BUILD TO SUIT AND LEASE AGREEMENT
Exhibit 10.2
THIS BUILD TO SUIT AND LEASE AGREEMENT (hereinafter referred to as “Lease”) made and entered
into effective as of the 24th day of November, 2010, (the “Commencement Date”) by and between
Forestry Research Holdings, LLC, a South Carolina limited liability company, its successors or
assigns (hereinafter referred to as “Landlord”) and ArborGen Inc., a Delaware corporation, its
successors or assigns (hereinafter referred to as “Tenant”).
W I T N E S S E T H:
IN CONSIDERATION of the rentals, covenants and conditions hereinafter set forth, and intending
to be legally bound thereby, Landlord and Tenant do hereby covenant and agree as follows:
1. Lease of Premises. Landlord does hereby lease and demise to Tenant, and Tenant
does hereby take and hire from Landlord, upon and subject to the terms, conditions, covenants and
provisions hereinafter set forth, all that certain piece, parcel or lot of land consisting of
approximately 13.5 +/- acres (“Land”), and related improvements from time to time thereon
(including, without limitation, the building(s) and improvements to be constructed thereon by
Landlord consisting of approximately 55,000 square feet of office and laboratory building space
thereon) (“Improvements”), situated, lying and being in the County of Dorchester, State of South
Carolina. Said Land is more particularly described on Exhibit A, and said Improvements are more
particularly identified in Exhibit A-1, each attached hereto and incorporated herein by reference
(the Land and Improvements collectively, the “Premises”).
2. Construction of Improvements. Landlord agrees to construct certain Improvements
on the Land pursuant to agreed upon plans and specifications and in accordance with the Work Letter
attached hereto as Exhibit B and incorporated herein by reference.
3. Term. To Have And To Hold the Premises for and during an initial term of
Twenty (20) lease years, beginning with the Full Rent Commencement Date and expiring on the last
day of the month that is Twenty (20) years following the Full Rent Commencement Date as defined in
Section 4 below. At the end of the initial term, provided Tenant is not in default beyond
applicable notice and cure periods hereunder, Tenant shall have the right to extend the term of
this Lease for an additional 10 years (the “Extension Term”) upon the terms and conditions provided
herein upon the giving of written notice to Landlord at least one year prior to the end of such
initial term.
4. Full Rent Commencement Date. The Full Rent Commencement Date of this Lease
shall be on the earlier to occur: (i) the date Tenant opens for business in the Premises; or (ii)
Thirty (30) days after the date upon which the Premises have been Substantially Completed, as such
term is defined in the Work Letter. In connection herewith, it is understood and agreed that every
twelve (12) calendar months from such Full Rent Commencement Date shall constitute a “lease
year”.
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5. Rental. From the Commencement Date until the Full Rent Commencement Date,
Tenant shall pay to the Landlord fixed rent equal to $1.00 per month, payable on the first day of
each month, in advance. Such rental is paid as consideration for Landlord’s agreement to perform
its obligations under this Lease prior to the Full Rent Commencement Date. Provided, however,
except as set forth herein, Tenant shall have no liability for rent or for personal injury or
property damage with regard to the Premises prior to the Full Rent Commencement Date unless arising
by the voluntary act of Tenant or its agents or contractors.
5.1 Annual Rental.
(a) Beginning at the Full Rent Commencement Date and continuing during the initial term of
this Lease, Tenant shall pay to Landlord as annual rental for the Premises, an amount equal to the
greater of (i) $1,000,000.00 (“Minimum Base Rent”); or (ii) ten percent (10%) of Landlord’s
Investment as defined herein, subject to adjustment during the term as more fully provided herein.
The term “Landlord’s Investment” shall be the sum total of (i) Landlord’s purchase price of Land in
the amount of $540,000.00 and the Final Cost of the Work (as defined in Section 5.3(a)); (ii) the
amount of all taxes, insurance, common area maintenance charges or expenses and special assessments
related to the Land or the construction of Improvements paid for by Landlord for the period prior
to the Full Rent Commencement Date and Landlord’s fees paid to third parties to review and/or
procure grants (less the amount of all tax credits and funds granted to Landlord from Dorchester
County or granted to Landlord due to the County’s efforts to obtain economic incentives on Tenant’s
behalf, provided that such tax credits and/or funds do not create any extra cost on the Landlord,
including but not limited to phantom income, and provided such are acceptable to any lender of the
Landlord); and (iii) Landlord’s expenses incurred in financing the construction of the Improvements
and the expenses incurred in connection with the Landlord’s obtaining and maintaining financing in
the principal amount of up to Eleven Million Five Hundred Thousand Dollars ($11,500,000.00) on the
Improvements (the “Maximum Financed Principal”) for all mortgage, construction or other related
loans, including but not limited to any mezzanine debt during the period commencing with the
acquisition of the Land and continuing through Substantial Completion of the Work (“Financing”), as
such expenses may change from time to time to reflect, among other things, increased annual
interest expense of all Financing and other bank charges, but exclusive of fees and expenses
incurred in connection with any refinancing of such Financing, (iv) the required nine percent (9%)
return on the equity provided to the members and investors of Landlord during the period commencing
with the acquisition of the Land and continuing through the Substantial Completion of the Work, and
(v) any other costs incurred by Landlord in connection with the design, engineering and
construction of the Improvements. Landlord’s Financing costs included in Landlord’s Investment (x)
shall be limited to amounts financed (up to the Maximum Financed Principal) under a first mortgage
with TD Bank, N.A. and mezzanine financing with MWV Community Development, Inc. or any combination
of first mortgage and/or mezzanine financing (up to the Maximum Financed Principal) with any bank,
trust company, national banking association, insurance company, pension or retirement trust or fund
or investment company, in all cases unaffiliated with Landlord and acting on its own account or in
fiduciary capacity and upon arm’s-length terms and conditions and (y) shall in no event include
fees, penalties, charges and expenses incurred by Landlord as a result of Landlord’s breach or
default
of any obligation with respect to such Financing. Rent shall be paid in monthly installments
and in no event more than one month in advance.
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(b) Such annual rental as determined under Section 5.1(a) above may vary quarterly following
the Full Rent Commencement Date to reflect the amount, if any, by which the actual interest expense
on the Financing actually paid by Landlord for the prior ninety (90) day period exceeds the rate of
6.25% on the anticipated first mortgage with TD Bank, N.A. for $7,500,000 and 9% on the anticipated
second mortgage with MWV Community Development, Inc. for $4,000,000 (or such other interest rates
as may finally be applicable to the Financing, in the event that loans are obtained from other
sources). Landlord shall xxxx the Tenant for such interest expense difference quarterly, and the
Tenant shall pay such difference to the Landlord as additional rent within thirty (30) days of such
billing.
(c) In addition to the foregoing adjustment, if Landlord receives a grant or tax credit after
the Full Rent Commencement Date, the annual rental payment shall be recalculated and reduced by ten
percent (10%) of the acceptable amount of such grant or such credits retained by Landlord (referred
to herein as “Grant Adjustments”). Landlord shall provide ninety (90) days prior written notice to
Tenant of such Grant Adjustments in annual rental. Such Grant Adjustments shall be prorated across
each lease year for which such Grant Adjustment is applicable and the Monthly Rental defined below
shall be adjusted accordingly. In no event shall the Grant Adjustments reduce the amount of
Minimum Base Rent provided under Section 5.1(a) above.
5.2 Rental Cap. Landlord and Tenant agree that Landlord’s Investment shall not exceed
$14,300,000.00 (“Maximum Landlord’s Investment”). The current estimate of Landlord’s Investment,
including the complete current estimate of the Cost of the Work (“Estimated Cost of the Work”), is
attached to the Work Letter attached as Exhibit B to this Lease.
| 5.3 | Cost of the Work. |
(a) As used herein, the term “Cost of the Work” shall have such meaning as set forth in the
Work Letter.
Landlord and Tenant agree and understand that the Estimated Cost of the Work may be adjusted
for approved changes in the Work in accordance with the terms of the Work Letter attached hereto
and for any mutually approved cost savings or cost increases that may be incurred during Landlord’s
performance of the Work. The Cost of the Work as adjusted as provided herein shall comprise the
“Final Cost of the Work”.
(b) Changes to the Original Estimated Cost of the Work — If costs to perform the Work
as shown on the Original Plans & Specifications attached to the Work Letter change from the
Estimated Cost of the Work attached to the Work Letter, Landlord and Tenant will allocate such
changes in the Costs of the Work equally between them on a 50/50 basis, provided that if such
changes in the Cost of the Work for the Original Plans & Specifications cause Landlord’s Investment
to exceed the Maximum Landlord’s Investment, Landlord shall be solely responsible for such excess.
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(c) Changes to Cost of Work During Design and Construction. During the course of
development and construction, Landlord and Tenant will continue to exercise their best efforts to
reduce the Cost of the Work. These cost savings will be accomplished by renegotiating lower prices,
altering or modifying the types of materials used or equipment installed, altering or modifying the
methods of installation of materials and equipment, and renegotiating costs for labor and expenses
in providing construction, installation and other items involved in providing such services and
improvements. If the Cost of the Work shall increase or decrease during the course of design and
construction after establishing the Cost of the Work for the Original Plans & Specifications as
provided in paragraph 5.3(b) above, except as a result of a Scope Change as provided in Section
5.3(d) below, Landlord and Tenant will allocate such changes in the Cost of the Work equally
between them on a 50/50 basis, except that if the savings are for items within Landlord’s contract
with the General Contractor (as defined in the Work Letter) such costs shall be divided with 40% to
Landlord, 40% to Tenant, and 20% to said contractor. Any cost increases shall be credited against
any identified cost savings. If such increases are more than the cost savings, they shall be added
to the Cost of the Work. However, if at any time the then-estimated Cost of the Work causes
Landlord’s Investment to be increased to an amount greater than the Maximum Landlord’s Investment,
except as a result of a Scope Change under Section 5.3(d) below, Landlord shall be solely
responsible for such excess.
(d) Scope Changes — In the event that the Cost of the Work shall be increased or decreased as
a result of a Scope Change (as defined in the Work Letter) requested by Tenant or required by the
implementation of the CCR’s (as defined in Paragraph 6 hereof), provided that such increased
expense due to the CCR’s allocable to Tenant shall in no event exceed $150,000.00, any such savings
shall be allocated 50% to Tenant and 50% to Landlord, and any increase shall be allocated 100% to
Tenant, paid to Landlord within thirty (30) days of receipt of an invoice for such from Landlord
and offset upon Substantial Completion by any identified cost savings. The Landlord shall rebate
the Tenant net cost savings allocable to the Tenant within thirty (30) days of Substantial
Completion to the extent that such rebate is permissible with Landlord’s lenders.
5.4 Rental Payments. (a) Rental for the initial term beginning with the Full Rent
Commencement Date shall accrue from the Full Rent Commencement Date and shall be payable in equal
monthly installments on the first day of each month thereafter in advance, without notice,
reduction or offset except as otherwise provided in this Lease (“Monthly Rental”).
(b) The rental rate during the Extension Term, if any, shall be equal to the fair market
rental value of the Premises as agreed upon between Landlord and Tenant, exclusive of any
additional improvements constructed by and owned by Tenant.
(c) Any other sums payable by Tenant to Landlord under this Lease shall be deemed to be
additional rent.
6. Use of the Premises. Tenant shall have the right to use the Premises for any
lawfully permitted use, provided that Landlord acknowledges that Tenant contemplates using the
Premises for research, development and production laboratories and
facilities related to biotechnology, plant genetics, agricultural products, plant material, germplasm, seedlings and
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administrative office space, provided that, subject to Landlord’s obligations under the Work
Letter, Tenant shall be responsible for obtaining and maintaining any and all permits and approvals
required for the particular operation of Tenant’s business on the Premises. Tenant acknowledges
such contemplated use and is satisfied as to its ability to such use based upon its prior
investigation of the statutes, permits and regulations affecting such. Tenant covenants and agrees
not to occupy or use or permit the Premises to be occupied or used contrary to any statutes, rules,
order, ordinance, requirement or regulation applicable thereto, and the use must comply with
reciprocal easement agreements, covenants and the other Permitted Encumbrances (as defined in
Section 47). Landlord shall not enter into any reciprocal easement agreements, covenants or any
restrictions which may restrict the use of the Premises and any Tenant Improvements without
Tenant’s prior consent, not to be unreasonably withheld. Landlord has provided to Tenant prior to
execution of this Lease and Tenant has approved all existing Permitted Encumbrances.
Tenant acknowledges that the Premises constitute a portion of the Pine Hill Commerce Park, and are
subject to the Declaration of Protective Covenants, Conditions and Restrictions for Pine Hill
Commerce Park (together with the By-Laws and Architectural Standards, the “CCR’s”), a draft copy of
which, dated July 1, 2010, have been previously provided to Tenant. Tenant shall pay to Landlord
as additional rent, within thirty (30) days after invoice from Landlord, accompanied by copies of
the billing from the Board of Directors of the Association under the CCR’s, all Assessments
required to be paid by any Owner under the CCR’s, excluding any fees, fines and penalties arising
as a result of Landlord’s breach of its obligations as Owner of the Land under the CCR’s. Landlord
shall not approve any amendments or modifications to such draft CCR’s that would materially
adversely affect Tenant’s use of the Premises for the normal conduct of its business. Before taking
any action under the CCR’s in its capacity as Owner of the Premises under the CCR’s that would
impact or affect Tenant’s rights and obligations under this Lease or its use of the Premises,
Landlord shall obtain the prior written consent of Tenant and any mortgagee of Landlord, not to be
unreasonably withheld.
7. Maintenance and Repair. Subject to Landlord’s obligations under the Work Letter
with respect to the initial Work, and except for any items covered by any builder’s warranty and
during the term of such warranty, Tenant covenants and agrees that it will, at its own expense,
keep and maintain in good order, condition, and repair, all portions of the Premises including, but
not limited to, the roof and structure, parking lot, landscaped areas, plumbing, air-conditioning,
heating and electrical equipment and improvements. On or before ninety (90) days following the Full
Rent Commencement Date, Landlord shall provide Tenant with copies of any builder’s warranties
related to the Work, and Landlord shall provide all “as built” drawings for the Premises in
accordance with the Work Letter. Neither Landlord nor Tenant shall take any action which will
jeopardize coverage under or would violate the terms of any such warranty on the Improvements.
8. Alterations and Improvements. Subsequent to completion of the initial
Work,Tenant shall have the right and privilege to make such alterations, improvements,
additions and changes, structural or otherwise, during the term of this Lease, at its own cost and
expense, in and to the Premises in such manner as it may deem necessary or convenient to promote
the interests of its business (“Tenant Improvements”); provided, however, that the following tenant
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improvements must first be submitted to Landlord and any mortgagee of the Landlord for their
written approval, not to be unreasonably withheld, conditioned or delayed: (a) pertinent plans for
material changes to the structural or exterior portions of the building or to the parking areas
constructed by Landlord as Improvements, and (b) pertinent plans for any removal, modification or
addition of Tenant Improvements to the initial Work or other portions of the Premises that cause a
material decrease in the value of the Premises. For clarification, structural changes that
compromise the re-usability of the Building or changes that will result in a material decrease in
the value of the Building could be reasons for withholding approval. Unless objections to such
changes from any mortgagee of the Landlord are received by the Tenant and the Landlord within
twenty (20) days of receipt of notice thereof from the Tenant, such mortgagee shall be deemed to
have accepted them. Except as noted below, any alterations, improvements, additions or changes made
to the Premises by or for Tenant under the terms of this paragraph shall attach to the realty and
become the property of Landlord at and upon termination of this Lease unless removed by Tenant as
permitted in this Lease. Notwithstanding anything to the contrary herein, Tenant shall have the
right to construct greenhouses and similar structures on other portions of the Land. Any licensed
contractor hired by Tenant shall perform any work in a xxxxxxx-like manner. Any exterior
greenhouses or similar structures constructed by Tenant shall be property of Tenant and may be
removed by Tenant at the termination of this Lease.
9. Lien Obligation. If any mechanic’s, materialmen’s, or other similar lien is
filed against the Premises as a result of any work performed by or on behalf of Tenant, except for
any improvements to be constructed by Landlord for Tenant, Tenant shall discharge, bond or
otherwise remove such mechanic’s, materialmen’s, or other lien within twenty (20) days after
receipt of notice thereof; provided, however, Tenant shall have the right to contest any such lien
by the institution of appropriate legal proceedings or otherwise, as long as Landlord’s interest in
the Premises is not threatened. Tenant shall have no authority, expressed or implied, to encumber
or subject the Premises or the interest of Landlord in the Premises to any mechanics’,
materialmen’s, or other liens of any nature whatsoever and shall indemnify, defend, and hold
harmless and keep indemnified Landlord against all such liens, charges and encumbrances, including
legal counsel fees. Notwithstanding anything in this paragraph to the contrary, Tenant may enter
into financing obligations securing Tenant Improvements which constitute personalty only; provided
any liens related to such personalty do not affect, restrict or encumber the Land or the
Improvements. In such event, Landlord will execute and deliver to Tenant’s lender a subordination
agreement in form and content reasonably satisfactory to Landlord subordinating Landlord’s interest
in such personalty and any other personal property of Tenant located at the Premises to the
security interest of Tenant’s lender. Landlord hereby further agrees that Landlord shall have no
lien or other interest in any trade fixtures, specialty equipment, intellectual property or other
specialized personal property unique to Tenant’s business and operations at the Premises and
Landlord hereby waives any such lien rights or other interest.
