels designed to the desired heights. See attached Site breakdown.
B. The Scope of Work is in accordance
with the requirements of all federal, state and local regulations, laws and
codes.
II.
DESIGN/ENGINEERING
A.
Architectural
design services will be provided by Merriman Schmitt Architects; WGPM Design
Inc will provide Structural; PBSJ will provide Civil drawings.
B.
Plumbing,
HVAC, Fire Protection and Electrical design shall be provided by design/build
subcontractors under Choates supervision and control.
C.
Design
is based upon a site class D designation as defined the International
Building Code. This proposal is based upon current material prices. Due to the
volatility of the raw and scrap steel market all material pricing will be
adjusted based upon material prices at the time of order and prior to contract
award.
III.
DESIGN
CRITERIA
A.
Architectural
Design Criteria
(1)
Construction
plans and specifications shall be prepared based on this Scope of Work.
B.
Structural
Design Criteria
1
(1)
Foundations
and structures below grade shall be designed for an assumed 4,000 psf bearing.
(2)
Foundation
depths are at an assumed depth of 1-4 below finished grade except in areas
noted for future truck court where the foundation and wall panels will extend
an additional 4 below slab on-grade
(3)
Roof
framework shall be designed for live load as required by local building codes.
(4)
Exterior
walls shall be designed for bearing load and wind load as required by building
codes.
SECTION 01095 - REFERENCED STANDARDS AND
DEFINITIONS
I.
DEFINITIONS
A.
General: Definitions in this Section are not
necessarily complete, but are general to the extent that they are not defined
more explicitly elsewhere in this document.
B.
Indicated: Means as set forth on the Drawings or
elsewhere in the Specifications and refers to graphic representations, notes or
schedules on the Drawings or other Paragraphs or Schedules in Specifications,
and similar requirements in this document.
C.
Terms
such as Shown, Noted, Scheduled, and Specified: Such terms are used to help locate the
reference; no limitation on location is intended except as specifically noted.
D.
Furnish: Means supply and deliver to the Project
Site, ready for unloading, unpacking, assembly, installation, and similar
operations.
E.
Install: Describes operations at Project Site
including the actual unloading, unpacking, assembly, erection, placing,
anchoring, applying, working to dimension, finishing, curing, protecting,
cleaning and similar operations.
F.
Provide: Means to furnish and install.
G.
Allowance:
Should the final actual cost of the work be more or less than the Allowance,
then the cost of the work shall be adjusted in accordance with the provisions
of the contract for alterations and changes.
2
II.
CODES
AND STANDARDS
A.
Updated
standards: When an applicable code or
standard has been revised and reissued after the date of the code or standard
upon which this document is based, all resulting modifications shall be
considered Changes in the Work.
B.
Where
acronyms or abbreviations are used in the Documents they mean the recognized
name of the trade association, standards generating organization, authority
having jurisdiction, or other entity applicable to the context of the text
provision.
SECTION 01600 - MATERIALS AND EQUIPMENT
I.
PRODUCTS
A.
Product
Selection
1.
Where
or equal or approved equal or similar terms are used in the Documents, such
manufacturers, products, materials, equipment, or systems shall be selected by
Choate and approved by the Landlord.
2.
Where
a choice of color, pattern, or texture is available for a specified product or
item of equipment, the choice shall be made from the manufacturers stock
standards unless otherwise indicated in this document.
SECTION 01700 - PROJECT CLOSE-OUT
I.
EXECUTION
A.
Final
Cleaning
1.
The
facility shall be delivered in a broom-clean condition.
2.
Glass
shall be cleaned.
3
DIVISION
II - SITE WORK
SECTION 02200 EARTHWORK
I.
SCOPE
OF WORK
A.
Clear &
grub all small undergrowth and haul off.
B.
Clear
vegetation and topsoil and stockpile and redistribute on site.
C.
All
rock and unsuitable soil will be disposed of on on-site.
D.
Grading
of the site to achieve a balanced earthwork condition for the building pad and
associated truck courts and parking areas
.
Onsite soil
will be used as backfill material for retaining wall, loading dock walls and
ramps
.
Landlord shall assume all subsurface
risk.
E.
A
$50,000 allowance will be carried for tap and meter fees
F.
Choate
will perform a cursory survey of the site at a rate of 10 point per acre to
confirm the topography that has been provided to in the Contract Documents as
referenced in Exhibit E of the contract between Owner and
Contractor. This survey is being conducted within the first week the
after site-work subcontractor mobilizes to the site. The Owner will be
provided a copy of our findings if a discrepancy is found to exist.
SECTION 02282 - SOIL TREATMENT
I.
SCOPE
OF WORK
A.
Soil
poisoning for termite control is included under office slab only; if
applicable.
II.
SPECIFICATIONS
A.
An
emulsible concentrate insecticide for dilution with water equal to Dursban TC
shall be utilized in accordance with applicable codes and regulations.
SECTION 02500 - PAVING AND CURBS
I.
SCOPE
OF WORK
A.
Heavy
duty paving is included at the truck driveways, truck areas, and Light duty at
employee parking areas.
4
B.
Fiber
Reinforced (6) Concrete paving with 4 stone base is included to 55 out from
the face of the building.
C.
24
concrete curb and gutter is included.
D.
Concrete
sidewalks and stoops are included.
II.
SPECIFICATIONS
A.
Asphalt
paving at employee parking lot shall consist of 6 stone base and 2 Type 1
asphalt. All materials and installation
shall be in accordance with NCDOT standards.
B.
Truck
areas, truck drives shall receive 8 stone base and 2 Type H Binder and 1 of
Type 1 - Bituminous surface course.
C.
Concrete
paving shall be 6 thick, 4,000 PSI concrete, placed over compacted stone. Paving shall be reinforced with synthetic
fibers. Transfer dowels will be provided at all cold joint and saw joints will
be provided 18 o.c.
D.
Concrete
sidewalks shall be 4 thick, non-reinforced
4000 psi
non-reinforced concrete
SECTION 02700 - SITE UTILITIES
I.
SCOPE
OF WORK
A.
New
storm sewer system consists of drain pipe, catch basins, junction boxes,
downspout tie-ins, rip rap aprons, flared end sections, etc.
B.
Fire
service line and hydrants are included per applicable code requirements.
C.
Domestic
water service lines shall be provided as necessary for the proposed restrooms.
D.
Sanitary
sewer laterals shall tie into existing sanitary manhole line located in
wetlands area; Spacing of clean-outs along sanitary line shall not exceed 100.
E.
All tap, connection, impact and meter fees are included as an allowance of
$50,000.
5
F.
Pits, vaults, etc. are included.
II.
SPECIFICATIONS
A.
Water
piping shall be AWWA C-900 PVC.
F.
Sewer
piping shall be PVC.
SECTION 02900 - LANDSCAPING AND
IRRIGATION
I.
Landscaping
will be contracted and provided by Landlord. Landlord shall be responsible for
meeting the requirements of the industrial park guidelines for landscaping
installation.
