SECOND AMENDMENT TO LEASE AGREEMENT
Exhibit 10.74
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT (this “Amendment”) is made and entered into
effective the 29th day of December, 2006 (“Effective Date”) by and between Clariant Corporation
(“Landlord”), with an address of 0000 Xxxxxx Xxxx, Xxxxxxxxx, XX 00000, Attention: General Counsel,
and SCR-Tech, LLC (“Tenant”), with an address of 00000 Xx. Xxxxx Xxxx, Xxxxxxxxx, XX 00000,
Attention: Office Administrator. This Amendment modifies and amends the Lease Agreement dated
December 16, 2002 between Landlord and Tenant, as amended in the First Amendment to Lease Agreement
effective January 1, 2004 (collectively, the “Lease”).
Recitals
A. Landlord is the owner of those certain buildings as per Schedule F of the Lease,
located at 11701 Mt. Xxxxx Road, Charlotte, North Carolina.
B. Tenant wishes to lease additional space in a building known by Clariant as
Building #32, Warehouse 20, the “Warehouse,” as warehouse space and breakroom, and the
additional space in the Warehouse Tenant wishes to lease are known by Clariant as
“Compartments A & B and Office.” Tenant agrees to lease this space in an as-is condition
excluding the environmental condition of such space (including, but not limited to the
underlying ground, the Warehouse and the various components, parts and structures of the
Warehouse) for purposes of Landlord satisfying its indemnity obligations under Sections 14 and
27.3 of the Lease and Tenant being exculpated and having its liability limited under Section
27.5 of the Lease.
NOW, THEREFORE, for the mutual promises herein contained and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:
1. Additional Leased Premises in Building 32. Notwithstanding anything to the
contrary in the Lease, Landlord hereby agrees to lease to Tenant and Tenant’s agents, employees,
and representatives Building 32 Compartments A & B and office to be identified as Parcel “E” for
purposes of the Lease, and Tenant agrees to lease Compartments A & B and office from Landlord in
accordance with the terms of this Amendment and the Lease as modified and amended by this
Amendment. Compartments A & B shall be used by Tenant, pursuant to the Lease, for general storage
use and the Building 32 office for a breakroom. Tenant agrees to lease Compartments A & B and
office as well as any additional space to be leased in the Warehouse under Section 2 below, in an
as-is condition excluding the environmental condition of such space (including, but not limited
to, the underlying ground, the Warehouse and the various components, parts and structures of the
Warehouse) for purposes of Landlord satisfying its indemnity obligations under Sections 14 and
27.3 of the Lease and Tenant being exculpated and having its liability limited under Section 27.5
of the Lease. Compartments A & B and office as well as any additional space to be leased in the
Warehouse shall be maintained solely and exclusively by Tenant in accordance with the terms of the
Lease.
2. Option to Expand Warehouse Space. (a) Compartment C Option. For and
in consideration of Tenant’s Lease of Compartments A & B and office, and an option fee of
$300/month payable by Tenant to Landlord, Landlord hereby grants to Tenant an irrevocable
option for Tenant to lease Building 32’s “Compartment C.” The term of this option shall be
thirty-six (36) months from the Effective Date of this Second Amendment, at which point such
option shall expire and be void. Terms of the lease of Compartment C shall be the same as
those applicable to Compartments A & B. Tenant may exercise its option to lease Compartment C
during the 36-month option period by providing Landlord with written notice of same, and
Tenant shall specify in such notice the effective date of the lease of such additional space.
Upon Tenant’s exercise of its option to lease such additional space in the Warehouse, the Lease
shall be modified to reflect such lease of additional space. Landlord shall not be obligated to
improve or specially maintain Compartment C during the option period, and if Tenant exercises this
option and occupies Compartment C, Tenant shall have the same maintenance obligations as are
applicable to Compartments A & B and Office, and such space will be occupied on a then as-is
condition excluding the environmental condition of such space (including, but not limited to,
the underlying ground, the Warehouse and the various components, parts and structures of the
Warehouse) for purposes of Landlord satisfying its indemnity obligations under Sections 14 and
27.3 of the Lease and Tenant being exculpated and having its liability limited under Section
27.5 of the Lease.
(b)
Compartment B Option. For and in consideration of Tenant’s Lease of Compartments A & B
and office, Landlord hereby grants to Tenant an irrevocable option for Tenant to lease Building
32’s “Compartment B” after the initial lease term of Compartment B terminates on December 31,
2008. The term of this option shall be thirty-six (36) months from the Effective Date of this
Second Amendment, at which point such option shall expire and be void. Terms of the lease of
Compartment B after December 31, 2008 shall be the same as those applicable to Compartments A & C.