Landlord shall be responsible for and shall discharge, bond or otherwise remove any
mechanic’s, materialmen’s, or other liens against the Premises filed as a result of work performed
in construction of Improvements by Landlord within twenty (20) days after receipt of notice
thereof. Landlord shall deliver the Improvements on the Premises free from such liens as of the
Full Rent Commencement Date. Fines, penalties and other like charges attributable to any
such liens shall be borne by the Landlord and shall not be included in Landlord’s Investment,
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unless any such charges are otherwise included in the Construction Budget or are attributable to
acts or omissions of the Tenant.
10. Removal of Trade Fixtures and Equipment. Tenant shall have the right to place
or install in or upon the Premises such trade fixtures and equipment as it shall deem desirable for
the conduct of its business, and all trade fixtures and equipment so placed in or upon the Premises
at the expense of Tenant (whether or not readily removable) shall remain the property of the
Tenant, and shall be removed by Tenant on or before the expiration or termination of this Lease.
In the event such removal shall cause damage or disfigurement to the walls, ceilings or floors of
the Premises, the cost of repairing the same shall be borne by Tenant and Tenant shall perform such
repairs prior to the expiration of the Lease. Tenant may remove its furniture, trade fixtures and
equipment from the Premises prior to the termination of this Lease, provided that Tenant shall
repair, at Tenant’s expense, any damage caused by such removal. Landlord shall not be responsible
for any loss or damage occurring to any property owned by Tenant or any Subtenant, assigns,
licensee, or other parties unless damage was a direct result of the gross negligence or willful
misconduct of Landlord or its representatives. All fixtures and equipment described in the Plans
and Specifications for the Premises, paid for by the Landlord shall remain the property of
Landlord.
11. Surrender of Premises. Upon the expiration of this Lease, and except as set
forth in Section 15, Tenant shall surrender the Premises to Landlord in good order and condition,
reasonable wear and tear excepted. If there are damages, then Tenant must repair prior to
surrender, unless Landlord agrees to accept cash in the amount of anticipated repairs.
12. Assignment and Subletting. Prior to assigning this Lease or subletting all
or a portion of the Premises, Tenant must obtain the prior written consent of Landlord in each
instance, which consent shall not be unreasonably withheld, conditioned or delayed, provided (i)
the proposed assignee or subtenant has adequate financial strength to meet the commitments set
forth in the proposed assignment or sublease, (ii) such assignment or subleasing shall not in any
way modify the terms of any guaranties for this Lease, and (iii) such assignment or subleasing is
acceptable to the Guarantors described in Section 48 of this Lease, Landlord and to any lender of
the Landlord with a mortgage on the Premises. If Tenant assigns this Lease as set forth herein or
sublets all or a portion of the Premises, then Tenant shall remain fully liable hereunder for any
obligation whether past, present or future, unless released from such obligations by Landlord and
Guarantors. Consent to any assignment or subletting for which Landlord’s consent is required shall
not be deemed consent to any subsequent assignment or subletting. Any assignee or subtenant
hereunder shall expressly assume in writing all obligations on Tenant’s part to be performed under
this Lease from and after the effective date of the assignment or subletting. Notwithstanding the
above, Tenant may assign this Lease or sublet all or any portion of the Premises to any affiliate
or to an entity that acquires Tenant’s business, without Landlord’s consent, provided that Tenant
provides Landlord with satisfactory evidence of the consent to such assignment or subletting by all
Guarantors of this Lease and provided further that no such assignment of this Lease shall be deemed
to release the Tenant or any Guarantor of the Lease. “Affiliate” shall have the meaning as defined
in 11 U.S.C. § 101, as in effect from time to time, except that the term “Tenant” shall be
substituted for the term “Debtor” therein.
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13. Taxes.
(a) Commencing on the Full Rent Commencement Date, Tenant shall be responsible for the
prompt payment of all real estate taxes, assessments and special assessments levied, assessed or
imposed upon the Premises, upon all improvements erected thereon, and equipment and shall pay such
taxes when the same shall become due and payable. A pro rata adjustment shall be made with respect
to the commencement and ending of Tenant’s tax liability if the commencement or ending of Tenant’s
liability does not coincide with the tax year. Upon failure of Tenant to make timely payment of any
taxes or assessments due, Landlord shall have the right to advance the amounts required for payment
directly to the authorities making such levy or assessment, and shall add the amount so paid, plus
any interest and penalty imposed, to the rental accruing to the Landlord hereunder for the next
succeeding month or months as the case may be. Both Landlord and Tenant shall have the right to
diligently contest in good faith by proper legal proceedings any tax assessment, levy or other
governmental charge or imposition, the expense of which shall be paid by the party desiring to so
contest. In connection herewith, Landlord and Tenant agree, at the expense of the protesting
party, to cooperate and to execute and deliver all appropriate papers, documents or other
instruments which may be necessary or proper to permit said party to contest any such tax
assessment or levies.
(b) Provided that such action on the part of the Tenant does not adversely affect the
Landlord and is acceptable to any lender of the Landlord, Tenant shall have the right to attempt to
reduce the ad valorem taxes and other impositions for the Premises by participating in the Fee In
Lieu Of Taxes (“FILOT Program”) pursuant to Title 4, Chapter 1, Title 4, Chapter 12, or/and Title
12, Chapter 44 of the Code of Laws of South Carolina 1976 (the “Code”), with respect to the ad
valorem taxes assessed (or to be assessed) against the Premises and the equipment, trade fixtures
and other tangible personal property proposed to be used by Tenant in connection with its use and
occupancy of the Premises, available through the County of Dorchester, South Carolina. In
addition, Tenant shall have the right to attempt to further reduce the ad valorem taxes imposed on
the Premises by making application to have all or a portion of the Premises qualified as
agricultural real property as that term is defined in Title 12 of the Code.
(c) Landlord and Tenant shall use commercially reasonable efforts to diligently pursue all
necessary approvals for the Premises for the FILOT Program and/or the agricultural real property
designation. The approvals may require applications by both Landlord and Tenant. Landlord and
Tenant acknowledge and agree that Landlord has agreed to pursue such approvals solely as an
accommodation to Tenant. Tenant shall be responsible for paying all fees in connection therewith.
Landlord agrees to provide Tenant and Dorchester County such information concerning Landlord and
the Premises as may be reasonably required by Tenant or Dorchester County in connection with such
approvals, to join in such applications and support the same in such capacity and manner as may be
reasonably required by Tenant and Dorchester County. Landlord will cooperate with Tenant in its
attempt to participate in the FILOT Program and/or agricultural real property designation but
Landlord shall not be obligated to incur any expenses in connection with such cooperation, except
as provided above.
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(d) In the event that Tenant is successful in making the Premises part of the FILOT
Program and/or receiving the agricultural real property designation, Landlord shall pass through to
Tenant all reductions or abatements applicable to the Premises. Except in the event of default by
Tenant under this Lease beyond any applicable notice and cure periods, Landlord agrees not to alter
or modify such incentives without the prior written consent of Tenant and agrees to follow Tenant’s
written instructions as to the implementation and use of such incentives, including, but not
limited to, the allocation of infrastructure improvement credits, provided, however, that all
reasonable costs incurred by Landlord in connection with following Tenant’s instructions or
otherwise in connection with obtaining and implementing such economic development incentives shall
be paid for by Tenant as additional rent hereunder.
14. Insurance/Indemnification. (a) Tenant agrees to defend, indemnify and/or hold
and save Landlord harmless at all times during the initial term and any renewal terms hereof from
and against any and all loss, damage, cost or expense on account of any claim for injury (including
death) or damage either to person or third party property sustained by Landlord or by any other
person which arises out of the use and occupancy of the Premises by Tenant (except those resulting
from Landlord’s unlawful or negligent acts). In connection herewith, commencing on the Full Rent
Commencement Date, Tenant at its own cost and expense shall provide and keep in force with Landlord
as an additional insured, a general liability policy or policies in standard form protecting Tenant
and Landlord against any and all liability occasioned by accident or disaster with minimum limits
of $2,000,000 (per occurrence) / $5,000,000 (general aggregate), which amounts may be satisfied
through primary and umbrella coverage. A renewal policy shall be secured not less than thirty (30)
days prior to the expiration of any policy.
Prior to the Full Rent Commencement Date and during the period of construction of the Improvements,
Landlord will carry or will cause its contractor to carry builder’s risk insurance in amounts and
with carriers reasonably satisfactory to Landlord and Tenant on buildings and all improvements on
the Premises and for all Improvements constructed by Landlord, shall name Tenant as an additional
insured against hazards customarily insured against by builder’s risk coverage type of insurance as
now contained in policies in effect in the state where the Premises are located in an amount equal
to not less than the full replacement value of all Improvements constructed by Landlord on the
Premises, and to pay the premium or premiums on said insurance promptly when due. Landlord and
Tenant acknowledge that proceeds from any such policy will be made payable first to any secured
lender of the Landlord. Landlord shall provide to Tenant copies of insurance certificates upon
request.
(b) Commencing on the Full Rent Commencement Date, Tenant covenants and agrees to carry fire
and extended coverage insurance (including coverage for damage by flood (if the Building is located
in a flood zone), hurricane and business interruption (in at least the amounts of the annual rental
amounts due under this lease)) in amounts and with carriers reasonably satisfactory to Landlord on
buildings and all improvements on the Premises and for all Improvements constructed by Landlord,
shall name Landlord and any secured lender to the Landlord as additional insureds against hazards
customarily insured against by fire and extended coverage type of insurance as now contained in
policies in effect in the state where the Premises are located in an amount equal to not less than
the full replacement value of all Improvements constructed by Landlord on the Premises, and to pay
the premium or premiums on said insurance
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promptly when due. Landlord and Tenant acknowledge that proceeds from any such policy (excluding
any proceeds allocable to any personal property of Tenant, improvements constructed by Tenant and
any business interruption coverage) will be made payable first to any secured lender of the
Landlord. Tenant shall provide to Landlord copies of insurance certificates upon request.
(c) All insurance which Tenant shall, or is obligated to, maintain under the terms and
provisions of this Lease shall (i) name Landlord, any lender to Landlord (through an additional
insured endorsement), and such other persons or firms as shall be specified by Landlord from time
to time, as additional insureds; (ii) shall be issued by insurance companies licensed in the State
of South Carolina and having an A.M. Best rating of A:XV or better or the equivalent thereof; (iii)
shall not have a deductible amount exceeding $50,000; and (iv) specifically provide that the
insurance afforded by such policy for the benefit of Landlord and Landlord’s mortgagees, shall be
primary and any insurance carried by Landlord and Landlord’s mortgagees shall be excess and
non-contributing. If Tenant provides any insurance required by this Lease in the form of a blanket
policy, Tenant shall furnish satisfactory proof that such blanket policy complies in all respect
with the provisions of this Lease, and that the coverage thereunder is at least equal to the
coverage which would be provided under a separate policy covering only the Leased Premises. Tenant
shall deposit the certificates of such insurance with Landlord at least five (5) days prior to
Tenant taking possession of the Leased Premises or entering the Leased Premises on a regular basis
and shall deposit copies of the policy or policies of such insurance within thirty (30) days of the
Full Rent Commencement Date. Should Tenant fail to purchase the insurance called for herein and to
deliver said policies, certificates or duplicates thereof, to Landlord, Landlord shall have the
right at its option, upon written notice to Tenant, in addition to all other rights or remedies
available to Landlord hereunder, to procure said insurance, and pay the requisite premiums
therefore, in which event, Tenant shall pay all sums so expended by Landlord to Landlord as
Additional Rent upon demand. All such policies shall, to the extent obtainable, contain an
agreement by the insurers that such policies shall not be canceled without at least thirty days
prior written notice to Landlord and to the holder of any mortgage to whom loss hereunder may be
payable.
15. Loss by Fire or Other Casualty. Except as otherwise set forth below, if the
Improvements on the Premises shall be damaged or destroyed by fire or other casualty after the Full
Rent Commencement Date, Tenant, within a reasonable time from the date of such damage or
destruction, shall make necessary alterations, repairs and/or replacements to such Improvements for
the purpose of restoring said Improvements to the same condition such Improvements were in
immediately prior to such fire or other casualty loss, but no casualty shall affect Tenant’s
liability to pay the full amount of Rent as provided in this Lease. The Rent herein required to be
paid by Tenant shall not xxxxx during any period of untenantability caused by such damage or
destruction. If, (i) in the reasonable judgment of Tenant, the damage to such Improvements is such
that same cannot be restored and repaired or replaced within a period of two hundred (200) days and
(ii) either any insurance proceeds are sufficient to pay off any existing loan secured by a
mortgage against the Premises or Tenant agrees to and does pay any difference between such proceeds
and the outstanding amount of such loan, then Tenant may, by written notice to Landlord, terminate
the Lease as of the date of the damage, with insurance proceeds allocated toward repair of the
Premises being paid to Landlord, or upon request by Landlord’s mortgagee, directly to such
mortgagee, in an
amount applicable to covered loss. If this Lease is not so cancelled, then such insurance proceeds
PAGE 10
shall be applied to such restoration and repairs, subject to and in accordance with the
disbursement procedures set forth in Section 2.06 of the first mortgage given to TD Bank, N.A. If
the Premises are to be restored but, because of a Force Majeure Event, the completion of such
restoration and repairs is delayed, then the time for completion of such shall be extended
accordingly but the obligation to pay Rent shall continue unabated. If more than fifty percent
(50%) of the Improvements or a material portion or critical area of the Premises are destroyed in
the last two (2) years of any term, Tenant may terminate this Lease, whereupon all rents herein
provided shall xxxxx, but insurance proceeds shall apply to the covered loss according to the terms
and conditions of the applicable policy and such insurance proceeds shall be paid to Landlord or to
Landlord’s lender as may be provided in any agreements between Landlord and Landlord’s lender.
Tenant shall be responsible for insuring and maintaining and replacing its own fixtures and
equipment as well as its greenhouses and similar exterior structures.
16. Force Majeure Events. In the event a party is unable to performs its
obligations under this Lease due to inclement or severe weather condition, natural disaster, act of
war or terror, labor disputes/strikes, Act of God, insurrection, civil commotion, riot, or
unavoidable casualty (including casualty not covered by insurance coverage described above) such
condition referred to herein as “Force Majeure Event” then such party shall be excused from
performing its obligation hereunder other than the payment of Rent.
17. Waiver of Subrogation. Landlord and Tenant each waive any claim it may have
against the other for any loss or damage to its property, whether caused by the negligence or fault
of the other party, to the extent said loss is covered by any insurance which the waiving party is
required to obtain hereunder or which such party actually maintains, whichever is greater. Each
party shall cause its insurance carrier to waive any right of recovery against the other for any
loss of or damage to property which loss or damage is covered by insurance (or, if the insurance
required hereunder had been carried, would have been so covered). For purposes of this Section 17,
any deductible with respect to a party’s insurance shall be deemed covered by, and recoverable by
such party under, valid and collectable policies of insurance.
18. Condemnation.
(a) If all or any portion of the Premises is taken under any condemnation or eminent
domain proceeding and if the remaining portion thereof is, in the reasonable judgment and
discretion of Tenant, unusable or inadequate for Tenant’s purposes, this Lease shall terminate on
the date which said Premises or such portion thereof is so taken and the rental shall be accounted
for between Tenant and Landlord as of such date provided that the amount of such award is
sufficient to pay off the debt owed to any lender of the Landlord with a first mortgage on the
Premises in full. For the purpose of this section “unusable or inadequate” shall be defined as a)
loss of access to the Premises; or b) loss of a material portion or critical area of the Land or
the Improvements. In the event that this Lease shall not so terminate, the rent shall equitably
xxxxx from the date of such taking. In the event of a taking of the entire Premises or such
portion thereof that the Premises is rendered unusable or inadequate for Tenant’s purposes, Tenant
shall
be entitled to share in any condemnation award made to Landlord to the extent such award includes
an award for leasehold improvements to the Premises made by Tenant during the term
PAGE 11
of this Lease,
or the installation cost of Tenant’s fixtures and equipment in and to the Premises. Tenant’s share
of such award shall be reduced by the condemnation award, if any, that may be made directly to
Tenant by the condemning authority.
(b) Notwithstanding the foregoing, if a portion of the Premises is taken that renders the
balance unusable or inadequate and if Tenant shall elect to terminate this Lease in accordance with
Section 18(a) above, Landlord may notify Tenant, by written notice, that Landlord then owns or
controls substitute land contiguous to the Land that Landlord could improve, at Landlord’s sole
cost and expense, to replace the portion of the original Land taken in such condemnation or eminent
domain proceeding. In such case, if such contiguous land will be of equal or better utility to
Tenant as the portion taken by the taking authority, as determined by Tenant in its reasonable
discretion, and will be delivered within a time frame reasonably acceptable to Landlord and Tenant,
then this Lease shall not terminate but shall remain in full force and effect, provided that
Landlord shall deliver such additional land within the time period estimated by Landlord and such
substitute land shall be deemed part of the Premises for all purposes.