DIVISION
III - CONCRETE
I.
SCOPE
OF WORK
A.
FOUNDATIONS
1.
Spread
footings at building columns.
2.
Continuous
strip footings at perimeter walls.
B.
SLABS ON GRADE
1.
A
six inch thick slab is included in the Plant & Warehouse.
2.
A
five inch thick slab is included in the Office area.
3.
A
six inch thick slab is included at the truck court.
C.
TILT-UP CONCRETE WALL PANELS
1.
4,000
psi concrete wall panels are included around the entire building perimeter.
D.
MISCELLANEOUS CONCRETE
1.
Include
concrete footings at steel pipe bollards at the dock doors.
6
II.
SPECIFICATIONS
A
.
FOUNDATIONS
1.
Spread
footings constructed of 3,000 psi concrete are included for all building
columns and wall loading. Footing design shall be based upon a soil bearing
capacity of 4,000 psf.
2.
Form work
will be provided as required. Concrete
footings will not be cast in formwork when earth conditions are suitable for
forming by neat cutting.
3.
Grade
60 reinforcing steel will be provided as required by final structural design.
B.
SLABS
ON GRADE
1.
Warehouse/Manufacturing
Area
a.
Slab
on grade shall be 6 thick, constructed of 4,000 psi concrete and shall be
un-reinforced.
b.
Slab
shall be constructed over a 4 compacted stone.
c.
A
6 mil vapor barrier is not included below warehouse slabs.
d.
Construction/control
joints will be provided at a maximum of 20 feet on center. Control joints shall
be cut to 1/3 of the slab thickness. Construction joints shall be doweled.
e.
Floors
will receive a 15% solids cure and seal compound.
f.
Slab
shall be finished to a tolerance of FF30, FL25, per standards as designed.
g.
Isolation
joints shall be provided to accommodate structural separation of floor slab on
grade from other building elements as required.
2.
Office
Area
a.
Slab
shall be 5 thick, constructed of 4,000 PSI concrete and shall be un-reinforced
b.
Slab
will be placed over a 4 stone sub grade.
c.
A
6 mil polyethylene vapor barrier will be placed under the slab.
d.
Floors
will receive one coat of a curing and sealing compound.
e.
Slab
will be finished to a tolerance of FF30, FL25, per standards as developed by
The Face Company.
7
f.
Isolation
joints shall be provided to accommodate structural separation of floor slab on
grade from other building elements as required.
g.
Perimeter
insulation shall be 24 wide x 1 thick extruded Styrofoam insulation.
C.
TILT-UP
CONCRETE WALL PANELS
A.
Panels
shall be approximately 7.25 thick, 4,000 PSI normal weight non-insulated
concrete wall panels. Reinforcing
pattern per structural engineers tilt drawings. Tilt-up wall panels shall have
smooth hard trowel finish on the interior side of the panel, not a broom
finish. Tilt-up brace and pick point holes will be covered with a plastic
escutcheon
DIVISION V - METALS
SECTION 05120 - STRUCTURAL STEEL &
MISCELLANEOUS STEEL
I.
SCOPE
OF WORK
A.
Structural
and miscellaneous steel.
1.
Columns
2.
Column
Anchor Bolts
3.
Eave
Angles
4.
Beam
and Plate Lintels
5.
Steel
Stairs at Dock
6.
Joist
Bearing Plates
7.
Edge
angle
8.
Sill
angles at docks. .
9.
Clips
for Tilt Wall
10.
Embed
plates @ joist bearing
11.
Clip
angles @ joist bearing
12.
Embed
plates at footing and in wall panels
13.
Pipe
bollards at overhead doors
14.
(1)
Caged ladder to roof.
15.
Overhead
Door Frames
8
II.
PRODUCTS
A.
Structural
steel for building columns and framing shall be designed, fabricated and
erected in accordance with The American Institute of Steel Constructions
current publication, Specification for the Design, Fabrication and Erection of
Structural Steel for Buildings.
B.
Structural
steel shall be power-tooled cleaned and shop primed.
C.
Generally
field connections shall be high-strength bolts.
SECTION 05210 - STEEL JOISTS AND JOISTS
GIRDERS
I.
SCOPE
OF WORK
A.
Joists
and joist girders with bridging and necessary accessories.
II.
PRODUCTS
A.
Steel
joists and joist girders for building roof framing shall be designed,
fabricated, and erected in accordance with the Steel Joists Institutes
recommendations.
B.
Steel
joists and joist girders shall be shop primed.
SECTION 05310 - STEEL DECK
I.
SCOPE
OF WORK
A.
Type
B steel decking factory primed.
II.
PRODUCTS
A.
Roof
deck shall be painted steel 1½ depth, fluted. Configuration shall be wide rib
with ribs spaced at 6 centers, with nesting edges.
9
DIVISION VI - WOOD AND PLASTICS
SECTION 06100 - ROUGH CARPENTRY
I.
SCOPE
OF WORK
A.
Furring,
nailers, blocking and secondary framing members will be provided for
application of finished materials and construction of special features.
B.
Wood
nailers and blocking as required for installation of roofing and flashing are
included.
II.
PRODUCTS
A.
Dimension lumber
1.
Wood
nailers, blocking and secondary framing members shall be Standard grade Southern
Pine or Douglas Fir.
2.
Structural
light-framing members shall be No. 2 Grade.
C.
Wood
treatment
1.
Preservative
treatment shall be provided for:
a.
Wood
members and connection with roofing and flashing
b.
Wood
members in contact with masonry and concrete.
2.
Fire
retardant treatment shall be provided for items required by building codes.
DIVISION VII - THERMAL AND MOISTURE
PROTECTION
SECTION 07200 - BUILDING INSULATION
I.
GENERAL
A.
Roof
insulation shall be as described in Section 07530. Single-Ply Membrane Roofing.
B.
Wall
insulation, as required by North Carolina Building Codes.
C.
Batt
insulation in the office upfit at the office/warehouse common wall to 10-0
height. Also, batt insulation in the
walls at toilet areas.
10
SECTION 07270 - FIRESTOPPING
I.
SCOPE
OF WORK
A.
Fire
stopping shall be provided at all penetrations through fire-rated walls and
ceilings. Fire stopping shall be
provided by the trade making the penetration.
II.
SPECIFICATIONS
A.
Fire
stop sealant shall be the elastomeric or intumescent type, similar to Hilti
Fire Stop system, or equal.
B.
Fire
stop safing insulation shall be similar to Thermafiber Safing Insulation as
manufactured by U.S. Gypsum, or equal.
C.
Fire
stop devices shall be similar to fire stop sleeve system, as manufactured by
Hilti, or equal.
SECTION 07530 - ROOFING
I.
SCOPE
OF WORK
1.
Roofing
system shall be 45 mil, white, TPO mechanically fastened membrane with 2.1/R15
rigid insulation.
2.
TPO
flashing at the parapets will be a continuation of the field membrane. Parapet height will be as indicated on the
architectural drawings.