Tenant may exercise its option to lease Compartment B during the 36-rnonth option period by
providing Landlord with written notice of same, and if such option is exercised, the lease of
Compartment B shall continue after December 31, 2008 through the expiration of the lease term
applicable to the other parcels (i.e., June 30, 2012 plus Tenant’s two sequential five-year
renewal options). Upon Tenant’s exercise of its option to lease such additional space in the
Warehouse, the Lease shall be modified to reflect such lease of additional space. Landlord shall
not be obligated to improve or specially maintain Compartment B during the option period, and if
Tenant exercises this option and occupies Compartment B, Tenant shall have the same maintenance
obligations as are applicable to Compartments A & C and Office, and such space will be occupied on
a then as-is condition excluding the environmental condition of such space (including, but not
limited to, the underlying ground, the Warehouse and the various components, parts and structures
of the Warehouse) for purposes of Landlord satisfying its indemnity obligations under Sections 14
and 27.3 of the Lease and Tenant being exculpated and having its liability limited under Section
27.5 of the Lease.
3. Additional Leased Premises in Building 49. Notwithstanding anything to
the contrary in the Lease, Landlord hereby agrees to lease to Tenant and Tenant’s agents,
employees, and representatives the western portion of Building 49 comprised of 2,400 square
feet as shown on the attached Exhibit “A” attached hereto and incorporated herein by reference
(the “Building 49 Space”) to be identified as Parcel “F” for purposes of the Lease, and Tenant
agrees to lease the Building 49 Space from Landlord in accordance with the terms of this
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Amendment and the Lease as modified and amended by this Amendment. Building 49 Space shall be used
by Tenant pursuant to the Lease for lab, office and storage use. As soon as reasonably practicable
after execution of this Amendment, Landlord shall make the fire water line to Building 49 Space
operational, potable water available to Building 49 Space and the wastewater sump pump serving
Building 49 Space operational, all in accordance with applicable building codes and at Landlord’s
expense; provided, however, in the event Landlord’s total expenses relating to the work described
in this sentence exceeds $5,000, Tenant shall be responsible for paying to Landlord the amount of
Landlord’s Expenses in excess of $5,000 upon Landlord presenting Tenant with copies of bills and
invoices for such work evidencing such excess; provided, further, however, that in the event such
expenses are anticipated or determined by Landlord to exceed $5,000, Landlord shall inform Tenant
of same as soon as reasonably practicable. Except as set forth in the immediately preceding
sentence, Tenant agrees to lease Building 49 Space in an as-is condition excluding the
environmental condition of such space (including, but not limited to, the underlying ground, the
building and the various components, parts and structures of the building) for purposes of Landlord
satisfying its indemnity obligations under Sections 14 and 27.3 of the Lease and Tenant being
exculpated and having its liability limited under Section 27.5 of the Lease. Building 49 Space
shall be maintained solely and exclusively by Tenant in accordance with the terms of the Lease and
this Amendment. Tenant agrees to heat all of Building 49 in such a manner as to keep the sprinkler
system and waterlines from freezing. For and in consideration of Tenant leasing Xxxxxxxx 00 Xxxxx,
Xxxxxxxx will transfer and convey to Tenant Landlord’s surplus lab hoods in Building 30 at no cost
for use by Tenant in upfitting Tenant’s lab to be located in Building 49 Space; provided, however,
Tenant shall be responsible for moving and installing any such surplus lab hoods accepted by
Tenant. Landlord shall provide to Tenant a mutually agreeable Xxxx of Sale evidencing the transfer
and conveyance of such surplus lab fixtures.
4.
Schedule Modifications. The following Schedules to the Lease are
modified as set forth below:
Schedule F (Premises) — add a parcel “E” which shall be Compartments A & B and office of
Building 32 (15,000 sf, 14,320 sf and 830 sf respectively) — warehouse. Parcel “E” shall
also include Compartment C if Tenant’s option under Sec. 2(a) above is exercised. Parcel
“D” changed to Building 30 — (552) sf — Laboratory and Office. Add a Parcel “F” which shall
be Building 49 Space (2,400 sf) — lab and warehouse.
Schedule I (Occupancy Dates) — add Parcel “E”, Compartment A — on February 1, 2006;
Compartment B and Office — on August 1, 2006. Only with respect to Compartment B, the
initial term of the lease shall be through December 31, 2008, subject to being extended if
Tenant exercises the option set forth in Section 2(b), above. The Occupancy Date for
Compartment C shall be as identified in Tenant’s option exercise notice sent pursuant to
Sec. 2(a) above. Add Parcel “F” — on the date Tenant occupies Building 49 Space for
purposes of conducting its business thereon and Tenant vacates Building 30. Tenant’s
occupancy of Building 30 shall terminate on the date when Tenant vacates Building 30 and
occupies Building 49 Space for the purposes of conducting its business thereon, and Tenant
shall notify Landlord in writing of such date.
