LEASE AGREEMENT, OPTIONS TO PURCHASE AND OPTION TO LEASE
Exhibit 10.22
State of South Carolina
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County of Greenville
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LEASE AGREEMENT, OPTIONS TO
PURCHASE AND OPTION TO LEASE
PURCHASE AND OPTION TO LEASE
THIS LEASE AGREEMENT (the “Lease”), also containing Options to Purchase and an Option to Lease
first made and entered into on the 19th day of March, 2008, by and between EZE
Management Properties Limited Partners, hereinafter called “Landlord” and Rockwell Medical
Technologies, Inc., hereinafter called “Tenant”;
WITNESSETH:
WHEREAS, the Landlord is the owner of certain property in Greenville County, South Carolina, as
outlined in red on the survey entitled “As-Built Survey Calgon Corporation & EZE Management
Properties Limited Partnership”, a copy of which is attached hereto as Exhibit C (the
“Survey”); and
WHEREAS, the Landlord desires to lease to Tenant and Tenant desires to lease from Landlord all that
certain 57,000 square foot building located at 000 Xxxx Xxxx Xxxxx, Xxxxx, Xxxxx Xxxxxxxx, as more
fully set out below, as shown on the Survey; and
WHEREAS, the Tenant desires to have an Option to Purchase the land and 57,000 square foot building
located at 000 Xxxx Xxxx Xxxxx (the “Leased Premises”) and also desires to have an Option to
Purchase the 20,362 square foot office building located at 603 High Tech Court (the “Office
Building”), which property is outlined in red on the survey which is attached hereto as Exhibit
E; and
WHEREAS, the Tenant desires to have an Option to Lease the 20,362 square foot office building
located at 000 Xxxx Xxxx Xxxxx.
NOW, THEREFORE, Landlord and Tenant covenant and agree as follows:
ARTICLE I
GRANT AND TERM
GRANT AND TERM
1.01 Premises. The Landlord, for and in consideration of the rents, covenants, agreements and
stipulations hereinafter mentioned reserved and contained, to be paid, kept and performed by the
Tenant, by these presents does lease and rent to the said Tenant, and said Tenant hereby agrees to
lease and take upon the terms and conditions which hereinafter appear a 57,000 square foot building
(the “Building”) including approximately 2,000 square feet of office space and approximately 55,000
square feet of warehouse space and related improvements (herein called “Demised Premises”) as shown
on the floor plan attached hereto as Exhibit B, together with the exclusive right to use
all driveways, parking areas, sidewalks, loading docks and service areas and other improvements and
facilities shown on Exhibit C. The Building is further shown on the drawing “Calgon Lot 21
& Part of Lot 22 of a Subdivision Entitled: Riverbanks Energy Center Section 4, Greenville County
S.C.” made by Xxxx Engineering Consultants, Inc., a copy of which is attached hereto as Exhibit
C.
In addition, Landlord agrees to allow Tenant the use of the adjacent lot outlined in yellow on the
attached Exhibit A for the parking of trucks and vehicles and for no other purpose during
the Base Term. The Landlord reserves the right to sell or use this property during the Base Term
of this Lease, with adequate notice to Tenant.
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1.02 Initial Term. The period beginning upon the execution hereof and continuing until delivery of
the Demised Premises shall be hereinafter referred to as the “Initial Term”.
1.03 Base Term. The term of this Lease shall commence on March 1, 2008 (the “Lease Commencement
Date”) and continue for a period of three (3) years to end
on
February 28, 2011, (the “Base Term”).
Landlord hereby grants to Tenant the option to extend the Base Term of this Lease for one (1)
successive and separate term of two (2) years (The “Extension Term”) beginning on the date of
expiration of the Base Term of this Lease in accordance with all terms and conditions of this Lease
(the Base Term, and the Extension term are sometimes collectively referred to herein as the
“Term”). To be effective, such option to extend shall be exercised by Tenant’s providing Landlord
with written notice of Tenant’s intention to exercise said option at least one hundred twenty (120)
calendar days before the expiration of the Base Term hereof. Tenant shall not have the right to
exercise any such extension option if Tenant is then in default hereunder.
1.04 Delivery of Demised Premises. Landlord shall deliver the Demised Premises to Tenant in its
current “As-Is” condition upon full execution of this Lease.
ARTICLE II
RENT
RENT
2.01 a. Payment of Rent. Tenant’s obligation to begin payment of Rent shall be the date Landlord
delivers the Demised Premises to Tenant, which date is scheduled to be Saturday March 1, 2008, (the
“Rental Commencement Date”). Tenant shall pay to Landlord without notice, demand, and, except as
otherwise expressly provided herein, without reduction, abatement, set off or any defense, minimum
base rent (the “Base Rent”) in equal monthly installments, in advance, on or before the first day
of each month. If the Rental Commencement Date is a date other than the first day of a calendar
month, the Base Rent shall be prorated daily from such date to the first day of the next calendar
month and paid on the Rental Commencement Date.