(c) In the event of a termination of this Lease, as hereinabove provided, it is understood
and agreed that any such termination shall be without prejudice to the rights of either Landlord or
Tenant to seek a separate award and recover from the condemning authority compensation for such
damage caused by condemnation, it being further understood and agreed that neither shall have any
rights in the award made to the other by any condemnation authority, except as expressly provided
for hereinabove.
19. Events of Default. (a) The following shall be deemed to be events of default
by Tenant under this Lease: (i) Tenant or any Guarantor of this Lease shall file or any creditor of
Tenant on behalf of Tenant shall file any petition under any applicable federal or state bankruptcy
or insolvency law, or Tenant shall be adjudicated bankrupt, or a receiver of the business or assets
of Tenant shall be appointed and such filing, adjudication or appointment shall not be vacated
within ninety (90) days after notice thereof to Tenant, or Tenant makes an assignment for the
benefit of creditors; (ii) Tenant shall fail to make any payment of Rent when due and such failure
is not cured within ten (10) days following receipt by Tenant and each Guarantor of written notice
thereof by Landlord, provided, however, that Landlord shall not be obligated to give such notice
and right to cure to Tenant and each Guarantor more than two (2) times per lease year; or (iii)
except for the payment of Rent, Tenant shall fail to comply with any term or condition of this
Lease and such failure is not cured within thirty (30) days following the giving of written notice
thereof by Landlord to Tenant and all the Guarantors (unless such failure is not monetary and is of
such a nature that it will require more than thirty (30) days to cure, in which case such cure
period shall be extended for so long as Tenant shall promptly commence and diligently prosecute the
cure of such failure, and while doing so shall continue to perform all of its monetary obligations
hereunder).
(b) The following shall be deemed events of default by Landlord under this Lease: (i) Landlord
fails to pay when due any sum due to Tenant hereunder, which failure continues for a
period of ten (10) days after receipt of written notice of such failure from Tenant to
Landlord, or (ii) Landlord fails to keep, perform or observe any of the other covenants to be kept,
observed or
PAGE 12
performed by Landlord under this Lease, which failure continues for a period of thirty
(30) days after written notice of such failure from Tenant to Landlord (unless such failure is of
such a nature that it will require more than thirty (30) days to cure, in which case such cure
period shall be extended for so long as Landlord shall promptly commence and diligently prosecute
the cure of such failure, and while doing so shall continue to perform all of its monetary
obligations hereunder); provided, however, that Tenant shall continue to perform all of its
monetary obligations under this Lease and no such default shall excuse Tenant from the payment of
Rent so long as a mortgage outstanding against Landlord’s interest in the Property.
20. Landlord Remedies. If a Default of Tenant occurs, Landlord, upon giving Tenant
written notice of default and applicable opportunity to cure, may, without waiving any other rights
hereunder or available to Landlord at law or in equity (Landlord’s rights being cumulative), do any
of the following:
(a) With or without terminating the Lease, reenter the Premises and retake possession of the
same and any and all personal property of Tenant (except for Tenant’s trade fixtures, its specialty
equipment, its intellectual property, or its other specialized personal property) located on the
Premises, with or without legal process, by summary proceedings, ejectment or otherwise, and may
accelerate the rent due for the balance of the Term and Landlord shall have no duty to mitigate any
loss of rent. Tenant’s liability under the Lease shall survive Landlord’s re-entry and
repossession of the Premises, the institution of summary proceedings, and the issuance of any
warrants with respect thereto. Landlord may relet the Premises on such terms and conditions (which
may include concessions or free rent or alterations of the Premises) as Landlord, in its sole
discretion, may determine. If the full rental reserved under this Lease and any of the costs,
expenses or damages described below shall not be realized by Landlord, Tenant shall be liable for
all damages sustained by Landlord, including any rent deficiency. For purposes of the deficiency
in Rent that would have been due under this Lease during any period following Landlord’s election
to accelerate rent, deficiency means the future Rent that would have been payable under this Lease
for the balance of the term, discounted to present value as of the date of acceleration based on an
interest rate of 5%. If, at the time that damages are to be determined under this Section Landlord
has relet the Premises in whole or in part, then the deficiency in Rent means the excess of the
future rent that would have been payable under this Lease over the future rent called for in the
re-lease during the remainder of the term and the deficiency shall be discounted to net present
value based on an interest rate of 5%. Tenant also shall be liable for all of the Landlord’s costs
associated with Tenant’s default and any attempts by Landlord to relet the Premises, including
Landlord’s reasonable attorney’s fees, brokerage fees, construction costs, tenant allowances, and
expenses incurred in taking the actions set forth in this Section in order to place the Premises in
first class condition and to re-let the Premises. Landlord, in preparing the Premises for
reletting, may make alterations, repairs or replacements in the Premises as Landlord determines
advisable, and the making of the alterations, repairs or replacements shall not operate to release
Tenant from liability under this Lease. Landlord shall not be liable for failure to relet the
Leased Premises, or, in the event that the Leased Premises are relet, for failure to collect the
rent under reletting. Tenant shall not be entitled to receive the excess or any credit with
respect to the excess, if any, of net rent collected over the sums payable by Tenant to Landlord.
PAGE 13
21. Tenant Remedies. If a default of Landlord occurs, Tenant, upon giving written
notice of default to the Landlord and applicable opportunity to cure such default, may without
waiving any other rights hereunder, seek any of the following remedies: (a) Tenant may bring suit
to collect any amounts due from Landlord or for the specific performance of Landlord’s duties and
obligations under this Lease; (b) Tenant may proceed to cure such default and demand payment of
such amounts from Landlord and upon such demand, Landlord agrees to reimburse Tenant immediately
for such amounts. In no event, however, shall Tenant have the ability to set off Rent against any
damages which Tenant may have sustained as of result of such default.
22. Operation. Any provision of this Lease to the contrary notwithstanding,
Tenant shall not be required to make any use of the Premises or to continuously occupy the Premises
or operate therein, and Tenant shall not be liable to Landlord for the failure of Tenant to open
for business or to make any use of the Premises or to operate in or occupy the Premises during any
particular hours or at all. Provided, however, that Tenant shall keep applicable utilities on at
the Premises, maintain its security and its landscaping, maintain applicable insurance coverage on
it and keep it properly heated and cooled at all times.
23. Landlord’s Right of Entry. Tenant agrees that Landlord or its agents or
representatives shall have the right with at least twenty-four (24) hours written notice to enter
into and upon the Premises or any part thereof during regular business hours for the purpose of
inspecting the same to ensure that the covenants and conditions of this Lease are being complied
with or showing Premises to prospective purchasers. Landlord agrees it shall not have the right to
show the Premises to prospective tenants or occupants without Tenant’s prior consent unless such
showing is to occur after Tenant has elected not to exercise its option to renew this Lease in
accordance with Section 3 above. In the case of emergency, no such notice is necessary. Except in
case of emergency, Landlord’s right to enter the Premises is subject to Tenant’s security
procedures and proprietary technology and confidentiality requirements.
24. Licenses, Utility Charges, Etc. Tenant shall make payment of all sums due on
account of utility services provided to the Premises, including but not limited to water, gas,
electric and janitorial services as they shall accrue and be due and payable. Tenant agrees to pay
its telephone and other communication charges. Tenant agrees to make payment of all sums due on
account of occupational licenses and other licenses or permits necessary in the operation of the
business to be conducted on the Premises. Landlord shall not take, or grant any permission or
consent for any person or entity to take, any action that may interrupt or interfere with any
utility service to the Premises except as may occur in connection with bona fide emergencies. In
no event shall Landlord be liable for any interruption or failure in the supply of any utilities or
services to the Premises as long as interruption or failure is not due to the direct actions of
Landlord.
25. Signs. Tenant shall have the right, at its own cost and expense, throughout
the term of this Lease to install and maintain signs at such places upon the Premises as Landlord
may approve, such approval not to be unreasonably withheld provided said installation complies with
the laws and the CCR’s. Upon the expiration of this Lease, Tenant shall remove any such
signs placed upon said Premises and shall repair any damage to the Premises caused by the erection
or removal thereof.
PAGE 14
26. Indemnity of Landlord. Landlord agrees to indemnify and hold Tenant harmless
against any and all expenses, loss or liability paid, suffered or incurred as a result of any
breach by Landlord of any covenants or conditions of this Lease or the gross negligence or
intentional misconduct of Landlord, its agents, contractors or employees. Landlord further agrees
to indemnify, defend and hold Tenant harmless from and against all direct and actual costs,
damages, expenses, losses, fines, liabilities, and reasonable counsel fees paid, suffered or
incurred as a result of any of the above described claims or any actions or proceedings brought
thereon; and in case any action or proceeding is brought against Tenant by reason of any such
claim, upon notice from Tenant, Landlord agrees to resist or defend at Landlord’s expense such
action or proceeding by counsel reasonably satisfactory to Tenant.
27. Indemnity of Tenant.
(a) Tenant agrees to indemnify, defend, and hold Landlord harmless from and against any
and all claims as a result of or arising out of: (i) the breach by Tenant or any of its agents,
contractors, employees or licensees of any covenant or agreement of this Lease on the part of
Tenant to be performed or observed; (ii) Tenant’s use or occupancy of the Premises or any part
thereof; or (iii) the negligence, gross negligence or intentional misconduct of Tenant or any of
its agents, contractors, employees or licensees.
(b) Tenant further agrees to indemnify, defend and hold Landlord harmless from and against
all direct and actual costs, damages, expenses, losses, fines, liabilities, and reasonable counsel
fees paid, suffered or incurred as a result of any of the above described claims or any actions or
proceedings brought thereon; and in case any action or proceeding is brought against Landlord by
reason of any such claim, upon notice from Landlord, Tenant agrees to resist or defend at Tenant’s
expense such action or proceeding by counsel reasonably satisfactory to Landlord.
28. Title and Quiet Enjoyment. Subject to Section 43 below, this Lease shall be
subject to and subordinate to the interest of any lender of the Landlord in accordance with the
terms and conditions of any loan that the Landlord may place on or involving the Premises. Subject,
however to the Permitted Encumbrances and the terms and conditions of any such loan, Landlord
warrants and covenants to Tenant that Landlord will be upon the Commencement Date lawfully seized
and possessed of the Premises in fee simple and have good and marketable title thereto and have the
full right to lease the same for the term aforesaid, and that as long as Tenant is not in default
hereunder, the Tenant may peaceably and quietly have, hold, occupy and enjoy the Premises and all
the appurtenances thereto.
29. Notices. Any notice required or permitted to be given or served by either
party to this Lease shall be deemed to have been given or delivered, as the case may be, when
delivered, one (1) business day after deposit with a reputable overnight courier (such as Fedex)
for next business day delivery or three (3) days after deposit in the United States Post Office,
Certified or
Registered Mail, Return Receipt Requested, charges prepaid, addressed to Landlord or to Tenant, as
the case may be, at their respective addresses below:
PAGE 15
TO THE LANDLORD:
|
Forestry Research Holdings, LLC | |
| 0000 Xxxxxxxxx Xxxxxxx | ||
| Xxxxxxx, XX. 00000 | ||
| ATTN: Xxxxxx X. Xxxxx | ||
| PHONE: (000) 000-0000 | ||
| FAX: (000) 000-0000 | ||
TO THE TENANT:
|
ArborGen, Inc. | |
| X.X. Xxx 000000 | ||
| Xxxxxxxxxxx, XX 00000 | ||
| ATTN: Xxxxx Xxxxxxxx | ||
| PHONE: (000) 000-0000 | ||
| FAX: (000) 000-0000 | ||
TO THE GUARANTORS:
|
International Paper Company | |
| 0000 Xxxxxx Xxxxxx | ||
| Xxxxxxx, XX 00000 | ||
| Attn: General Counsel | ||
| Rubicon Industries USA, LLC | ||
| X/X Xxxxxxx Xxxxxxx | ||
| Xxxxx 0 | ||
| 0-0 Xxxxxx Xxxxxx | ||
| Xxxxxxxx, Xxx Xxxxxxx | ||
| Attn: Xxxx Xxxxxxxx | ||
| MeadWestvaco Corporation | ||
| 000 Xxxxx 0xx Xxxxxx | ||
| Xxxxxxxx, XX 00000 | ||
| Attn: Law Department |
The above addresses may be changed at any time by giving ten (10) days prior written notice as
hereinabove provided.
Tenant agrees to provide Landlord’s lender with copies of any notices furnished to Landlord.
30. Rights of Successors and Assigns. The covenants and conditions contained in
this Lease shall bind and inure to the benefit of Landlord and Tenant and their respective heirs,
executors, administrators, successors and assigns, but neither Landlord nor Tenant shall be bound
or liable unless and until this Lease shall have been executed and delivered by both Landlord and
Tenant.
31. Divisibility. If any term or provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such terms or provisions to persons or circumstances
other than those as to when it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
PAGE 16
32. Entire Agreement. This Lease and all attached Exhibits, Schedules and
attached or referenced plans or plats contains the entire and only agreement between the parties,
and no oral statement or representations or prior written matter not contained in this instrument
shall have any force or effect. This Lease shall not be modified or amended in any way except by a
writing executed by both parties. Its execution and delivery has been duly authorized by
appropriate officials of both Landlord and Tenant.
33. Memorandum of Lease. At any time after the effective date hereof, either
party may require the other party to execute a memorandum of lease, and may record the Memorandum
of Lease in the real property records maintained by the county or municipality in which the
Premises is located. Under no circumstances shall this Lease Agreement be recorded. The form of
memorandum of lease shall be mutually approved and the cost of the memorandum and recording shall
be paid for by the requesting party.
34. Governing Law. The terms and provisions of this Lease Agreement shall be
governed and construed in accordance with the laws of the State of South Carolina.
35. Time. Landlord and Tenant agree that TIME IS OF THE ESSENCE in performing the
terms, conditions and contingencies of this Lease Agreement.
36. Captions. The captions appearing in this Lease are inserted only as a matter
of convenience and shall in no way affect this Lease. Any gender used herein shall be deemed to
refer to any other gender more grammatically applicable to the party to whom such use of gender
relates. The use of singular herein shall be deemed to include the plural, and conversely the
plural be deemed to include the singular.
37. Estoppel Certificate. At any time and from time to time, Tenant or Landlord,
on or before the date specified in a request therefore made by the other, which date shall not be
earlier than ten (10) business days from the receipt of such request, shall execute, acknowledge
and deliver to the requesting party a certificate evidencing: (i) whether or not this Lease is in
full force and effect; (ii) whether or not this Lease has been amended in any way; (iii) whether or
not there are any existing defaults on the part of the party requesting the certificate hereunder
to the knowledge of the certifying party and specifying the nature of such defaults, if any; (iv)
the date to which rent, additional rent and other amounts due hereunder, if any, have been paid;
(v) that Tenant claims no
defense or setoff to the due and full performance of its obligations under this Lease; (vi) and
agreeing that if a mortgagee becomes owner of the Premises or exercises its assignment of rental,
Tenant will accept such mortgagee as Landlord and will not require said mortgagee to be bound by
and advance rents or offsets nor be liable for any prior defaults of Landlord, and that Tenant will
give such mortgagee notice in the event of any Landlord default and an opportunity to cure such
default. Each certificate delivered pursuant to this Section may be relied on by any prospective
purchaser or transferee of Landlord’s or Tenant’s interest hereunder or of any part of Landlord’s
or Tenant’s property or by any holder or prospective holder of a mortgage from Landlord.
38. Disclosures. The principals of Landlord are licensed real estate agents in
the State of South Carolina and represent Landlord in this transaction and not Tenant. Xxxxxxxxx
and
PAGE 17
Xxxxxxx Commercial is a trade name of Landlord and may from time to time in the future
represent Tenant, which could constitute a dual agency and potential conflict of interest. All
parties acknowledge this relationship.
39. Dedications and Easements. In order to develop the Premises, it may be
necessary or desirable that street, water, sewer, drainage, gas, power lines, set back lines and
other easements, dedications and similar rights be granted or dedicated over or within portions of
the Premises by plat, replat, grant, deed or other appropriate instrument; provided, however, any
such right shall not materially adversely impact Tenant’s use of the Premises or Tenant
Improvements. Landlord and Tenant shall, on written request of the other, timely join in executing
and delivering such documents, in recordable form, from time to time throughout the term of this
Lease, as may be appropriate or necessary or required by any governmental authority, public utility
or company for the purpose of granting such easements and dedications.
40. Hazardous Materials:
Definitions
For purposes of this Lease the following terms shall have the following meanings:
(a) “Environmental Laws” means applicable federal, state and local laws, codes,
ordinances, rules and regulations relating to protection of public health, welfare and the
environment, including, without limitation, those laws relating to the storage, handling and use of
chemicals and other hazardous materials, though relating to the generation, processing, treatment,
storage, transport, disposal or other management of waste materials of any kind and those relating
to the protection of environmentally sensitive areas.
(b) “Hazardous Material” means “hazardous substance,” “pollutant or contaminant,” and
“petroleum” and “natural gas liquids,” as those terms are defined in Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and “asbestos”.
(c) “Release” means depositing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, and disposing.
41. Landlord’s Representations Warranties and Covenants. Landlord hereby
represents and covenants that on or before commencement of construction Landlord shall acquire and
own fee simple title to Land. Landlord hereby represents and covenants that as of the Commencement
Date and the Full Rent Commencement Date of this Lease, to the best of its knowledge, there are and
will be no Hazardous Materials located on the Improvements constructed by Landlord on the Premises
and that such Improvements constructed by Landlord on the Premises are and will be in compliance
with all environmental laws (“Full Rent Commencement Date Environmentally Clean Condition”).