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Schedule L (Base Rent) — add Parcel “E” — $2.65/sf/yr ($79,897.50 per year, or $6658.13 per
month). If Compartment C is added through Tenant’s exercise of its option under Section
2(a) above, the base rent per square foot for Compartment C shall be equal to the then
current base rent per square foot for Compartments A & B, subject thereafter to Schedule M
adjustments. If Compartment B is extended after December 31, 2008 through Tenant’s exercise
of its option under Section 2(b) above, the base rent per square foot for Compartment B
shall be equal to the base rent per square foot of Compartment B on December 31, 2008,
subject thereafter to Schedule M adjustments. Add Parcel “F” — for the first 18 months of
Tenant’s occupancy of Building 49 Space, Base Rent shall be $529.40 per month, and
thereafter Base Rent shall be based upon the same annual per square foot charge as that for
Building 48 (Parcel “A”).
Schedule O (Site Service Expenses) — insert: with respect to Building #32, the Site Service
Expense will be charged at a rate that is one-half the normal per square foot rate. With
respect to Building 49 Space no Site Service Expense shall be charged for the first 18
months of Tenant’s occupancy of Building 49 Space, and after such 18-month period, Tenant
shall pay a per square foot Site Service Expense charge based upon one-half of the standard
per square foot Site Service Expense charge. Tenant shall be responsible for payment of cost
of all utilities servicing Building 49 Space beginning at the time the utilities are turned
on in the building.
5. Term. This Amendment shall commence effective the Effective Date.
6. Wastewater. With respect to Landlord’s acceptance of Tenant’s
wastewater for treatment, Tenant shall be permitted to discharge into Landlord’s wastewater
treatment system wastewater containing arsenic and other constituents so long as the level of
arsenic and other constituents does not cause Clariant to exceed any limitations or violate
conditions of its environmental permits that are in effect at any time including its NPDES
effluent discharge permit and its permit for Surface Disposal of Residual Solids (Landfill);
provided however, that Tenant shall have the right to use at least seventy-five percent (75%)
of the monthly average of Landlord’s NPDES discharge limit for arsenic. Wastewater shall include
surface runoff from Tenant’s operations.
7. Miscellaneous.
(a) Notwithstanding anything in this Amendment or the Lease to the contrary, the use of the
phrase “as-is condition” in this Amendment and the Lease shall not limit, restrict or diminish
Landlord’s indemnity obligations under Sections 14 and 27.3 of the Lease or the exculpation and
limitation of liability of Tenant under Section 27.5 of the Lease, and Sections 14 and 27.3 with
respect to Landlord’s indemnity obligations and Section 27.5 of the Lease with respect to
Tenant’s exculpation and limitation of liability shall be interpreted and construed without giving
consideration or effect to the phrase “as-is condition” in this Amendment and. the Lease. For
purposes of Section 27.3 and 27.5 of the Lease in the case of additional Premises being leased
under this Agreement, the term “Effective Date” as defined in this Amendment shall be substituted
in place of the term “Commencement Date” wherever the term “Commencement Date” appears in Sections
27.3 and 27.5. However, the foregoing provisions shall in no way exonerate or exculpate Tenant
from its own Tenant’s indemnity obligations
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under Sections 14 and 27.3 of the Lease if any claims arise out of Tenant’s failure to
maintain any of additional leased Premises for which Tenant has assumed maintenance obligations
under this Amendment.
(b) Landlord and Tenant acknowledge and agree that Tenant has not had
during Tenant’s tenancy on and prior to the date hereof and shall not have from this date
forward any leasehold, operational or other interest in or control over any property of Landlord’s
beyond the Premises leased to Tenant and Tenant’s use of the Lot as described in the Lease as
amended.
(c) All other terms and conditions of the Lease remain unchanged.
(Signatures on following page)
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment.
| Landlord: | ||||||
| CLARIANT CORPORATION | ||||||
| By: | /s/ X. X. Xxxxxxx | |||||
| Title: | Sr. V. P. – Legal | |||||
| Print Name: X. X. Xxxxxxx | ||||||
| Date: | Dec. 29, 2006 | |||||
| Tenant: | ||||||
| SCR-TECH, LLC | ||||||
| By: | /s/ X. X. XxXxxxx | |||||
| Title: | President | |||||
| Print Name: X. X. XxXxxxx | ||||||
| Date: | 3-10-07 | |||||
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EXHIBIT A
