EXHIBIT 10.1
NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION
PURSUANT TO THE SOUTH CAROLINA UNIFORM ARBITRATION ACT, SOUTH
CAROLINA CODE XXX. SECTION 15-48-10, ET. SEQ.
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") dated as of December 24, 2002, by
and between
SUMTER REALTY GROUP, LLC, organized and existing under the laws of the State of
South Carolina (together with its heirs, successors and permitted assigns, the
"Landlord"),
and
BIOPURE CORPORATION, organized and existing under the laws of the State of
Delaware (together with its heirs, successors and permitted assigns, the
"Tenant").
WITNESSETH:
1. PREMISES. Landlord does hereby demise and let unto Tenant and Tenant
does hereby lease and take from Landlord for the term and upon the
terms, covenants, conditions and provisions set forth herein all that
tract of land located in Sumter County, South Carolina, as more
particularly described on attached EXHIBIT A-1 and depicted on attached
EXHIBIT A-2 (herein called the "Land"), together with the Facility (as
defined in the Construction Addendum) and other improvements to be
constructed thereon in accordance with Section 3 hereof, and the
benefit of all rights, appurtenances, privileges, easements, rights of
ingress or egress, licenses or hereditaments now or hereafter belonging
or appertaining to any of the foregoing (the Land, the Facility, such
benefits and any other improvements thereon being herein collectively
called the "Premises").
TO HAVE AND TO HOLD unto Tenant, its successors and assigns, in
accordance with the terms of this Lease.
2. TERM COMMENCEMENT DATE; OPTION TO PURCHASE.
2.1. Term. The term of this Lease (the "Term") shall commence on
the Term Commencement Date (as defined in the Construction Addendum)
and shall terminate on the last day of the 300th full calendar month
after the Term Commencement Date (the "Expiration Date") or on such
earlier date on which the Term may expire or be terminated pursuant to
the provisions of this Lease or pursuant to law. Within one hundred
eighty (180) days after the Term Commencement Date, Landlord and Tenant
shall execute and record an agreement supplementary hereto, setting
forth: the Construction Commencement Date, the Term Commencement Date,
the Expiration Date and the Annual Rental based upon the Project Cost
of the Premises.
2.2. Option to Purchase. Landlord hereby grants to Tenant an
exclusive option to purchase the Premises at any time during the Term
from and after the third anniversary of the Construction Commencement
Date (as defined in Section 3.1 below) and in accordance with the terms
and conditions set forth in attached EXHIBIT B (the "Option"). The
Option shall survive the termination of this Lease for a period of one
(1) year and may be exercised at any time during such one year period,
provided such Lease termination occurs after the third anniversary of
the Construction Commencement Date, and the Option shall inure to the
benefit of the successors and assigns of Tenant. Upon Tenant's delivery
to Landlord of written notice of Tenant's election to exercise the
Option, Landlord shall convey the Premises to Tenant as provided in
attached EXHIBIT B. In addition to all other rights and remedies
provided herein, Tenant shall be entitled to the remedy of specific
performance with regard to the Option. Notwithstanding the foregoing,
in the event that Landlord has not, despite good faith efforts, closed
on financing for the design, engineering, installation, equipping,
construction and building of the Facility the gross proceeds of which
are not less than $120,000,000 (the "Financial Closing") within
seventy-five (75) days of the date set forth in the first paragraph of
this Lease, this Lease shall terminate, subject to the survivability of
provisions relating to choice of law, interpretation of the Lease,
dispute resolution, indemnity, confidentiality and notice, and the
parties shall have no further obligation hereunder.
2.3. Tenant's Right of Early Termination of Lease. Landlord and
Tenant acknowledge that Tenant has not completed its due diligence
review of the Premises and supporting documents. Tenant shall have the
right to terminate this Lease in its sole and absolute discretion at
any time within ninety (90) days of the date of execution of this
Lease, in the event Tenant determines that the Premises are not
suitable for development of the Facility, the exhibits to the Lease are
not finalized, or that any of the due diligence documentation,
including surveys and title evidence, are not complete or satisfactory
for a transaction of this nature. Notwithstanding any of the foregoing
to the contrary, Tenant shall have no right to terminate this Lease
pursuant to Section 2.3 hereunder after the Financial Closing has
occurred; provided, however, the Landlord acknowledges and agrees that
the Financial Closing shall not take place until such time as the
Tenant has approved the terms and conditions, except as to interest
rate and prepayment schedule, and documentation of such financing and
Tenant has completed to its satisfaction its due diligence review of
the Property and approved the condition of the Property for development
of the Facility and all documents which are exhibits to the Lease have
been approved by Tenant. In the event Tenant exercises its right to
terminate the Lease pursuant to this Section 2.3, the Lease shall
terminate upon receipt by Landlord of Tenant's written notice of
termination delivered in accordance with the notice provisions of
Section 30 hereof, subject to survivability of provisions relating to
choice of law, interpretation of the Lease, dispute resolution,
indemnity, confidentiality and notice, and the parties shall have no
further obligation hereunder.
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3. COMPLETION BY LANDLORD.
3.1. Construction. Landlord shall promptly commence, and shall
pursue with due diligence and continuously until completion, the
construction of the Facility in accordance with the provisions of the
Construction Addendum attached hereto as EXHIBIT C, as the same may be
amended from time to time. The date upon which Landlord commences
construction of the Facility is referred to herein as the "Construction
Commencement Date". Construction will be deemed to have commenced upon
the pouring of footers for the Facility.
3.2. Delivery of Premises. On the Term Commencement Date, Landlord
agrees that: (a) Landlord shall deliver possession of the Premises free
of all leases, tenancies, occupants, construction lien claims (except
to the extent a bond may have been posted against such claims in
accordance with Section 14.2 below), and material defects in material
and workmanship; (b) the Premises shall be in material compliance with
all Applicable Laws (as defined in Section 11 below), and the
provisions of the Construction Addendum (except as the same strictly
relate to the Operational Qualification and Performance Qualification
phases of Validation); (c) the Premises shall not be subject to any
title exceptions except Permitted Encumbrances (as defined in Section
28.1 below); and (d) Landlord shall have satisfied all those
obligations imposed upon Landlord by the provisions of this Lease, or
the Construction Addendum, which are required to be complied with prior
to the Term Commencement Date.
3.3. Project Cost. Within one hundred twenty (120) days from and
after the Term Commencement Date, Landlord will deliver to Tenant a
final written certification of the Project Cost (as defined in Section
5.2.1(b) below), specified by line item, consistent with the terms and
requirements of this Lease and the Construction Addendum. The Project
Cost as certified by Landlord will be subject to Tenant's reasonable
review and approval, provided, however, that if the Project Cost does
not exceed the preliminary estimate thereof, as detailed on attached
EXHIBIT E with additions and subtractions as agreed to by the Tenant
pursuant to the Construction Addendum, by more than one percent (1%),
then Tenant will have no basis for objection thereto. Upon approval of
the Project Cost by both Landlord and Tenant, the parties will execute
and deliver an instrument specifying the Project Cost.
4. USE OF PREMISES. Tenant may use the Premises for operation of a
biopharmaceutical manufacturing facility with appurtenant offices or
for any other lawful use; provided, however, that Tenant shall not be
permitted to use the Premises for any use not permitted by (i)
applicable zoning regulations, or (ii) any covenants and restrictions
to which the Premises (with the prior written consent of Tenant) is
made subject during the Term.
5. RENT.
5.1. Basic Rent. During each year of the Term, Tenant hereby
covenants and agrees to pay Annual Rental (as defined below) to
Landlord, calculated in
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accordance with Section 5.2 below, in advance in twelve (12) equal
monthly installments (each such installment being referred to herein as
"Basic Rent"). Additionally, Tenant covenants and agrees to pay,
directly to the taxing authority, the amount of any and all rental,
sales or use taxes levied by any governmental body having authority
upon the use or occupancy of the Premises. Basic Rent shall be due and
payable beginning on the Rent Commencement Date (as defined below) and
continuing on the first day of each and every month thereafter
throughout the Term and shall be paid without demand, set-off or
deduction except as otherwise provided herein to Landlord at its
address set forth in Section 30 below. Provided, however, that if the
Rent Commencement Date should be a date other than the first day of a
calendar month, the Basic Rent for the first month will be prorated to
the end of that calendar month. For purposes hereof, "Rent Commencement
Date" shall mean the date of Substantial Completion (as defined in the
Construction Addendum) of the Facility.
5.2. Basic Rent Calculation.
5.2.1 Definitions. For purposes of this Section 5.2.1, the
following terms shall have the meanings set forth below:
(a) The term "Incentives" shall mean certain
local and state government incentives, as listed on
attached EXHIBIT D, paid or granted to Tenant in
connection with its operation in the Premises.
(b) The term "Project Cost" shall mean the
actual, bona fide cost to Landlord with respect to
the acquisition, investigation, financing, design,
engineering, procurement, installation, construction,
interconnection, testing, commissioning, and
Validation (as defined in the Construction Addendum)
of the Premises, a preliminary estimate of which is
attached as EXHIBIT E hereto.
5.2.2 Rent Calculation. Annual Rental shall be calculated
based upon a fifteen percent (15%) capitalization rate of the
difference of the Project Cost less (i) the Incentives, [(ii)
the Tenant capital contributions (if any),] (iii) the Escrow
Amount (as defined in Section 31 below) and (iv) the value of
warrants issued by Tenant to Tiger Trust pursuant to
[reference to agreement]. For example, based upon an assumed
Project Cost of $150,137,402, Incentives in the amount of
$7,000,000, an Escrow Amount of $10,000,000 and the value of
warrants issued by Tenant of $18,750,000, the Annual Rental
would be $17,158,110 ($150,137,402 - $35,750,000 =
$114,387,402 x 0.15 = $17,158,110 and each monthly installment
of Basic Rent would be $1,429,833.
5.2.3 Annual Rent for First Two Years. Notwithstanding the
rent calculation illustration and other provisions in Section
5.2.2, the Annual
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Rental for the first two (2) years after the Rental
Commencement Date shall be $13,750,000.
5.2.4 Additional Monetary Obligations. In addition to Basic
Rent, Tenant will be obligated to bear certain direct costs
and expenses associated with the Premises as provided in this
Lease (any such amounts being referred to herein as
"Additional Monetary Obligations"). Unless the Lease provides
otherwise, all Additional Monetary Obligations shall be paid
by Tenant to Landlord within thirty (30) days of Landlord's
demand for the same.
6. TAXES AND OTHER IMPOSITIONS.
6.1. Tenant's Payment. As Additional Monetary Obligations
hereunder, and except to the extent included in the Project Cost, at
least thirty (30) days before any fine, penalty, interest or cost may
be added thereto for the non-payment thereof (or sooner if elsewhere
herein required), Tenant shall pay throughout the Term, unless
otherwise set forth herein, all levies, rental, sales and use taxes,
ad valorem property taxes, assessments, water and sewer rents and
charges, liens, license and permit fees, charges for public utilities
and all other charges, imposts or burdens of whatsoever kind and
nature, general or special, foreseen or unforeseen, whether or not
particularized by name, ordinary or extraordinary, which are
applicable to the Term, and which are created, levied, assessed,
confirmed, adjudged, imposed or charged by any federal, state or
municipal government or public authority, or under any law, ordinance
or regulation thereof, or pursuant to any Permitted Encumbrances (all
of which are hereinafter referred to as "Impositions") upon or with
respect to the Premises or directly upon this Lease or the Basic Rent
payable hereunder or amounts payable by any subtenants or other
occupants of the Premises, or upon this transaction or any related
documents to which Tenant is a party or successor in interest, or
against Landlord because of Landlord's estate or interest herein. If
Tenant is permitted by the assessing and collecting authorities and
elects to pay any Imposition in installments, Tenant shall not be
responsible for any unpaid installments thereof which become due and
payable after the expiration or earlier termination of the Term.
Tenant shall pay any Imposition directly to the government or other
public authority charged with the collection of such Imposition and
shall furnish Landlord, not later than ten (10) days prior to the
last day upon which they may be paid without any fine, penalty,
interest or cost, receipts or other evidence satisfactory to Landlord
of the payment of all such Impositions.
6.2. Fee in Lieu of Property Tax. Landlord will submit the
appropriate applications and enter into the appropriate agreements to
cause the Premises to be subject to a "Fee In Lieu of Property Tax"
under South Carolina law; provided, however, that all such
applications and agreements, including, without limitation, any lease
agreement between Landlord and Sumter County, will be subject to
Tenant's prior written approval, which will not be unreasonably
withheld. Tenant has been advised that Landlord will apply for a Fee
In Lieu of Property Tax at an assessment rate of ten and one-half
percent (10.5%) (the "Assessment Rate");
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provided, however, the Assessment Rate shall be reduced to six percent
(6%) for all investments which are (i) subject to fee in lieu of tax
payments, (ii) invested within five (5) years of the execution of the
original fee in lieu of tax agreement and (iii) are in excess of
$85,000,000.00. Landlord will obtain Tenant's and any and all
mortgagees' prior written consent before applying for a Fee In Lieu of
Property Tax at any rate higher than the applicable Assessment Rate set
forth above.
6.3. Landlord's Payment. Nothing herein contained shall be
interpreted as requiring Tenant to pay any income, excess profits,
corporate, capital stock, or franchise tax imposed or assessed upon
Landlord, unless such tax or any similar tax is levied or assessed in
lieu of all or any part of any Imposition or an increase in any
Imposition.
6.4. Monthly Deposits. Notwithstanding the foregoing provisions of
this Section 6, Landlord shall have the right upon the occurrence and
continuance of a default by Tenant under this Lease, after giving
effect to any applicable grace periods contained herein, at its option,
to require Tenant to pay to Landlord or to any mortgagee, at the time
when the monthly installment of Basic Rent is payable, an amount equal
to one-twelfth (1/12th) of the annual Impositions as reasonably
estimated by Landlord and, to the extent such payments are timely made,
Landlord or such mortgagee shall be responsible for timely payment of
such Impositions to the applicable governmental entities. If Landlord
elects to have Tenant make such payments, Tenant also shall pay to
Landlord or to such mortgagee, as the case may be, at least thirty (30)
days before any fine, penalty, interest or cost may be added thereto
for the non-payment thereof, the amount by which the Impositions
becoming due exceed the monthly payments on account thereof previously
made by Tenant and Landlord or such mortgagee shall be responsible for
timely payment of such Impositions to the applicable governmental
entities.
6.5. Contest by Tenant. Tenant may bring proceedings to contest the
validity or amount of any Imposition or to recover payments therefor
and may postpone payment to the extent allowed by applicable law,
except with respect to the payment of the Fee in Lieu of Property Tax.
Tenant shall save Landlord harmless from all costs and expenses in
connection with such proceedings. Landlord shall cooperate with Tenant
with respect to such proceedings to the extent reasonably necessary,
but all costs, fees and expenses incurred in connection with such
proceedings shall be borne by Tenant. Tenant shall give Landlord
advance written notice of Tenant's intention to take any such action.
7. INSURANCE.
7.1. Types. Tenant, at Tenant's sole cost and expense, shall
maintain and keep in effect throughout the Term with policies from an
insurer and in form and substance all reasonably satisfactory to
Landlord the following types of insurance:
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7.1.1 Property Insurance. Tenant will maintain insurance
against loss or damage to the Facility and all other
improvements, and the Equipment (as defined in the
Construction Addendum), now or hereafter located on the
Premises, by fire, earthquake and such other casualties as may
be included in the "all-risk" insurance from time to time
available, in an amount equal to the full insurable
replacement value thereof. Such policy will also include
business interruption coverage (including rent loss coverage)
in sufficient amounts. Landlord or Tenant periodically may
request an adjustment of the amount of the "all-risk"
insurance to reflect the then current full replacement cost of
the Facility and other improvements;
7.1.2 Commercial General Liability Insurance. Tenant will
maintain commercial general liability insurance covering
claims arising from bodily injury and property damage
occurring on, in or about the Premises with minimum limits of
$1,000,000 per occurrence and $2,000,000 general aggregate;
7.1.3 Excess Liability Insurance. Tenant will maintain
umbrella liability insurance with a limit of not less than
$10,000,000 per occurrence; and
7.1.4 Other Insurance. Tenant will maintain boiler
insurance (if applicable), plate glass insurance, and such
other forms of insurance as may be specified from time to time
by Landlord; all such insurance shall be in such reasonable
types and amounts as may be specified from time to time by
Landlord or by any mortgagee and commercially available at
reasonable cost.
7.2. Insured Parties. The policies of insurance described in
Section 7.1 above shall name Landlord as an additional insured, and in
addition shall contain a standard mortgagee endorsement in favor of all
mortgagees.