3.
Upon
completion of the project, Firestone or Carlisle will issue a ten (10) year
Red Shield labor and material warranty.
SECTION 07600
- FLASHING AND SHEET METAL
I.
SCOPE
OF WORK
A.
Flashings
shall be provided for construction features normally flashed to retard water.
B.
Gutters
and downspouts shall be provided at the sides of the building discharging onto
splash block and into roof drain leaders.
11
II.
SPECIFICATIONS
A.
Except
as otherwise described in these documents, flashings shall be the flexible
sheet type. Counter-flashings at the
roofing systems shall be the flexible sheet-type.
B.
Fascias,
gravel stops and copings shall be fabricated from 24 gauge galvanized steel.
C.
Gutters
shall be fabricated from galvanized steel.
Downspouts shall be sheet metal.
D.
Flashings
exposed to view shall have a painted finish.
This shall include gutters and downspouts.
E.
All
gutters, downspouts and flashings to be prefinished shop formed
NOT PAINT
GRIP
.
SECTION 07900 - JOINT SEALANTS
I.
SCOPE
OF WORK
A.
Caulking
of exterior concrete and masonry walls control joints is included. Only on
exterior side of tilt-up.
B.
Sealants
required for storefront, glass and glazing shall be as specified in Section 08800,
Glass and Glazing.
C.
Miscellaneous
caulking such door frames, countertops, toilet fixtures, etc., to provide a
proper finished appearance is included.
II.
SPECIFICATIONS
A.
Exterior
Joint Schedule
1.
Latex
sealant shall be used to seal joints at exterior locations.
B.
Interior
Joint Schedule (Windows, Doors)
1.
Latex
sealants shall be used to seal joints at inside concrete wall surfaces.
2.
Silicone
sealants shall be used to seal joints where humid conditions exist, such as
kitchens, baths and showers.
3.
No
slab-on-grade saw cut sealants are included.
12
DIVISION
VIII - DOORS AND WINDOWS
SECTION 08110 - WOOD AND STEEL DOORS AND
FRAMES
I.
GENERAL
II.
SCOPE
OF WORK
A.
Hollow
metal doors and frames shall be provided as required by code.
III.
SPECIFICATIONS
A.
Standard
Steel Doors
1.
Exterior
doors shall be 18 gauge steel face.
Doors shall be 1-3/4 thick.
B.
Standard
Steel Frames
1.
Exterior
frames shall be welded construction with mitered corners and shall be 16 gauge.
SECTION 08360 - SECTIONAL OVERHEAD DOORS
I.
SCOPE
OF WORK
A.
Three
(3) 9x10 and one (1) 12 x 14 manual, insulated overhead sectional
dock doors shall be provided.
B.
Door
openings will be filled with a 24 gauge prime painted non-insulated sectional
steel door. Door will be mounted on inside face of wall on a 2 angle track. Vertical
lift to be manual push-up operation, no glass, includes weather stripping, and
one inside slide bolt lock per door.
SECTION 08520 - ALUMINUM WINDOWS AND
STOREFRONTS
I.
SCOPE
OF WORK
A.
An aluminum store-front system will be used
on the office façade. Approximately 5100 sqft of storefront windows have been
included.
13
II.
SPECIFICATIONS
A.
Interior &
Exterior aluminum framing and trim surfaces shall have clear anodized finish.
B.
Storefront
framing shall be fixed type. No operable
windows are included.
C.
Office
storefronts shall be Kawneer #350 or equal with a clear anodized aluminum
finish.
D.
Glass
units shall be 1 insulated tinted glass.
SECTION 08700 - FINISH HARDWARE
I.
SCOPE
OF WORK
A.
Finish
hardware is included for the warehouse hollow metal doors.
B.
Automatic
operators are not included.
DIVISION
IX - FINISHES
SECTION 09250 - GYPSUM DRYWALL
Note: No interior Gypsum is included at this time.
SECTION 09900 - PAINTING
II.
SCOPE
OF WORK
A.
Paint
finishes shall be applied to surfaces as indicated in the preliminary
drawings. Surfaces concealed from view,
factory finished items and surfaces where the natural finish is obviously not
intended to be painted shall not be painted.
II.
SPECIFICATIONS
A. Paint
coats, including primer, for exterior surfaces shall be:
Substrate
|
|
Type of Coating
|
|
No. of Coats
|
|
Tilt-up wall
panels
|
|
acrylic latex
|
|
2
|
|
B.
Paint
coats, including primer, for exterior surfaces shall be latex based.
C.
In
general, piping, conduit, and ductwork shall not be painted.
14
DIVISION
XI - EQUIPMENT
SECTION 11160 - LOADING DOCK EQUIPMENT
I.
SCOPE
OF WORK
A.
Loading
dock equipment is excluded. This will be a part of the upfit allowance.
MECHANICAL, ELECTRICAL,
PLUMBING and FIRE PROTECTION
III.
PLUMBING,
ELECTRICAL, FIRE PROTECTION:
The Plumbing, Electrical, and Fire Protection system will consist of:
A.
Underground
and service only.
B.
There
is no HVAC included at this time
The Mechanical, HVAC, Fire Protection and
Electrical work is for underground and service only. MEP design will be addressed and included at
the time at the up-fit.
15
EXHIBIT C
PRELIMINARY TENANT IMPROVEMENT PLANS AND
SPECIFICATIONS
[TO BE ADDED UPON COMPLETION OF SUCH PLANS
AND SPECIFICATIONS]
C-1
EXHIBIT D
TENANT ALLOWANCES
(a)
Project Costs
means any and all costs
(individually, a
Project Cost
)
incurred by Landlord with respect to constructing the Improvements and leasing
the Premises to Tenant, including without limitation, the purchase price paid
by Landlord for the Land and all due diligence expenses, closing costs and legal
fees incurred in connection therewith, all legal fees and other expenses
incurred in connection with this Lease, all hard and soft costs related to the
construction of the Improvements, all taxes and insurance costs for the
Premises, and all costs associated with any loans procured in connection with
acquisition of the Land and construction of the Improvements (e.g., loan
commitment and other lender fees and expenses and interest payments and other
loan carrying costs); provided that Project Costs shall be reduced by all
Incentives received by Landlord [including without limitation the $150,000 to
the extent received by Landlord from the City of Rock Hill for a drainage
easement upon the closing of the acquisition of the Land (the
Drainage Easement Payment
)], including the
costs set forth in the Development Budget separately agreed upon by the
Landlord and the Tenant (the
Development
Budget
).
(b)
The
Development Budget contains a category entitled Landlord Fixed Costs and a
category entitled Tenant Allowances. The Tenant Allowances are comprised of
allowances provided to Tenant for various components of the Project. Tenant, in
its sole discretion, may utilize the Tenant Allowances for any Project Costs,
in Tenants discretion, but the aggregate total of the Tenant Allowances may
not exceed the total Tenant Allowances portion of the Development Budget, and
Landlord shall not be obligated to fund the cost of any Tenant Allowances in
excess of the amount set forth in the Development Budget, subject, however to
the provisions of the last paragraph of
Exhibit F
hereof.