2.01 b. Rent During Base Term. The annual Base Rent during the Base Term shall be Two Hundred
Seventy-Five Thousand Six Hundred Twenty-Eight and 00/100 Dollars ($275,628.00) payable in equal
monthly installments of Twenty Two Thousand Nine Hundred Sixty-Nine and 00/100 Dollars
($22,969.00).
2.01 c. Rent During Extension Term. The annual Base Rent during the Extension Term shall be Two
Hundred Thirteen Thousand Seven Hundred Fifty and 00/100 Dollars ($213,750.00) payable in equal
monthly installments of Seventeen Thousand Eight Hundred Twelve and 50/100 Dollars ($17,812.50).
2.02 Additional Rent. Tenant shall be responsible for the payment of certain costs relating to real
estate taxes and insurance premiums, each being specifically detailed in Article IV and Article V
respectively.
a. Taxes. Tenant will pay any and all taxes, documentary stamps or assessments of any nature
imposed or assessed upon Tenant’s occupancy of the Demised Premises or upon Tenant’s furniture,
furnishings, trade fixtures, equipment, machinery, inventory, merchandise or other personal
property located on the Demised Premises and owned by or in the custody of Tenant promptly as all
such taxes or Assessments may become due and payable without any delinquency. If applicable in the
jurisdiction where the Demised Premises are located, Tenant will pay and be liable for all sales,
use and inventory taxes or other similar taxes, if any, levied or
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imposed by any city, state, county or other governmental body having authority, such payments to be
in addition to all other payments required to be paid Landlord by Tenant under the terms of this
Lease. Such payment will be made by Tenant directly to such governmental body if billed to Tenant,
or if billed to Landlord, such payment will be paid concurrently with the payment of Base Rent, or
such other charge upon which the tax is based, all as set forth herein. Notwithstanding the
foregoing, Tenant will have the right, at its sole cost and expense, to contest any tax
contemplated by this Section provided that Tenant will send Landlord notice of Tenant’s intent to
contest such taxes. Landlord will reasonably cooperate with Tenant in connection with such contest,
at no expense to Landlord.
b. Reimbursement of Landlord’s Cost of Insurance. As Additional Rent, Tenant shall pay its
Proportionate Share (defined below) of the cost of any insurance premiums which Landlord is
required to carry under Section 5.01 (a) and Article X.
c. Other Additional Rent Provisions. Any amounts required to be paid by Tenant under this Article
II and any charges or expenses incurred by Landlord on behalf of Tenant shall be considered
Additional Rent payable in the same manner and upon the same terms and conditions as the Base Rent
reserved )hereunder. Any failure on the part of Tenant to pay such Additional Rent when and as the
same shall become due shall entitle Landlord to the remedies available to it for non-payment of
Base Rent. Tenant’s obligations for payment of Additional Rent shall begin to accrue on the Rental
Commencement Date. As used in this Lease Agreement, the term “Rent” shall include Base Rent and
Additional Rent, except as otherwise expressly provided to the contrary.
2.03 Additional Rent Estimated and Paid Monthly. The Real Estate Taxes and Insurance Premiums to be
paid by Tenant shall be estimated at the beginning of each calendar year or partial calendar year
during the Base Term and Tenant shall pay to Landlord one-twelfth (1/12) of such sum on the first
day of each calendar month during each such calendar year, or part thereof, during the Base Term.
Within thirty (30) days following the end of each calendar year or, if earlier, the end of the term
of this Lease, Landlord shall submit to Tenant a statement of the actual amount of Real Estate
Taxes and Insurance Premiums for such calendar year, and within thirty (30) days after receipt of
such statements, Tenant shall pay any deficiency between the actual amount owed and the estimates
paid during such calendar year, or in the event of overpayment, Landlord shall, at Landlord’s
option, credit the amount of such overpayment toward the next installment of Real Estate Taxes
and/or Insurance Premiums, or refund the amount of such overpayment to Tenant within thirty (30)
days, which such obligation shall survive the termination of the Lease. If the Rental Commencement
Date of the Base Term shall fall on other than the first day of. the calendar year, or if the
Expiration Date shall fall on other than the last day of the calendar year, Tenant’s share of the
Real Estate Taxes and Insurance Premiums for such calendar year shall be apportioned pro rata.
2.04 Estimated Additional Rent for Year 1. The estimate of the Additional Rent for the first Lease
year is shown on Exhibit D, attached hereto.