7.3. Policies. Each policy of insurance required by Section 7.1
above shall provide that it shall not be canceled without at least
thirty (30) days prior written notice to Landlord and to any mortgagee
named in any endorsement thereto. Subject to the consent of the
insurer, each policy shall have an executive notice endorsement or
comparable form of coverage attached thereto to the effect that no act
or omission of Tenant shall affect the obligation of the insurer to pay
the full amount of any loss sustained.
7.4. Evidence of Coverage. At least ten (10) days prior to the Term
Commencement Date, a certificate of insurance for each policy shall be
delivered to Landlord by Tenant. Tenant may carry any insurance
required by this Section 7 under a blanket policy, applicable to the
Premises, in which event Tenant shall deliver the insurer's
certificates thereof and two certified copies of the underlying policy
in lieu of the original, showing all of the terms of such coverage
applicable to the Premises and showing the insured parties as
aforesaid. If Tenant shall
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fail, refuse or neglect to obtain or to maintain any insurance that it
is required to provide, or to furnish Landlord with satisfactory
evidence of coverage within the time required, and Tenant shall fail to
cure such insurance deficiency after Landlord has provided Tenant with
five (5) days advance written notice of such insurance deficiency,
Landlord shall have the right to purchase such insurance. All payments
for such insurance made by Landlord shall be recoverable by Landlord
from Tenant, together with interest thereon, as Additional Monetary
Obligations promptly upon being billed therefor.
7.5. Waiver of Subrogation. Each of the parties hereto hereby
releases the other, to the extent of the releasing party's insurance
coverage, from any and all liability for any loss or damage covered by
such insurance which may be inflicted upon the property of such party
even if such loss or damage shall be brought about by the fault or
negligence of the other party, its agents or employees. Landlord and
Tenant shall require their respective insurance companies to include a
standard waiver of subrogation provision in their respective policies.
8. REPAIRS AND MAINTENANCE.
8.1. Tenant's Obligations. Tenant, at its sole cost and expense and
throughout the Term, shall keep and maintain in good order and
condition, subject to normal wear and tear, the Facility and the other
improvements now or hereafter located upon the Premises, and any
sidewalks, parking areas, curbs and access ways upon the Premises, and
shall promptly make all repairs necessary to keep and maintain such
good order and condition, whether such repairs are interior or
exterior, ordinary or extraordinary, foreseen or unforeseen. Landlord
shall extend to Tenant the benefit from warranties on such items, if
any, that have been made by Landlord's contractors or vendors. Tenant
shall keep and maintain all open areas of the Premises not built upon
or paved as landscaped areas in a neat and orderly condition by
performing all necessary tasks, including, but not limited to, grass
cutting, seeding, watering, weeding and replacing any dead or diseased
planting. Tenant shall not use or permit the use of any portion of the
Premises for outdoor storage to the extent such use would violate
applicable zoning ordinances or restrictive covenants. When used in
this Section 8, the term "repairs" shall include replacements and
renewals when necessary. All repairs made by Tenant shall utilize
materials and equipment which are at least equal in quality and
usefulness to those originally used in constructing the Premises.
Tenant shall maintain and repair all HVAC systems appurtenant to the
Facility using a service firm or firms reasonably acceptable to
Landlord which shall provide service and maintenance in accordance with
the manufacturer's recommendations and, upon request of Landlord, shall
provide a copy of the contract to Landlord.
8.2. Landlord's Obligations. Landlord, throughout the Term and at
Landlord's sole cost and expense, shall make all necessary repairs to
the footings and foundations, and the structural elements of the
Facility (including, without limitation, structural steel columns and
girders, and the roof); provided, however, that Landlord shall have no
responsibility to make any repair unless and until
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Landlord receives written notice of the need for such repair, and
provided further that Landlord shall have no responsibility to repair
any damage which arises out of or is caused by the acts or omissions of
Tenant or any employee, agent, contractor or invitee of Tenant.
9. UTILITY CHARGES. Tenant shall be solely responsible for and shall pay
promptly all rents, costs and charges for water service, sewer service,
gas, electricity, light, heat, steam, power, telephone and other
communication services, and any and all other utilities or services
rendered or supplied upon or in connection with the Premises.
10. NET LEASE. Except for the obligations of Landlord expressly set forth
herein, this Lease is a "net lease" and Landlord shall receive the
Basic Rent as hereinabove provided as net income from the Premises, not
diminished by any Imposition or any expenses or charges required to be
paid to maintain the Premises or to continue the ownership of Landlord
other than payments contemplated under Section 6.3 or under any
mortgages now existing or hereafter created by Landlord, and, except as
set forth herein, Landlord is not and shall not be required, to render
any services of any kind to Tenant.
11. GOVERNMENTAL REGULATIONS. Landlord covenants and agrees that it shall
deliver the Premises to Tenant in a condition such that the Premises
comply with all Applicable Laws (as defined below). With regard to all
or any part of the Premises or to the use or manner of use of the
Premises, or to the sidewalks, parking areas, curbs and access ways
within the Premises, or to the fixtures and equipment in the Premises,
throughout the Term and at its sole cost and expense, Tenant shall: (i)
comply promptly with all Applicable Laws relating to Tenant's business
and Tenant's obligations under this Lease; (ii) keep in force at all
times all licenses, consents and permits necessary for the lawful use
of the Premises for the purposes herein provided; and (iii) comply with
the requirements of all public liability, fire, and other policies of
insurance covering the Premises. Provided, however, that Tenant shall
not be required to comply with Applicable Laws with respect to the
footings and foundations and the structural elements of the Facility
(including, without limitation, structural steel columns and girders,
and the roof), unless the need for such compliance arises out of or is
caused by the acts or omissions of Tenant or any employee, agent,
contractor or invitee of Tenant. For purposes hereof, "Applicable Laws"
shall mean all legal requirements, laws, ordinances, orders, rules or
regulations, permit conditions and requirements of all federal, state,
county and municipal governments, courts, departments, commissions,
boards and offices, or any other body exercising functions similar to
any of those of the foregoing, which may be applicable to the Premises
or any part thereof.
12. SIGNS. Except for signs which are located wholly within the interior of
the Facility and which are not visible from the exterior of the
Premises, no signs shall be placed, erected, maintained or painted at
any place upon the Premises without the prior written consent of
Landlord as to the size, design, color, location, content,
illumination, composition or material and mobility thereof, which
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consents shall not be unreasonably withheld, conditioned or delayed;
provided, upon consent of the architectural review committee to the
same, as required pursuant to certain Permitted Encumbrances, Landlord
hereby consents to the sign(s) detailed in the Review Plans and
Specifications attached to the Construction Addendum. All signs shall
be maintained by Tenant in good condition during the Term, and Tenant
shall remove all signs at the termination of this Lease and shall
repair and restore any damage caused by the installation or removal
thereof.
13. ALTERATIONS, ADDITIONS AND FIXTURES.
13.1. Installation of Fixtures. Subject to the provisions of Section
14, Tenant shall have the right to install in the Facility any trade
fixtures from time to time during the Term; provided, however, that no
such installation or removal thereof shall compromise the structural
portions of the Facility and Tenant shall repair and restore any damage
or injury to the Premises caused thereby.
13.2. Tenant's Alterations. Except as otherwise set forth herein,
Tenant shall not make or permit to be made any material alterations,
improvements or additions to the Premises without on each occasion
first presenting to Landlord plans and specifications therefor and
obtaining Landlord's prior written consent thereto, which consent shall
not be unreasonably withheld or delayed; except that Tenant may make
alterations, improvements or additions to those portions of the
Premises that Landlord is not obligated to maintain pursuant to Section
8.2 above, without the consent of Landlord, provided that: (i) Tenant
supplies Landlord with plans and specifications and any necessary
permits therefor at least ten (10) days in advance of commencing
construction thereof; (ii) such alterations and improvements do not
impair the structural strength of the Facility or any other
improvements or reduce the value of the Premises; and (iii) Tenant
shall take or cause to be taken all steps that are required by Section
14 hereof and that are required or permitted by law in order to avoid
the imposition of any mechanic's lien upon the Premises. Any and all
alterations, improvements and additions to the Premises which are
constructed, installed or otherwise made by Tenant shall be the
property of Tenant until the expiration or earlier termination of this
Lease. Subject to Tenant's exercise of and rights under the Option,
upon the expiration or earlier termination of this Lease, all
alterations and additions shall remain on the Premises and become the
property of Landlord without payment therefor by Landlord unless, upon
the expiration or earlier termination of this Lease, Landlord shall
give written notice to Tenant to remove the same; in which event Tenant
will remove such alterations, improvements and additions, and repair
and restore any damage to the Premises caused by the installation or
removal thereof. Prior to the completion of any material alteration,
improvement or addition, Landlord and Tenant agree to execute a written
statement as to whether or not the alteration, improvement or addition
shall be required to be removed upon the expiration or earlier
termination of this Lease.
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14. MECHANICS' LIENS.
14.1. Tenant's Obligations. Tenant shall promptly pay any
contractors and materialmen engaged by Tenant to supply labor, work or
materials at the Premises so as to minimize the possibility of a lien
attaching to the Premises. Tenant shall take all reasonable steps
permitted by law in order to avoid the imposition of any such
mechanic's lien upon the Premises relating to work contracted for by
Tenant. Should any such lien be filed, for work performed for Tenant
other than by Landlord, Tenant shall bond against or discharge the same
within thirty (30) days after the lien is filed and served on Tenant,
as provided in Section 29-5-110 of the South Carolina Code of Laws of
1976, as amended. Nothing in this Lease is intended to authorize Tenant
to do or cause any work or labor to be done or any materials to be
supplied for the account of Landlord, all of the same to be solely for
Tenant's account and at Tenant's risk and expense. Throughout this
Lease the term "mechanic's lien" is used to include any lien,
encumbrance or charge levied or imposed upon the Premises or any
interest therein or income therefrom on account of any mechanic's,
laborer's or materialmen's lien or arising out of any debt or liability
to or any claim or demand of any contractor, mechanic, supplier,
materialmen or laborer and shall include without limitation any
injunctive or equitable action brought by any person entitled to any
mechanic's lien.
14.2. Landlord's Obligations. Landlord shall promptly pay any
contractors and materialmen who supply labor, work or materials on
Landlord's behalf, or at Landlord's direction, at the Premises so as to
minimize the possibility of a lien attaching to the Premises. Landlord
shall take all reasonable steps permitted by law in order to avoid the
imposition of any such mechanic's lien upon the Premises relating to
work performed on Landlord's behalf or at the direction of Landlord
pursuant to the terms of this Lease or the Construction Addendum.
Should any such lien be filed, Landlord shall bond against or discharge
the same within thirty (30) days after the lien is filed and served on
Landlord, as provided in Section 29-5-110 of the South Carolina Code of
Laws of 1976, as amended.
15. LANDLORD'S RIGHT OF ENTRY.
15.1. Landlord's Access. Subject to the provisions of Section 15.2
below, Tenant shall permit Landlord and the authorized representatives
of Landlord and of any mortgagee to enter the Premises for the purpose
of (i) inspecting the Premises, or (ii) making any necessary repairs
thereto and performing any work therein pursuant to the terms of this
Lease.
15.2. Conditions to Landlord's Access. Landlord's right of entry to
the Premises, as set forth in Section 15.1 above, is subject to the
following conditions:
(a) Landlord shall provide to Tenant at least
twenty-four (24) hours prior written notice of any
proposed entry by Landlord and/or its authorized
representatives into the Premises. Such notice shall
specify the type of inspection and/or repairs to be
performed by
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Landlord and/or its authorized representatives in the
Premises, and, to the extent that the same may have
any effect upon Tenant's manufacturing operations in
the Premises, such inspection and/or repairs shall be
scheduled at a time mutually agreeable to the
parties;
(b) Landlord and its authorized representatives,
and any persons accompanying any of them into the
Premises, shall be accompanied at all times by a
representative of Tenant;
(c) Any entry into the Premises by Landlord and
its authorized representatives, and any persons
accompanying any of them, shall be in strict
compliance with all security procedures, and with all
standard operating procedures required by good
manufacturing practice, as enacted by Tenant from
time to time;
(d) Prior to making any repairs or commencing
any construction in the Premises, Landlord shall
provide to Tenant evidence of such types of
insurance, and in such amounts, as may be reasonably
specified by Tenant; and
(e) No inspection or repairs undertaken by
Landlord in the Premises shall unreasonably interfere
with the operation of the Premises or the conduct of
Tenant's business therein.
16. DAMAGE BY FIRE OR OTHER CASUALTY.
16.1. Tenant shall promptly notify Landlord if the Premises shall be
damaged or destroyed by fire or other casualty. Except during the final
five (5) years of the Term, Landlord, subject to the conditions set
forth in this Section 16, shall repair, rebuild or replace such damage
and restore the Premises to substantially the same condition in which
they were immediately prior to such damage or destruction. During the
final five (5) years of the Term, Landlord shall have the option to not
repair the Premises. If Landlord elects not to repair the Premises
during the final five (5) years of the Term, then Landlord shall
provide written notice of its election to Tenant with fifteen (15) days
of the occurrence of such fire or other casualty. In such event, Tenant
may, within fifteen (15) days of its receipt of Landlord's written
election, either (i) terminate this Lease; or (ii) elect to exercise
its Option pursuant to Section 2.2 and the insurance proceeds payable
as a result of the damage or destruction shall first be applied to the
Option Purchase Price, as calculated in accordance with the terms set
forth in attached EXHIBIT B, with any remaining proceeds being
distributed to Tenant.
16.2. Subject to Section 16.1 above, within thirty (30) days of the
occurrence of a fire or other casualty, Landlord shall deliver to
Tenant a notice (the "Casualty Notice") setting forth the time that
Landlord estimates will be necessary to repair the Premises from the
earlier of commencement of the reconstruction or repair or the date of
Landlord's receipt of the net insurance proceeds (the "Probable
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Restoration Period"). In the event that the notice specifies a Probable
Restoration Period longer than one hundred eighty (180) days, exclusive
of the time necessary to perform Validation, then Tenant shall have the
option, to be exercised within ten (10) days of its receipt of the
Casualty Notice, to terminate this Lease. If Landlord and Tenant shall
disagree as to the Probable Restoration Period, then such period shall
be determined by a qualified independent general contractor reasonably
acceptable to both parties, and, upon receipt by Tenant of notice of
the Probable Restoration Period, as determined by such general
contractor, Tenant shall have ten (10) days within which to exercise
its option to terminate this Lease, if applicable.
16.3. Landlord's work shall be commenced promptly upon Landlord's
receipt of the insurance proceeds, and shall be completed with due
diligence, subject to Excusable Delay (as defined in the Construction
Addendum) within the Probable Restoration Period. Landlord shall
proceed in good faith and with due diligence to effect a settlement
with the insurance company and to procure the insurance proceeds.
Notwithstanding anything in this Section 16 to the contrary, if
Landlord (i) has not effected a settlement with the insurance company
and procured the insurance proceeds within sixty (60) days from and
after the occurrence of such fire or other casualty, (ii) has failed
during such sixty (60) day period or thereafter fails to proceed in
good faith and with due diligence to effect a settlement and (iii)
fails to diligently prosecute the work, Tenant may terminate this Lease
by written notice to Landlord. Furthermore, if Landlord fails to
complete Landlord's work within the Probable Restoration Period, then
Tenant shall have the option, to be exercised within ten (10) days
following the end of the Probable Restoration Period, to terminate this
Lease by written notice to Landlord.
16.4. The net amount of any insurance proceeds (excluding proceeds
received pursuant to any rental coverage endorsement) recovered by
reason of the damage or destruction of the Premises in excess of the
reasonable cost of adjusting the insurance claim and collecting the
insurance proceeds (such excess amount being hereinafter called the
"net insurance proceeds") shall be applied towards the cost of
restoration and sums held by Landlord for that purpose shall be
maintained in a segregated account. If in Landlord's reasonable
judgment the net insurance proceeds will not be adequate to complete
such restoration, then upon Landlord's written request, Tenant shall
pay out of funds other than such net insurance proceeds, the amount by
which the cost of restoration estimated by Landlord will exceed the net
insurance proceeds, such sum payable by Tenant to be later readjusted
to such actual excess promptly upon the completion of restoration. If
such net insurance proceeds are more than adequate, the amount by which
such net insurance proceeds exceed the cost of restoration will be
retained by Landlord or applied to repayment of any mortgage secured by
the Premises.