(c)
If
Tenant elects not to use all of the Tenant Allowances portion of the
Development Budget, then any unused balance of the Tenant Allowances portion of
the Development Budget shall reduce Base Rent as set forth on
Exhibit F
, and the Amended Project
Costs shall be acknowledged by Tenant and Landlord on
Exhibit E
.
D-1
EXHIBIT E
FORM OF TENANT ACKNOWLEDGMENT LETTER
KDC-Carolina Investments 3, LP
c/o Koll Development Company
8411 Preston Road, Suite 700
Dallas, Texas 75225
Attn: Tobin C. Grove, President
Re:
Acknowledgment
Letter with respect to that certain Lease Agreement (the
Lease
) dated ,
2006, by and between KDC-Carolina Investments 3, LP (
Landlord
) and 3D Systems Corporation (
Tenant
)
Gentlemen:
This letter constitutes the Acknowledgement Letter required under Section 4(c) of
the Lease. All capitalized terms used
but not otherwise defined in this Acknowledgment Letter have the meanings
assigned to them in the Lease.
Tenant accepts the condition of the Premises in accordance with the
Lease, and Tenant hereby certifies to Landlord, as follows:
1.
The
Commencement Date is ,
2006.
2.
The
Expiration Date is ,
2021.
3.
The
first Lease month is .
4.
The
total amount of the Amended Project Costs is $ .
5.
The
annual Base Rent is as follows:
Lease Period
|
|
Monthly Base Rent
|
|
|
|
|
|
Months 1-3
|
|
No Base Rent
|
|
|
|
|
|
Months 4-60
|
|
$
|
|
|
|
|
|
|
Months
61-120
|
|
$
|
|
|
|
|
|
|
Months
121-180
|
|
$
|
|
|
6.
The
Lease is unmodified and in full force and effect and there are no outstanding
notices of default to Tenants obligations or Landlords obligations under the
Lease. To the best knowledge of Tenant,
there is no default under the Lease and no event has occurred, which with the
giving of notice or the passage of time, or both, will become such a default,
or, if any, except as follows: (If none,
so state)
E-1
7.
Tenant
has not assigned, pledged, hypothecated or otherwise transferred the Lease,
except as follows: (If none, so state.)
8.
As
of the date hereof, Tenant currently has no claim against Landlord for any
right of offset, deferment, abatement, or default or right of counterclaim or
defense to the payment of Base Rent or any other monies due under the Lease,
except as follows: (If none, so state.)
9.
There
are currently no disputes under or in connection with the Lease between
Landlord and Tenant, except as follows:
(If none, so state.)
EXECUTED as of the date first above written.
|
3D SYSTEMS
CORPORATION
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
|
AGREED AND ACCEPTED this
day of ,
2006:
KDC-CAROLINA INVESTMENTS 3, LP,
a Delaware limited partnership
By:
|
KDC-Carolina Investments 3 GP, LLC,
|
|
a Delaware limited liability company,
|
|
its General Partner
|
|
|
|
By:
|
Koll Development Company I, LP,
|
|
|
a Delaware limited partnership,
|
|
|
its Sole Member
|
|
|
|
|
|
By:
|
SWV, LLC,
|
|
|
|
a Delaware limited liability company,
|
|
|
|
its General Partner
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
Tobin C. Grove, President
|
E-2
EXHIBIT F
BASE RENT ADJUSTMENTS
The Base Rent set forth in Section 5 has been calculated based
upon the total Project Costs set forth in the Development Budget, and shall be
subject to adjustment (increase or decrease, as the case may be) in accordance
with the provisions of this
Exhibit F
. As used herein, the following definitions
apply:
Scope Change
means (i) any
change requested by Tenant to the Project Improvements and any value
engineering changes to the Improvements approved by Landlord and Tenant in
writing, (ii) any change in the Improvements resulting from concealed site
conditions under the Land, (iii) any unused portion of the Tenant
Allowances line item of the Development Budget upon completion of the
Improvements and any net increase or net decrease in the Tenant Allowances as a
result of changes arising under the last paragraph of this
Exhibit F
, and (iv) any third party out of pocket
costs incurred by Landlord as a result of the Landlords participation in the
Incentives Agreement. As to Scope
Changes under subparagraph (i) above (other than those relating to Tenant
Improvements, which are governed by the last paragraph of this
Exhibit F
), Landlord agrees to
reasonably grant its approval to such Scope Changes provided that such Scope
Changes do not in Landlords reasonable opinion (a) in the aggregate
increase the Development Budget of the Improvements by more than $80,028, or (b) materially
and adversely affect the marketability, tenantability or functionality of the
Building.
Scope Change Cost
means
100% of any increase or decrease, as the case may be, in the Project Costs as a
result of the Scope Changes described in subparagraphs (i), (iii) and (iv) above
plus 50% of any increase or decrease, as the case may be, in the Project Costs
as a result of a Scope Change described in subparagraph (ii) above.
Incentives
means any
amount of Incentives received by Landlord (other than the $150,000 received by
Landlord at closing of the acquisition of the Land and which is already
reflected in the Development Budget), and which Landlord retains pursuant to Section 4(c) of
this Lease. The Land component of the Development Budget reflects a reduction
for the Drainage Easement Payment and to the extent that the Drainage Easement
Payment is not received the amount of Incentives received by Landlord under
this paragraph shall be reduced on a dollar-for-dollar basis (resulting in an
increase to the Project Costs and an increase in the Base Rent based on the
calculation set forth below).
On or before sixty (60) days after the Commencement Date, but in any
event not later than the date of execution of the Acknowledgment Letter, the
parties will use all reasonable efforts to determine the net change to Project
Costs by subtracting the Incentives from the amount of the Scope Change Costs
and shall either add any net positive amount of such changes to, or deduct any
net negative amount of such changes from, the total Project Costs agreed to by
Landlord and Tenant on the Development Budget (as opposed to the actual Project
Costs expended on the Project, which shall not be used for this purpose) (the
resulting amount being hereinafter referred to as the
Amended Project Costs
), and shall amend
the monthly Base Rent set forth in
F-1
Section 5(a) of this Lease by multiplying such Amended
Project Costs by a rent constant of 8.25% (the
Rent Constant
), increasing the annual Base Rent derived
therefrom by 6% at the end of each 60-month period during the Initial Term, as
set forth in Section 5(a), and calculating each monthly Base Rent payment
by dividing the resulting annual Base Rent by 12. Base Rent shall also be
adjusted at that time for any changes in the Building Square Footage pursuant
to Section 2(k).
The Base Rent will also increase as a result of any Tenant Delay that
results in an increase in the actual Project Costs. Such increase in the Base
Rent shall be equal to the increase in the actual Project Costs multiplied by
the Rent Constant. Tenant will also be entitled to a credit to Base Rent first
becoming due as a result of any delay in the Substantial Completion Date
provided for in Section 5(a) of this Lease and be subject to other
adjustments as provided for in this Lease.