2.05 Penalty. In the event that any monthly installment of rent is not received by Landlord on or
before the tenth (10th) day from which said rent is due, Tenant agrees to pay to Landlord, as a
penalty each month during which the installment remains unpaid, an additional sum equal to the
$750.
2.06 Tenant’s Proportionate Share. Tenant’s “Proportionate Share” shall be a fraction, the
numerator of which is the gross leasable area of the Demised Premises and the denominator of which
is the greater of (i) the gross leasable area of the buildings depicted on Exhibit A, or
(ii) the gross leasable area of all of the buildings existing on the land depicted on Exhibit A at the time Tenant’s payment is due, excluding any buildings or land that are separately assessed or insured, as the case may be.
(ii) the gross leasable area of all of the buildings existing on the land depicted on Exhibit A at the time Tenant’s payment is due, excluding any buildings or land that are separately assessed or insured, as the case may be.
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ARTICLE III
HOLDING OVER
HOLDING OVER
3.01 Rent for Holding Over Period. In the event Tenant remains in possession of the Demised
Premises after the termination of the Base Term, same shall be construed to be a tenancy from month
to month, and said rent during hold over shall remain the same as the Base Term Rent for the first
six (6) months of the hold over period to be paid upon the same terms and conditions as specified
herein. Rent after the first six (6) months of the hold over period will be negotiated prior to any
additional hold over or lease extension period. In the event that Tenant holds over, Tenant and
Landlord agree to give the other party no less than ninety (90) days advance notice to vacate the
Demised Premises.
ARTICLE IV
TAXES/ASSESSMENTS
TAXES/ASSESSMENTS
4.01 Real Property Taxes. Throughout the term of this Lease, Landlord shall pay any and all real
estate taxes, storm water management fees and or sanitation charges payable on or with respect to
the Premises, including land and building, as and when the same shall come due. Landlord shall use
Landlord’s best efforts to keep any tax increases on the real estate to a minimum (including the
utilization of tax assessment appeal procedures where Landlord’s attorney or tax advisor feel an
appeal is well advised). Tenant shall reimburse Landlord those costs of such taxes and other
charges as referenced above that are applicable solely to the Demised Premises, or its
Proportionate Share thereof if applicable to more than the Demised Premises, in a timely manner
upon receipt of a copy of the paid tax xxxx each year.
4.02 Personal Property Taxes. Tenant shall timely pay directly to the applicable governmental
taxing authorities any and all taxes with respect to any and all of Tenant’s personal property
which shall at any time be situated in, at or about the Demised Premises, including, but not
limited to Tenant’s leasehold improvements, trade fixtures, inventory and personal property.
ARTICLE V
INSURANCE
INSURANCE
5.01 Required Coverage by Tenant. Tenant covenants and agrees that from and after the date of
occupancy by the Tenant, Tenant will carry and maintain, at its sole cost and expense, the
insurance required to be carried by Tenant under Paragraphs (b) and (c) below. Landlord covenants
and agrees that, from and after the date of occupancy by Tenant, Landlord will carry and maintain
the insurance required to be carried by Landlord under Paragraph (a) below and Article XIII. All
such policies of the insurance shall be issued by insurance companies with a rating of not less
than “A”, if available, in the most current available “Best’s Insurance Reports”, and licensed to
do business in the state in which the Building is located.
a. Landlord’s Insurance. Throughout the term of this Lease, Landlord covenants and agrees to carry
Property Insurance Special Form (formerly known as All-Risk insurance) on the Premises providing
insurance protection against damage or destruction by fire and other casualties, and rent abatement
and liability insurance, insured under a standard extended coverage endorsement and other items
required to be covered by Landlord pursuant to Article X. Said insurance shall be in the amount
equal to the full replacement value of the permanent improvements thereon under a policy or
policies issued by solvent and responsible insurance companies authorized to do business in the
State of South Carolina. Landlord and Tenant hereby grant to each other, on behalf of any insurer
providing insurance to either Landlord or Tenant as required by this Lease covering the Premises,
improvements thereon or contents thereof, a
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waiver of any right of subrogation by any such insurer that each may acquire against the other by
virtue of payment of any loss under such insurance. The parties hereby mutually and on behalf of
their insurers, waive their respective rights of subrogation to the extent covered by insurance.