Landlord makes no representation, warranty or covenant regarding the environmental condition of the
Land. Landlord will, prior to the commencement of construction of the Improvements, provide Tenant
with a copy of any and all environmental reports, including any Phase I or II reports, it has in
its possession regarding the environmental condition of the Land.
PAGE 18
(a) Except as provided herein, Landlord, at its sole expense, shall take all action
required, including environmental cleanup of the improvements constructed by Landlord on the
Premises, to remove any Hazardous Materials located on such improvements at the time Tenant takes
possession of them.
(b) Landlord agrees to indemnify and hold Tenant, its directors, officers, stockholders,
partners, joint venturers, employees, agents, attorneys, consultants, contractors or its successors
and assigns, harmless from and against any and all claims, losses, damages, liabilities, fines,
penalties, charges, judgments, administrative orders, remediation requirements, enforcement actions
of any kind, and all costs and expenses incurred in connection therewith (including, but not
limited to, reasonable attorneys’ fees and expenses), arising out of any failure of the
Improvements constructed by Landlord on the Premises to have been in Full Rent Commencement Date
Environmentally Clean Condition or the breach by Landlord of its obligations under this Section.
42. Tenant’s Representations, Warranties and Covenants. Tenant hereby represents
warrants and covenants that:
(a) Except as specifically specified below, Tenant agrees not to store any Hazardous
Material on the Premises or allow the Release of any Hazardous Material on, onto or from the
Premises that could result in a violation of any Environmental Law or in the creation of liability
or obligations, including, without limitation, notification, deed recordation or remediation, under
any Environmental Law. Tenant will use in its operations certain material which may be considered
Hazardous Material and shall be responsible for storing, maintaining, using or disposing of the
same in accordance with all applicable Environmental Laws.
(b) Tenant further agrees not to handle, use or otherwise manage Hazardous Material in
violation of any Environmental Laws.
(c) Tenant, at its sole expense, shall take all action required, including environmental
cleanup of the Premises, to remove any Hazardous Materials Released onto or from the Premises
during the Term of this Lease, unless such Release arises out of Landlord’s acts or omissions or
the acts of omissions of Landlord’s agents, contractors, employees, licensees or tenants.
(d) Tenant agrees to indemnify and hold Landlord, its directors, officers, stockholders,
partners, joint venturers, employees, agents, attorneys, consultants, contractors or its successors
and assigns, harmless from and against any and all claims, losses, damages, liabilities, fines,
penalties, charges, judgments, administrative orders, remediation requirements, enforcement actions
of any kind, and all costs and expenses incurred in connection therewith (including, but not
limited to, reasonable attorneys’ fees and expenses), arising out of any breach by Tenant of its
obligations under this Section.
43. Transfer of Landlord’s Interest. Landlord may freely transfer and/or
mortgage its interest in the Premises and under this Lease from time to time and at any time. This
Lease
PAGE 19
shall be subject to and subordinate to the interest of any lender of the Landlord in
accordance with the terms and conditions of any loan that the Landlord may place on or involving
the Premises, provided and on condition that Landlord obtains for Tenant and Tenant executes a
non-disturbance agreement in a form and content substantially similar to the one attached hereto as
Exhibit E, providing that, so long as Tenant is not in default in the payment of rent or in
the performance of any of the terms, covenants and conditions of this Lease on Tenant’s part to be
performed beyond applicable notice and cure periods, Tenant shall not be disturbed in its
possession and shall not, unless required by applicable law or regulation, be named in any action
or proceeding to foreclose brought by the holder of an interest in the Premises and any such action
or proceeding shall not result in the cancellation or termination of this Lease. Tenant’s execution
of and consent to the terms and conditions of such non-disturbance agreement shall not be
unreasonably conditioned or withheld.
Tenant agrees that, subject to the provisions of the applicable subordination and non-disturbance
and attornment agreement, if the interest of Landlord in the Premises shall be transferred to and
owned by a lender (“Lender”) or a successor to a Lender (“Landlord Successor”), Tenant shall be
bound to Lender or Landlord Successor under all of the terms, covenants, and conditions of the
Lease for the balance of the term thereof remaining and any extensions or renewals thereof that may
be effected in accordance with any option therefore in this Lease, with the same force and effect
as if Lender or Landlord Successor were the landlord under the Lease, and Tenant does hereby agree
to attorn to Lender or Landlord Successor as landlord, said attornment to be effective and
self-operative without the execution of any further instruments on the part of any of the parties
hereto immediately upon Lender’s succeeding to the interest of Landlord in the Premises. Tenant
agrees, however, upon the election of, and written demand by, Lender within twenty (20) days after
Lender receives title to the Premises, to execute an instrument in confirmation of the foregoing
provisions, satisfactory to Lender, in which Tenant shall acknowledge such attornment.
Tenant further agrees that if Lender or Landlord Successor shall succeed to the interest of
Landlord under the Lease, neither Landlord nor any Landlord Successor shall be liable for, subject
to or bound by any of the following:
| (a) | claims, offsets or defenses which Tenant might have against the prior Landlord; |
| (b) | acts or omissions of the prior Landlord; |
| (c) | rent or additional rent which Tenant might have paid more than thirty (30) days in advance; |
| (d) | any security deposit or other prepaid charge paid to prior Landlord; |
| (e) | construction or completion of any improvements for Tenant’s use and occupancy provided that Tenant shall retain any rights it has under this Lease with respect to the purchase of the Premises in accordance with Section 3(a) of the Work Letter attached to this Lease; |
| (f) | warranties of any nature whatsoever, including any warranties respecting use, compliance with zoning, hazardous wastes or environmental laws, prior Landlord’s title, prior Landlord’s authority, habitability, fitness for purpose or possession; or |
PAGE 20
| (g) | amendments or modifications of this Lease made without its written consent. |
44. Liability of Landlord. Landlord’s liability to Tenant with respect to this
Lease shall be limited solely to Landlord’s interest in the Premises, and Tenant shall not seek to
recover from, nor be entitled to recover against, any other assets of Landlord or any party
comprising Landlord or any lenders, partners, joint venturers, officers, directors, or
shareholders, of Landlord.
45. Late Charges and Fees. Tenant shall pay Landlord a late fee of 2% for each
Monthly Rental payment that is made more than fifteen (15) days after it is due and any cost or
legal fee in connection with collection and Tenant shall pay Landlord a fee of one hundred dollars
($100.00) for each occurrence of any returned check for insufficient funds.
46. Attorney’s Fees. If either party brings an action to enforce the terms hereof or
to declare rights hereunder, the prevailing party in such action, trial or appeal shall be entitled
to his reasonable attorney’s fees to be paid by the losing party as fixed by the court.
47. Option to Purchase and Right of First Refusal.
47.1 Early Purchase Option. At any time during the initial twelve (12) months
following the Full Rent Commencement Date of this Lease (“Early Purchase Option Period”), Tenant
shall have the option to purchase the Premises upon the terms and conditions set forth below:
i. At any time during the Early Purchase Option Period, Tenant shall provide Landlord and
Guarantors with sixty (60) days written notice of its exercise of its option hereunder.
ii. The purchase price shall be a sum equal to Landlord’s Investment as defined in Section 5
hereof, plus 5%, and further adjusted to reimburse Landlord for any increased income or other tax
liability that it may incur as a result of such sale taking place within such twelve-month period.
iii. The closing shall be held within ninety (90) days of the receipt of Tenant’s written
notice of its intent to exercise its option, at which time Landlord shall deliver to Tenant a
limited warranty deed conveying good and marketable title to the Premises free and clear of all
liens and encumbrances, except for those matters in existence at the time Landlord acquired title
to the Land and shown on Exhibit C attached hereto or such other matters as may be approved by
Tenant (“Permitted Encumbrances”). The parties shall pay those closing costs as are customary for
such party in Dorchester County, South Carolina. Tenant shall be responsible for the payment of any
documentary stamps for its deed.
47.2 Primary Purchase Option. At any time after the initial twelve (12) months
following the Full Rent Commencement Date but prior to the expiration of the thirty-sixth month
following the Full Rent Commencement Date of this Lease (“Primary Purchase Option Period”), Tenant
shall have the option to purchase the Premises upon the terms and conditions set forth below:
PAGE 21
i. At any time during the Primary Purchase Option Period, Tenant shall provide Landlord and
Guarantors with sixty (60) days written notice of its exercise of its option hereunder.
ii. The purchase price shall be a sum equal to Landlord’s Investment as defined in Section 5
hereof, plus 5%.
iii. The closing shall be held within ninety (90) days of the receipt of Tenant’s written
notice of its intent to exercise its option, at which time Landlord shall deliver to Tenant a
limited warranty deed conveying good and marketable title to the Premises free and clear of all
liens and encumbrances, except Permitted Encumbrances. The parties shall pay those closing costs as
are customary for such party in Dorchester County, South Carolina. Tenant shall be responsible for
the payment of any documentary stamps for its deed.
47.3 Final Purchase Option. Unless Landlord has entered into a bona fide offer to
sell the Premises (subject to Section 47.4), excluding any offer to a Lender or a Landlord
Successor in connection with a threatened foreclosure or deed in lieu of foreclosure, at any time
after the third anniversary of the Full Rent Commencement Date (“Final Purchase Option Period”),
Tenant shall have the option to purchase the Premises upon the terms and conditions set forth
below:
| (a) | Tenant shall provide Landlord with sixty (60) days written notice of its exercise of its option hereunder. |
| (b) | The parties shall each select a qualified MAI appraiser to provide a complete summary appraisal of the value of the Property, less the value of any improvements made by Tenant. Each party shall be responsible for the expense of its respective appraiser. If the appraised value of each appraisal is within five percent (5%) of the other, the Purchase Price shall be average of the two appraisals. If the values are not within five percent (5%), then the two appraisers shall select a third qualified MAI appraiser, and the purchase price shall be the value of the two appraisals that are closest in value. The cost of the third appraiser shall be paid equally by Landlord and Tenant. Notwithstanding the above, the Purchase Price shall in no event be less than Landlord’s Investment, plus five percent (5%). If Tenant is not satisfied with the appraised value of the Property, either one of the first two appraisals received or the third appraisal upon its receipt, Tenant shall have the option to elect not to close on the purchase of the Property and to continue occupancy under this Lease. In such event, Tenant shall be responsible for the cost of all of the appraisals. Tenant’s exercise of its rights under this subparagraph shall not prejudice or extinguish Tenant’s rights to exercise its Option to Purchase in the future. |
| (c) | The closing shall be held within ninety (90) days of the receipt by Landlord of such notice from Tenant, at which time Landlord shall deliver to Tenant a limited warranty deed conveying good and marketable title to the Premises free and clear of all liens |
PAGE 22
| and encumbrances, except Permitted Encumbrances. The parties shall pay those closing costs as are customary for such party in Dorchester County, South Carolina. Tenant shall be responsible for the payment of any documentary stamps for its deed. |
47.4 Right of First Refusal. Tenant shall have a right of first refusal to purchase
the Premises from Landlord. In the event that Landlord enters into a bona fide agreement to sell
the Premises to a third party during such period, it shall first provide Tenant with written notice
of the applicable terms and conditions of such agreement with such third party and offer to sell
the Premises to Tenant in accordance therewith, whereupon Tenant shall have thirty (30) days from
the date of receipt of such written notice from Landlord in which to accept or reject such offer.
The failure of Tenant to respond to such notice shall be deemed a rejection thereof. If Tenant
rejects or is deemed to have rejected such offer, Landlord shall be free to conclude its sale to
such third party or its assigns in accordance with its offer, provided, however, that Landlord may
decrease the amount of consideration to be paid by such third party by up to 5% of the proposed
purchase price and still be deemed to be in compliance with its agreement. If such third-party
offer fails to close, Tenant shall be entitled to a like right of first refusal on subsequent
offers involving Landlord. Provided that Landlord has performed its obligations under this Section
47.4 and Tenant has waived its right of first refusal hereunder, no subsequent purchaser of
Landlord shall be subject to such right of first refusal, unless such purchaser acquired the
Premises before the thirty-seventh month after the Full Rent Commencement Date. The provisions of
this Section 47.4 shall not be applicable to foreclosure, deed in lieu of foreclosure or other
transfer by which a Lender or a Landlord Successor acquires title to the Premises.
48. Contingencies. This Lease is expressly contingent upon (1) the execution and
delivery of certain Guaranties in favor of Landlord from International Paper Company, Xxxx Westvaco
Corporation, Rubicon Industries USA, LLC, as well as upon Landlord obtaining and closing acceptable
financing for the purchase of the Land and construction of the Improvements, (2) the Landlord
obtaining financing acceptable to it for the purchase of the Land and the construction of the
Improvements and (3) Tenant executing and delivering to lenders of Landlord a non-disturbance and
attornment agreement in form and content reasonably satisfactory to it.
49. No Brokers. Landlord and Tenant each represent and warrant to the other that it
has not engaged an independent broker in connection with this Lease and that no commission is owed
to any such party arising therefrom. Landlord and Tenant will indemnify and hold the other harmless
from any and all liability, including court costs and attorney’s fees, arising as a result of a
breach of this representation.
50. Adequate Capital. Landlord warrants and represents that it will, upon the closing
of construction and other loans have sufficient funds available to it to purchase the Land and
finance the construction of the Improvements thereon.
51. Confidentiality. Landlord and Tenant will, prior to or contemporaneously with the
closing of Landlord’s mortgage financing the purchase of the Land and the construction of the
Improvements, enter into a confidentiality agreement in form and content reasonably satisfactory to
both, whereby the Landlord will agree to use its best efforts not to disclose and to
PAGE 23
use its best efforts to have the architect and the general contractor constructing the Improvements
agree not to disclose any confidential information or trade secrets or other valuable and unique
information and techniques acquired, developed or used by the Tenant to which such parties gain
access through the development and construction process, except to the extent such information is
or becomes part of the public domain or becomes available to such parties on a non-confidential
basis from a source other than the Tenant.
52. Special Stipulations. The terms and provisions of the Special Stipulations
attached hereto as Exhibit D shall control to the extent of conflict with other terms and
provisions of this Lease.
PAGE 24
IN WITNESS WHEREOF, the undersigned parties have caused this Lease to be executed and their
respective seals affixed, as of the day and year first above written.
TENANT:
| ArborGen Inc. | ||||||
/s/ Xxxxx X. Xxxxxxxx
|
By: | /s/ Xxxxxxxx X. Clear | ||||
| Title: Sr. VP & CFO | ||||||
/s/ Xxxxxx X. Xxxxxxxx |
||||||
My Commission Expires: May 8, 2018 |
||||||
(NOTARIAL SEAL)
LANDLORD:
| Forestry Research Holdings, LLC | ||||||
| By: | MPR Consultants, Inc.
As its Manager |
|||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
My
Commission Expires:
|
||||||
(NOTARIAL SEAL)
ATTACHMENTS:
Exhibit A: Legal description of the Land
Exhibit A-1: Map of the Land
Exhibit B: Work Letter with Schedules
Exhibit C: Permitted Encumbrances
Exhibit D: Special Stipulations
Exhibit E: Form of Subordination, Non-Disturbance and Attornment Agreement
Exhibit A-1: Map of the Land
Exhibit B: Work Letter with Schedules
Exhibit C: Permitted Encumbrances
Exhibit D: Special Stipulations
Exhibit E: Form of Subordination, Non-Disturbance and Attornment Agreement
PAGE 25
EXHIBIT A
Legal Description of the Land
ALL that piece, parcel or tract of land, situate, lying and being in Dorchester County, State of
South Carolina, being shown and designated as TRACT 2, containing 13.501 Acres on a plat entitled
“A FINAL SUBDIVISION PLAT OF TRACT 1 TO CREATE TRACT 2 AND GENERAL UTILITY AND INGRESS/EGRESS
EASEMENT, SOUTHWEST OF SUMMERVILLE, DORCHESTER COUNTY, SOUTH CAROLINA, PREPARED FOR: MEADWESTVACO
FORESTRY LLC. CO.” dated April 2, 2009 by Xxxxxx & Xxxxxx Engineering Co. in Plat Cabinet L at Page
125. SAID tract of land having such size, shape dimensions and boundaries as will by reference to
said plat more fully appear.
PAGE 26
Exhibit A-1
Map of the Land
Note: Exhibit A-1 is a depiction of the Property and is not to scale and is not intended to be
used as a legal description of the Property. All Parties should rely on a current survey by a
certified surveyor for accurate metes and bounds.
PAGE 27
Exhibit B
Work Letter with Schedules
1. THE LAND
(a) Landlord represents it has an option to purchase the Land.
(b) Landlord agrees to acquire the Land upon execution of the Lease to which this Work Letter
is attached and the closing of the financing for the construction of the Premises described in the
Lease.
2. PLANS AND SPECIFICATIONS
(a) Preparation and Delivery. Landlord has delivered to Tenant a copy of those plans and
specifications and that certain “Scope of Work/Clarifications” attached hereto (which Scope of
Work/Clarifications, in the event of conflict with the above-described plans and specifications,
will control) (collectively, the “Original Plans & Specifications”) attached hereto as Schedule 1
and incorporated herein by reference. The Tenant has approved the Original Plans and
Specifications. Landlord and Tenant agree that the Plans & Specifications depict the Improvements
to be constructed on the Land. The Original Plans & Specifications form the basis for the original
scope of the work. Any change to the Original Plans & Specifications which increases or decreases
the original scope of the work shall be a “Scope Change.”