With the consent of the parties, any such adjustment may be implemented
by a cash payment of the amount due to the other party or by a credit against
payments of rent first becoming due.
Landlord and Tenant acknowledge that the Final Tenant Improvement Plans
and Specifications have not yet been completed, and that the ultimate cost of
constructing such Tenant Improvements based on such Final Tenant Improvements
Plans and Specifications may be more than the amount of the Tenant Allowances.
The parties shall cooperate in the development of the Final Tenant Improvement
Plans and Specifications as provided in Section 2(d), and in determining
the cost thereof, and if the amount thereof shall exceed the amount of the
Tenant Allowances set forth in the Development Budget, and if Landlord
determines that the marketability, tenantability and functionality of the
Building would not be materially adversely affected thereby, Landlord shall as
promptly as possible seek approval of its lender of the funding of such excess
amounts, and Landlord shall propose to Tenant the terms on which Landlord would
be willing to fund the excess costs of the Tenant Allowances (which may be
either the same or different than the economic terms of this Lease), and if
Landlord and Tenant agree to such proposal they shall enter into an amendment
to this Lease. If Landlord or Landlords lender are unwilling to fund such
excess costs, or if Landlord and Tenant cannot agree on the terms of such
amendment to this Lease, Tenant shall have the right to fund all or such
portion of such excess costs as it shall determine in its sole discretion, and
Base Rent shall not be adjusted as a result of such Tenant expenditures.
F-2
EXHIBIT G
KNOWLEDGE INDIVIDUALS
The following knowledge individuals are acting solely in their capacity
as officers, agents, or employees of Landlord or an affiliate of Landlord, are
in no manner expressly or impliedly making any representations or warranties in
their individual capacities, and have no personal liability in connection with
this Lease:
Larry
Wilson - Koll Development Company
Scott Ozymy - Koll Development Company
Wayne Angel - Koll Development Company
Mike Rosamond - Koll Development Company
G-1
EXHIBIT H
FORM OF SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
[Cover page for
10 pages]
H-1
WHEN RECORDED RETURN TO:
Craig B. Anderson, Esq.
Thompson & Knight L.L.P.
1700 Pacific Avenue, Suite 3300
Dallas, Texas 75201
SUBORDINATION, NONDISTURBANCE AND
ATTORNMENT AGREEMENT
THIS AGREEMENT made this
day of February, 2006, among GUARANTY BANK, a federal
savings bank (hereinafter called Lender), 3D SYSTEMS CORPORATION, a Delaware
corporation (hereinafter called Tenant), and
KDC-CAROLINA
INVESTMENTS 3, LP, a Texas limited partnership
(hereinafter called Landlord).
W
I
T
N
E
S
S
E
T
H
T
H
A
T
:
WHEREAS, Lender is now
or will be the owner and holder of a Mortgage, Security Agreement, and Fixture
Filing (hereinafter called the Security Instrument), dated February ,
2006, recorded in Volume , Page
of the Real Property Records of York County, South Carolina, initially covering
the land described in
Exhibit A
attached hereto and made a part
hereof and the buildings and improvements thereon [such land and improvements,
less any applicable portion(s) of such land comprising Expansion Land (as
defined in the Lease) as may be released from the Security Instrument from time
to time, pursuant to the terms of the Lease, hereinafter collectively called
the Mortgaged Premises] securing the payment of a promissory note in the
stated principal amount of $8,466,000, payable to the order of Lender;
WHEREAS, Tenant is the
tenant under Lease Agreement (hereinafter called the Lease) dated January ,
2006, by and between Landlord and Tenant, covering certain property
(hereinafter called the Demised Premises) consisting initially of all of the
Mortgaged Premises; and
WHEREAS, Tenant,
Landlord and Lender desire to confirm their understanding with respect to the
Lease and the Security Instrument;
NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein contained, Lender,
Landlord and Tenant hereby agree and covenant as follows:
Section 42.
Subordination. The Lease and the rights of Tenant thereunder
now are, and shall at all times and for all purposes continue to be, subject
and subordinate, in each and every respect, to the Security Instrument, with
the provisions of the Security Instrument controlling in all respects over the
provisions of the Lease, it being understood and agreed that the foregoing
subordination shall apply to any and all increases, renewals, modifications,
extensions, substitutions, replacements and/or consolidations of the Security
Instrument, provided that any and all such increases, renewals, modifications,
extensions, substitutions, replacements and/or consolidations shall
nevertheless be subject to the terms of this Agreement.
Section 43.
Non-Disturbance. So long as (i) Tenant is not in default
(beyond any period given Tenant to cure such default) in the payment of Rent
(as defined in the Lease) or in the performance of any of the other terms,
covenants or conditions of the Lease on Tenants part to be performed, (ii) the
Lease is in full force and effect, and (iii) Tenant attorns to Lender or a
purchaser of the Mortgaged Premises as provided in Paragraph 3, then (a) Tenants
possession, occupancy, use and quiet enjoyment of the Demised Premises under
the Lease, or any extensions or renewals thereof, shall not be terminated,
disturbed, diminished or interfered with by Lender in the exercise of any of
its rights under the Security Instrument, and (b) Lender will not join
Tenant as a party defendant in any action or proceeding for the purpose of
terminating Tenants interest and estate under the Lease because of any default
under the Security Instrument.
Section 44.
Attornment.
If Lender shall become the owner of the Mortgaged Premises or the
Mortgaged Premises shall be sold by reason of non-judicial or judicial
foreclosure or other proceedings brought to enforce the Security Instrument or
the Mortgaged Premises shall be conveyed by deed in lieu of foreclosure, the
Lease shall continue in full force and effect as a direct Lease between Lender
or other purchaser of the Mortgaged Premises, who shall succeed to the rights
and duties of Landlord, and Tenant. In
such event, Tenant shall attorn to Lender or such purchaser, as the case may
be, upon any such occurrence and shall recognize Lender or such purchaser, as
the case may be, as the Landlord under the Lease. Such attornment shall be effective and self-operative
without the execution of any further instrument on the part of any of the
parties hereto. Tenant agrees, however,
to execute and deliver at any time and from time to time, upon the request of
Landlord or of any holder(s) of any of the indebtedness or other obligations
secured by the Security Instrument or any such purchaser, any instrument or certificate
which, in the sole reasonable judgment of the requesting party, is necessary or
appropriate, in connection with any such foreclosure or deed in lieu of
foreclosure or otherwise, to evidence such attornment, which instrument or
certificate shall be in form and content reasonably acceptable to Tenant. Tenant hereby waives the provisions of any
statute or rule of law, now or hereafter in effect, which may give or
purport to give Tenant any right or election to terminate or otherwise
adversely affect the Lease and the obligations of Tenant thereunder as a result
of any such foreclosure or deed in lieu of foreclosure.
Section 45.