16.5. Landlord's obligation or election to restore the Premises
under this Section 16 shall not include the repair, restoration or
replacement of the fixtures, equipment, improvements, alterations,
furniture or any other property owned, installed, made by, or in the
possession of Tenant; provided, however, that
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Landlord's obligation or election to restore the Premises shall include
the repair, restoration or replacement of the Equipment (as defined in
the Construction Addendum).
16.6. Commencing with the date of any damage to the Premises, the
Basic Rent provided for in this Lease shall xxxxx proportionally, to
the extent that and for so long as, any portion of the Premises is not
reasonably usable with reasonable ingress and egress and its
proportionate number of required parking spaces, and is not actually
used, by Tenant in the ordinary conduct of its business. In calculating
the foregoing abatement of Basic Rent, the parties agree that, to the
extent that any portion of the Premises utilized for Tenant's
manufacturing operations is not reasonably usable as a result of such
damage, all portions of the Premises utilized for Tenant's
manufacturing operations will be considered not reasonably usable for
purposes hereof.
17. NO ABATEMENT OF RENT. Except as otherwise set forth herein, there shall
be no abatement or reduction of the Basic Rent, the Additional Monetary
Obligations or other sums payable hereunder for any cause whatsoever,
and this Lease shall not terminate, and Tenant shall not be entitled to
surrender the Premises.
18. INDEMNIFICATION OF LANDLORD AND TENANT.
18.1. Tenant's Obligations. Tenant indemnifies and agrees to save
Landlord harmless from and against any and all claims, actions,
damages, liability and expense (including without limitation reasonable
fees of attorneys, investigators and experts) in connection with loss
of life, personal injury or damage to property caused to any person in
or about the Premises arising from the acts or omissions of Tenant, its
agents, contractors, employees, licensees or invitees; unless such
loss, injury or damage occurs as a proximate result of (i) the acts or
omissions of Landlord, its agents, contractors, employees, licensees or
invitees, or (ii) the structural or mechanical failure of the Premises
due to an inherent defect or failure to maintain (to the extent that
Landlord is required to maintain the same pursuant to the terms of
Section 8.2 hereof). Without limiting the foregoing, Tenant will
forever release and hold Landlord harmless from all claims arising out
of damage to Tenant's property unless such damage occurs as a proximate
result of (i) the acts or omissions of Landlord, its agents, employees,
licensees or invitees, or (ii) the structural or mechanical failure of
the Premises due to an inherent defect or failure to maintain (to the
extent that Landlord is required to maintain the same pursuant to the
terms of Section 8.2 hereof). In case any such claim, action or
proceeding is brought against Landlord, upon notice from Landlord and
at Tenant's sole cost and expense, Tenant shall resist or defend such
claim, action or proceeding or shall cause it to be resisted or
defended by an insurer.
18.2. Landlord's Obligations. Landlord indemnifies and agrees to
save Tenant harmless from and against any and all claims, actions,
damages, liability and expense (including without limitation reasonable
fees of attorneys, investigators
14
and experts) in connection with loss of life, personal injury or damage
to property arising from (i) the acts or omissions of Landlord, its
agents, contractors, employees, licensees or invitees, or (ii) the
structural or mechanical failure of the Premises due to an inherent
defect or failure to maintain (to the extent that Landlord is required
to maintain the same pursuant to the terms of Section 8.2 hereof),
except to the extent such loss, injury or damage occurs as a proximate
result of the acts or omissions of Tenant, its agents, employees,
licensees or invitees. In case any such claim, action or proceeding is
brought against Tenant, upon notice from Tenant and at Landlord's sole
cost and expense, Landlord shall resist or defend such claim, action or
proceeding or shall cause it to be resisted or defended by an insurer.
18.3. Environmental Indemnity. Tenant agrees that during the Term,
neither Tenant nor any of Tenant's agents, employees, contractors,
invitees, assignees, or sublessees shall cause any hazardous material
to be brought on, kept, or used in, on or about the Premises, or
transported to or from the Premises except for hazardous material that
is necessary or useful to Tenant's business, which shall at all times
be used, kept, stored, and disposed of in a manner that fully complies
with all Applicable Laws and all policies of any fire insurance
underwriter relating to any such hazardous material.
If Tenant breaches any of its obligations contained in this
Section 18.3, or if any act or omission of Tenant or any of its agents,
employees, contractors, invitees, assignees, or sublessees causes any
hazardous material to be discharged or released from, on, or in the
Premises, then Tenant shall indemnify Landlord against and hold
Landlord harmless from, any and all claims, judgments, damages,
penalties, fines, costs, liabilities, losses, and expenses (including,
but not limited to, reasonable attorney fees, consultant fees, and
expert fees) arising during or after the Term as a result of that
breach or that discharge or release. This indemnification includes, but
is not limited to, costs incurred in connection with the investigation
of site conditions or any cleanup, repair, removal, or detoxification
work required by any federal, state, or local governmental agency or
political subdivision. Without limiting the above, if the presence of
any hazardous material in or on the Premises caused by Tenant or any of
Tenant's agents, employees, contractors, invitees, assignees, or
sublessees results in any discharge or release of hazardous material
from, in, or on the Premises, Tenant shall promptly take all action, at
its sole expense, as necessary or appropriate to meet the requirements
of regulatory agencies including, but not limited to, all site
assessment and remediation required by federal, state or local
regulatory agencies.
19. CONDEMNATION.
19.1. Landlord's Termination. (i) If fifty percent (50%) or more of
the Premises are taken by eminent domain or condemnation or any
transfer in lieu of condemnation; or (ii) subject to the provisions
of Section 19.3.1 below, if any of the Premises is taken by eminent
domain or condemnation or any transfer in lieu of condemnation and,
in Landlord's reasonable opinion, it would be impractical,
15
or the condemnation proceeds are insufficient to restore the remainder
of the Premises; then, in any such event, at Landlord's option, this
Lease shall terminate and all obligations hereunder shall cease as of
the date upon which possession is taken by the condemnor and the Basic
Rent and the Additional Monetary Obligations herein reserved shall be
apportioned and paid in full by Tenant to Landlord to that date and all
Basic Rent and Additional Monetary Obligations prepaid for periods
beyond that date shall forthwith be repaid by Landlord to Tenant.
19.2. Tenant's Termination. In addition to the foregoing, (i) if
fifty percent (50%) or more of the Premises or fifty percent (50%) or
more of the floor area of the Facility are taken by eminent domain or
condemnation or any transfer in lieu of condemnation, or (ii) if less
than fifty percent (50%) of the Premises are taken by eminent domain or
condemnation or any transfer in lieu of condemnation and, in the good
faith judgment of Tenant, the remaining portion of the Premises cannot
be economically and practically used by Tenant for the conduct of its
business; or (iii) if less than fifty percent (50%) of the Premises are
taken by eminent domain or condemnation or any transfer in lieu of
condemnation and such condemnation prevents or effectively prevents
access to the Premises or the entrances of the Facility, or has a
material adverse effect upon the number of parking spaces reasonably
available to Tenant or the providing of other essential services of the
Premises, unless Landlord shall have provided reasonable substitutes
therefor; then, in any such event, Tenant shall have the right upon
written notice to Landlord to terminate this Lease. In the event of
such a termination, then, this Lease shall terminate and all
obligations hereunder shall cease as of the date upon which possession
is taken by the condemnor and the Basic Rent and the Additional
Monetary Obligations herein reserved shall be apportioned and paid in
full by Tenant to Landlord to that date and all Basic Rent and
Additional Monetary Obligations prepaid for periods beyond that date
shall forthwith be repaid by Landlord to Tenant.
19.3. Partial Condemnation.
19.3.1 If there is a partial condemnation or transfer in
lieu of condemnation and Landlord decides to terminate
pursuant to Section 19.1 hereof, then, except during the last
five (5) years of the Term, Tenant may require Landlord to
withdraw its notice of termination by: (i) giving Landlord
written notice thereof within ten (10) days from and after its
receipt of Landlord's notice to Tenant of Landlord's intention
to terminate, (ii) agreeing to pay the cost of restoration in
excess of the condemnation proceeds reduced by those sums
reasonably expended by Landlord in collecting the condemnation
proceeds, and (iii) giving Landlord adequate security for such
payment within such ten (10) day period. During the final five
(5) years of the Term, Tenant may require Landlord to withdraw
its notice of termination by giving written notice of Tenant's
election to exercise the Option with ten (10) days from and
after its receipt of Landlord's notice to Tenant of Landlord's
intention to terminate. In such event, the condemnation
proceeds shall first be applied to the Option
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Purchase Price, as calculated in accordance with the terms set
forth in attached EXHIBIT B, with any remaining proceeds being
distributed to Tenant.
19.3.2 If there is a partial condemnation or transfer in
lieu of condemnation and this Lease has not been terminated
pursuant to Section 19.1 or Section 19.2 hereof, Landlord
shall restore the Facility and the improvements which are part
of the Premises to a condition and size as nearly comparable
as reasonably possible to the condition and size thereof
immediately prior to the date upon which possession shall have
been taken by the condemnor. Except as otherwise set forth
herein, if the condemnation proceeds are more than adequate to
cover the cost of restoration and Landlord's reasonable
expenses in collecting the condemnation proceeds, any excess
proceeds shall be retained by Landlord or applied to repayment
of any mortgage secured by the Premises.
19.3.3 If there is a partial condemnation and neither
Landlord nor Tenant has exercised its right to terminate on
the date upon which the condemnor shall have obtained
possession, the obligations of Landlord and Tenant under the
Lease shall be unaffected by such condemnation except that the
Basic Rent and the Additional Monetary Obligations provided
for herein shall xxxxx proportionately to the extent that any
portion of the Premises is not reasonably useable by Tenant in
the conduct of its business. In the event that the parties are
unable to agree upon the amount of such abatement, either
party may submit the issue to arbitration.
19.4. Award. In the event of a condemnation or transfer in lieu of
condemnation, Tenant shall have the right to make a claim against the
condemnor and/or share in an award of proceeds for (i) removal
expenses, business dislocation damages and moving expenses, (ii) costs
incurred and paid by Tenant in connection with any alteration or
improvement made by Tenant to the Premises, (iii) the value of any of
Tenant's property taken, and (iv) any other separate claim which Tenant
may be permitted to make, provided such other separate claim under this
item (iv) shall not reduce or adversely affect the amount of Landlord's
award.
19.5. Temporary Taking. If the condemnor should take only the right
to possession for a fixed period of time or for the duration of an
emergency or other temporary condition, then, notwithstanding anything
hereinabove provided, this Lease shall continue in full force and
effect without any abatement of Basic Rent or any Additional Monetary
Obligations, and the amounts payable by the condemnor with respect to
any period of time prior to the expiration or earlier termination of
this Lease shall be paid by the condemnor to Tenant as compensation for
the condemnation of Tenant's business operations in the Premises.
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19.6. Settlement. Landlord and Tenant, jointly, shall approve and be
a party to all condemnation and eminent domain proceedings or any
transfer in lieu thereof. Any settlement shall be approved by both
Landlord and Tenant.
20. QUIET ENJOYMENT. Tenant, upon paying the Basic Rent, and the Additional
Monetary Obligations and the other charges herein provided for, and
observing and keeping all covenants, agreements and conditions of this
Lease on its part to be kept, shall quietly have and enjoy the Premises
during the Term without hindrance or molestation by anyone claiming by
or through Landlord, and, except as otherwise provided in the Fee in
Lieu of Tax Agreement with Sumter County, South Carolina or in Section
15 hereof, no person or entity claiming by or through Landlord shall
take any action that interferes with Tenant's peaceful and quiet
enjoyment and possession of the Premises, subject, however, to the
Permitted Encumbrances.
21. ASSIGNMENT AND SUBLETTING.
21.1. Tenant's Right to Assign and Sublet. Tenant may not assign,
mortgage, pledge or encumber this Lease, or sublet the whole or any
part of the Premises, without the prior written consent of Landlord,
which consent will not be unreasonably withheld. Notwithstanding the
foregoing to the contrary, Tenant shall have the right, without
Landlord's consent, at any time and from time to time, to assign this
Lease, or sublet all or any part of the Premises to: (i) an Affiliate
of Tenant; (ii) any entity rated BBB or better by Xxxxx'x investment
services; or (iii) any person or entity for the operation of dining,
daycare, fitness and similar facilities for use by Tenant's employees.
For purposes of this Section 21.1, the term "Affiliate" means a person
or entity which (either directly or indirectly, through one or more
intermediaries) controls, is in common control with or is controlled
by, another person or entity. For purposes of this definition, the term
"control" means (a) legal or beneficial ownership of more than fifty
percent (50%) of the voting interests of an entity, or (b) the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a person or entity, whether
through the ownership of voting securities, by contract or otherwise.
21.2. Waiver of Lien. Contemporaneous with the full execution of
this Lease, Landlord agrees to use best efforts to obtain the consent
and acknowledgement by Landlord's mortgagee for execution by Landlord
of a waiver, in form and substance reasonably acceptable to the
parties, Landlord's mortgagee and their respective counsel, of any lien
in favor of Landlord with respect to Tenant's FF&E (as defined in the
Construction Addendum) located on the Premises.
22. SECURITY AGREEMENT. The obligations of the Tenant pursuant to this
Lease, including but not limited to the payment of rent, shall be
secured by a pledge of the intellectual property right of the Tenant
pursuant to the Security Agreement, a form of which is attached hereto
as EXHIBIT M.
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23. SUBORDINATION. This Lease and Tenant's rights hereunder shall be
subject and subordinate at all times in lien and priority to any first
mortgage or other primary encumbrance now or hereafter placed upon or
affecting the Premises, and to any second mortgage or encumbrance with
the consent of the first mortgagee, and to all renewals, modifications,
consolidations and extensions thereof, without the necessity of any
further instrument or act on the part of Tenant; provided, however,
that such subordination shall be subject to Tenant's right not to have
its rights under this Lease disturbed so long as Tenant shall not be in
default with respect to any of its obligations under this Lease beyond
any applicable cure period provided for herein, and shall be subject
further to Landlord not making Tenant a party to any proceeding to
foreclose any such mortgage unless required by law. Tenant's
subordination and right not to be disturbed shall be memorialized in a
commercially reasonable subordination and non-disturbance agreement in
form and substance reasonably acceptable to Landlord's mortgagee and
Tenant and their respective counsel. Tenant shall execute and deliver,
within fifteen (15) days of receipt of Landlord's demand therefor, any
further instrument or instruments confirming the subordination of this
Lease to the lien of any such first mortgage or to the lien of any
other mortgage if requested to so do by Landlord with the consent of
the first mortgagee, and any further instrument or instruments of
attornment, consistent with the terms of this Lease and Tenant's rights
hereunder, that may be desired by any such mortgagee or Landlord.
Notwithstanding the foregoing, any mortgagee may at any time
subordinate its mortgage to this Lease, without Tenant's consent, by
giving notice in writing to Tenant, and thereupon this Lease shall be
deemed prior to such mortgage without regard to their respective dates
of execution and delivery, and in that event such mortgagee shall have
the same rights with respect to this Lease as though this Lease had
been executed prior to the execution and delivery of the mortgage and
had been assigned to such mortgagee. In addition to the foregoing,
Tenant agrees to deliver, for the benefit of Landlord's construction
lender, a Nondisturbance, Attornment and Subordination Agreement in
substantially the form attached hereto as EXHIBIT F.
24. MEMORANDUM OF LEASE; ESTOPPEL CERTIFICATES.
24.1. Memorandum of Lease. Tenant and Landlord, at any time and from
time to time and within ten (10) days after Landlord's or Tenant's, as
the case may be, written request, shall execute, acknowledge and
deliver to Landlord or Tenant, as the case may be, a short form or
memorandum of this Lease for recording purposes. Landlord and Tenant
agree to use the form of Memorandum of Lease attached hereto as EXHIBIT
G.
24.2. Estoppel Certificates. Tenant or Landlord, at any time and
from time to time and within fifteen (15) days after written request
from the other, shall execute, acknowledge and deliver to Landlord or
Tenant, as the case may be, a written instrument (in the form attached
hereto as EXHIBIT H or such other form as either party may reasonably
request) in recordable form certifying, as applicable, that this Lease
is unmodified and in full force and effect (or, if there have been
modifications, that it is in full force and effect as modified and
stating
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the modifications); stating that the improvements required by Section 3
hereof have been Substantially Completed (as defined in the
Construction Addendum); certifying that Tenant has accepted possession
of the Premises; stating the Term Commencement Date and the dates to
which Basic Rent, Additional Monetary Obligations and other charges
have been paid in advance, if any; stating that to the best knowledge
of the signer of such instrument Landlord or Tenant, as the case may
be, is not in default of this Lease; stating any other fact or
certifying any other condition reasonably requested by Landlord or
Tenant, as the case may be, or reasonably required by any mortgagee or
prospective mortgagee or purchaser of the Premises or any interest
therein; and stating that it is understood that such instrument may be
relied upon by any mortgagee or prospective mortgagee or purchaser of
the Premises or any interest therein or by any assignee of Landlord's
or Tenant's interest in this Lease or by any assignee of any mortgagee.