(b) Landlord will diligently proceed to complete permitable plans for the completion of the
Work. Landlord will provide Tenant with copies of such plans for Tenant’s review. Tenant may
request changes to such plans, and Landlord will in good faith endeavor to accommodate such changes
as Tenant requests, provided that such changes do not increase the Landlord’s cost of the Work or
cause a delay in the construction process. Any changes that constitute a Scope Changes shall be
subject to Landlord’s approval, subject to Section 6 below. The final plans and specifications
approved by Tenant are referred to as the “Final Plans & Specifications”.
(c) Final Plans & Specifications shall be and remain property of the Landlord, subject to the
reasonable use thereof by the Tenant. To the extent that such is owned by and within the domain of
the Landlord, Tenant is hereby granted an irrevocable, duty-free license (the “License”) to obtain
and retain copies, including reproducible copies and copies of computer disks or other computer
memory storage devices (e.g., CADD files), of all Final Plans and Specifications and other design
documents for information and reference in connection with the construction, reconstruction,
renovation, repair, maintenance, marketing, use and occupancy of the Premises. The License shall
be transferable to any assignee of Tenant.
PAGE 28
3. BIDDING OF WORK. Landlord has obtained bids based on the Original Plans & Specifications,
which bids Tenant has reviewed and approved. Landlord has provided to Tenant a construction budget
(the “Construction Budget”) which sets forth the anticipated Costs of the Work (as defined below)
and the other components of Landlord’s Investment as defined in the Lease. The Construction Budget
is attached to this Work Letter as Schedule 3 and incorporated herein by reference. The parties
will continue to value engineer the Work in order to accomplish cost savings, as described in the
Lease. Tenant may review and comment upon proposed changes to the Plans & Specifications and review
pricing. Tenant may review and approve Final Plans & Specifications and all prior drafts thereof,
provided, however, that if Tenant’s changes to the Plans & Specifications constitute Scope Changes,
any costs or expenses associated therewith shall be allocated as more fully provided in Section 5.3
of the Lease.
4. COMMENCEMENT OF WORK. Landlord shall commence work on the site or on construction of the
improvements on or before sixty (60) days following the acquisition of the Land and the obtaining
of all permits necessary to commence construction. Landlord currently expects the Land acquisition
to close within sixty (60) days of the execution of the Lease. Landlord shall perform the Work in
accordance with final Plans and Specifications and in accordance with applicable laws, approvals
and permits.
5. COMPLETION OF WORK. The current estimated schedule of the Work is attached hereto and made
a part hereof as Schedule 2. The parties anticipate that the Work shall be “Substantially
Completed” as defined herein (i) within twelve (12) months of the commencement of construction of
the Improvements, subject, however, to extension for such additional periods as may be required due
to Force Majeure Events, matters reasonably beyond the control of the Landlord, including but not
limited to delays in the completion of any access roadways, infrastructure and like improvements to
be completed by the Tenant or related parties and Tenant Delay Days (as defined below)
Notwithstanding the foregoing or anything in this Exhibit or the Lease to which it is attached to
the contrary:
| (a) | in the event the Work is not Substantially Completed on or before that date which is eighteen (18) months from the commencement of construction of the Improvements, such time being adjusted for Tenant Delay Days herein defined, matters reasonably beyond the control of the Landlord and Force Majeure Events, Tenant may, upon the giving of thirty (30) days prior notice to the Landlord, purchase the Land and the Improvements thereon from the Landlord at the amount of Landlord’s Investment incurred by Landlord to such date. |
6. CHANGE ORDERS. Tenant may request changes in the Work. Each such change must receive the
prior written approval of Landlord, such approval not to be unreasonably withheld or delayed. If
Tenant requests any changes to the Work described in the Plans & Specifications, then such
increased or decreased costs and any additional or decreased design costs incurred in connection
therewith as the result of any such change shall be accounted for as provided in the Lease. If
such changes delay the completion of the Work, then, notwithstanding any provision to the contrary
in this Lease, each day of such delay shall constitute a Tenant Delay Day.
PAGE 29
7. “AS BUILT” DRAWINGS AND BUILDER WARRANTIES. Landlord, upon completion of the Work, shall
furnish Tenant with accurate “as-built” drawings of the Work as constructed and shall provide
Tenant with copies of all builder warranties obtained by the Landlord in connection with the Work.
Landlord will warrant to Tenant that the Improvements have been constructed in accordance with the
Final Plans and Specifications free from defects in workmanship or materials for a period of one
year following such completion.
8. DEFINITIONS.
| a) | “Substantial Completion” and Substantially Completed” shall be achieved when (a) the Work is sufficiently complete in accordance with the Final Plans and Specifications so that Tenant can commence beneficial use and occupancy of the Premises as intended, (b) all utilities have been provided to the Premises in sufficient quantities to operate at the Premises as intended and all systems included in the Work are operational as designed and specified, (c) all governmental inspections designated or required for the Work have been successfully completed, and certificates of occupancy and other municipal permits or approvals for the Work have been obtained, in each case to the extent required to occupy the Premises as intended, (d) all final finishes required by the Final Plans and Specifications are in place (except for minor punchlist items which do not materially detract from the appearance and utility of the Premises for the intended use), (e) all remaining Work is reasonably estimated to be completed within sixty (60) consecutive calendar days (or as otherwise agreed to by Tenant) following the date of Substantial Completion, and (f) Landlord has (i) delivered to Tenant binders containing complete sets of all manufacturer’s catalogs, instructions and other similar data (including the necessary graphic cuts, diagrams, value charts, and the like) covering all mechanical and manually operated devices furnished and/or installed as part of the Work, to the extent that such material is in Landlord/s possession, and (ii) provided Tenant’s property management and operations personnel with the reasonable opportunity to be trained in the operation and maintenance of building systems and controls installed as part of the Work. | ||
| b) | As used in this Work Letter, “Tenant Delay” shall mean any delay (measured in calendar days) in the performance or completion of all or any portion of the Work, to the extent attributable to (a) any failure by Tenant to comply with the project schedule to be developed by Landlord or to respond to any request by Landlord or its general contractor for information with such reasonable promptness, (b) any delay attributable to the entry by Tenant or Tenant’s contractors, agents or employees to the Premises prior to Substantial Completion, or (c) any delay attributable to special equipment or construction conditions required by the Tenant. |
9. WALK THROUGH-PUNCHLIST. Landlord shall provide Tenant with written notice when Landlord
believes that Substantial Completion of the Work has been achieved. Such notice shall be
accompanied by a list of items (the “Punchlist Items”) to be completed or
PAGE 30
corrected. Promptly following delivery of such notice of Substantial Completion of the Work, duly
authorized representatives of Landlord and Tenant shall jointly inspect the Work. The Punchlist
shall be subject to review and approval by Tenant following such joint inspection. In the event
that the parties shall disagree on whether any item is properly included as part of the Punchlist
Items, and the parties are unable to reach agreement thereon within five (5) days after such joint
inspection, either party may submit such disagreement to the architect for final determination,
which determination of the architect shall be binding upon Landlord and Tenant. The failure to
include an item on the Punchlist does not alter the responsibility of Landlord to complete all Work
in accordance with the Final Plans and Specifications. Landlord shall complete the Punchlist Items
on or before the date that is sixty (60) days after achieving Substantial Completion of the Work.
If Landlord shall not complete all required Punchlist items within such sixty (60) day period, the
date of Substantial Completion of Landlord’s Work shall be deemed extended by the number of days of
such delay, except to the extent that Tenant wrongfully interferes with Landlord in completing such
Punchlist items
10. COSTS. The entire cost of performing the Work (“Cost of the Work”) shall be paid by
Landlord, except as otherwise provided in Section 5.3(d) of the Lease. Upon Substantial Completion
of the Work, Landlord shall provide the Tenant with a final accounting of the costs of the Work and
the permitting in reasonable detail for review and audit.
11. CONSTRUCTION MANAGEMENT. Landlord shall supervise the Work and make disbursements
required to be made to the contractor. Tenant acknowledges that an affiliate of the Landlord will
manage the development and construction of the improvements as set forth in the Construction
Budget.
12. CONSTRUCTION REPRESENTATIVES. Landlord’s and Tenant’s representatives for coordination of
construction and approval of change orders are as set forth below, provided that either party may
change its representative upon written notice to the other. The contact information for such
representatives is set forth in Section 29 of the Lease.
| Landlord’s Representative: | Xxx Xxxxx | |||
| Tenant’s Representative: | Xxxxxx Banner |
PAGE 31
Schedule 1
PLANS & SPECIFICATIONS
PLANS & SPECIFICATIONS
ArborGen Project Documentation List as of 12/2008
Below is a listing of all documentation that ArborGen had received as of 12/2008 regarding the
new facility project.
| 1. | Project Manual — Schematic Design - Compiled by LS3P (5/9/2008) |
| a. | Outline specifications for the facility design — by LS3P (5/9/2008) | ||
| b. | Room Data Sheets — by LS3P and ArborGen (5/2/2008) |
| i. | Individual room layouts with specific furnishings, equipment, utility, and other requirements listed and located. | ||
| ii. | Room layouts prepared by LS3P with input from ArborGen end users. |
| c. | Mechanical Engineering Basis of Design Narrative — by RMF Engineering (5/23/2008) | ||
| d. | Electrical Engineering Basis of Design Narrative — by RMF Engineering (5/9/2008) |
| 2. | Drawing Package — Schematic Design — Compiled by LS3P (5/9/2008) |
| a. | Architectural Drawings — by LS3P (5/9/2008) |
| i. | A-001 | Drawing index and symbols | ||||
| ii. | A-002 | Subsystems and partition types | ||||
| iii. | A-100 | Site Plan | ||||
| iv. | A-101 | First Floor Plan (overall) | ||||
| v. | A-101A | First Floor Plan (2x scale) | ||||
| vi. | A-101B | First Floor Plan (2x scale) | ||||
| vii. | X-000 | Xxxxxxxxx Xxxxx Xxxx | ||||
| xxxx. | X-000 | Xxxxx Shack Plan, RCP and Elevations | ||||
| ix. | A-151 | Roof Plan | ||||
| x. | A-201 | Exterior Elevations | ||||
| xi. | A-301 | Building Sections | ||||
| xii. | A-351 | Wall Sections | ||||
| xiii. | A-401 | Large Scale Plans | ||||
| xiv. | A-402 | Large Scale Plans | ||||
| xv. | A-421 | Large Scale Elevations | ||||
| xvi. | A-511 | Reflected Ceiling Details | ||||
| xvii. | A-761 | Typical Casework/Millwork Details |
| b. | Fire Protection Drawings — by RMF Engineering (5/9/2008) |
| i. | FP1.01 | Fire Protection Plan |
| c. | Mechanical Drawings — by RMF Engineering (5/9/2008) |
| i. | M0.01 | Legend, Symbols, & Abbreviations | ||||
| ii. | M1.00 | Air Balance Summary Sheet | ||||
| iii. | M1.01 | HVAC Mechanical Floor Plan | ||||
| iv. | M1.02 | HVAC Mechanical Roof Plan | ||||
| v. | M2.00 | Mechanical Part Plan | ||||
| vi. | M3.01 | Mechanical Schematics |
PAGE 32
| vii. | M3.02 | Mechanical Schematics | ||||
| viii. | M3.03 | Mechanical Schematics | ||||
| ix. | M3.04 | Mechanical Schematics | ||||
| x. | M3.05 | Mechanical Schematics | ||||
| xi. | M3.06 | Mechanical Schematics |
| d. | Electrical Drawings — by RMF Engineering (5/9/2008) |
| i. | E1.00 | Electrical Schematic One Lines and Part Plans |
3. Geotechnical Investigation (Soil Test Report) — by WPC Engineering (10/10/2008)
This is a preliminary analysis of the conditions of the soil and subsurface geology at the proposed
Arborgen site.
PAGE 33
Scope of Work / Clarifications
| I. | General |
| A. | The Construction Budget is based upon the following: |
| A. | Project Manual — Schematic Design dated May 9, 2008 (labeled LS3P Associates Commission No. 1402-071560) | ||
| B. | Schematic Drawings done by LS3P Associates dated May 9, 2008 (Drawings A001, A002, A101, A101A, A101B, A102, A121, A151, A201, A301, A351, A401, A402, A421, A511, A761, FP1.01, M1.00, M1.01, M1.02, M3.01,M3.02, M3.03, M3.04, M3.05, M3.06 and E100. | ||
| C. | Note: If anything stated in this scope of work exhibit is in conflict with the documents, drawings, or information referenced in (A.) or (B.) above, then what is stated in this scope of work shall control. |
| B. | A payment and performance bond is included in this proposal | ||
| C. | No overtime work is included. The proposal is based upon normal 40 hour work week | ||
| D. | Forestry Research Holdings, LLC has agreed to share cost savings on the building with the building contractor. The building contractor will receive 20% of all cost savings recognized during the construction of the building. | ||
| E. | Drawings received to date are at the schematic phase. The construction budget is based upon information provided as of December 5, 2008. Any later revision by tenant, architect or MEP designer will be subject to price review or adjustment at that time. | ||
| F. | Foundation / Structural design, architectural, and MEP are included | ||
| G. | No wetlands remediation has been included in this proposal | ||
| H. | We exclude an environmental audit |
| II. | Division 2 — Site Work |
| A. | Site Grading |
| A. | Clear and grub. | ||
| B. | Earthwork/grading — including any imported fill or exported cut material. | ||
| C. | Construction road to site and maintenance of construction road |
| B. | Site Utilities |
| A. | Storm drainage lines. | ||
| B. | Sanitary sewer line. | ||
| C. | Outside fire protection fire lines including all necessary back flow preventers, vaults, separate meters, hydrants, post indicator valves, and risers into the building to one foot above finished floor. |
| C. | Erosion Control |
| A. | Includes temporary and permanent grassing. | ||
| B. | Includes construction entrance and maintaining construction entrance. | ||
| C. | All silt fences, structures, headwalls, slope mats, sediment traps, and soil erosion monitoring through stabilization |
| D. | Site Structures |
| A. | Includes the use of the existing ponds for storm water detention |
PAGE 34
| B. | This scope of work excludes the installation of any storm-water quality ponds or filtrations systems | ||
| C. | No retaining walls have been included |
| E. | Concrete Curb & Gutter (24” Standard) |
| A. | No concrete curb and cutter is included in this scope of work, based on the design of Arborgen’s existing facility. |
| F. | Asphalt Paving — Both Heavy Duty and Light Duty — |
| A. | Light duty paving is included in the visitor parking area and staff parking area. | ||
| B. | All parking lot stripping is included. | ||
| C. | Heavy duty asphalt paving is included on main drive and the loading dock area |
| G. | Site Improvements/Landscaping, Guard House |
| A. | Landscaping and Irrigation is included | ||
| B. | Exterior Signage is by Arborgen, Inc | ||
| C. | No outside monument signs are included or lighting/wiring for proposed monument sign | ||
| D. | Guard House is included | ||
| E. | Bathroom for Guard House is not included |
| H. | Site Lighting: |
| A. | Outside site lighting in employee parking lot, exterior truck apron, and driveways is included |
| I. | Fencing — We include fencing only at the Praxair Nitrogen Tank per their vendor drawings. |
| A. | We exclude interior fencing in the building and perimeter fencing for the site |
| J. | All Civil Design and grading/ land disturbance permits, tap fees, impact fees are included |
| A. | All material testing associated with the above site work is included. | ||
| B. | An as-built survey of the site work is included |
| K. | Rock, Demucking, Environmental Hazards, etc. |
| A. | We exclude rock removal, underground water, demucking, and removal of buried debris, environmental hazards, and replacement of bad/unsatisfactory soils. We exclude drying of unsuitable soils. |
| III. | Division 3 — Concrete |
| We include a six inch (6”), 4000 psi concrete slab-on-grade for both the research and production facility. (Subgrade will be compacted to 98% standard xxxxxxx and pass proof roll test) We include 4” stone base as shown on Drawing A002. Concrete floor slab will be reinforced in both the research and production facility with 6x6x6 wwm. We include a 15 mil poly vapor barrier under the entire research and production facility floor slab. | ||
| The scope of work includes one (1) coat of curing compound over the research lab and production floor slab. | ||
| Concrete floor slabs will meet an Ff35/Fl25 overall value when tested just after placement. These |
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| values reference the finish of the floor company’s tolerance for flatness and levelness on the concrete floor slab. | ||
| This proposal excludes caulking of the interior floor slab at any contraction or construction joints. We do include construction dowels, 12” inches on center, at all construction joints to minimize vertical movements between slab sections. | ||
| Contraction joints will be installed by a concrete cutting saw no more than 12 1/2’ in either direction. |
| • | Concrete wall system — we include 8” thick load bearing, insulated, pre-cast concrete (4000 psi) all panels for the building wall system. Static R value is 13.5. | ||
| • | We include 4 inch, 4000 psi concrete floor slab for guard house with one coat of curing compound. | ||
| • | We include 6 inch, 4000 psi concrete slab at loading dock with dowel baskets at loading dock bays. Control and contraction joints at concrete loading dock will be caulked with an ES-3 single-component pourable neutral-curing silicone sealant (per LS3P specs). Slab will be on compacted subgrade 4” stone base and reinforced with woven wire mesh 12” steel dowels are included at all construction joints. | ||
| • | We include 4” concrete house keeping pads as shown on drawing M2.00 | ||
| • | We include one (1) coat of curing compound on the slab. | ||