Obligations and Remedies. If Lender shall become the owner of the
Mortgaged Premises or the Mortgaged Premises shall be sold by reason of
non-judicial or judicial foreclosure or other proceedings brought to enforce
the Security Instrument or the Mortgaged Premises shall be conveyed by deed in
lieu of foreclosure, Lender or other purchaser of the Mortgaged Premises, as
the case may be, shall have the same remedies by entry, action or otherwise in
the event of any default by Tenant (beyond any period given Tenant to cure such
default) in the payment of Rent or in the performance of any of the other
terms, covenants and conditions of the Lease on Tenants part to be performed
that Landlord had or would have had if Lender or such purchaser had not
succeeded to the interest of Landlord.
Upon attornment by Tenant as provided herein, Lender or such purchaser
shall be bound to Tenant under all the terms, covenants and conditions of the
Lease and Tenant shall have the same remedies against Lender or such purchaser
for the breach of an agreement contained in the Lease that Tenant might have
had under the Lease against Landlord if Lender or such purchaser had not
succeeded to the interest of Landlord; provided, however, that Lender or such
purchaser shall not be liable or bound to Tenant:
(a)
for
any act or omission of any prior landlord (including Landlord) which
constitutes a default or breach of the Lease; provided, however, nothing herein
shall be deemed to be a waiver of Tenants rights or remedies in the event such
act or omission is of a continuing nature, such as, for example, Landlords
failure to fulfill a repair obligation, and such default is not cured by Lender
or such purchaser after Lender or such purchaser acquires the Mortgaged
Premises (however, Lender or such purchaser shall in no event be liable for any
tort claims which Tenant may have against Landlord or any claims for liquidated
damages which may be owing by Landlord under the Lease); or
(b)
for
any offsets or defenses which the Tenant might be entitled to assert against
Landlord arising prior to the date Lender takes possession of Landlords
interest in the Lease or becomes a mortgagee in possession, subject to Tenants
continued right of offset for any default by Landlord which remains uncured
provided notice of such default has been provided to Lender in accordance with
the provisions of this Agreement; or
(c)
for
or by any Rent which Tenant might have paid for more than the current month to
any prior landlord (including Landlord) unless expressly required by the terms
of the Lease; or
(d)
by
any amendment or modification of the Lease made without Lenders consent that (i) results
in a reduction of Rent due and payable pursuant to the Lease, (ii) reduces
the term of the Lease, (iii) provides for payment of Rent more than one
month in advance, or (iv) materially increases Landlords obligations
under the Lease; or
(e)
for
any security deposit, rental deposit or similar deposit given by Tenant to a
prior landlord (including Landlord) unless such deposit is actually paid over
to Lender or such purchaser by the prior landlord; or
(f)
for
any portion of the Tenant Allowance (as such term is defined in the Lease)
previously disbursed to Landlord by Lender pursuant to the Construction Loan
Agreement executed by and between Landlord and Lender; or
(g)
for
the payment of any leasing commissions or other expenses for which any prior
landlord (including Landlord) incurred the obligation to pay; or
(h)
by
any provision of the Lease restricting use of other properties owned by Lender,
as landlord.
The person or entity to
whom Tenant attorns shall be liable to Tenant under the Lease only for matters
arising during such persons or entitys period of ownership.
Section 46.
No Abridgment. Nothing herein contained is intended, nor
shall it be construed, to abridge or adversely affect any right or remedy of
Landlord under the Lease in the event of any default by Tenant (beyond any
period given Tenant to cure such default) in the payment of Rent or in the
performance of any of the other terms, covenants or conditions of the Lease on
Tenants part to be performed.
Section 47.
Notices of Default to Lender. Tenant agrees to give Lender a copy of any
default notice sent by Tenant under the Lease to Landlord.
Section 48.
Representations by Tenant. Tenant represents and warrants to Lender that
Tenant has validly executed the Lease; the Lease is valid, binding and
enforceable and is in full force and effect in accordance with its terms; the
Lease has not been amended except as stated herein; no Rent under the Lease has
been paid more than thirty (30) days in advance of its due date; there are no
defaults existing under the Lease with respect to Tenant or known by Tenant to
exist with respect to Landlord; and Tenant, as of this date, has no charge,
lien, counterclaim or claim of offset under the Lease, or otherwise, against
the Rent due or to become due under the Lease.
Section 49.
Rent Payment. If Lender shall become the owner of the
Mortgaged Premises or the Mortgaged Premises shall be sold by reason of
non-judicial or judicial foreclosure or other proceedings brought to enforce
the Security Instrument or the Mortgaged Premises shall be conveyed by deed in
lieu of foreclosure, Tenant agrees to pay all Rent directly to Lender or other
purchaser of the Mortgaged Premises, as the case may be, in accordance with the
Lease immediately upon notice of Lender or such purchaser, as the case may be,
succeeding to Landlords interest under the Lease. Tenant further agrees to pay all Rent
directly to Lender immediately upon Tenants receipt of written notice that
Lender is exercising its rights to such Rent under the Security Instrument or
any other loan documents (including but not limited to any Assignment of Leases
and Rents) following a default by Landlord or other applicable party. Tenant shall be under no obligation to
ascertain whether a default by Landlord has occurred under the Security
Instrument or any other loan documents.
Landlord waives any right, claim or demand it may now or hereafter have
against Tenant by reason of such direct payment to Lender and agrees that such
direct payment to Lender shall discharge all obligations of Tenant to make such
payment to Landlord.
Section 50.
Notice of Security Instrument. To the extent that the Lease shall entitle
Tenant to notice of any deed of trust or security agreement, this Agreement shall
constitute such notice to the Tenant with respect to the Security Instrument.
Section 51.
Landlord Defaults. Tenant agrees with Lender that effective as
of the date of this Agreement: (i) Tenant
shall not terminate the Lease for any default by Landlord or any succeeding
owner of the Mortgaged Premises until after giving Lender written notice of
such default (which notice may be given contemporaneously with Tenants notice
given to Landlord or any such succeeding owner of the Mortgaged Premises),
stating the nature of the default and giving Lender thirty (30) days from
receipt of such notice to effect cure of the same, or if cure cannot be
effected within said thirty (30) days due to the nature of the default, Lender
shall have a reasonable time to cure provided that it commences cure within
said thirty (30) day period of time and diligently carries such cure to
completion; and (ii) notice to Landlord under the Lease (oral or written)
shall not constitute notice to Lender.
For purposes of this paragraph actions taken by Lender to foreclose the
Security Instrument or otherwise gain possession of the Mortgaged Premises, if
gaining possession of the Mortgaged Premises is required in order to cure such
default, shall be considered actions undertaken to cure any default. Notwithstanding the foregoing, if Landlord
defaults in the performance of any of its obligations, covenants and warranties
under the Lease which interferes with the ability of Tenant to reasonably implement
its permitted use under the Lease or results
in a real and imminent danger to the health or safety of the person or property
of Tenant or any agent, employee, or invitee of Tenant, then, in such event,
Tenant shall be entitled to exercise its rights of self-help and offset within
the time periods set forth in the Lease provided all required notices have been
given as set forth in the Lease.