The foregoing instrument shall be addressed to Landlord or Tenant, as
the case may be, and to any mortgagee, prospective mortgagee, purchaser
or other party specified by Landlord or Tenant, as the case may be. In
addition to the foregoing, Tenant agrees to deliver, for the benefit of
Landlord's construction lender, the following documents: (i) a
pre-construction estoppel in substantially the form attached hereto as
EXHIBIT I; and (ii) a post-construction estoppel in substantially the
form attached hereto as EXHIBIT J.
25. CURING DEFAULTS. If Tenant or Landlord shall be in default in the
performance of any of their respective obligations hereunder, the
non-defaulting party, without any obligation to do so, in addition to
any other rights it may have in law or equity, and giving effect to
applicable grace periods, may elect to cure such default on behalf of
the defaulting party after written notice (except in the case of
Emergency) to the defaulting party. The defaulting party shall
reimburse the non-defaulting party upon demand for any sums paid or
costs incurred by the non-defaulting party in curing such default,
including interest thereon from the respective dates of the
non-defaulting party's making the payments and incurring such costs,
which sums and costs together with interest thereon shall be payable
promptly upon being billed therefor. In the event of a Tenant default,
such sums together with interest thereon shall be deemed Additional
Monetary Obligations. For purposes hereof, "Emergency" means fire,
release of hazardous substances, explosion, severe weather, hazardous
situations necessitating the extraction of personnel, any condition
which a party reasonably believes poses an eminent threat of bodily
injury, death, environmental or substantial property damage, or other
similar incidents.
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26. SURRENDER.
26.1. Condition Upon Termination. Subject to the terms of Sections
13.2, 16, and 19 hereof, upon the expiration or earlier termination of
the Term, Tenant shall promptly yield up, clean and neat, and in the
same condition, order and repair in which they are required to be kept
throughout the Term, the Premises and all improvements, alterations and
additions thereto, ordinary wear and tear (and damages from fire or
casualty not required to be repaired by Tenant hereunder) excepted.
26.2. Holding Over. If Tenant, or any person claiming through
Tenant, shall continue to occupy the Premises after the expiration or
earlier termination of the Term, such occupancy shall be deemed to be
under a month-to-month tenancy under the same terms and conditions set
forth in this Lease except that such month-to-month tenancy may be
terminated by either party upon thirty (30) days written notice to the
other. Anything to the contrary notwithstanding, any holding over by
Tenant without Landlord's prior written consent shall constitute a
default hereunder and shall be subject to all the remedies set forth in
Section 27 hereof.
27. DEFAULTS; REMEDIES.
27.1. Defaults by Tenant. It shall be an event of default if any of
the following listed conditions occur. Landlord shall give Tenant
written notice specifying in what manner Tenant has defaulted and such
notice shall commence the tolling of any grace period provided in
Section 27.5 hereof:
(a) If Tenant does not pay in full when due and
without demand any and all installments of Basic Rent
or Additional Monetary Obligations or any other
charges or payments required by this Lease; or
(b) If Tenant violates or fails to perform or
otherwise breaches any material agreement, term,
covenant or condition herein contained, or
(c) If Tenant becomes insolvent or bankrupt or
makes an assignment for the benefit of creditors or
if a petition in bankruptcy or for reorganization or
for an arrangement with creditors under any federal
or state law is filed by or against Tenant, or a xxxx
in equity or other proceeding for the appointment of
a receiver, trustee, liquidator, custodian,
conservator or similar official for any of Tenant's
assets is commenced, or if any of the real or
personal property of Tenant shall be levied upon by
any sheriff, marshal or constable, provided, however,
that any proceeding brought by anyone other than the
parties to this Lease under any bankruptcy,
reorganization arrangement, insolvency, readjustment,
receivership or similar law shall not constitute a
default unless such proceeding has continued for more
than thirty (30) consecutive days.
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27.2. Landlord's Remedies Upon Tenant's Default. Subject to the
provisions of Section 27.5 below, in the event of any default hereunder
by Tenant, Landlord shall have the following rights:
27.2.1 To charge a late payment penalty of four percent (4%)
of any amount owed to Landlord pursuant to this Lease which is
not paid within ten (10) days of the date which is set forth
in the Lease if a date is specified, or, if a date is not
specified, within thirty (30) days of the receipt by Tenant of
a xxxx therefor from Landlord. If Landlord incurs a penalty in
connection with any payment which Tenant has failed to make
within the times required in this Lease, and Landlord has
timely requested such payment from Tenant, Tenant shall pay
Landlord, in addition to such sums, the full amount of such
penalty incurred by Landlord.
27.2.2 To accelerate the whole or any part of the Basic Rent
for the lesser of the entire unexpired balance of the Term or
a period of eighteen (18) months, reduced to present value,
and any Basic Rent if so accelerated shall, in addition to any
and all installments of Basic Rent already due and payable and
in arrears, be deemed due and payable as if, by the terms and
provisions of this Lease, such accelerated Basic Rent were on
that date payable in advance. In the event of such
acceleration, Landlord shall use commercially reasonable
efforts to relet the Premises and shall credit Tenant, up to
the amount of accelerated Basic Rent and other charges
actually received by Landlord, for the amount of rent actually
received from such reletting.
27.2.3 Landlord may proceed with eviction proceedings as
allowed by applicable law. Upon recovering possession of the
Premises as a result of a default on the part of Tenant,
Landlord may, at Landlord's option, either terminate this
Lease or make such alterations and repairs as may be necessary
in order to relet the Premises and relet the Premises or any
part of parts thereof, either in Landlord's name or otherwise,
for a term or terms which may, at Landlord's option, be less
than or exceed the period which would otherwise have
constituted the balance of the Term and at such rent or rents
and upon such other terms and conditions as in Landlord's sole
discretion may seem advisable and to such person or persons as
may in Landlord's discretion seem best; upon each such
reletting all rents received by Landlord from such reletting
shall be applied: first, to the payment of reasonable costs
and expenses of such reletting, including brokerage fees and
attorney's fees and all costs of such alterations and repairs;
second, to the payment of any indebtedness other than Basic
Rent due hereunder from Tenant to Landlord; third, to the
payment of Basic Rent and Additional Monetary Obligations due
and unpaid hereunder; and the residue, if any, shall be held
by Landlord and applied in payment of future Basic Rent and
Additional Monetary Obligations as the same may become due and
payable hereunder. If such rentals received from such
reletting during any month shall be less than that to be paid
during that month by Tenant, Tenant shall pay any
22
such deficiency to Landlord. Such deficiency shall be
calculated and paid monthly. No such re-entry or taking
possession of the Premises or the making of alterations or
improvements thereto or the reletting thereof shall be
construed as an election on the part of Landlord to terminate
this Lease unless written notice of such intention be given to
Tenant. Landlord shall in no event be liable in any way
whatsoever for failure to relet the Premises or, in the event
that the Premises or any part or parts thereof are relet, for
failure to collect the rent under such reletting. Effective
upon an event of default, and giving effect to applicable
notice and cure periods, Tenant, for Tenant and Tenant's
successors and assigns, hereby irrevocably constitutes and
appoints Landlord Tenant's and their agent to collect the
rents due and to become due under all subleases of the
Premises or any parts thereof without in any way affecting
Tenant's obligation to pay any unpaid balance of Basic Rent
due or to become due hereunder. Notwithstanding any such
reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous
breach.
27.2.4 To terminate this Lease and the Term hereby created
without any right on the part of Tenant to waive the
forfeiture by payment of any sum due or by other performance
of any condition, term or covenant broken. Whereupon Landlord
shall be entitled to recover, in addition to any and all sums
and damages for violation of Tenant's obligations hereunder in
existence at the time of such termination, damages for
Tenant's default in an amount equal to the amount of the Basic
Rent reserved for the balance of the Term, discounted at the
rate of eight and one half percent (8.5%) per annum to its
then present value, all of which amount shall be immediately
due and payable from Tenant to Landlord. In such event,
Landlord shall use commercially reasonable efforts to relet
the Premises and, if the Premises is relet, shall reimburse to
Tenant at the time of the receipt of payment, less reasonable
actual transaction costs incurred by Landlord in reletting the
Premises, a pro rata monthly amount, or lump sum amount,
which, if discounted at eight and one half (8.5%) per annum
and if presumed to be paid by the new tenant throughout the
then remaining Term, would equal the present value amount paid
by the Tenant to Landlord pursuant to the terms of this
Section 27.2.4. Landlord's reimbursement to Tenant of a lump
sum amount hereunder is dependent upon Landlord's ability to
refinance its interest in the Premises. Landlord shall use
commercially reasonable efforts to obtain such financing.
27.3. Default by Landlord. If Landlord defaults in the performance
or observance of any provision of this Lease, Tenant shall give
Landlord notice specifying in what manner Landlord has defaulted, and
if such default shall not be cured by Landlord within the time period
set forth in Section 27.5 below, Tenant may cure such default and
invoice Landlord for the reasonable and necessary costs and expenses
(including, without limitation, reasonable attorneys' fees and court
costs) incurred by Tenant therefor, plus interest
23
thereon. Notwithstanding the foregoing, if any default by Landlord in
the performance of its obligations under this Lease shall result in an
Emergency, and Landlord does not commence to cure the Emergency within
48 hours, Tenant shall have the right, but not the obligation, to
undertake such minimum remediative actions as are required to avoid or
minimize such Emergency without waiting for the expiration of the
notice and/or cure periods stated herein and Tenant shall invoice
Landlord for the reasonable and necessary costs and expenses
(including, without limitation, reasonable attorneys' fees and court
costs) incurred by Tenant therefor, plus interest thereon.
27.4. Non-Waiver by Either Party. Failure by either party to
complain of any action, non-action or default of the other party shall
not constitute a waiver of any aggrieved party's rights hereunder.
Waiver by either party of any right for any default of the other party
shall not constitute a waiver of any right for either a subsequent
default of the same obligation or for any other default, past, present
or future.
27.5. Grace Period. Notwithstanding anything hereinabove stated,
except in the case of an Emergency, and except in the event of a
default by Tenant with respect to its obligations under Section 7,
neither party hereto will exercise any right or remedy provided for in
this Lease or allowed by law because of any default of the other,
except those remedies on the part of Landlord contained in Section
27.2.1, unless such party shall have first given ten (10) days written
notice thereof to the defaulting party with respect to a monetary
default and thirty (30) days written notice thereof with respect to a
non-monetary default, and the defaulting party shall have failed to
cure the default within such period; provided, however, that if the
default consists of something other than the failure to pay money and
cannot reasonably be cured within thirty (30) days, neither party
hereto will exercise any such right or remedy if the defaulting party
begins to cure the default within the thirty (30) days and continues
actively and diligently in good faith to completely cure said default;
and further provided that Landlord shall not be required to give such
ten (10) days notice in the case of any payment default more than two
(2) times during any twelve (12) month period.
27.6. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to Landlord or Tenant, as the case may be,
is intended to be exclusive of any other right or remedy provided
herein or by law, but each shall be cumulative and in addition to every
other right or remedy given herein or now or hereafter existing at law
or in equity or by statute.
28. CONDITION OF TITLE AND OF PREMISES.
28.1. Landlord represents and warrants that it has good and
marketable title to the Premises, subject only to such exceptions as
are set forth on EXHIBIT K attached hereto (the "Permitted
Encumbrances"). Tenant warrants that it has inspected the marketability
of title and accepted the same. Landlord covenants and agrees that the
Facility's HVAC systems and other Process Facility Systems (as defined
in the Construction Addendum) shall be in good working order and in
24
full compliance with Applicable Laws upon the delivery of the Premises
to Tenant.
28.2. Notwithstanding the foregoing, Landlord agrees that, upon
completion of the Facility, Landlord shall prepare and deliver to
Tenant copies of all warranties and guaranties relating to the
construction thereof and all systems, machinery and equipment
(including the Equipment) contained therein. Landlord agrees to obtain
the warranties and guaranties set forth on EXHIBIT L attached hereto.
To the extent permitted by such warranties and guaranties, Landlord
shall assign the same to Tenant. To the extent not so permitted,
Landlord shall forward to Tenant the benefit of and right to enforce
the same in Landlord's name. Notwithstanding any previous assignment to
Tenant, Landlord shall have the right to enforce on its own behalf and
with respect to its own obligations, any warranty or guaranty relating
to the Facility and all systems, machinery, and equipment contained
therein.
28.3. In the event that (i) there shall be any defect(s) in
workmanship, materials, or design, with respect to any portion of the
Work (as defined in the Construction Addendum), (ii) except in the case
of an Emergency, Tenant shall have attempted in good faith, for a
period of at least one (1) month, to enforce the above described
warranties or guaranties that are applicable to the defect(s) in
workmanship, materials, or design, and (iii) the party originally
providing the warranty or guaranty shall refuse or fail to honor or
perform the warranty or guaranty, then Landlord agrees that it shall,
at its sole cost and expense and with all due diligence, repair,
replace or correct, or cause to be repaired, replaced or corrected any
defect(s) in workmanship, materials, or design, with respect to any
portion of the Work, specified in a written notice or notices given by
Tenant to Landlord within the applicable period of such original
warranty or guaranty. Landlord shall have no obligation to Tenant under
this Section 28.3 after the expiration of any such original warranty or
guaranty.
28.4. Tenant shall not knowingly or negligently suffer or permit the
Premises or any portion thereof to be used by the public without
restriction or in such manner as might reasonably tend to impair
Landlord's title to the Premises or in such manner as might reasonably
make possible a claim or claims of adverse usage or adverse possession
by the public, as such, or of implied dedication of the Premises or any
portion thereof.
29. INTERPRETATION.
29.1. Captions. The captions in this Lease (including the captions
to all exhibits hereto) are for convenience only and are not a part of
this Lease and do not in any way define, limit, describe or amplify the
terms and provisions of this Lease or the scope or intent thereof.
29.2. Entire Agreement. This Lease (including all exhibits hereto)
represents the entire agreement between the parties hereto and there
are no collateral or oral agreements or understandings between Landlord
and Tenant with respect to
25
the Premises. No rights, easements or licenses are acquired in the
Premises or any land adjacent to the Premises by Tenant by implication
or otherwise except as expressly set forth in the provisions of this
Lease. This Lease shall not be modified in any manner except by an
instrument in writing executed by the parties. The masculine (or
neuter) pronoun, singular number, shall include the masculine, feminine
and neuter genders and the singular and plural number.
29.3. Exhibits. Each writing or plan referred to herein as being
attached hereto as an Exhibit or otherwise designated herein as an
Exhibit hereto is hereby made a part hereof.
29.4. Arbitration. Except as otherwise expressly provided in the
Construction Addendum, wherever arbitration is set forth herein as the
appropriate resolution of a dispute, issues shall be submitted for
arbitration to the American Arbitration Association in Charlotte, North
Carolina. Landlord and Tenant will comply with the rules then obtaining
of the American Arbitration Association and the determination of award
rendered by the arbitrator(s) shall be final, conclusive and binding
upon the parties and not subject to appeal, and judgment thereon may be
entered in any court of competent jurisdiction.
29.5. Interest. Wherever interest is required to be paid hereunder,
such interest shall be at the highest rate permitted under law
but not in excess of the prime rate published in the Wall Street
Journal plus two percent (2%).
29.6. Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of South Carolina.
29.7. Brokerage. Landlord and Tenant mutually represent to each
other that there have been no brokers involved in this transaction.
Landlord and Tenant (each the "first party") agree to indemnify each
other and hold the other party harmless against any claims for
commissions that may be asserted in connection with this Lease based
upon acts of the first party. The indemnification obligations shall
survive the expiration or earlier termination of this Lease.