| • | We include concrete pad for 1500 — gallon nitrogen tank (approx 13’ x 10’ x 12” reinforced). This includes six inches (6”) of stone base. |
| IV. | Division 4 — Masonry — Not Included. | |
| V. | Division 5 — Steel |
| A. | We have deleted the pre-engineered metal building frame and metal wall panel system. We now include a conventional structural steel framing system with columns, joist girders, bar joists, and steel roof deck. Our price includes steel erection. Clear height inside the building is 26’ clear. | ||
| B. | This proposal does not include a mezzanine. | ||
| C. | Miscellaneous Steel |
| 1. | We include one (1) ladder with one (1) Bilco style roof hatch. | ||
| 2. | We include miscellaneous embedded angles. | ||
| 3. | We include anchor bolts. | ||
| 4. | We include dock stair rails and truck well retaining wall handrails | ||
| 5. | We include roof hatch frame. | ||
| 6. | Pipe bollards | ||
| 7. | Trench drain/sump embedded | ||
| 8. | Handrail at Dock Stairs | ||
| 9. | Framed openings for mechanical equipment. |
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| VI. | Division 6 — Carpentry |
| A. | We include all miscellaneous wood blocking associated with office and lab construction, toilet areas, break rooms, and kitchen. | ||
| B. | Interior Finish Carpentry — We include 1,050 lft of unfinished paint grade 3/4”x6” wood base installed at Rooms 101, 102, 103, 104, C001, C002 and C003. We also have included plastic laminate for the office and tech rooms associated with the laboratories. | ||
| C. | Interior Architectural Woodwork |
| 1. | Plastic laminate cabinets and counters are included in kitchen (Room 107) and break room (Room 169) | ||
| 2. | We provide solid surface vanity counter tops at men’s toilets (Room 159AB) and women’s toilet (Room 157B). (Integral vanity bowls are not included; counter tops to have standard eased edges with separate back splashes; and integral splashes are not included.) | ||
| 3. | Premium grade pre-finished wood veneer desk will be provided and installed for reception (Room 103) with the following: |
| a. | Pre-finished anigre veneer low wall. | ||
| b. | Pre-finished anigre file drawer cabinets. | ||
| c. | 3 —Form low wall panels and transaction top. | ||
| d. | Solid surface counter top. |
| VII. | Division 7 — Roofing and Moisture Protection |
| A. | Includes a 45 mil TPO roof system, mechanically attached to meet manufacturer’s requirements. We include 3.1” of isocyanurate board insulation (R-19) mechanically attached to the roof deck. We include a manufacturers 15 year labor and material warranty. We include 24 gauge prefinished downspouts, gutters, and gravel stops. We include flashing of roof curbs. | ||
| B. | We include “the revised” metal canopies as shown on conceptual drawings proposed by LS3P Architects dated 11/3/08 (north elevation at loading dock) and along Column Line A. | ||
| We include single membrane roof between main entry structure and the rest of the building. | |||
| We include all necessary through penetration fire stopping through fire-resistance-rated floors, roofs, walls, and partitions (with F-ratings). | |||
| We include all necessary fire-resistive joint systems covering the following: floor-to-floor joints; floor-to-wall joints, head-of-wall joints; and wall-to-wall joints (we include as an allowance of $15,000). | |||
| We included prescribed joint sealants (Section 079200) at all exterior precast wall panels, exterior door frames and louvers where applicable. Interior joint sealants (Section 079200) will be installed at the interior locations of any ceramic tile (expansion, control, contraction, and isolation joints); at interior joints between plumbing fixtures and adjoining walls, floors, and counters; and at interior doors, windows, and casework. | |||
| C. | Fireproofing — this scope of work assumes we are at Type 1-B building |
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| VIII. | Division 8 — Doors/Glass/Hardware |
| A. | We include ninety-four (94) standard 3’.0” x 7’.0” hollow metal doors and eighty (80) frames for the research and production facility building and 25 double doors and frames. | ||
| B. | We include 36 flush wood doors (Grade A, select white maple) suitable for staining (to match architect’s sample) for the office area. | ||
| C. | We include in this proposal all necessary door hardware including: hinges, butts, lock sets, lock guards, thresholds, weather stripping, closures, and key sets (as part of Owner’s standard key system). | ||
| D. | We include all necessary access doors and frames for walls and ceilings. | ||
| E. | We include two (2) 9’ x 10’ overhead coiling doors at loading dock at shipping and receiving. These are insulated, electrically operated (Brand is by one of the approved manufacturers in Section 083323-1). | ||
| F. | Store Front Framing and Glazing |
| 1. | We include 2,220 sq ft of exterior aluminum storefront system and 2 double exterior manual swing entrance doors and door frame units. Will be able to meet 130 mph basic wind load and specified Windborne-Debris Impact-Resistant Performance. Framing system will meet water penetration requirements (static and dynamic pressure). Glazed aluminum curtain wall system will meet energy performance ratings per NFRC (per specifications 084113-1). Our price includes storefront systems and entrances by approved manufacturers. | ||
| Aluminum window wall systems shall have a thermal break and shall be self-weeping. All sealants shall be compatible to system parts. | |||
| We include the following entrance door hardware: pivot hinges, panic exit devices, cylinders, concealed overhead holders, surface mounted holders, door stops, weather stripping, silencers, and thresholds. | |||
| 2. | Glazing — We include all glazing as shown on the conceptual drawings prepared by LS3P Architects (dated 11/3/08) as it relates to doors, glazed curtain walls, store front framing, glazed entrances and interior borrowed lites. Glass meets ICC’s 2006 International Building Code and Basic Wind Speed of 130 mph. Installation meets Windborne-Debris Impact-Resistance Performance as found in Section 088000-1 of the specifications. For glass types IGU-1, TIGU-1, and SIGU-1, the overall unit thickness is 1 5/16”. | ||
| 3. | Mirrors — We include four (4) annealed monolithic glass mirrors. |
| IX. | Division 9 — Finishes |
| A. | Drywall Framing — We include all necessary metal stud framing (non-load bearing steel framing) for the research and production facility as shown on Drawing A101. This includes all studs, runners, deflection track, and fire stop track, cold rolled channel bridging and furring. Minimum |
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| base metal thickness shall be .027 inches or greater. We will meet specified defection limits and applied load limits. | |||
| B. | Gypsum board installed to create the approximate 81 rooms (labs, offices, conference rooms, etc. as shown on Drawing A101) will be 5/8 inch thick by one of the approved manufacturers in the specifications. Long edges will be tapered and featured (rounded or beveled) for pre-filling. Flexible type gypsum board will be 1/4 inch thick, and ceiling type (if required) will be 1/2 inch thick. | ||
| Painting and finishing will be per the schedule as found in the ArborGen schematic specs as prepared by LS3P (dated 5/9/08) and found in section 09000 (pages 1 — 2, finish schedule). Tile-Backing Panels shall be 1/2 inch thick and shall be by approved manufacturers/ suppliers as mentioned in the specifications. | |||
| C. | Porcelain Tile — All men’s and women’s toilets, men’s and women’s locker rooms, and men’s and women’s showers will receive porcelain tile flooring (as outlined in specs 09000-1). This includes all necessary floor tile and glazed wall tile. Tile will be set in cement mortar bed with cleavage membrane TCNA F114 as spelled out in the specifications. Ceramic wall tile installed to a 4’ height at all wet walls in restroom area. | ||
| D. | Acoustical Ceiling Panels — Will be installed using exposed suspension system (including all necessary wire hangers, braces, ties, struts, and clips). Ceiling panels are by “Xxxxxxxxx” as listed in the specs and range in size from 2’ x 2’ to 4’ x 4’. We include custom curved linear ceiling “woodworks linear” (by “Xxxxxxxxx”) as found in specification to go in the waiting room, lobby, reception area, and large conference room. (Size: 6’ x 8’ long, in light cherry). | ||
| E. | Resilient Base and Accessories — We include all resilient rubber wall base and molding accessories by approved manufacturers (as found in the specs) in all rooms/ offices per the finish schedule. (We include wood base per the finish schedule in the following areas: waiting room, lobby reception, large conference room, and corridors 1, 2, and 3.) | ||
| F. | Flooring |
| 1. | There is linoleum flooring included in this proposal in kitchen and vending machine area. | ||
| 2. | Resilient Tile Flooring (Vinyl Composition Tile (VCT)) — We provide “Xxxxxxxxx,” Imperial Texture VCT floor tile (per the specs). Measuring 12” x 12” to go in those rooms identified on the finish schedule. | ||
| 3. | Static Control Resilient Flooring — There is static control resilient floor covering included in the IT/Server Room. | ||
| 4. | Tile Carpeting — We include tile carpeting in this proposal based upon one of the approved manufacturers as found in the specs. This is based upon the specified allowance of $30.00 a square yard (material only) in those rooms/ offices identified in the finish schedule. |
| G. | Stretched Fabric Wall Systems — This proposal includes stretched-fabric wall systems in 5 conference rooms. We include as an allowance of $6,000.00. | ||
| H. | Exterior Painting |
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| 1. | This includes all exterior rails at retaining wall, overhead door channel frames, exterior HM doors and frames, handrails, and dock bumpers. | ||
| 2. | At guard house we include any necessary painting, bollards (2), 5” diameter columns (2), card reader stands, and interior of the guard shack. | ||
| 3. | Paint is by one of the approved manufacturers in the specs and application is per the specifications. |
| I. | Interior Painting |
| 1. | We include interior painting in the offices and research and production facility. Paints are those by approved manufacturers in the specifications. Application is per the specifications and is in these areas spelled out in the room finish schedules (09000-1, 09000-2). | ||
| 2. | Scope of work excludes painting of non-exposed steel columns, joists, joist girders, and sprinkler piping. Excludes painting of underside of roof deck |
| J. | High Performance Coatings |
| 1. | We exclude . Not clear what requires high performance coatings from the drawings. |
| X. | Division 10 — Specialties |
| A. | Signage | ||
| Per the specifications (in the minutes of lease proposal meetings dated 5/19/08, 5/23/08, and 5/30/08 from Xxxxx Xxxxxxx at LS3P) we are told to budget an “interior signage allowance” of $20,000. We include this in our proposal. | |||
| B. | Toilet Compartments | ||
| We include all necessary toilet compartments as shown on drawing A101 (and includes 2 men’s toilets, 3 men’s urinals, and 5 women’s toilets in the research/production area. Compartments will be by one of the approved manufacturers in the specifications, will be overhead braced, and all fittings and hardware will be stainless steel. | |||
| C. | Impact-Resistant Wall Protection | ||
| We include plastic corner guards as called out in specifications (60 each). | |||
| D. | Toilet and Bath Accessories | ||
| We include all necessary men’s and women’s public-use bathroom accessories by one of the approved manufacturers identified in the specifications (American Specialties, Bobrick, or Xxxxxxx Corporation). These items are located in the men’s toilet (Room 159B), men’s shower (Room 159A), women’s toilet (Room 157B), and women’s shower (Room 157A). In the office area this includes men’s toilet (Room 109) and women’s toilet (Room 108). | |||
| Accessories include: |
| 1. | Toilet Paper Holder | ||
| 3. | Grab Bars | ||
| 4. | Robe Hook | ||
| 5. | Framed Mirror | ||
| 6. | Sanitary Napkin Disposal | ||
| 7. | Wall-Mounted Soap Disposal | ||
| 8. | Lavatory-Mounted Soap Dispenser |
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| 9. | Curtain Rod | ||
| 10. | Folding Shower Seat | ||
| 11. | Mop and Broom Holder (Janitors Closet — Room 158) |
| E. | Fire Protection Specialties | ||
| We include all necessary portable, hand carried fire extinguishers, cabinets for them, and mounting brackets for them. We include enough fire extinguishers to meet code. Fire Extinguishers will be from one of approved manufacturers in the specifications, and be a multipurpose dry chemical type in steel container: UL-rated 4-A: 60 BC, 10 lb nominal capacity. | |||
| F. | Metal Lockers | ||
| We include all welded, corridor metal lockers and locker benches by one of the approved manufacturers as spelled out in this section: These are to be installed in the men’s locker room (Room 159) and the women’s locker room (Room 157). | |||
| G. | Metal Storage Shelving | ||
| We cannot locate the metal shelving as called for in the specifications. This is not included in this proposal. |
| XI. | Division 11 — Equipment |
| A. | Parking Control Equipment | ||
| We include two automatic barrier gates at entrance and exit to the facility (at guard house) by one of the specified manufacturers. Equipment includes cabinets, gate arms, operators, electrical components, vehicle detectors (embedded loop system), and card control units (card reader). | |||
| B. | Loading Dock Equipment | ||
| We include two (2) sets of dock bumpers at loading dock. They are in accordance with one of the approved manufacturers in the specification. These units are fabricated from molded rubber compound reinforced with nylon, rayon, or polyester cord (4 inches thick). Dock bumpers will be anchored with manufacturer approved anchoring devices. | |||
| C. | Residential Appliances | ||
| We include specified residential appliances as outlined in the specifications from approved manufacturers. We include one (1) electric range, four (4) microwave ovens, four (4) refrigerator/ freezers, and one (1) dishwasher. These are installed in the kitchen (Room 107) and Break Room (Room 169). | |||
| D. | Projection Screen | ||
| We include six (6) electrically operated projection screens in the proposal with automatic ceiling closure (size 72” x 96”) by one of the approved manufacturers in the specifications. We include one (1) manually operated screen in the small conference room (Room 156). | |||
| E. | Walk-In Coolers | ||
| We include three (3) large walk-in coolers and two (2) small walk-in coolers in the research and production facility building. |
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| 1. | Research and Production Facility — (all coolers are 10’ high) |
| a. | Xxxx Xxxxxxx #000 — 22’ wide x 45’10” long | ||
| b. | Xxxx Xxxxxxx #000 — 22’ wide x 46’4” long | ||
| c. | RED Cold Room #138 — 10’6” wide x 9’5” long | ||
| d. | Xxxx Xxxx #000X — 7’ wide x 9’ long |
| F. | Dark Room Equipment (Section 11470) | ||
| This proposal includes one (1) two-way ABS pop out revolving dark room door for Dark Room #140 and a silver recovery system with two (2) “big mo” silver recovery cartridges. We supply no other equipment in the radiology room which is located in the dark room. |
| XII. | Division 12 — Furnishings |
| A. | Roller Window Shade | ||
| We include an electrically operated roller window shade as shown on drawing A-402 along the south wall (south facing glass) on the large conference room (Room 104). System will be by one of manufacturers specified in project manual. We have 820 sft of this. | |||
| B. | Laboratory Casework & Fume Hoods | ||
| We include as new the following laboratory casework and fume hoods as manufactured by Nycom/Xxxxxx Xxxxxxxx a division of Thermo Xxxxxx Scientific. Our proposal includes the following: |
| 1. | Wall cases (with glass doors) and Perimeter Base Cabinets as specified. |
| a. | Grade A/1, all wood construction. | ||
| x. | XXXX 8 Chemical resistant finish. | ||
| c. | AWI Construction. | ||
| d. | Hardware as specified. |
| 2. | Wood laboratory casework construction will be with Regency Flush Overly with rift cut red with oak and combination grain as specified. | ||
| 3. | Casework to be floor mounted and suspended modular cabinets as specified. | ||
| 4. | Double and single compartment stainless steel sinks, where indicated. | ||
| 5. | All countertops to be 1” thick black epoxy resin with beveled edge and a 4” applied back splash as specified. | ||
| 6. | Open adjustable height shelving (12” and 18” deep) 3/4” thick phenolic composite shelving, where indicated and as specified. | ||
| 7. | Center islands incorporate full height island cores with support framing suspended modular cabinets, 2 tier adjustable height shelving and fixtures as indicted as specified. | ||
| 8. | Two (2) 60” wide fume hoods with ceiling enclosure panels, fillers, cup sinks, work surface, flammable storage (below) with vent, fixtures as indicated, stainless steel front panel and stainless steel exhaust transition; as specified. | ||
| 9. | Eight (8) 96”w x 24” d with height adjustable 30” to 38” mobile tables with 7” rails on 3 sides and 1-1/2” front rail with 2”x2” wood legs as specified. | ||
| 10. | Twenty-Six (26) 22”d x 48” w x 84” h wood tall cases and one (1) 12”d x 48” x 84” h wood tall case with framed glass doors; where indicated as specified. | ||
| 11. | Sliding door base wood base cabinets and 30” high file drawer base cabinets; where indicated as specified. |
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| 12. | Water savor, chrome, H/CW mixing faucet with vacuum breaker, CW faucet, RO/DI fixtures, vacuum/gas/air will be provided as indicated and as specified. | ||
| 13. | Factory certified installation. |
| C. | We include the disconnecting and the relocation of the OFCI (Owner Furnished, Contractor Installed) lab equipment as shown on the color indexed Drawing A101 A. This includes disconnecting power, water, gas (and any compressed air piping); moving/relocating this equipment into the new facility and installing. All if this equipment will be reconnected to the appropriate facilities. Duct work to the fume hoods will be new. This is included as an allowance of $19,220.00. | ||
| D. | Entrance Floor Mats and Frames | ||
| Missing in specification book — Not Included. | |||
| E. | Systems Furniture | ||
| The $4,000 per cubicle allowance for systems furniture has been deleted per the value engineering exercise on 7/22/08. |
| XIII. | Division 13 — Special Construction (Pre-Engineered Metal Building Frame & Roof (Not Utilized) |
| A. | We include raceway system and power connections for security system provided by Arborgen, Inc. only. CCTV cameras are by Arborgen. |
| XIV. | Division 14 — Conveying Systems (Not Utilized) | |
| XV. | Division 15 — Mechanical |
| A. | Fire Protection System: |
| 1. | We include the design, the materials and the installation of a new fire protection sprinkler system for the main building. No greenhouse or mezzanine work is included. | ||