Section 52.
Notice.
Any notice or communication required or permitted hereunder shall be
given in writing, sent by (a) personal delivery, or (b) expedited
delivery service with proof of delivery, or (c) United States mail,
postage prepaid, registered or certified mail, addressed as follows:
To Lender:
Guaranty
Bank
8333 Douglas Avenue
Dallas, Texas 75225
Attention: Commercial Real Estate Lending Division
To Tenant:
3D Systems
Corporation
26081 Avenue Hall
Valencia, California 91355
Attention: Robert M. Grace, Jr.
To Landlord:
KDC-Carolina
Investments 3, LP
c/o Koll Development Company
8411 Preston Road, Suite 700
Dallas, Texas 75225
Attention: Tobin C. Grove
or to such other address
or to the attention of such other person as hereafter shall be designated in
writing by the applicable party sent in accordance herewith. Any such notice or communication shall be
deemed to have been given and received either at the time of personal delivery
or, in the case of delivery service or mail, as of the date of first attempted
delivery at the address and in the manner provided herein.
Section 53.
Liability of Lender. If Lender shall become the owner of the Mortgaged
Premises or the Mortgaged Premises shall be sold by reason of foreclosure or
other proceedings brought to enforce the Security Instrument or the Mortgaged
Premises shall be conveyed by deed in lieu of foreclosure, Tenant agrees that,
notwithstanding anything to the contrary contained in the Lease, after such
foreclosure sale or conveyance by deed in lieu of foreclosure, Lender, in its
capacity as landlord under the Lease, shall have no personal liability to
Tenant under the Lease and Tenant shall look solely to the Mortgaged Premises,
to the net proceeds of sale thereof or the rentals received therefrom, for the
satisfaction of Tenants remedies for the collection of a judgment or other
judicial process requiring the payment of money by Lender, in its capacity as
landlord, in the event of any default or breach by Lender, in its capacity as
landlord, with respect to any of the terms, covenants, and conditions of the
Lease to be observed or performed by Lender, in its capacity as landlord, and
any other obligation of Lender, in its capacity as landlord, created by or
under the Lease, and no other property or assets of Lender shall be subject to
levy, execution or other enforcement procedures for the satisfaction of Tenants
remedies. Further, in the event of any
transfer by Lender of the landlords interest in the Lease to a bona fide third
party which expressly assumes the obligations
of the landlord thereunder, Lender, including each of its partners, officers,
affiliates, beneficiaries, co-tenants, shareholders or principals (as the case
may be) shall be automatically freed and released, from and after the date of
such transfer or conveyance, of all liability for the performance of any
covenants and agreements which accrue subsequent to the date of such transfer
of the landlords interest.
Section 54.
Right of First Offer. Lender and Tenant agree that the rights of
Tenant to purchase the Mortgaged Premises pursuant to Section 37 of the
Lease shall not apply to a foreclosure sale of the Mortgaged Premises pursuant
to the Security Instrument or a deed-in-lieu of foreclosure thereof; provided,
however, such right to purchase shall continue and be binding on all persons or
entities succeeding to the landlords interest under the Lease following such foreclosure
sale or deed-in-lieu of foreclosure.
Section 55.
Modification. This Agreement may not be modified orally or
in any manner other than by an agreement in writing signed by the parties
hereto or their respective successors in interest.
Section 56.
Successor Lender. The term Lender as used throughout this
Agreement includes any successor or assign of Lender, any affiliate of Lender
acquiring the Mortgaged Property at foreclosure or by deed-in-lieu of
foreclosure, and any holder(s) of any interest in the indebtedness secured by
the Security Instrument.
Section 57.
Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, their successors and assigns, and any
purchaser or purchasers at foreclosure of the Mortgaged Premises, and their
respective successors and assigns.
Section 58.
Paragraph Headings. The paragraph headings contained in this
Agreement are for convenience only and shall in no way enlarge or limit the
scope or meaning of the various and several paragraphs hereof.
Section 59.
Gender and Number. Within this Agreement, words of any gender
shall be held and construed to include any other gender, and words in the
singular number shall be held and construed to include the plural and words in
the plural number shall be held and construed to include the singular, unless
the context otherwise requires.
Section 60.
Applicable Law. This Agreement and the rights and duties of
the parties hereunder shall be governed by all purposes by the law of the state
where the Mortgaged Premises is located and the law of the United States
applicable to transactions within such state.
Section 61.
Counterparts. This Agreement may be executed in multiple
counterparts and by the different parties hereto in separate counterparts, each
of which shall for all purposes be deemed to be an original and all of which
together shall constitute but one and the same instrument, with the same effect
as if all parties to this Agreement had signed the same signature page.
IN WITNESS WHEREOF, the
parties hereto have hereunto caused this Agreement to be duly executed as of
the day and year first above written.
SIGNATURE PAGES FOLLOW
SIGNATURE PAGE OF LENDER TO
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
DATED FEBRUARY , 2006
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GUARANTY
BANK, a federal savings bank
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By:
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Name:
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Title:
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IN THE PRESENCE OF:
STATE OF
TEXAS
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§
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§
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COUNTY OF
DALLAS
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§
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The foregoing instrument
was acknowledged before me this day of ,
2006, by ,
as
of Guaranty Bank, a federal savings bank, on behalf of said federal savings
bank. Such person did take an oath
and: (check one)
is
personally known to me.
produced a
current drivers license as identification.
produced
as identification.
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Printed
Name:
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Notary
Public:
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Commission
Expires:
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Serial
Number:
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SIGNATURE PAGE OF TENANT TO
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
DATED FEBRUARY , 2006
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3D SYSTEMS
CORPORATION, a Delaware corporation
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By:
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Name:
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Title:
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IN THE PRESENCE OF:
The foregoing instrument
was acknowledged before me this day
of , 2006, by
,
as
of 3D Systems Corporation, a Delaware corporation, on behalf of said
corporation. Such person did take an
oath and: (check one)
is
personally known to me.
produced a
current drivers license as identification.
produced
as identification.
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Printed
Name:
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Notary
Public:
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Commission
Expires:
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Serial
Number:
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SIGNATURE PAGE OF LANDLORD TO
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
DATED JANUARY , 2006
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KDC-CAROLINA
INVESTMENTS 3, LP
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a Texas
limited partnership
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By:
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KDC-Carolina
Investments 3 GP, LLC
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a Texas
limited liability company,
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its General
Partner
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By:
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Koll
Development Company I, L.P.,
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a Delaware
limited partnership,
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Its Sole
Member
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By:
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SWV, LLC, a
Delaware
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limited
liability company,
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Its General
Partner
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IN THE PRESENCE OF:
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By:
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Tobin C.