30. NOTICES. All notices, demands, requests, consents, certificates and
waivers required or permitted hereunder from either party to the other
shall be in writing and shall be deemed effective either: (a) on the
date personally delivered to the address below, as evidenced by written
receipt therefor, whether or not actually received by the person to
whom addressed; (b) on the date received or rejected by certified or
registered mail, return receipt requested, addressed to the intended
recipient at the address specified below; or (c) on the first (1st)
business day after being deposited into the custody of a nationally
recognized overnight delivery service such as Federal Express
Corporation, UPS or Airborne, addressed to such party at the address
specified below. Notices to Tenant shall be addressed to: Biopure
Corporation, 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Chief Financial Officer, with a copy to: Biopure
Corporation, 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000,
Attention: General Counsel. Notices to Landlord shall be addressed to
Xxx X. Xxxxxx, 4422
00
Xxxxxxxx Xxx, Xxxxxxx, XX 00000 with a copy to J. Xxxxxx Xxxx, III,
Haynsworth Xxxxxxx Xxxx, Xxxxx 0000, 0 Xxxxxxx Xxxxx, Xxxxxxxxxx, X.X.
00000, and to any mortgagee or other party designated by Landlord.
Either party may at any time, in the manner set forth for giving
notices to the other, specify a different address to which notices to
it shall be sent.
31. ESCROW DEPOSIT. Tenant has previously deposited into escrow with HSBC
Bank USA (the "Escrow Agent") the sum of $10,000,000 (the "Escrow
Amount") to be utilized in accordance with the terms of that certain
Escrow Agreement made as of April 5, 2001, among Landlord, Tenant and
Escrow Agent (the "Escrow Agreement"). Landlord shall reimburse Tenant
the Escrow Amount not more than twelve (12) months from and after
Tenant's receipt of product approval for human use (the "Approval") of
its product "Hemopure" from the United States Food and Drug
Administration (the "FDA"). Landlord has delivered to Tenant on the
effective date of this Lease a promissory note in the principal amount
of $10,000,000, in the form attached hereto as Exhibit N, and granted
Tenant a second mortgage and security interest in the Premises, in the
form attached hereto as Exhibit O, to secure its repayment of the
Escrow Amount. Landlord will reimburse to Tenant the sum of $10,000,000
from the sale of tax exempt bonds. Such reimbursement shall be subject
(i) to the allocation of tax-exempt volume cap by the Richland/Sumter
empowerment zone, (ii) to required State of South Carolina bond
approvals, and (iii) to Tenant maintaining Approval during the Term. If
such reimbursement is not made to Tenant from the proceeds of the sale
of tax exempt bonds on or before that date which is twelve (12) months
from and after the date of Approval, Tenant shall have the right to (i)
exercise its rights and remedies as mortgagee and holder of the
security interest in the Premises and (ii) to apply such outstanding
due amount (plus interest thereon) as an offset against the Basic Rent
due under this Lease.
32. ADDITIONAL CONTRIBUTION. Tenant has previously expended [$3,440,000] to
pay for detailed engineering and shop drawings, which amount is
separate from and in addition to the Escrow Amount deposited by Tenant
in accordance with Section 31. Such amount will be refunded and paid to
Tenant by Landlord as soon as possible, but in any event, no later than
by consecutive monthly installation payments the amount of which will
not be less than one-sixth (1/6th) of such amount, with the first such
payment being due and owing, without invoice or notice by Tenant to
Landlord on the day sixty (60) days after the date of execution of this
Lease, and remaining payments to be due and owing on the same calendar
day in each successive month until such amount is paid in full.
33. WARRANT TO LANDLORD. Concurrently with the execution of this Lease, the
Tenant has executed and delivered to [Tiger Trust] (the "Lender") that
certain Warrant to Purchase Class A Common Stock of Biopure Corporation
(the "Warrant"). The Warrant includes a Repurchase Option to Tenant,
more particularly described therein, and provides that the funds used
to repurchase any of the shares upon Tenant's exercise of the
Repurchase Option will be deposited by Lender into an escrow account
and applied either (i) to the final payments of Basic Rent owed under
this Lease, or (ii) as a credit on the
27
Purchase Price in the event Tenant exercises its Option to acquire the
Premises under Section 2.2 of this Lease, as more particularly
described in the Warrant.
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
Lease and for other good and valuable consideration, and intending to be legally
bound, each party hereto has caused this Lease to be duly executed under seal.
Witnesses: LANDLORD:
SUMTER REALTY GROUP, LLC
____________________________________ By:____________________________________
Print Name:_________________________ Name:__________________________________
Title:_________________________________
____________________________________
Print Name:_________________________
____________________________________ By:____________________________________
Print Name:_________________________ Name:__________________________________
Title:_________________________________
____________________________________
Print Name:_________________________
TENANT:
BIOPURE CORPORATION
____________________________________ By:____________________________________
Print Name:_________________________ Name:__________________________________
Title:_________________________________
____________________________________
Print Name:_________________________
28
EXHIBIT A-1
LEGAL DESCRIPTION OF PREMISES
X-0-0
XXXXXXX X-0
SITE PLAN
A-2-1
EXHIBIT B
TERMS AND CONDITIONS OF OPTION TO PURCHASE
As set forth in Section 2.2 of the Lease, Tenant (or "Buyer") shall
have the option to purchase the Premises from Landlord (or "Seller"), at any
time during the Term from and after the third anniversary of the Construction
Commencement Date, pursuant to and in accordance with the following terms and
conditions. Capitalized terms not specifically defined in this EXHIBIT B will
have the same meanings as ascribed thereto in the Lease.
1. Purchase Price. The purchase price (the "Purchase Price") for the
Premises shall be the sum of the remaining payments of Basic Rent from the
Closing Date (as defined below) through the Expiration Date of the Lease,
reduced to present value utilizing a discount rate of eight and one-half percent
(8.5%) per annum.
2. Survey and Title Insurance. Within thirty (30) days of receipt of
notice by Landlord pursuant to Section 2.2, Seller shall deliver to Buyer a
current ALTA/ACSM survey of the Premises and a title commitment from a title
insurance company acceptable to Buyer committing to insure the Deed (as defined
below), in the amount of the Purchase Price, subject only to exceptions
permitted in paragraph 3 below. Buyer shall have ten (10) days after its receipt
of the title commitment and the survey, whichever is received last, in which to
examine the same and determine any objections thereto. Provided, Buyer expressly
waives objection to all Permitted Encumbrances (as defined in the Lease). If
Buyer provides written objection to any matters in the title commitment or
survey, within such ten (10) day period, then Seller shall have sixty (60) days
thereafter to cure defects. If Seller cannot cure the defects, within such sixty
(60) day period, after making a good faith effort to do so, Buyer may decline to
close on the purchase of the Premises. Notwithstanding the foregoing, Seller
shall cure any title exceptions which may be cured by the payment of money
(i.e., liens, mortgages, taxes, etc. that Tenant is not obligated to satisfy
pursuant to the terms of the Lease) and such amounts may be deducted from the
Purchase Price at Closing. Seller shall cause the title insurance company to
issue its title insurance policy in favor of Buyer at the Closing, as provided
above.
3. Conveyance and Permitted Exceptions. Upon payment of the Purchase
Price, Seller shall convey title and possession of the Premises to Buyer by
limited warranty deed (the "Deed") in form reasonably acceptable to Buyer and
proper for recordation in Sumter County, South Carolina subject to the following
permitted exceptions:
(a) real property taxes for the year of Closing and thereafter;
(b) zoning and land use ordinances and regulations adopted by a
governmental authority;
(c) matters created by Buyer; and
B-1
(d) the Permitted Encumbrances (as defined in the Lease).
Seller shall convey title to the Equipment (as defined in the Construction
Addendum) to Buyer by a xxxx of sale in form and substance reasonably acceptable
to the parties and their respective counsel. Seller and Buyer shall execute and
deliver closing statements and such other documents as may be reasonably
required by the parties or the title insurance company or any mortgagee to
complete Closing and accomplish transfer of the Premises to Buyer hereunder.
4. Closing Costs and Prorations. Seller shall pay all documentary deed
stamps/deed recording fees and deed transfer taxes, if any, costs of recording
any corrective instruments, one-half of the survey cost and Seller's attorney's
fees and costs. Buyer shall pay the nominal cost of recording the Deed, any
financing obtained, the title insurance premium, one-half of the survey cost and
Buyer's attorney's fees and costs.
5. Time and Place of Closing. Closing shall occur not later than fifteen
(15) days following the notice period provided to Seller pursuant to paragraph 2
above (but in any event not later than fifteen (15) days following cure of all
of Buyer's objections) at the offices of Seller's counsel, commencing at 10:00
a.m. or at such other time and place as may be mutually agreed upon by the
parties. The actual date of Closing is referred to herein as the "Closing Date".
6. Brokerage. Each party represents and warrants that no broker of any
kind has been consulted in connection with this transaction. Each party shall be
responsible for paying any broker with whom such party dealt.
7. Seller's Affidavit. At the Closing, Seller shall execute and deliver to
Buyer and the title insurance company an affidavit to the effect that (a) no
labor, services or materials have been furnished to the Premises on behalf of
Seller for which any sums remain unpaid, there are no mechanic's liens against
the Premises resulting from any work performed by or on behalf of Seller, and
Seller has no knowledge of any person or entity entitled to file a mechanic's
lien against the Premises; (b) there are no persons or entities in possession of
the Premises other than the Buyer; (c) there are no encumbrances affecting the
Premises other than the Permitted Encumbrances; and (d) no action, suit or other
proceeding is pending or has been threatened that concerns or involves the
Premises or Seller's interest therein.
8. Assignment. Buyer may assign this Option to any third party upon
written notice to Seller.
9. Continuing Effect. This Option shall be deemed a continuing option to
acquire the Premises notwithstanding that Landlord subsequently may convey its
interests in the Premises to a third party, it being understood that the Option
will be binding upon Landlord's successors and assigns.
X-0
XXXXXXX X
XXXXXXXXXXXX XXXXXXXX
X-0
XXXXXXX X
LIST OF INCENTIVES
D-1
EXHIBIT E
PRELIMINARY ESTIMATE OF PROJECT COST
E-1
EXHIBIT F
FORM OF NONDISTURBANCE, ATTORNMENT & SUBORDINATION AGREEMENT
F-1
EXHIBIT G
FORM OF MEMORANDUM OF LEASE
G-1
EXHIBIT H
FORM OF ESTOPPEL CERTIFICATE
H-1
EXHIBIT I
FORM OF PRE-CONSTRUCTION ESTOPPEL CERTIFICATE
I-1
EXHIBIT J
FORM OF POST-CONSTRUCTION ESTOPPEL CERTIFICATE
J-1
EXHIBIT K
SCHEDULE OF PERMITTED ENCUMBRANCES
K-1
EXHIBIT L
LIST OF WARRANTIES
L-1
EXHIBIT M
SECURITY AGREEMENT
M-1
EXHIBIT N
FORM OF PROMISSORY NOTE
N-1
EXHIBIT O
FORM OF MORTGAGE
O-1
NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION PURSUANT TO THE SOUTH
CAROLINA UNIFORM ARBITRATION ACT, SOUTH CAROLINA CODE
XXX. SECTION. 15-48-10, ET. SEQ.
EXHIBIT C
CONSTRUCTION ADDENDUM
ATTACHED TO AND MADE A PART OF THE
LEASE DATED DECEMBER_____, 2002 BETWEEN
SUMTER REALTY GROUP, LLC, AS LANDLORD,
AND
BIOPURE CORPORATION, AS TENANT
TABLE OF CONTENTS
1. CERTAIN DEFINITIONS............................................................................... 1
2. PROCESS FACILITY PLANS AND CONSTRUCTION CONTRACTS................................................. 8
2.1 Preparation of Process Facility Plans and Specifications........................................ 8
2.2 Effect of Approval.............................................................................. 9
2.3 Construction Contract for Facility.............................................................. 9
2.4 Payment and Performance Bonds................................................................... 9
3. CHANGES IN PROCESS FACILITY PLANS AND COST OF CHANGES............................................. 10
3.1 Changes to the Process Facility Plans by Landlord............................................... 10
3.2 Changes to the Process Facility Plans by Tenant................................................. 10
3.3 Accounting for Changes.......................................................................... 11
4. CONSTRUCTION OF THE FACILITY...................................................................... 11
4.1 Performance..................................................................................... 11
4.2 Non-Liability of Tenant......................................................................... 12
4.3 Information; Monthly Report..................................................................... 12
4.4 General Access.................................................................................. 13
4.5 Installation of Tenant's FF&E and Qualification Activities; Early Occupancy..................... 13
4.6 No Assumption of Responsibility................................................................. 15
4.7 Designated Representatives...................................................................... 15
5. COST OBLIGATIONS.................................................................................. 16
5.1 Landlord's Cost................................................................................. 16
6. SCHEDULE FOR CONSTRUCTION......................................................................... 16
6.1 Time to Completion.............................................................................. 16
6.2 Installation Acceptance Certificate............................................................. 16
6.3 Substantial Completion Acceptance Certificate................................................... 17
6.4 Failure to Timely Proceed with Work............................................................. 18
6.5 Failure of Substantial Completion............................................................... 18
6.6 Management Meetings............................................................................. 19
7. LEASE............................................................................................. 19
7.1 Term Commencement Date. The Term of the Lease will commence upon the Term Commencement Date..... 19
8. GENERAL COVENANTS OF LANDLORD..................................................................... 19
8.1 Compliance with Legal Requirements.............................................................. 19
8.2 Insurance....................................................................................... 19
- i -
CONSTRUCTION ADDENDUM
ATTACHED TO AND MADE A PART OF THE LEASE
DATED ___________________, 2002
BETWEEN
SUMTER REALTY GROUP, LLC, AS LANDLORD,
AND
BIOPURE CORPORATION, AS TENANT
1. CERTAIN DEFINITIONS
For the purposes of this Exhibit (herein called the "Addendum"), unless
the context otherwise requires, the following terms will have the respective
meanings assigned to them in this Article 1 or the section or article referred
to below:
1.1 "Business Day" will mean any day other than a Saturday,
Sunday, or legal holiday observed by Tenant. Tenant will advise Landlord of its
local holiday schedule and any changes thereto from time to time.
1.2 "cGMP" will mean standards and requirements that meet or
exceed current good manufacturing practices in compliance with legal and
regulatory requirements of the United States and European Union applicable to
the pharmaceutical industry
1.3 "Construction Contract" will mean that certain design/build
construction contract entered into between Landlord and Construction Contractor
using AIA Form #191, and any replacement construction contract or construction
management agreement as may be entered into by Landlord, as owner, for the
design, engineering, procurement, construction, installation, interconnection,
testing and Installation Qualification of all or any part of the Facility and
the other improvements called for in the Process Facility Plans.
1.4 "Construction Contractor" will mean Century Contractors, Inc.,
a Delaware corporation, or such other general contractor or construction manager
selected by Landlord and approved in writing by Tenant, in Tenant's reasonable
discretion, for the performance of the Work and completion of the Facility
pursuant to the Construction Contract.
1.5 "Construction Schedule" will mean the schedule that is
attached hereto as Schedule 5, provided, however, the term "construction
schedule" shall also mean all amendments to such schedule because of Excusable
Delay, Tenant Delay, or other agreed upon change.
1.6 "Early Occupancy Date" will mean the date indicated on the
Construction Schedule, as updated from time to time with notice to, and the
consent of Tenant, on
which construction of the Facility will be completed to a degree which will
allow the installation of Tenant's FF&E (as defined in Section 4.5 hereof)
conveniently to Tenant's role in Operation Qualification, Operation/Performance
Completion and Performance Qualificationand without any undue delay or material
adverse cost to Tenant; provided, however, that the Work may continue as of such
date and such completion will not be deemed Substantial Completion. Prior to the
installation of Tenant's FF&E, Landlord, Tenant and their respective
representatives, will walk through the Facility to determine the condition of
space within the Facility as of such date.
1.7 "Engineer" will mean CDI Engineering Group, Inc., or such
other engineering firm as may be selected by Landlord and/or Construction
Contractor and approved in writing by Tenant, in Tenant's reasonable discretion
not to be unreasonably withheld, for the design, engineering, and Installation
Qualification of the Facility.
1.8 "Equipment" will mean all machinery, equipment, computer
hardware and software, apparatus, materials, articles, warranties, manuals,
drawings, designs, plans, charts, schedules and things of all kinds to be
provided or procured by Landlord under this Addendum and/or incorporated into
the Facility including, without limitation, the Process Equipment, but
specifically excluding Tenant's FF&E.
1.9 "Escrow Agreement" will mean that certain Escrow Agreement by
and among Tenant, Landlord and HSBC Bank USA dated as of April 5, 2001.