| 2. | Wet systems will be hydraulically calculated for light hazard in all offices, corridors, and restrooms, and ordinary hazard in all other areas. Sprinkler head spacing will be 225 sq. ft. for light hazard and 130 sq. ft. for ordinary hazard. We will start 5’ outside each building and bring ductile iron piping to 1’ above finished floor. Main building risers will consist of a backflow prevention device, electric fire pump, wet shotgun riser, fire department connection (installed on wall next to riser) main drain, and flow switch with electric xxxx. Pipe and fittings will be black schedule 10 and 40 steel. Flexible sprinkler drops may be utilized for all dropped ceiling areas. IT Room will have a clean agent system installed per NFPA 2002. No preaction system is included. Drawings, hydraulic calculations, submittals, Engineer’s Stamp and State & Local approvals are included. | ||
| 3. | Main building fire pump will be an electric vertical turbine, up to 1000 gpm @ 100 psi, with across the line start. No auto-transfer switch or wye delta controller is included. |
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| 4. | We include a clean agent suppressing system for the protection of the IT Room (#168) and IT Office (#168B). | ||
| 5. | No hose stations, in-rack sprinkler systems, or interior fire hoses are included in this proposal. No water tank/secondary water storage device for fire protection system is included. No freeze protection or dry-pipe systems. We assume sufficient flow and water pressure at site. No painting of fire protection piping. | ||
| 6. | Monitoring of fire protection system will be the responsibility of Arborgen, Inc. |
| (We have not seen any water flow data for the proposed site. We assume there will be adequate flow at the site. We exclude water tank or secondary water storage device.) |
| B. | Main Building Plumbing System: |
8 — Water Closets
3 — Urinals
8 — Lavatories
1 — Janitors Sink
4 — Water Coolers
1 — Sink for Break Room
2 — Water Heaters (electric)
2 — Hot Water Recirculation Pumps
20 — Hose Bibs
10 — Floor Drains
1 — RO Water System
Water & Waste Piping Connections to lab sinks
Water & Sewer piping to five (5) ft. outside of building
3 — Urinals
8 — Lavatories
1 — Janitors Sink
4 — Water Coolers
1 — Sink for Break Room
2 — Water Heaters (electric)
2 — Hot Water Recirculation Pumps
20 — Hose Bibs
10 — Floor Drains
1 — RO Water System
Water & Waste Piping Connections to lab sinks
Water & Sewer piping to five (5) ft. outside of building
| Plumbing Notes |
| 1. | Our quote is based on a regular work week with no overtime allowed for in our budget quote. | ||
| 2. | Included is a $35,000 allowance for the disconnecting of services, moving out of building, loading on to our trucks, transporting to the new facility and placing. We never received the information we requested such as pictures and details of connecting of services. | ||
| 3. | We have not included any drench showers, eyewash stations, drains or water services to these. We do not have a count or location for these units. | ||
| 4. | Price is based upon this week’s steel and copper price. If prices inflate prior to awarding the project, additional cost may be required. |
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| 5. | We have included a basic waste drain system in this proposal. (No glass or specialty drainpiping is included in this proposal. It is not indicated in the documentation provided to us.) |
| C. | HVAC | ||
| This scope of work is based on updated engineering information and revised quotes from our equipment and material vendors as well as our subcontractors. This scope of work is based upon changing the type of systems from the original chilled water design to conventional type roof top units. We have defined our scope of work based on Building Zones and codes (as provided by ArborGen and RFM Engineering). Each zone has been defined and design as to their required operation and code requirements. Any change to this will correspondingly change our price. |
| A. | Growth Rooms Zones 1, 2, 3, & 4, 5, 6, 15, & 16 |
| Item 1A: Growth Rooms Zones 1, 2, 3, & 4 | |||
| We have allowed using a 10 ton packaged heat pump systems for each of the Growth rooms with 5% outside air and will be designed to maintain positive pressure. We have included a supply and return dust system for each room; the rooms will be designed to maintain the temperatures and humidity requirements. | |||
| Item 2A: Xxxxxx Xxxxx Xxxxx 0 & 00 | |||
| Xxx Xxxx 5 and Zone 16 we will install a 12 ton package heat pump system. This system will be designed for 5% outside air with a supply and return air duct system and will maintain a positive pressure. | |||
| Item 3A: Xxxxxx Xxxx Xxxx 0 | |||
| Xxx Xxxx 6 we will install a 5 ton package heat pump system. This system will be designed for 10% outside air with a supply and return air duct system and will maintain a positive pressure. | |||
| Item 4A: Growth Room Xxxx 00 | |||
| Xxxx 15 growth room includes the required labor, materials, tools, and equipment to install a 71/2 Ton package roof top heat pump system with 5% outside air and will be designed to maintain positive pressure. We have included a supply and return dust system for each room; the rooms will be designed to maintain the temperatures and humidity requirements. | |||
| B: Cryo Room — Xxxx 0 | |||
| Xxxx X0: HVAC | |||
| For Zone 7 we have allowed for a 4 ton package heat pumps system including the required supply and return duct systems. This system is designed for 10% outside air. | |||
| Item B2: Nitrogen Piping Header | |||
| Also included in Zone 7 is the nitrogen main header. We will furnish and install the main header pipe and fittings per specifications. The main header will be installed starting in a pre determined location close to the location of the bulk storage tank and routed into the Cryo room and down the wall as shown on the drawing. We will install a tee for each Cryo freezer. Final Connection to the |
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| main header from the build storage tank will be by ArborGen’s Gas supplier. Connections from the main header to the Cryo freezers will be by ArborGen. | |||
| C: Initiation Room — Zone 8 | |||
| Item C: HVAC | |||
| Zone 8 includes all required labor, materials, tools and equipment to install a 5 ton package heat pump system including a supply and return duct system. This system is designed for 10% outside air and will maintain a positive pressure in the room. | |||
| D: Laboratories — Zones 9, 11, 14, 18, and 23 | |||
| Item D: | |||
| The above listed zones are considered lab areas and will be required by code to have 100% outside air and no return air circulated back through the system. We have included in Item D the required supply air ductwork and supply registers to deliver the air quantities required to condition these spaces. The HVAC units serving these areas will be outside air rooftop units. | |||
| The supply air will be exhausted out of these areas by means of roof mounted exhaust fans sized to remove the designed cfms. The exhaust ductwork will be fabricated using stainless steel sheets per code. | |||
| Zone 9 will have 30 tons with 100% outside air | |||
| Zone 11 will have 23 tons with 100% outside air | |||
| Zone 14 will have 12 tons with 100% outside air | |||
| Zone 18 will have 4 tons with 100% outside air | |||
| Zone 23 will have 62 tons with 100% outside air | |||
| (92 tons total for areas 9 & 23) | |||
| E: Main Office — Xxxxx 00X, 00X | |||
| Xxxx E: | |||
| The main office will be divided into two zones. The lobby area, single offices, and conference rooms will be considered Zone 10A and utilize a package roof mounted heat pump and VAV’s to deliver the required heating and cooling. | |||
| The central office area will be heated and cooled by another package roof mounted heat pump which will be considered Xxxx 00X. The restrooms, break room, and kitchen area will have an exhaust system. The Main Office areas will be controlled using a Trane Tracer control system. | |||
| The total cooling for the office area will have a maximum of 55 tons with 10% outside air. | |||
| F: Production Lab — Zone 12 | |||
| Item F: | |||
| Zone 12 includes all required labor, materials, tools, and equipment to install a 31 ton package roof top unit with 10% outside air. We have included the required supply ductwork and supply and |
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| returns grill for the designed cfm’s for this system. | |||
| G: Toilets — Zone 13 | |||
| Item G: | |||
| Zone 13 includes all required labor, materials, tools, and equipment to install a 15 ton package outside air roof top unit with 50% outside air. We will install the required supply air ductwork, supply grills, and registers. | |||
| We have included furnishing and installing an exhaust system per design. We will use a roof mounted exhaust fan for the exhaust system. | |||
| H: Laboratory — Zone 14 | |||
| See Item D | |||
| I: Growth Lab — Zone 15 | |||
| See Item 4A | |||
| J: Wood Lab — Zone 16 | |||
| See Item 2A | |||
| K: IT Area — Zone 20 | |||
| Item K: | |||
| Item “K” includes all required labor, materials, tools, and equipment to install a 10 ton LIEBERT HVAC system within the IT area. At this time the 10 ton units is an estimated size since we do not know the actual size and amount of equipment that will be installed in this area. | |||
| L: Transformation Area & Break Area — Zones 21 & 22 | |||
| Item L: | |||
| Item “L” includes all required labor, materials, tools, and equipment to install a 22 ton packaged rooftop unit with 20% outside air. We have included furnishing and installing the required supply and return duct systems designed and sized for this application. | |||
| M: Research and Development Area — Zones 9 & 23 | |||
| See Item D | |||
| N: Corridors | |||
| Item N: | |||
| Item “N” includes all required labor, materials, tools, and equipment to install a total of 12 tons of conditioned air with 20% outside air for the common corridors. We will install packaged roof top HVAC systems with the required supply and return duct systems. | |||
| O: Dishwasher Hood & Fan | |||
| We have included a 4’ x 4’ Stainless Steel hood for this area. We have included furnishing and installing the hood, furnishing and installing an exhaust fan, and the stainless steel duct from the hood out the roof. | |||
| The exhaust fan will be an inline fan with the motor out of the air stream. |
PAGE 47
| We have included a supply fan for this hood. The supply fan will be a roof mounted fan with filtered air ducted down to the hood. | |||
| P: Fume Hoods — Two (2) Total | |||
| The Fume Hoods will be furnished by others or existing hoods will be relocated from the existing building to the new building. We have included in our quote furnishing and installing the duct from the hoods through the roof. We have also included exhaust fans for each of these hoods and 2 roof curbs. Stainless steel duct will be used to vent these hoods. | |||
| Q: Air Compressor & Air Piping | |||
| We have included furnishing and installing an air compressor and dryer for the compressed air system. Also included is the required main header and branch line and air drops. We do not have any money allowed for connecting any equipment that requires air. We do not have any information detailing the locations or connection points for any owner furnished equipment. | |||
| R: Vacuum Pump & Vacuum Piping | |||
| The existing vacuum pump or pumps will be reused on the new building. We have allowed for disconnecting these units, moving these to the new building and installing. Also included is furnishing and installing the required vacuum piping for laboratory areas. We do not have any money allowed for connecting the vacuum system to the designated locations. We do not have any information for this work. | |||
| S: Cold Rooms | |||
| We have included the controls for these rooms in our control system budget. | |||
| T: Control System | |||
| We have included in our budget a Trane Tracer System for the building controls. | |||
| U: Test & Balance | |||
| A test and balancing of systems will be done by an independent testing and balancing agency. | |||
| EQUIPMENT RELOCATION | |||
| For relocating the existing owner owned equipment we have an offer of $35,000.00. This allowance would include the required labor to disconnect the fume hoods, laminar flow hoods, grow rack systems that will be used at the new facility. We will transport these items from the existing building to the new facility. At the new facility, we will offload and locate these items as required. The grow racks and flow hoods will be placed in their designated location as directed by ArborGen. | |||
| We never received a list of equipment from ArborGen that we requested detailing the number of flow hoods or grow racks that they would be relocating. The above allowance is based on my meeting notes and approximates on the equipment that ArborGen would be reusing. | |||
| HVAC NOTES: |
| 1. | VAV Terminal Units with electric heat will be furnished and installed for the small offices located in the main office areas. |
PAGE 48
| 2. | Quote based on regular work hours. No overtime included in this budget. | ||
| 3. | Seismic Rated Sloped Curbs for Metal Roof with Integral Vibration Isolation will be supplied and installed by SCM, Inc. | ||
| 4. | This quote is based on utilizing the attic area of the building as a return air plenum. |
| 7. | Division 16 — Electrical |
| 1. | Aluminum wire shall be used for all panel feeders. | ||
| 2. | Concrete for pole bases and duct banks. | ||
| 3. | Switchboards, panel boards, dry type transformers, and Tvss as shown on sheet E1.00 (sizes based on existing building). | ||
| 4. | Site light based on 20’ poles with HID fixtures mounted (shoebox style) on them with 24” pole base (based on 2 footcandles per parking area only). | ||
| 5. | Telephone/ data system will be a raceway to accessible ceiling and all cabling and J hooks by others. | ||
| 6. | Security systems will be raceway only cabling and installation by others. | ||
| 7. | Surface mount raceway for all lab areas are included (wiremold). | ||
| 8. | Demo all wiring to relocated equipment and rewire when relocated. | ||
| 9. | Telephone service for main building stubbed out of building 20’. | ||
| 10. | New fire alarm system as required. | ||
| 11. | Reuse existing (3) generators. They shall be located within 50’ of building. | ||
| 12. | Temporary power included with utility company to bring power within 50’ of building. | ||
| 13. | All panel feeders to be aluminum. | ||
| 14. | Relocate growth room lights from existing facility (exclude repairs of existing fixtures). | ||
| 15. | HVAC wiring by RMF Engineering design 11/26/08. | ||
| 16. | Any exposed wiring above ceiling plenum rated. | ||
| 17. | All lights are commercial grade fixtures. | ||
| 18. | AIC Rating are unknown at this time. Standard AIC is what we quoted. | ||
| 19. | Wiring Methods will include MC cable, EMT Conduit, and PVC Conduit. | ||
| 20. | All wiring devices figured are 20 amp commercial grade. |
| XVI. | Other: |
| A. | We exclude all/ and any work associated with the greenhouse | ||
| B. | Schedule of Allowances: |
| 1. | Interior Signage of $20,000 | ||
| 2. | Carpet Tiles ($30.00 a square yard for material only) | ||
| 3. | Allowance for Fire-Resistive Joint Systems ($15,000) | ||
| 4. | Allowance for Specialty Lighting ($20,000) | ||
| 5. | Allowance for Stretched Fabric Wall System ($6,000) | ||
| 6. | Duct Work to the Fume Hoods. This is included as an allowance of $19,220.00 | ||
| 7. | Allowance for Reconnection Up Lab Equipment After it is Moved Into the New Building ($35,000) — By THS and in our revised proposal. |
PAGE 49
Schedule 2
SCHEDULE OF WORK
PAGE 50
Schedule 3
CONSTRUCTION BUDGET
PAGE 51
Exhibit C
Permitted Encumbrances
| 1. | Taxes for the current year and all subsequent years. |
| 2. | Rights or claims of parties in possession not shown of record. |
| 3. | The number of acres contained in the legal description. |
| 4. | Terms, provisions and conditions as set forth in that certain Agreement which constitutes the easement grant dated and recorded in the ROD Office for Dorchester County in Deed Book at Page . |
| 5. | Restrictions, Easements, terms, provisions, conditions and other matters as set forth in those certain Plats recorded in the ROD Office for Dorchester County and as shown on that plat entitled “A FINAL SUBDIVISOIN PLAT OF TRACT 1 TO CREATE TRACT 2 AND GENERAL UTILITY AND INGRESS/EGRESS EASEMENT, SOUTHWEST OF SUMMERVILLE, DORCHESTER COUNTY, SOUTH CAROLINA, PREPARED FOR: MEADWESTVACO FORESTRY LLC. CO.” dated April 2, 2009 by Xxxxxx & Xxxxxx Engineering Co. in Plat Cabinet L at Page 125 and as further shown on that plat entitled “A FINAL SUBDIVISION PLAT OF TRACT 1 TO CREATE TRACT 1 RESIDUAL & XXXXX 0 & XXXXX 0 & XXXXXXXXXXX XX X GENERAL UTILITY & INGRESS/EGRESS EASEMENT, SOUTHWEST OF SUMMERVILLE, DORCHESTER COUNTY, SOUTH CAROLINA, PREPARED FOR MEADWESTVACO FORESTRY LLC. CO.” dated September 30, 2009 by Xxxxxx & Xxxxxx Engineering Co. in Plat Cabinet L at Page 135. |
| 6. | DECLARATION OF PROTECTIVE COVENANTS,CONDITIONS AND RESTRICTIONS FOR PINE HILL COMMERCE PARK dated November , 2010 and recorded in the ROD Office for Dorchester County on November , 2010 in Book at Page . |
| 7. | Any portion of the premises lying below the ordinary high water xxxx of Canal or any rights in the adjoining water. |
| 8. | Subject to the rights of others in and to the bed and waters of the canal crossing the premises as shown on plat entitled “A PLAT SHOWING TWO TRACTS OF LAND OWNED BY WESTVACO CORPORATION LOCATED IN DORCHESTER COUNTY, S.C., TRACT A CONTAINING 74.7 ACRES, TRACT B CONTAINING 61.7, TOTAL 136.4, ABOUT TO BE CONVEYED TO XXXXXX SAND & GRAVEL CO” surveyed by K. A. Niahoney and X. X. Xxxxxx, dated January 20, 1972 and recorded in the ROD Office for Dorchester County in Plat Cabinet 19 at Page 74. |
| 9. | Ordinance Number 09-17 and Development Agreement by and between Dorchester County, South Carolina and MWV Pine Hill Commerce Park, LLC dated October 14, 2009 and recorded in the ROD Office for Dorchester County on October 19, 2009 in Book 7277 at Page 1, as amended by that instrument by and between Dorchester County, South Carolina and MWV-East Edisto Pine Hill Commerce Park, LLC dated and recorded in the ROD Office for Dorchester County on in Book at Page . |
PAGE 52
| 10. | Facts which would be disclosed by a comprehensive survey of the premises herein described, subsequent to survey prepared by Xxxxxx & Xxxxxx Engineering Co., dated April 2, 2009 and as shown on plat entitled “A FINAL SUBDIVISION PLAT OF TRACT 1 TO CREATE TRACT 2 AND GENERAL UTILITY AND INGRESS/EGRESS EASEMENT, SOUTHWEST OF SUMMERVILLE, DORCHESTER COUNTY, SOUTH CAROLINA, PREPARED FOR: MEADWESTVACO FORESTRY LLC. CO.”, recorded in the ROD Office for Dorchester County in Plat Cabinet L at Page 125. |
EXCEPTIONS AS TO EASEMENT PARCEL ONLY:
| 11. | Facts which would be disclosed by a comprehensive survey of the premises herein described, subsequent to survey prepared by Xxxxxx & Xxxxxx Engineering Co., dated September 30, 2009 and as shown on plat entitled “A FINAL SUBDIVISION PLAT OF TRACT 1 TO CREATE TRACT 1 RESIDUAL & XXXXX 0 & XXXXX 0 & XXXXXXXXXXX XX X GENERAL UTILITY & INGRESS/EGRESS EASEMENT, SOUTHWEST OF SUMMERVILLE, DORCHESTER COUNTY, SOUTH CAROLINA, PREPARED FOR MEADWESTVACO FORESTRY LLC. CO.” recorded in Plat Cabinet L at Page 135. |
12. Rights of the public and others entitled thereto to the use of the Ingress/Egress Easement
area.