Grove, President
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The foregoing instrument
was acknowledged before me this day of ,
2006, by ,
as
of ,
a ,
on behalf of said
as general partner of ,
a ,
on behalf of said . Such person did take an oath and: (check one)
is
personally known to me.
produced a
current drivers license as identification.
produced
as identification.
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Printed Name:
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Notary
Public:
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Commission
Expires:
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Serial
Number:
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EXHIBIT A
All that
certain piece, parcel or tract of land lying and being situated in the City of
Rock Hill, York County, South Carolina and being more fully described as
follows:
Beginning at a
corner on the northern right-of-way of S.C. Highway No. 161, also being on
the south end of a sight triangle with Overview Drive, thence along the
right-of-way of S.C. Highway No. 161, N 52º0700 W, 525.10 feet to a #4
Rebar Found, thence leaving said right-of-way along a common line with The
Links at Waterford LLC property N 01º2536 E, 573.51 feet to a #4 Rebar
Found, thence N 18º0827 W, 381.33 feet to a #4 Rebar Found, thence N 12º5115
E, 62.13 feet to a #4 Rebar Found, thence N 58º1258 E, 480.00 feet to a
#4 Rebar Found, thence S 43º4244 E, 594.87 feet to a #4 Rebar Set,
thence S 58º0731 E, 440.71 feet to a #4 Rebar Found, thence S 34º1226
W, 169.41 feet to a #4 Rebar Found on the right-of-way of Overview Drive,
thence with said right-of-way S 33º5256 W, 370.64 feet to a Nail in
Concrete Found, thence S 85º4852 W, 44.85 feet to a #4 Rebar Found, thence
S 34º3637 W, 66.05 feet to a #4 Rebar Found, thence S 05º5244 E, 46.10
feet to a #4 Rebar Found, thence S 34º3519 W, 62.10 feet to a Nail in
Concrete Found, thence S 37º2842 W, 200.00 feet to a Nail in Concrete Found,
thence S 34º3749 W, 174.91 feet to a #4 Rebar Found at the beginning of a
sight triangle with S.C. Highway No. 161, thence with the sight triangle
S 85º5307 W, 52.64 feet to the Point of Beginning.
Said tract
containing 1,074,111 Square Feet, 24.66 Acres.
EXHIBIT I
FORM OF ESTOPPEL CERTIFICATE
,
20
Re:
Lease
Agreement dated , 2006, between KDC-Carolina
Investments 3, LP, a Texas limited partnership (
Landlord
), and 3D Systems Corporation, a Delaware corporation
(
Tenant
), (as amended, the
Lease
),
Waterford Business Park, Rock Hill, South Carolina (the
Building
)
Dear :
Tenant understands that
(
Purchaser
) is purchasing the
Building from Landlord and Purchaser and Landlord are relying on this Estoppel
Certificate. Defined terms in the Lease
have the same meanings in this Estoppel Certificate.
For $10 and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Tenant ratifies the Lease and certifies
to Purchaser and Landlord that:
1.
Tenant
(is/is not) occupying and conducting business in the Premises.
2.
As
of the date hereof, the Base Rent under the Lease is $ per
month payable in advance on the first day of each calendar month. Base Rent is paid through 1,
20 .
3.
The
Lease is in full force and effect and Tenant has not assigned or subleased its
interest in the Lease except as specified on
Schedule A
attached to this Estoppel Certificate.
4.
A
true and correct copy of the Lease and all amendments thereto is attached as
Schedule B
to this Estoppel
Certificate.
5.
The
Lease is the entire agreement between Landlord and Tenant concerning the
Premises.
6.
The
Term expires on ,
20 .
7.
To
Tenants actual knowledge, Landlord satisfied all of its obligations regarding
the installation of Improvements, except as follows:
I-1
9.
To
Tenants actual knowledge, no default by Landlord has occurred under the Lease
and is continuing except as specified on
Schedule A
.
10.
Tenant
is not entitled to any accrued abatements, setoffs, or deductions from Base
Rent or Additional Rent under the Lease except as expressly set forth therein
or as specified in
Schedule A
.
11.
No
Base Rent has been paid more than one month in advance.
12.
There
is no Security Deposit under the Lease.
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3D SYSTEMS
CORPORATION,
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a Delaware
corporation
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By:
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Name:
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Title:
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I-2
SCHEDULE A
TO
EXHIBIT I
1
List
any assignments or subleases or state NONE:
2
List
any defaults by Landlord that have occurred and are continuing or state NONE:
3
List
any accrued abatements, setoffs, or deductions from Base Rent or Additional
Rent to which Tenant is entitled at this time (other than those expressly set
forth in the Lease) or state NONE:
Schedule A-1
SCHEDULE B
TO
EXHIBIT I
COVER PAGE FOR COPY OF THE LEASE AND ALL
AMENDMENTS
Schedule B-1
EXHIBIT J
ECONOMIC DEVELOPMENT INCENTIVES
AND GOVERNMENTAL ENTITLEMENTS
3D SYSTEMS PROJECT IN WATERFORD BUSINESS PARK, ROCK HILL, SC
Any and all economic development incentives and governmental
entitlements offered, given, granted, or to be offered, given or granted by any
public or private utility (
Utility Company
),
Rock Hill Economic Development Corporation (
RHEDC
),
York County (the
County
), the
City of Rock Hill (the
City
),
the State of South Carolina (the
State
),
any other governmental jurisdiction, and any department, agency or commission
of the same, to 3D Systems Corporation in connection with the relocation of its
corporate headquarters and manufacturing facility and the future expansion of
the same in Waterford Development Business Park (the
Project
), including, but not limited, to a
Fee-in-Lieu of Taxation Agreement under the Fee in Lieu of Tax Simplification
Act of 1997 (the Act) or any other similar law or statute of the State;
special source revenue credits or bonds under that Act or similar statutes; any
industrial revenue bonds, if applicable; any property tax abatements or
exemptions for new manufacturing and research and development facilities and
additions, if applicable; Job Development Credits or Fees under the Enterprise
Zone Act or any other similar statute of the State; grants of RHEDC and the
City for infrastructure improvements and other development and relocation
costs; Utility Company grants or loans, including but limited to a grant by
Comporium Communications in the amount of its license fees credit;
reimbursement for impact fees, building permit fees and water and sewer tap
fees by the City in connection with its Growth Management Incentive policy; set
aside funds as administered by the Coordinating Council for Economic
Development of the South Carolina Department of Commerce (
DOC
) and any other grant or loan funds
administered by the DOC; C road funds administered by the County; any grants
for funding highway and other infrastructure improvements administered by the
South Carolina Department of Highways and Public Transportation; any
pass-through federal or State grant funds, including but not limited to
Community Development Block Grants; and all benefits accruing to the capital
costs of the Project, if any at all, from other economic development incentives
and tax abatements as set forth in the South Carolina Tax Code, including but
not limited to Jobs Tax Credits, Job Training Credits, Job Retraining Credits,
Research and Development Credits, Corporate Headquarters, Research and
Development Tax Credits, and tax credits under the Economic Impact Zone Act, if
applicable.