1.10 "Excusable Delay" will mean any delay in Substantial
Completion of the Facility by Landlord or delay performance by Tenant of its
obligations under this Addendum (except its accrued payment obligations) arising
out of or resulting from strikes, lockouts, or other labor or industrial
disturbance (other than on the part of employees of Landlord), civil
disturbance, future order of any government, court or regulatory body claiming
jurisdiction, act of the public enemy, war, riot, sabotage, blockade, embargo,
failure or inability to secure or delay in securing materials, supplies, or
labor through ordinary sources by reason of shortages or priority or regulation
or order of any government or regulatory body, lightning, earthquake, fire,
storm, hurricane, tornado, flood, washout, explosion, inclement weather, or any
cause whatsoever beyond the reasonable control of Landlord or Tenant, as
applicable, whether or not similar to any of the other causes hereinabove
stated; provided, however, that for purposes of this definition, Landlord's or
any other person's (other than Tenant, the State of South Carolina or Sumter
County, South Carolina) lack of funds will not be deemed to be a cause beyond
the control of Landlord, and an Excusable Delay will be deemed to exist only so
long as the party affected thereby has timely identified the occurrence and
nature of the delay in accordance with the provisions of Section 4.3 and
exercises reasonable due diligence to remove or overcome it.
1.11 "Facility" will mean that certain building, together with the
Process Facility Systems, grading, drainage, site work and related improvements
to be built on the Land in accordance with the Process Facility Plans, all Legal
Requirements, the published recommendations of the original manufacturers of the
Equipment, and the provisions of this Addendum.
2
1.12 "Governmental Authority" will mean any and all courts, boards,
agencies, commissions, offices, or authorities of any nature whatsoever of any
governmental unit (federal, state, county, district, municipal, city, or
otherwise) whether now or hereafter in existence, which have jurisdiction over
Landlord, Tenant, the Property, or the Work.
1.13 "Installation Acceptance Certificate" will mean the
certificate to be delivered by Engineer to Tenant and Landlord upon achievement
of Installation Qualification substantially in the form and substance of
Schedule 1
1.14 "Installation Qualification" will mean the documented
verification (i.e., supporting documentation must be in place and of suitable
quality) that all aspects of the Facility excluding Punch Lists Items
(including, without limitation, the Utilities and the Equipment) that can affect
achievement of Operation Qualification, Performance Qualification and Process
Validation are installed correctly and in accordance with design documentation
requirements (including, without limitation, specifications, purchase orders,
contracts, and bid packages).
1.15 "Land" will mean that tract of real property situated in
Sumter County, South Carolina, and being more particularly described in Exhibit
A-1 to the Lease.
1.16 "Landlord's Consultant" will mean such individual or firm (if
any) as may be so designated by Landlord by written notice to Tenant from time
to time.
1.17 "Legal Requirements" will mean (a) any and all judicial
decisions, orders, injunctions, writs, statutes, rulings, rules, regulations,
permits, certificates, or ordinances of any Governmental Authority in any way
materially applicable to Landlord, Tenant, the Property or the Work including,
but not limited to, any of the aforesaid dealing with the design, construction,
ownership, use, leasing, maintenance, service, operation, sale, exchange, or
condition of real property, or zoning or environmental matters in effect as of
the date of final approval of the Process Facility Plans by the appropriate
Governmental Authority, (b) any and all loan documents, construction contracts,
leases, declaration of covenants, conditions or restrictions, or other
agreements and any and all insurance requirements, documents, or instruments
relating to Landlord, Tenant, the Property or the Work to which Landlord, Tenant
or the Property may be bound or encumbered, and (c) any and all covenants,
restrictions, and easements for the Property as may be approved in writing by
Tenant, in its reasonable discretion, and recorded by Landlord. In
amplification, and not in limitation of the provisions of this Section 1.16,
"Legal Requirements" will include any requirements of the United States Food and
Drug Administration (the "FDA") and cGMP relating to the design, construction or
operation of the Property.
1.18 "Mechanical Completion" will mean, with respect to each
Process, unit, system, or component of the Facility, including, without
limitation, the Equipment, (i) the furnishing to Tenant of all warranties,
manuals, drawings, designs, plans, charts and schedules relating thereto, and
(ii) the completion of the Work relating thereto (except for Punch List Items),
including setting of the Equipment on foundations; connecting Equipment to other
applicable equipment with piping, wiring, controls, and safety
3
systems; and ensuring that the Equipment and each Process and related operating
systems are ready for initial operation, adjustment and testing and may be
properly operated, adjusted and tested safely and without damage thereto or to
any other property and without injury to any person or entity.
1.19 "Operation Qualification" will mean the documented
verification that all aspects of the Facility that can affect product quality
operate within established limits and tolerances. Subject to Landlord's
performance and completion of the Work in accordance with its obligations under
and the requirements of the Lease and this Addendum and its cooperation,
assistance and support as it pertains to Work performed up through Installation
Qualification, Operation Qualification will be performed by Tenant and/or
contractors and engineers retained by Tenant.
1.20 "Operation/Performance Completion" will mean the completion by
Tenant, subject to Landlord's performance and completion of the Work in
accordance with its obligations under and the requirements of the Lease and this
Addendum and its cooperation, its assistance and support as it pertains to Work
performed up through Installation Qualification, of Operational Qualification
and Performance Qualification in accordance with the Process Facility Plans and
good engineering practices accepted in the pharmaceutical industry.
1.21 "Performance Qualification" will mean the documented
verification by Tenant, subject to Landlord's performance and completion of the
Work in accordance with its obligations under and the requirements of the Lease
and this Addendum and its cooperation, assistance and support as it pertains to
Work performed up through Installation Qualification, that all aspects of the
Facility (including, without limitation, the Utilities and the Equipment) that
can affect product quality perform as intended meeting predetermined acceptance
criteria and produce the required output.
1.22 "Permitted Exceptions" will mean only (a) those Title
Exceptions as are listed in Exhibit K attached to the Lease, (b) those easements
(temporary and permanent) which are reasonably and customarily necessary to
service or benefit the development, use, operation and ownership of the Facility
and that do not adversely affect the use or occupancy of the Facility by Tenant,
and (c) such other Title Exceptions as may hereafter be approved in writing by
Tenant.
1.23 "Process" will mean each process and system at the Facility,
and the equipment, controls, valves, software, instruments, sensors, monitors,
and Utilities used therein, necessary for and incidental to the production,
storage, handling, packaging and loading of product suitable for human
consumption, including without limitation separation, purification,
polymerization, and bulk filling.
1.24 "Process Equipment" will mean the Process equipment to be
procured by Landlord and Tenant and utilized by Tenant in connection with its
operations in the Facility, as listed on Schedule 2 of this Addendum.
4
1.25 "Process Facility Plans" will mean the detailed working plans,
specifications, drawings, construction and Process documents (including, without
limitation, the Construction Schedule) relating to the design, engineering,
procurement, construction, installation, interconnection, testing and
Installation Qualification of the Facility, to be prepared and sealed by the
Engineer and approved in writing by Landlord and (only to the extent necessary
to obtain all requisite building and other permits) Sumter County, South
Carolina, as applicable, as such Process Facility Plans may be modified in
accordance with this Addendum. Tenant has provided design criteria in the form
of process and instrumentation diagrams from an existing facility and other
guidance which is documented in "Notes of Meetings" issued by the Engineer and
comments provided in writing on documents submitted by the Engineer for Tenant
review that have been used by Landlord to develop the Process Facility Plans.
1.26 "Process Facility Systems" will mean with respect to the
Facility: (a) the Equipment; (b) each Process and related Utilities; (c) the
stairs, and elevators; (d) the HVAC, plumbing, mechanical and security systems
(including building access system); (e) the electrical, telecommunication
conduit, water, storm sewer and sanitary sewer utility systems and connections;
(f) the sprinkler and fire protection systems; (g) the lighting systems; (h) the
ceiling system; (i) partitions, doors and hardware, wall coverings, painting,
floor coverings and millwork; and (j) the paving and other improvements for
pedestrian and vehicular access and vehicular parking; together with all
equipment, machinery, shafts, flues, piping, wiring, ducts, ductwork, panels and
instrumentation and other appurtenances relating to any or all of the foregoing,
all as more specifically set forth in the Process Facility Plans. "Process
Facility Systems" will not include Tenant's FF&E (as defined in Section 4.5
hereof).
1.27 "Process Validation" will mean the documented verification
that good product is manufactured by the Facility and will include at least
three (3) full production runs, which, subject to Landlord's performance and
completion of the Work in accordance with its obligations under and the
requirements of the Lease and this Addendum and its cooperation, assistance and
support as it pertains to Work performed up through Installation Qualification,
shall be prepared by Tenant.
1.28 "Projected Completion Date" will mean the date twenty (20)
months after the date of notice to proceed from Tenant to Landlord.
1.29 "Property" will mean the Facility and the Land and all
appurtenances thereto.
1.30 "Punch List Items" will mean those items of construction,
decoration, and mechanical adjustment relating to the Facility which,
individually or in the aggregate, are minor in character and do not materially
interfere with Tenant's safe, reliable and efficient use, enjoyment, operation
and maintenance (to the extent that Tenant is obligated to maintain pursuant to
the terms of the Lease) of the Facility and the appurtenances thereto and for
which it may be reasonably anticipated that the completion will occur within
sixty (60) days after Substantial Completion, subject to extension for Excusable
Delay. Construction Contractor will prepare a schedule of
5
Punch List Items upon Substantial Completion of the Facility, such schedule to
be reviewed and approved in writing by Landlord, Tenant and Construction
Contractor.
1.31 "Review Plans and Specifications" will mean the preliminary
plans, drawings, specifications, construction and Process documents (including,
without limitation, the Construction Schedule) setting forth criteria and
standards relating to the Work and the Facility (including the Process Facility
Systems), approved by Landlord and Tenant and more particularly described in
Schedule 3 attached to this Addendum and made a part hereof.
1.32 "Substantial Completion" or "Substantially Complete" will mean
the complete performance of the Work and completion of the Facility by Landlord,
all as more specifically set forth in the Process Facility Plans, including, but
not limited to, the design, engineering, procurement, construction,
installation, interconnection, testing and Installation Qualification of the
Facility, in strict accordance with the Process Facility Plans, all applicable
Legal Requirements, the published recommendations of the original manufacturers
of the Equipment, and this Addendum, in a good, workmanlike and lien free manner
(except for Permitted Exceptions), and in strict accordance with good
construction and engineering practices accepted in the pharmaceutical industry,
free from material defects (structural, mechanical, or otherwise) in design,
workmanship, and materials, with new materials (unless otherwise specified in
the Process Facility Plans), and with the only additional construction to be
effected being Punch List Items. Notwithstanding the foregoing to the contrary,
provided that Landlord has satisfied the other requirements of this Section
1.32, the Facility will be considered to be Substantially Complete
notwithstanding the fact that "facility approval" has not yet been obtained from
the FDA; provided, however, that the Facility will then be in compliance with
all requirements of cGMP and all applicable Legal Requirements. Without limiting
the foregoing, "Substantial Completion" will not be deemed to have occurred
until all of the following conditions have been satisfied (or waived in writing
by Tenant): (a) receipt of a Certificate of Substantial Completion by
Construction Contractor (or its designated design professional, as applicable)
on AIA Form G704 (or a substantially similar form) relating to the completion of
the Facility; (b) substantially all exterior work will have been performed
(except as to Punch List Items) and all outside hoists have been removed from
the Facility; (c) the city, county or other Governmental Authority has conducted
all inspections, and issued all certificates and approvals, necessary for legal
occupancy of the Facility by Tenant; (d) Tenant, its employees, agents and
invitees have ready access to, and parking adjacent to, the Facility; (e) all
necessary utilities and plumbing, including the Utilities, are available in
capacities not less than as set forth in the Process Facility Plans, are
connected to mains or other appropriate sources, and all utility meters have
been set and activated; (f) Mechanical Completion has been achieved and (g)
Installation Qualification has been achieved. Acceptance of possession, use or
occupancy of the Facility by Tenant will not be deemed to constitute a waiver of
Landlord's duties, obligations or warranties expressly set forth in this
Addendum or the Lease.
6
1.33 "Substantial Completion Acceptance Certificate" will mean the
certificate to be delivered by Engineer to Tenant and Landlord upon Substantial
Completion substantially in the form and substance of Schedule 4.
1.34 "Tenant Delay" will mean any delay in Substantial Completion
of the Facility (or relevant portion thereof) which is due directly or
indirectly to any act or omission of Tenant, its employees or agents, including,
without limitation, any changes to the Process Facility Plans or in the Work
made by or at the request of Tenant pursuant to Section 3.2 or use of the
Facility pursuant to Section 4.5.3 hereof. No Tenant Delay will be deemed to
have occurred under this Addendum unless Landlord has identified the occurrence
and nature of the delay in accordance with the provisions of Section 4.3. There
will be excluded from the number of days of Tenant Delays any day of delay which
is primarily caused by any act or omission of Landlord, its employees, agents,
contractors or subcontractors and any Excusable Delays.
1.35 "Tenant's Consultant" will mean such individual or firm (if
any) as may be so designated by Tenant by written notice to Landlord from time
to time.
1.36 "Tenant's Changes" will have the meaning set forth in Section
3.2.
1.37 "Tenant's Equipment" will mean the Process Equipment which
shall be procured by Tenant as set forth on Schedule 2 of this Addendum.
1.38 "Term Commencement Date" will mean the date of Substantial
Completion of the Facility.
1.39 "Title Exception" will mean any lien, mortgage, security
interest, encumbrance, pledge, assignment, claim, charge, lease (surface, space,
mineral, or otherwise), condition, restriction, option, conditional sale
contract, right of first refusal, restrictive covenant, exception, easement
(temporary or permanent), right-of-way, encroachment, overlap, or other
outstanding claim, interest, estate, or equity of any nature whatsoever
affecting or pertaining to the Property or any portion thereof.
1.40 "Utilities" will mean all utilities and services required for
each Process, including without limitation water, electricity, gas, steam,
compressed air, cleaning in place, waste handling and treatment, nitrogen,
chilled glycol, thermal storage systems and vacuum, the equipment, facilities
and installations of which are located on, under or above the Land.
1.41 "Work" will mean the design, engineering, procurement,
construction, installation, interconnection, testing and Installation
Qualification work, services performed, or materials or equipment provided, or
to be provided, to the Property in connection with the completion of the
Facility. "Work" will not include achievement of Operation Qualification,
Performance Qualification and Process Validation, but does include providing
information, data, documents, licenses, rights and other support and assistance
as it pertains to Work performed up through Installation Qualification to Tenant
as reasonably necessary for Tenant to achieve Operation Qualification,
Performance Qualification and Process Validation of the Facility.
7
Additional defined terms may appear in other provisions of this
Addendum and, if so, will have the respective meanings assigned to them.
Capitalized terms not specifically defined in this Addendum will have the same
meanings as ascribed thereto in the Lease. The definition of a term or phrase in
the singular will include and allow for a reference to such term or phrase in
the plural or vice versa.
2. PROCESS FACILITY PLANS AND CONSTRUCTION CONTRACTS
2.1 Preparation of Process Facility Plans and Specifications.
2.1.1 Process Facility Plans. Landlord will cause
Construction Contractor to prepare (and, as appropriate, revise) site plans,
concept plans, foundation and construction documents and other plans, drawings,
specifications and construction and Process documents for the Facility as
specified and in accordance with the relevant time-frames set forth on the
Construction Schedule. All such plans, drawings, specifications, procedures and
other construction and Process documents will be consistent in all material
respects with the scope, design and general quality of the Facility as reflected
in the Review Plans and Specifications. All such plans, drawings,
specifications, procedures, construction and Process documents will be submitted
to Tenant and Tenant's Consultant (if any), not for Tenant's approval, but only
to allow Tenant to confirm that the same are consistent in all material respects
with the scope, design and general quality of the Facility as reflected in the
Review Plans and Specifications, and Tenant may, by appropriate marking, provide
specific indications of any non-compliance with the Review Plans and
Specifications or any requested revisions. Tenant will provide specific
indications of any non-compliance with the Review Plans and Specifications or
requested revisions to any items submitted (or resubmitted) pursuant to this
Section 2.1.1 no later than ten (10) Business Days after receipt by Tenant. The
failure of Tenant to notify Landlord of any non-compliance or requested
revisions within ten (10) Business Days after Tenant's receipt of such items
will be deemed to be a lack of objection thereof by Tenant.
2.1.2 Final Plans and Specifications. Upon final approval
by the required party or parties of each part of the plans, drawings,
specifications, procedures and construction and Process documents for the
Facility, whether actual or deemed as set forth in this Section 2.1, two (2)
sets thereof will be initialed by, and delivered to, Landlord and Tenant to
reflect their applicability to the Lease and same will become a part of the
Process Facility Plans.