PAGE 53
Exhibit D
Special Stipulations
1. Pre-existing Design Costs. Landlord will reimburse Tenant for Tenant’s pre-existing design
costs incurred by Tenant in the sum of $475,865.53 promptly following execution and delivery of
this Lease by Landlord and Tenant.
2. Tenant’s Review of the Work.
a. Landlord shall make the construction site available at reasonable times for
inspection by Tenant or its designated representatives.
b. Landlord shall reasonably provide Tenant information in Landlord’s possession
from the general contractor or architect relative to the construction of the Premises. Landlord
and Tenant will endeavor to hold weekly telephone conferences to respond to any questions and
provide updates as to the construction progress. Landlord will provide Tenant with copies of
normal project updates as issued.
c. Tenant has approved the original plans and related specifications as outlined
in the Lease. Tenant has the right to approve change orders that will occur during the construction
process. Tenant has no other rights relative to approval so long as the construction is materially
consistent with the original plans and specifications as modified via change orders.
d. Tenant, its employees, agents and representatives will be permitted to enter
onto the Premises from time to time during construction for the purpose of inspecting (but not for
the purpose of approving) the Work and to perform the installation of furniture, fixtures,
equipment or additional improvements to prepare the Premises for Tenant’s use and occupancy;
provided that, in Landlord’s sole discretion, Tenant does not interfere with Landlord’s development
and construction of the Premises. Landlord acknowledges that Tenant will be constructing a
greenhouse on the Land during the development and construction process; provided, however, such
construction shall not interfere with the Premises site development and construction.
3. Delayed Substantial Completion: Acceleration of Buy-Out Remedy. Landlord does not hereby
grant Tenant any rights to acquire the Premises pursuant to the Lease or the Work Letter that are
over and above those rights currently contained in such documents. Landlord will provide Tenant
with periodic estimates of costs and estimates for completion during the course of construction.
Landlord agrees that it will assign its rights under various contracts with architects,
contractors, etc. and any rights under building permits, zoning approvals, etc. upon the
notification from Tenant that Tenant will be acquiring the Premises from Landlord pursuant to the
terms of the Lease, subject, however, to the previous assignments of such documents to any lenders.
Tenant may pursue its rights to acquire the Premises as set forth in the Lease prior to the
18-month period set forth therein, provided that both Landlord and Tenant agree that (1)
Substantial Completion will not take place within such 18-month period, (2) Landlord is not
diligently pursuing construction, and (3) delays in the completion of construction are not caused
by reasons beyond the control of the Landlord.
PAGE 54
Exhibit E
Form of Subordination, Non-Disturbance and Attornment Agreement
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (“Agreement”) is made to be
effective as of the ___th day of October, 2010, by and between Forestry Research
Holdings, LLC, a South Carolina limited partnership (the “Landlord”), TD Bank, N.A. (the
“Lender”), and ArborGen Inc., a Delaware corporation (the “Tenant”) .
BACKGROUND:
Tenant has entered into a lease agreement with Landlord dated October __, 2010 (the
“Lease”) relating to the property described in Exhibit “A” attached to this Agreement and
by this reference made a part of this Agreement (the “Property”). Lender has made or has
committed to make a loan to Landlord in the original principal amount of $7,500,000.00 (the
“Loan”) secured by a mortgage (the “Mortgage”) covering the Property. Tenant has
agreed that the Lease will be subject and subordinate to the Mortgage held by Lender, provided
Tenant is assured of continued use of the Property under the terms of the Lease.
AGREEMENT:
For and in consideration of the mutual covenants contained in this Agreement, the sum of Ten
Dollars ($10.00) and other good and valuable considerations, the receipt and sufficiency of which
are acknowledged, and notwithstanding anything in the Lease to the contrary, the parties agree as
follows:
| 2. | Subordination. The Lease with all rights, options, liens and charges created by the Lease is expressly made and will be subject to and subordinate in all respects to the terms, conditions, lien, operation and effect of the Mortgage and to any renewals, modifications, consolidations, replacements and extensions of the Mortgage. |
| 3. | Nondisturbance. If Lender or Lender’s assignee (“Lender’s Assignee”) takes possession of the Property or becomes the owner of the Property by foreclosure, conveyance in lieu of foreclosure or otherwise, so long as no default of Tenant has occurred under the Lease beyond applicable notice and cure periods, then Lender agrees as follows: |
| (a) | Lender or Lender’s Assignee will not terminate, impair or disturb the possession of Tenant. | ||
| (b) | The Lease will continue in full force and effect as a direct Lease between Successor Landlord (as defined in Section 4 below) and Tenant, upon and subject to all of the terms, covenants and conditions of the Lease, for the balance of the term of the Lease. |
| 4. | Mortgage Remedies. Nothing contained in this Agreement will prevent Lender from naming Tenant in any foreclosure or other action or proceeding initiated by Lender |
PAGE 55
| pursuant to the Mortgage to the extent necessary under applicable law in order for Lender to avail itself of and complete the foreclosure or other remedy, subject to the provisions of Section 2 above. |
| 5. | Attornment. If Lender, Lender’s Assignee or any other party becomes the owner of the Property by foreclosure, conveyance in lieu of foreclosure or otherwise (“Successor Landlord”), then Tenant agrees as follows: |
| (a) | Tenant will perform and observe its obligations under the Lease. | ||
| (b) | Tenant will attorn to and recognize Successor Landlord as the landlord, and Successor Landlord will recognize Tenant, under the Lease for the remainder of the term of the Lease, such attornment to be automatic and self-operative. | ||
| (c) | Tenant will execute and deliver upon request of Successor Landlord an appropriate agreement of attornment to Successor Landlord. |
| 6. | Protection of Successor Landlord. Tenant agrees that Successor Landlord will not be liable for, subject to or bound by any of the following: |
| (a) | claims, offsets or defenses which Tenant might have against the prior Landlord; | ||
| (b) | acts or omissions of the prior Landlord; | ||
| (c) | rent or additional rent which Tenant might have paid more than thirty (30) days in advance; | ||
| (d) | any security deposit or other prepaid charge paid to the prior Landlord; | ||
| (e) | construction or completion of any improvements for Tenant’s use and occupancy provided that Tenant shall retain any rights it has under the Lease with respect to the purchase of the Property in accordance with Section 3(a) of the Work Letter attached to the Lease; | ||
| (f) | warranties of any nature whatsoever, including any warranties respecting use, compliance with zoning, hazardous wastes or environmental laws, prior Landlord’s title, prior Landlord’s authority, habitability, fitness for purpose or possession; or | ||
| (g) | amendments or modifications of the Lease made without its written consent. |
| 7. | Successor Landlord Exculpation. Tenant will look solely to Successor Landlord’s interest in the Property for the payment and discharge of any obligation or liability imposed upon Successor Landlord under the Lease. |
| 8. | Estoppel. To the best of Tenant’s knowledge as of the date hereof, there does not exist any default, claim, controversy or dispute under the Lease. Tenant has not commenced any action and Tenant has not sent or received any notice to terminate the Lease. |
| 9. | Notice to Lender. Both Landlord and Tenant agree that they will deliver to Lender a copy of all notices of default or termination received by either of them under the terms of the Lease. Further, Tenant agrees to give to Lender written notice of any default by Landlord under the Lease. Lender shall have thirty (30) days after receipt of such written notice of default in which, at Lender’s option, to cure such default; provided, however, that said 30-day period shall be extended so long as within said 30-day period, Lender has commenced |
PAGE 56
| to cure and is proceeding with reasonable diligence to cure said default. Nothing herein shall be deemed to obligate Lender to cure Landlord’s defaults under the Lease. |
| 10. | Assignment to Lender. Tenant acknowledges that the Landlord may execute and deliver to Lender an assignment of the Lease as security for the Loan and that Lender may further assign the Loan. Tenant expressly consents to such assignments. |
| 11. | Payment of Rent. Landlord hereby agrees that if Lender notifies Tenant that Lender is entitled to receive the rent and/or any other payments including reimbursements, if any, due under the Lease pursuant to an Assignment of Rents or any other instrument or agreement signed by Landlord, then Tenant shall be entitled to comply with said instrument upon being furnished a copy of it by Landlord or Lender, and Tenant may rely on any assertion by Lender that Lender is entitled to receive the rents (and if applicable, other payments due under the Lease), whether due to Landlord’s default under the Mortgage, or otherwise, and Tenant shall have no obligation to make any independent determination as to whether the assertions of Lender are true. Any rent or other sums paid to Lender upon Lender’s demand shall be deemed to be payments to Landlord pursuant to the Lease. |
| 12. | Invalidity. If any portion of this Agreement is held invalid or inoperative, then all of the remaining portions will remain in full force and effect, and, so far as is reasonable and possible, effect will be given to the intent manifested by the portion or portions held to be invalid or inoperative. |
| 13. | Governing Law. This Agreement will be governed by and construed in accordance with the law of the State of South Carolina. |
| 14. | Notices. |
| (a) | All notices, demands and other communications (“Notices”) under or concerning this Agreement must be in writing. Each Notice shall be addressed to the intended recipient at its address set forth in this Agreement, and will be deemed given on the earliest to occur of (1) the date when the Notice is received by the addressee; (2) the first Business Day after the Notice is delivered to a recognized overnight courier service, with arrangements made for payment of charges for next Business Day delivery; or (3) the third Business Day after the Notice is deposited in the United States mail with postage prepaid, certified mail, return receipt requested. The term “Business Day” means any day other than a Saturday, a Sunday or any other day on which Lender is not open for business. | ||
| (b) | Any party to this Agreement may change the address to which Notices intended for it are to be directed by means of Notice given to the other party in accordance with this Section. Each party agrees that it will not refuse or reject delivery of any Notice given in accordance with this Section, that it will acknowledge, in writing, the receipt of any Notice upon request by the other party and that any Notice rejected or refused by it will be deemed for purposes of this Section to have been received by the rejecting party on the date so refused or rejected, as conclusively established by the records of the U.S. Postal Service or the courier service. |
| Any Notice, if given to Lender, must be addressed as follows: |
TD Bank, N.A.
Attn: Xxxxxxx Xxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx, 00000
Attn: Xxxxxxx Xxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx, 00000
PAGE 57
| Any Notice, if given to Landlord, must be addressed as follows: |
Forestry Research Holdings, LLC
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
ATTN: Xxxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
ATTN: Xxxxxx X. Xxxxx
| Any Notice, if given to Tenant, must be addressed as follows: |
| 15. | Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties to this Agreement and their respective heirs, legal representatives, successors, successors-in-title and assigns, including but not limited to any Successor Landlord or purchaser at or in lieu of a foreclosure under the Mortgage. However, except as expressly permitted in the Lease, Tenant shall not assign the Lease or sublet the Property without the prior consent of Lender. |
| 16. | Counterparts. This Agreement may be executed in any number of counterparts, all of which when taken together will constitute one and the same instrument. |
| 17. | Modification. This Agreement may not be cancelled or modified except by an agreement in writing signed by Lender and Tenant or their respective successors. Landlord joins in this Agreement for the purpose of consenting to the provisions hereof and agrees to be bound hereby but the consent of the Landlord will not be required in order to cancel or modify this Agreement. |
Remainder of this Page is Intentionally Left Blank
PAGE 58
IN WITNESS WHEREOF, the parties hereto have executed this Agreement [under seal] as of the
date first above written.
| Witnesses: | Tenant: | |||||
| ArborGen Inc., a Delaware corporation | ||||||
/s/ Illegible
|
||||||
/s/ Illegible
|
By: | /s/ Xxxxxxxx X. Clear | ||||
| Its: Sr. VP & CFO | ||||||
STATE OF SOUTH CAROLINA ) |
||||
| : ss.: | |
|||
COUNTY OF BERKELEY ) |
The foregoing instrument was acknowledged before me this 23 day of November, 2010 by Xxxxxxxx
Clear in his/her capacity as Sr. VP & CFO of Arborgen Inc., a Delaware corporation.
| /s/ Xxxxxx X. Xxxx | ||||
| Notary Public | ||||
| Print Name: Xxxxxx X. Xxxx My commission expires: 12/20/17 |
||||
SEAL OF NOTARY
PAGE 59
Witnesses:
|
Landlord: | |||
| FORESTRY RESEARCH HOLDINGS LLC, a | ||||
| South Carolina limited liability company | ||||
| By: MPR Consultants, Inc., Its: Manager | ||||
| By: /s/ Xxxxxx X. Xxxxx Xxxxxx X. Xxxxx | ||||
| Its President |
STATE OF SOUTH CAROLINA |
) | |
| : ss.: | ||
COUNTY OF CHARLESTON |
) |
The foregoing instrument was acknowledged before me this ___ day of September, 2010 by Xxxxxx
X. Xxxxx in his capacity as president of MPR Consultants, Inc., the manager of FORESTRY RESEARCH
HOLDINGS LLC, a South Carolina limited liability company on behalf of FORESTRY RESEARCH HOLDINGS
LLC, a South Carolina limited liability company.
| Notary Public | |||||||
| Print Name: | |||||||
| My commission expires: | |||||||
SEAL OF NOTARY
PAGE 60
Witnesses:
|
Lender: | |||
| TD Bank, N.A. | ||||
/s/ [Illegible]
|
||||
| By: /s/ Xxxxxxx X. Xxxx Xxxxxxx X. Xxxx | ||||
/s/ [Illegible]
|
Its S.O.I. | |||
STATE OF SOUTH CAROLINA |
) | |
| : ss.: | ||
COUNTY OF CHARLESTON |
) |
The foregoing instrument was acknowledged before me this 24th day of November, 2010 by Xxxxxxx
X. Xxxx in his capacity as Senior Vice President of TD Bank, N.A..
| /s/ Xxxxxx A [Illegible] | ||||
| Notary Public | ||||
| Print Name: Xxxxxx A [Illegible] | ||||
My commission expires: 10/15/13
SEAL OF NOTARY
PAGE 61
EXHIBIT A
Legal Description
ALL that piece, parcel or tract of land, situate, lying and being in Dorchester County, State of
South Carolina, being shown and designated as TRACT 2, containing 13.501 Acres on a plat entitled
“A FINAL SUBDIVISION PLAT OF TRACT 1 TO CREATE TRACT 2 AND GENERAL UTILITY AND INGRESS/EGRESS
EASEMENT, SOUTHWEST OF SUMMERVILLE, DORCHESTER COUNTY, SOUTH CAROLINA, PREPARED FOR: MEADWESTVACO
FORESTRY LLC. CO.” dated April 2, 2009 by Xxxxxx & Xxxxxx Engineering Co. in Plat Cabinet L at Page
125. SAID tract of land having such size, shape dimensions and boundaries as will by reference to
said plat more fully appear.
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