2.1.3 Cooperation. Notwithstanding anything contained in
this Section 2.1 to the contrary, it is the intent of Landlord and Tenant to
proceed as quickly as reasonably possible to resolve any issues regarding the
consistency of the proposed Process Facility Plans with the Review Plans and
Specifications and finalize the Process Facility Plans, and Landlord and Tenant
agree to fully cooperate with each other in an effort to accelerate the
completion and finalization of the Process Facility Plans.
8
2.2 Effect of Approval. To the extent that Tenant's approval or
consent is required or contemplated hereunder, approval by Tenant or Tenant's
Consultant will (a) not relieve Landlord of responsibility for proper and
adequate design, engineering, procurement, construction, installation,
interconnection, testing, performance of the Work and Installation Qualification
of the Facility, and (b) not be deemed approval by Tenant of any extension of
the period in which Landlord is to Substantially Complete the Facility, as
provided in this Addendum or the Lease. Landlord will ensure that the structure
and detail of the utilities, including the Utilities, and the mechanical,
electrical and other Process Facility Systems meet all applicable Legal
Requirements and the Process Facility Plans and that all of the Work satisfies
all Legal Requirements. Landlord will obtain from Construction Contractor, and
from any electrical, mechanical or structural engineer providing services for
the design or construction of the Facility (including the Engineer), and from
the original manufacturers of the Equipment, warranties and guarantees, in a
form acceptable to Landlord, in Landlord's reasonable discretion, as to the
sufficiency and adequacy of the construction and installation of the Facility
and the Process Facility Systems. Landlord will obtain from Construction
Contractor (or its designated design professional) a certificate, in a form
acceptable to Landlord, in Landlord's reasonable discretion, as to the
sufficiency and adequacy of the design of the Facility and the Process Facility
Systems.
2.3 Construction Contract for Facility. Landlord may solicit bids
for or enter into on a negotiated basis Construction Contracts for the design,
engineering, and construction of the Facility (including, without limitation, a
Construction Contract based upon a fixed, lump sum price for the construction of
the Facility), as determined by Landlord; provided, however, that any
substitution or replacement of Construction Contractor must be approved in
writing by Tenant, which approval will not be unreasonably withheld or delayed.
Landlord will include a provision in any Construction Contract naming Tenant as
an express third party beneficiary, such that Tenant may, at its election,
assert a direct right of interest thereunder; provided, however, that in no
event will there exist or be deemed to exist a contractual relationship between
Tenant and Construction Contractor or any other contractor. To the extent
practicable, Landlord will give Tenant and Tenant's Consultant (if any) two (2)
Business Days' prior notice of any pre-bid or pre-negotiation conferences with
Construction Contractor and major subcontractors who will perform the Work and
any replacement or substitute therefor, and will permit Tenant and Tenant's
Consultant (if any) to attend such meetings.
2.4 Payment and Performance Bonds. Prior to commencing the Work,
Landlord will cause Construction Contractor to obtain payment and performance
bonds, or other security acceptable to Tenant in its sole discretion, covering
the faithful performance of the Construction Contract for the completion of the
Work. Such bonds shall be substantially in the form AIA Form A312, 1984 Edition,
with modifications to provide for coverage of costs of corrective work, shall be
in an amount equal to 100% of the contract price under the Construction
Contract, and conditioned on Construction Contractor's faithful performance of
the Construction Contract, shall name Landlord and Tenant as co-obligees, and
shall be given by a surety having a minimum A.M. Best rating of A-.
9
3. CHANGES IN PROCESS FACILITY PLANS AND COST OF CHANGES.
3.1 Changes to the Process Facility Plans by Landlord. Landlord
will not, without the prior written consent of Tenant, make, or permit to be
made, any material changes or any other changes in the Process Facility Plans
which would materially and adversely affect Tenant's safe, reliable and
efficient use, enjoyment, operation, or maintenance (to the extent that Tenant
is required to maintain pursuant to the terms of the Lease) of the Property or
approve or acquiesce in any material deviations from the Process Facility Plans.
Notwithstanding the foregoing, Landlord may, without the prior written consent
of Tenant, make, or permit to be made, material changes or any other changes in
the Process Facility Plans or approve or acquiesce in any material deviations
from the Process Facility Plans to the extent such changes or deviations are
required to comply with Legal Requirements or to correct construction defects or
hazardous conditions and Landlord will be solely liable and obligated to pay all
costs, expenses and changes relating to or resulting from such changes. From
time to time, Landlord may request, by submitting an analysis of the additional
cost or savings and change, if any, in the Substantial Completion date, that
Tenant approve any changes in the Process Facility Plans, or to the Work already
installed prior to Substantial Completion. If Tenant should fail to disapprove
in writing such change requested by Landlord within ten (10) days following
receipt thereof, the same will be approved in all respects by Tenant, and
Landlord will be authorized to make such requested change. Unless otherwise
approved in writing by Tenant, Landlord will be solely liable and obligated to
pay all costs, expenses and changes relating to or resulting from any changes to
the Process Facility Plans requested by Landlord. No change in the Process
Facility Plans requested by Landlord, unless otherwise approved in writing by
Tenant, will be the basis of any Tenant Delay.
3.2 Changes to the Process Facility Plans by Tenant. From time to
time after Tenant has reviewed the Process Facility Plans, Tenant may request
Landlord to make changes in the Process Facility Plans or to the Work already
installed prior to Substantial Completion. Any changes to the Process Facility
Plans so requested by Tenant (herein referred to as "Tenant's Changes") will be
subject to Landlord's prior written approval, which will not be unreasonably
withheld. Landlord will, within ten (10) days following receipt of Tenant's
proposed changes, deliver to Tenant (a) a statement of the estimated change, if
any, in the cost of design, engineering or construction of the Facility (the
"Facility Cost") in connection with such Tenant's Changes as above provided, and
(b) an estimate of the period of time, if any, that such Tenant's Changes will
delay the Substantial Completion of the Facility. In the case of Tenant's
Changes requested prior to the awarding of a Construction Contract for the
subject work, Landlord's statement of estimated change in the Facility Cost will
be based on a good faith estimate of such costs by Landlord and, in the case of
Tenant's Changes requested after the awarding of a Construction Contract for the
subject work, the statement of estimated change in Facility Cost will be based
on the proposed change order to the Construction Contract to be issued and
approved by Landlord for such Tenant's Changes. If Tenant shall fail to approve
in writing Landlord's submission within ten (10) days following receipt thereof,
the same will be deemed disapproved in all respects by Tenant, and Landlord will
not be authorized to make the change. If Tenant
10
approves in writing the statement of cost and the delay in Substantial
Completion as submitted by Landlord, [Tenant shall place funds in the amount of
the approved costs in a construction escrow account (the "Construction Escrow")
with a national banking institution and subject to terms and conditions which
are mutually acceptable to Landlord and Tenant and] Landlord will promptly cause
the Process Facility Plans to be modified to provide for such change and will
submit such modified Process Facility Plans to Tenant. Landlord shall submit to
Tenant and Tenant's Consultant with the monthly progress report provided in
accordance with Section 4.3 an invoice and accounts, records, invoices, and
evidences of payment as Tenant may reasonably request to evidence the costs for
the portion of the increase in Facility Cost arising from the approved change
for Work performed in the prior month. Tenant shall within thirty (30) days of
the delivery of such invoice pay the undisputed portion thereof and provide to
Landlord and the Construction Escrow agent a detailed statement of the basis for
its non-payment or non-acceptance of any amount in dispute. All interest which
accrues on funds in the Construction Escrow will be to the benefit of Tenant,
unless Landlord is determined to have been entitled to payment of money disputed
by Tenant, in which case the interest accrued on such withheld amount in the
Construction Escrow shall be paid to Landlord.
3.3 Accounting for Changes. During the performance of the Work,
Landlord will cause to be submitted to Tenant and Tenant's Consultant monthly
progress reports prepared by Construction Contractor as to the Work, specifying
any change in the estimated date of Substantial Completion, and showing the
progress of the Work, and, as to those items for which the cost is the
responsibility of Tenant, the amount of estimated costs and/or savings
attributable to any approved changes under Section 3.1 and Section 3.2 or delay
of any kind including Tenant Delay. Landlord will submit to Tenant such
accounts, records, invoices, and evidences of payment as Tenant may reasonably
request to evidence the costs or savings as to those items for which the cost is
the responsibility of Tenant or for which the savings will benefit Tenant. All
changes will be submitted on a lump sum basis. Approval of proposed changes
shall be in accordance with Sections 3.1 and 3.2. Landlord will cause Contractor
to track all changes weekly and summarize changes in a monthly report, which
shall be delivered to Tenant upon receipt by Landlord. Tenant will be obligated
to pay the fees (including, but not limited to, the fees of any professionals
engaged and utilized by Landlord), expenses, and charges of Landlord and all
contractors, subcontractors, suppliers, materialmen, and laborers to the extent,
but only to the extent, that such fees, expenses, and charges are directly
incurred as a result of Tenant's Changes or Tenant Delay.
4. CONSTRUCTION OF THE FACILITY
4.1 Performance. Landlord will cause to be furnished, installed,
and performed completely all of the Work as shown on and in strict accordance
with the Process Facility Plans, as modified by approved changes as provided in
Article 3. Landlord will be fully responsible for all matters that must be
accomplished to complete the Work in accordance with the provisions of this
Addendum including, without limitation, filing plans and other required
documentation with the proper Governmental
11
Authority, securing all necessary permits, supervising all details of the Work,
and promptly removing or otherwise handling to Tenant's reasonable satisfaction
all mechanics', materialmen's and like liens from the public record by payment
or surety bond. Landlord will cause all construction on or in the Facility to be
performed in strict accordance with all applicable Legal Requirements in a good
and workmanlike manner and in strict accordance with good construction and
engineering practices accepted in the pharmaceutical industry, free from
material defects (structural, mechanical, or otherwise) in design, workmanship,
and materials, and with new materials (unless otherwise specified in the Process
Facility Plans), all as more specifically set forth in the Process Facility
Plans.
4.2 Non-Liability of Tenant. Subject to the terms and conditions
of Sections 4.4 and 4.5, Tenant will not be liable for any injury, loss, or
damage to any person (including, but not limited to, death) or property on or
about the Property during construction until the time of Substantial Completion,
unless directly caused by Tenant, its employees, agents, or invitees, and
Landlord will indemnify and save Tenant harmless against and from any such
liability, and any costs or charges (including, without limitation, reasonable
attorneys' fees and court costs) which Tenant may incur on account of such
injury, loss, or damage.
4.3 Information; Monthly Report. During the period prior to
achievement of Installation Qualification, Landlord will provide all reasonable
cooperation to keep Tenant informed as to material aspects pertaining to the
design, engineering, procurement, construction, installation, interconnection,
testing, and Installation Qualification of the Facility. Accordingly, upon
written request, Landlord will furnish Tenant's Designated Representative (as
defined below) with copies of all progress reports, correspondence, or other
information as may be material and pertinent to the Property, other than
internal communications or confidential matters between Landlord and its
attorneys or accountants. Tenant's Designated Representative and Tenant's
Consultant (if any) will have the right to attend scheduled meetings material to
the interest of Tenant as may be held with respect to the Property between
Landlord, Construction Contractor and any other outside person or firm (other
than Landlord's attorneys or accountants) furnishing materials, services, or
labor to or with respect to the Property. Landlord agrees to provide Tenant with
reasonable prior notice of any scheduled meetings material to the interest of
Tenant, but will not be obligated to attempt to schedule any such meetings to
accommodate Tenant's availability or convenience. Furthermore, Tenant's failure
to timely attend any such scheduled meetings will not constitute a basis for any
claim by Tenant that Landlord has violated the foregoing provisions. Prior to
the Term Commencement Date, Landlord and its construction team will meet no less
frequently than once each month to discuss and analyze the progress of
construction and Landlord will prepare and deliver to Tenant a written report
(which may be in the form of the minutes of the meeting) (the "Construction
Meeting Report") summarizing the material items discussed at such meeting and
the effect of such items, if any, on the Construction Schedule. Each
Construction Meeting Report will specifically identify any event or condition
which would constitute an Excusable Delay or a Tenant Delay (and any incurred
cost directly or
12
indirectly resulting from a Tenant Delay) which has occurred since issuance of
the immediately prior Construction Meeting Report.
4.4 General Access. Landlord will afford or will obtain for
Tenant, its employees, and its representatives regular access during normal
business hours to the (i) Land and the Facility, all materials thereon and
therein, and all Work being performed thereon and therein, and (ii) the premises
and facilities of any subcontractors or vendors, and the materials therein
relating to the Work; provided, however, that in exercising such right of
access, Tenant and its employees and representatives will comply with all
applicable laws and regulations (including, but not limited to, all construction
site rules and safety regulations and to all OSHA safety regulations and
standards) and will coordinate such access with Construction Contractor. Tenant
will be required to provide at least twenty-four (24) hours prior notice to
Construction Contractor for the purpose of coordinating Tenant's entry onto the
Property with Work then in progress. Tenant acknowledges that its ability to
gain entry to the Property occasionally may be limited or restricted due to the
particular stage of Work then in progress. Tenant will be accompanied by a
representative of Landlord or Construction Contractor except during periods in
which Tenant, its employees and representatives will be engaged in the
installation of Tenant's FF&E as provided in Section 4.5. Tenant or its agents
will be required to attend and complete the required training by Construction
Contractor prior to being granted unescorted access to the Land and the
Facility.
4.5 Installation of Tenant's FF&E and Qualification Activities;
Early Occupancy.
4.5.1 At such time as the Facility will be in a state
suitable for the commencement of (i) the installation of Tenant's personal
property (as reasonably determined by Landlord in good faith), which in any
event will be no later than the Early Occupancy Date, (ii) activities by Tenant
and its contractors and consultants to achieve Operation Qualification,
Performance Qualification and Process Validation, Tenant and its employees,
agents, contractors, and subcontractors may enter upon the Property for the
purpose of (x) installing and arranging Tenant's furniture, furnishings, office
equipment, artwork, trade fixtures and other property (the "FF&E") (y)
performing activities necessary or incidental to the achievement of Operation
Qualification, Performance Qualification and Process Validation and (z)
otherwise making the Property ready for Tenant's use and occupancy. In
exercising such right of access, Tenant and its employees and agents will comply
with all reasonable standards and regulations established by Landlord and will
coordinate their efforts with Construction Contractor to facilitate timely
completion of all Work, and maintenance of the Property in a safe condition.
During performance of any such work, Tenant's employees and agents will also
coordinate with Landlord the delivery, storage, movement and installation of
FF&E. Any work performed by Tenant's employees and agents will be conducted in
such manner so as to maintain harmonious labor relations and not to interfere
with or delay Construction Contractor or Landlord's Work. Landlord will provide
Tenant's employees and agents with reasonable access to the Property for the
purpose of making inspections and taking measurements in advance of the period
for the
13
installation of Tenant's FF&E and commencement of activities for achievement of
Operation Qualification, Performance Qualification and Process Validation;
provided that the construction of the Facility will have reached a point in
Landlord's reasonable judgment such that Landlord will not be unreasonably
delayed or hampered in the completion thereof by permitting such access. In
connection with the access permitted under this Section 4.5, Tenant covenants
(xx) to cease immediately upon request by Landlord any activity or work during
any period which, in Landlord's reasonable judgment, will unreasonably interfere
with or delay Landlord's prosecution or completion of the Work, or in Landlord's
or Construction Contractor's reasonable judgement will create any unsafe
condition at the Property, (yy) that such access will be at the sole risk of
Tenant and will be deemed to be a license, and (zz) that prior to exercising
such right, Tenant will deliver to Landlord such certificates of insurance
evidencing such insurance as may be required by Landlord, in Landlord's
reasonable discretion, including public liability, property damage and worker's
compensation to protect Landlord, Construction Contractor and Tenant during the
period of Tenant's access. Tenant will not permit any mechanic's or
materialman's lien to be placed upon the Property caused by or resulting from
any work performed, materials furnished or obligation incurred in connection
with the installation of Tenant's FF&E or activities necessary for or incidental
to achievement of Operation Qualification, Performance Qualification and Process
Validation and, in the case of the filing of any such lien Tenant will promptly
pay same or bond around such claims to the satisfaction of Landlord, in
Landlord's reasonable discretion. Landlord will furnish at no additional cost to
Tenant and Tenant's employees and agents water, electricity, adequate elevator
service (freight and passenger) to move personnel and FF&E within the capacity
and purpose for which they are designed, and HVAC to the Facility, if available,
during the installation and the aforementioned activities by Tenant, if any,
during the normal working hours of the construction of the Facility.
4.5.2 Elevators and equipment will be suitable to lift
Tenant's materials and personnel within the capacity limitations shown on the
Review Plans and Specifications. Subject to priority of use given to Landlord's
contractors and subcontractors, Landlord will furnish at no additional cost to
Tenant equipment and hoists to elevate and lift Tenant's FF&E and personnel,
equipment and materials necessary for or incidental to achievement of Operation
Qualification, Performance Qualification and Process Validation, but only to the
extent that such equipment and hoists are still being used by Landlord and are
physically situated on the Land. Landlord will have the right to remove the
equipment and hoists at any time the same are no longer needed by Landlord for
the construction of the Facility, provided that Landlord shall provide Tenant
ten (10) days advance notice of such intent. Landlord will designate the method
established for scheduling equipment, elevator and hoist use.
4.5.3 From and after the Early Occupancy Date, Tenant will
have the right to use, occupy and operate the Facility for the purposes
permitted under the Lease, provided that Tenant does not interfere with or delay
Construction Contractor or Landlord's Work. Any such use, occupancy and
operation by Tenant will be subject to the same terms and conditions of the
Lease, provided however, that no Annual Rent will
14
accrue and be due and payable during the period from the Early Occupancy Date
to the Rent Commencement Date (as defined in Section 5.1 of the Lease).
4.6 No Assumption of Responsibility. Except as otherwise expressly
provided herein, neither the exercise nor the failure to exercise by Tenant or
its representatives of any right afforded Tenant under this Addendum (including
specifically, but without limitation, the exercise or the failure to exercise of
a right to review, comment upon, approve, or disapprove documents, plans,
specifications, drawings, or other matters, or the performance by Landlord) or
the failure by Tenant to insist upon the performance by Landlord of any
obligation imposed upon Landlord under this Addendum, will (a) impose upon
Tenant, or be deemed to be an assumption by Tenant, of any obligation or
liability with respect to the design, engineering, procurement, construction,
installation, interconnection, testing or Installation Qualification of the
Facility, or (b) constitute or be deemed to constitute acquiescence by Tenant to
any act or failure to act on the part of Landlord which is in conflict with any
provision of this Addendum. The parties acknowledge that Tenant has provided
design criteria in the form of process and instrumentation diagrams from an
existing facility and other guidance which is documented in "Notes of Meetings"
issued by the Engineer and comments provided in writing on documents submitted
by the Engineer for Tenant review that have been used by Landlord to develop the
Process Facility Plans.
4.7 Designated Representatives. Landlord and Tenant each hereby
appoint a representative (each a "Designated Representative"), and in the event
that a Designated Representative is unavailable for any reason whatsoever, an
alternative representative (each an "Alternative Representative"), to make
timely binding decisions on design, development and construction matters (but
not other matters) relating to the Facility. The Designated Representatives are:
Landlord Xxx X. Xxxxxx
Tenant Xxxxxxxx X. Xxxxxx
The Alternative Representatives are:
Landlord Xxxxx Xxxxxx
Tenant Xxxxxx Xxxxxxxx
At any time and from time to time hereafter, Landlord and Tenant will each have
the right to appoint a successor or substitute Designated Representative and/or
Alternative Representative to act on behalf of such party, each such appointment
to be effected by delivering ten (10) days' prior written notice to the other
party hereto in accordance with the terms and provisions of Section 29 of the
Lease. Any action which may be taken by a Designated Representative may also be
taken by an Alternative Representative and any party may rely thereon as if such
action had been taken by the Designated
15
Representative and such party will have no duty to inquire why the Designated
Representative was unavailable to act.
5. COST OBLIGATIONS
5.1 Landlord's Cost. Except as otherwise specifically provided in
Article 3, Landlord will be liable and obligated to pay for all costs of
preparation of the Process Facility Plans and all costs related to the design,
engineering, procurement, installation, construction, interconnection, testing
and Installation Qualification of the Facility, including, but not limited to,
all labor and materials. All such costs will be included in the Project Cost as
defined in Section 5 of the Lease; provided, however, that certain Qualified
Expenses (as defined in the Escrow Agreement) relating to the acquisition of the
Land, and the design, engineering and construction of the Facility, will be paid
out of the Escrow Funds (as defined in the Escrow Agreement). Landlord will,
from and after the full execution of this Lease and until the delivery of
landlord's final written certification pursuant to Section 3.3 of the Lease,
deliver to Tenant on a monthly basis a written certification of the Project Cost
to date, specified by line item, consistent with the terms and requirements of
the Lease and this Addendum. Additionally, from and after the full execution of
the Lease, Landlord will provide to Tenant and Tenant's Consultant, during
normal business hours, full and complete access to all books, records and
accounts of Landlord to verify the amount of the Project Cost.
6. SCHEDULE FOR CONSTRUCTION
6.1 Time to Completion. Time is of the essence to this Addendum.
Landlord will cause the completion of the Facility in strict accordance with the
Process Facility Plans, all applicable Legal Requirements, and the provisions of
this Addendum with due diligence, which requires Landlord to (a) Substantially
Complete the Facility on or before the Projected Completion Date, and (b) to
provide and perform Work to support and assist Tenant, as it pertains to Work
performed up through Installation Qualification, to achieve
Operation/Performance Completion as it pertains to Work performed up through
Installation Qualification, as extended by Excusable Delays and/or Tenant
Delays, in which case the Projected Completion Date may be, if adversely
affected by Excusable Delay and/or Tenant Delay, will be extended by one day for
each day of such Excusable Delay and/or Tenant Delay.
6.2 Installation Acceptance Certificate. Landlord guarantees that
best efforts will be made so that Installation Qualification will be achieved on
or before the Projected Completion Date. Tenant agrees to accept the
Installation Acceptance Certificate within twenty (20) days from and after
achievement of Installation Qualification; provided, however, that such period
will be extended, if necessary, so that Tenant shall not be obligated to accept
the Installation Acceptance Certificate until ten (10) days after the date that
Tenant receives a copy of the as-built plans and specifications for the
Property, the reports and results of all trials, tests, and analyses necessary
and incidental to document achievement of Installation Qualification, together
with copies of the certificate of occupancy for the Facility, and all permits
related to the Property. Tenant's acceptance of the Installation Acceptance
Certificate shall not constitute a
16
waiver of any claims that Tenant may have pertaining to any matter that would
not have come to Tenant's attention in connection with a commercially reasonable
diligent investigation of the Property at the time of Tenant's acceptance of the
Installation Acceptance Certificate. If Tenant cannot accept the Installation
Acceptance Certificate because Tenant does not believe the certification
required therein to be true with respect to any significant matter, Tenant shall
accept the Installation Acceptance Certificate with such significant exceptions
and significant qualifications as it deems appropriate based on a certification
from Tenant's Consultant. If Landlord's disagrees with such exceptions and
qualifications and the parties are unable to resolve such disagreement for a
period of fifteen (15) days, then Landlord's Consultant and Tenant's Consultant
shall select a third person who is an independent design professional (the
"Independent Consultant"). The Independent Consultant shall resolve the dispute
in its sole and absolute discretion. If Landlord's Consultant and Tenant's
Consultant shall be unable to agree upon the appointment of the Independent
Consultant within ten (10) days after the end of such fifteen (15) day period,
they shall give written notice of such failure to each of Landlord and Tenant
and if Landlord and Tenant shall fail to agree upon the appointment of such
Independent Consultant within ten (10) days after the Tenant's Consultant and
Landlord's Consultant give such notice, then, within ten (10) days thereafter,
either of the parties upon notice to the other party may apply for such
appointment to the American Arbitration Association in Charlotte, North
Carolina. Landlord and Tenant shall each bear all the respective costs and
expenses of the consultants they respectively choose and shall share equally the
costs and expenses of selecting and authorizing any Independent Consultant. Upon
resolution of any such dispute, Tenant shall accept the Installation Acceptance
Certificate consistent with the Independent Consultant's determination. During
any dispute between Landlord and Tenant as to whether Installation Qualification
has been achieved by Landlord, Tenant shall occupy the Property and commence
paying Basic Rent (to the extent otherwise required under the Lease) as if the
date of Installation Qualification is the date originally designated by
Landlord; provided, however, that Tenant may state that such Basic Rent (or a
portion thereof) is being paid under protest. If the Independent Consultant
determines that the Facility had not achieved Installation Qualification on the
date initially designated by Landlord, (A) the Independent Consultant shall
include in its determination (i) a statement of the percentage of the Property
that was not available to Tenant and its consultants and contractors for the
achievement of Operation Qualification, Performance Qualification and/or Process
Validation for the period in which Tenant occupied the Property prior to
achievement of Installation Qualification by Landlord and (ii) the additional
costs and expense incurred by Tenant to achieve or cause the achievement of
Operation Qualification, Performance Qualification and Process Validation as a
result thereof and (B) Tenant shall be entitled to an abatement of Basic Rent
(i) in proportion to such percentage and (ii) the amount of such additional
costs and expense as determined by the Independent Consultant.
6.3 Substantial Completion Acceptance Certificate. Landlord
guarantees that best efforts will be made so that Substantial Completion will be
achieved on or before the Projected Completion Date. Tenant agrees to accept the
Substantial Completion Acceptance Certificate within twenty (20) days from and
after the date of delivery by the Engineer. Tenant's acceptance of the
Substantial Completion Acceptance Certificate
17
shall not constitute a waiver of any claims that Tenant may have pertaining to
any matter that would not have come to Tenant's attention in connection with a
commercially reasonable diligent investigation of the Property at the time of
Tenant's acceptance of the Substantial Completion Acceptance Certificate. If
Tenant cannot accept the Substantial Completion Acceptance Certificate because
Tenant does not believe the certification required therein to be true with
respect to any significant matter, Tenant shall provide notice to Engineer and
Landlord of the exceptions and qualifications thereto as it deems appropriate
based on a certification from Tenant's Consultant. If Engineer or Landlord's
Consultant disagrees with the exceptions and qualifications taken by Tenant's
Consultant after trying to resolve a disagreement for a period of fifteen (15)
days, then any dispute regarding achievement and/or date of Substantial
Completion may be referred to arbitration by either party in accordance with the
Lease. During the pendency of any such dispute, Tenant may use, occupy and
operate the Property.
6.4 Failure to Timely Proceed with Work. In the event Construction
Contractor is not progressing with its Work in accordance with the Construction
Schedule, and, as a result, the progression of the Work is at a stage that is
more than thirty (30) days behind schedule as provided in the Construction
Schedule, then Landlord shall cause Construction Contractor to take such
measures as are reasonably necessary to accelerate the progression of its Work
to bring the progression of the Work into compliance with the Construction
Schedule. In the event Construction Contractor is not progressing with its Work
in accordance with the Construction Schedule, and, as a result, the progression
of the Work is at a stage that is more than ninety (90) days behind schedule as
provided in the Construction Schedule, then, immediately upon Tenant's notice
and demand, Landlord shall cause such Construction Contractor to be removed and
shall replace such Construction Contractor with a new Construction Contractor
approved in writing by Tenant, in Tenant's reasonable discretion. In the event
Engineer is not progressing with its Work in accordance with the Construction
Schedule, and, as a result, the progression of the Work is at a stage that is
more than thirty (30) days behind schedule as provided in the Construction
Schedule, then Landlord shall cause Engineer to take such measures as are
reasonably necessary to accelerate the progression of its Work to bring the
progression of the Work into compliance with the Construction Schedule. In the
event Engineer is not progressing with its Work in accordance with the
Construction Schedule, and, as a result, the progression of the Work is at a
stage that is more than ninety (90) days behind schedule as provided in the
Construction Schedule, then, immediately upon Tenant's notice and demand,
Landlord shall cause such Engineer to be removed and shall replace such Engineer
with a new Engineer approved in writing by Tenant, in Tenant's reasonable
discretion.
6.5 Failure of Substantial Completion. Notwithstanding anything to
the contrary herein contained, if (i) Substantial Completion of the entire
Facility has not occurred, (ii) one hundred eighty (180) days after the
Projected Completion Date have passed, as extended by Tenant Delay and/or
Excusable Delay, (iii) Construction Contractor is not progressing in its
performance of the Work, and (iv) Landlord's lender is not funding the
performance of the Work, then Tenant may terminate the Lease by
18
giving written notice of such election to Landlord in which event the parties
will have no further obligations and liabilities under this Lease except for
such obligations and liabilities which specifically survive the termination of
the Lease.
6.6 Management Meetings. Landlord and Tenant will attempt to
resolve any disputes, disagreements or claims arising with respect to the
performance of obligations and duties under this Addendum by holding a meeting
of management or executive level representatives within fifteen (15) days of
written notice by a party of the existence of a dispute, disagreement or claim.
Such meetings will not relieve the parties from the performance of their
respective obligations under the Lease or this Addendum. Such meeting shall be
held at the offices of Tenant unless the parties agree otherwise. If as a result
of such meeting Landlord and Tenant are unable to resolve any such dispute,
disagreement or claim, the dispute shall be referred to arbitration in
accordance with the Lease. Landlord and Tenant agree that the arbitration of any
dispute, disagreement or claim arising under this Addendum will not be
consolidated or joined with any other action, arbitration or proceeding and
Landlord and Tenant hereby expressly waive and disclaim any right to request any
such consolidation or joinder.
7. LEASE
7.1 Term Commencement Date. The Term of the Lease will commence
upon the Term Commencement Date. On the Term Commencement Date, Landlord agrees,
that: (a) Landlord will deliver possession of the Facility, free of all leases
and tenancies (except the Lease), occupants, construction lien claims not
discharged or transferred to security within thirty (30) days of the filing
thereof, and material defects in material and workmanship; (b) the Facility will
be in strict compliance with all Legal Requirements; (c) the Property will not
be subject to any Title Exceptions except Permitted Exceptions; and (d) Landlord
will satisfy all those obligations imposed upon Landlord by the provisions of
the Lease and this Addendum which are required to be complied with prior to the
commencement of the Term of the Lease and this Addendum.
8. GENERAL COVENANTS OF LANDLORD
8.1 Compliance with Legal Requirements. From the date hereof until
the Term Commencement Date, Landlord shall, taking into account the then state
of construction, design, construct, own, occupy, lease, manage, maintain,
operate, and insure the Property, or cause the Property to be designed,
constructed, owned, managed, maintained, operated, and insured, in accordance
with all Legal Requirements other than as maybe applicable due solely to a
special use by Tenant and good industry practices.
8.2 Insurance. Landlord will obtain and maintain or will require
Construction Contractor to obtain and maintain, from the date hereof until the
Term Commencement Date, at no cost to Tenant, builder's risk insurance,
automobile liability insurance and commercial general liability insurance
against liability for bodily injury and death and property damage, in reasonable
and customary amounts and forms. Landlord will also provide or cause to be
provided and kept in force workers' compensation coverage with
19
statutory benefits covering employees of Construction Contractor and with such
endorsements as may be reasonably requested by Tenant. Landlord will deliver to
Tenant, promptly as same are issued, true and complete copies or certificates of
all policies of insurance, together with all subsequent endorsements thereto, as
are required to be obtained and maintained by Landlord pursuant to the terms
hereof. Any insurance required by the terms of this Section 8.2 to be carried by
Landlord may be under a blanket policy (or policies) covering other properties
of Landlord and/or its affiliates; provided, however that Landlord will procure
and deliver to Tenant a statement from the insurer or general agent of the
insurer setting forth the coverage maintained and the amounts thereof allocated
to the risks intended to be insured hereunder.
20
Schedule 1
INSTALLATION ACCEPTANCE CERTIFICATE]
21
Schedule 2
PROCESS EQUIPMENT
Landlord and Tenant, respectively, shall be responsible for the
procurement and delivery of, and payment for, the Process Equipment as provided
below. Landlord shall be responsible for the inspection, installation and
testing of all Process Equipment, provided that Landlord shall not be
responsible for the performance of the Tenant's Equipment which is not new.
Landlord shall support and assist Tenant in connection with communication,
interfacing, scheduling and other action involving the manufacturer, vendor or
distributor of the Tenant's Equipment necessary or incidental to the delivery,
installation, start-up and testing of such equipment.
Landlord shall be responsible for the procurement and delivery of, and
payment for, the following Process Equipment:
[LIST]
Tenant shall be responsible for the procurement and delivery of, and
payment for the following Process Equipment (the "Tenant's Equipment"):
[LIST]
22
Schedule 3
REVIEW PLANS AND SPECIFICATIONS
23
Schedule 4
FORM OF SUBSTANTIAL COMPLETION ACCEPTANCE CERTIFICATE
24
Schedule 5
CONSTRUCTION SCHEDULE
25