Such waivers shall stand mutually terminated as of the date either Landlord or Tenant ceases to be
empowered to grant same.
b. Tenant’s Insurance. Liability insurance in the Commercial General Liability form (or reasonable
equivalent thereto) covering the Demised Premises and Tenant’s use thereof against claims for
personal injury or death, property damage and product liability occurring upon, in or about the
Demised Premises, such insurance to be written on an occurrence basis (not a claims made basis), to
be in combined single limits amounts not less than $1,000,000.00 and to have general aggregate
limits of not less than $1,000,000.00 for each policy year. The insurance coverage required under
this Paragraph 5.01 (b) shall, if available, extend to any liability of Tenant arising out of the
indemnities provided for in Article VI and, if necessary, the policy shall contain a contractual
endorsement to that effect. The general aggregate limits under the Commercial General Liability
insurance policy or policies must apply separately to the Demised Premises and to Tenant’s use
thereof (and not to any other location or use of Tenant) and such policy shall contain an
endorsement to that effect. Notwithstanding the foregoing, Tenant shall have the right to carry the
liability insurance provided above in the form of a blanket insurance policy, covering additional
items or locations or insureds, provided, however, that: (i) Landlord, and any’ other patties in
interest designated by Landlord to Tenant, from time to time, shall be named as additional insureds
thereunder as its interests may appear; (ii) the coverage afforded Landlord and such other parties
designated by Landlord will not be reduced or diminished by reason of use of such blanket policy of
insurance; and (iii) any such policy shall provide, at a minimum, for the minimum liability
limitations hereinabove provided in this Article VI with respect to Tenant’s interests in and to
the Demised Premises.
c. Tenant shall also carry insurance covering all of the items included in Tenant’s leasehold
improvements, if any, trade fixtures, merchandise and personal property from time to time in, on or
upon the Demised Premises, in an amount not less than one hundred percent (100%) of their full
replacement value from time to time during the term, providing protection against perils included
within the standard specialty property form fire and casualty insurance policy, together with
insurance against sprinkler damage, vandalism and malicious mischief.
d. Each insurance policy required above shall: (i) name the other party, as well as any mortgagee
of Landlord, as an additional insured; (ii) provide that a certificate evidencing such insurance
shall be delivered to the. other party prior to possession of the Demised Premises by Tenant and
thereafter within thirty (30) days prior to the expiration of each such policy, and, as often as
any such policy shall expire or terminate; (iii) contain a provision that the insurer will give to
the other parties in interest at least thirty (30) days notice in writing in advance of any
material change, cancellation, termination or lapse, or the effective date of any reduction in the
amounts of insurance’; ,and (iv) be written as a primary policy which does not contribute to and is
not in excess of coverage which the other party may carry. Notwithstanding the provisions of
subparagraph (iii) of the preceding sentence, each party shall be responsible for providing the
other with at least twenty-five (25) days notice in advance of any material change, cancellation,
termination or lapse, or the effective date of any reduction in the amount of insurance.
ARTICLE VI
INDEMNIFICATION
INDEMNIFICATION
Tenant shall defend, indemnify and hold harmless the Landlord from and against any and all claims,
losses, liabilities, causes of action, damages, or expenses, whether due to damage to the Demised
Premises, claims for injuries to persons or property, or administration or criminal action by a
governmental authority, where such claims arise out of or from or related to the use or occupancy
of the Demised Premises by Tenant, its agents, employees, invitee, visitors, customers, or
licensees, including costs and reasonable attorney fees incurred by Landlord to defend itself
against any such claims, damages or expenses.
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Landlord shall not be liable to Tenant for any damages, losses or injuries to the persons or
property of Tenant which may be caused by the acts, neglect, omissions or faults of any persons,
firms or corporations, except when such injury, loss or damage results from the negligence or the
unlawful or willful acts of Landlord, his agents or employees or contractors. All personal property
placed or moved into the Premises or building shall be at the risk of Tenant or the owner thereof,
and Landlord ‘shall not be liable to Tenant for any damage to said personal property except for
damage which is covered by insurance required to be carried by Landlord hereunder and except for
damage resulting from the negligence or the unlawful or willful acts of Landlord, its employees,
agents, or contractors. Each party shall maintain at all times during the Base Term of this Lease
or any Renewal Terms thereof, an insurance policy or policies in any amount or amounts sufficient
to indemnify the other or pay the other’s damages, if any, resulting from any matters set forth
hereinbefore.
In case Landlord or Tenant shall be made a party to any litigation commenced against the other
party, then the other party shall protect and hold Landlord or Tenant, as applicable, harmless and
shall promptly pay all costs, expenses and reasonable attorney fees incurred or paid by Landlord or
Tenant, as applicable, in connection with such litigation.
Notwithstanding any contrary provision (of this Lease, Tenant will look solely (to the extent
insurance coverage is not applicable or available) to the interest of Landlord (or its successor as
Landlord hereunder) in the Premises for the satisfaction of any judgment or other judicial process
requiring the payment of money as a result of any negligence or breach of this Lease by Landlord or
its successor or of Landlord’s managing agent (including any beneficial owners, partners,
corporations and/or others affiliated or in any way related to Landlord or such successor or
managing agent).
ARTICLE VII
MAINTENANCE OF PREMISES
MAINTENANCE OF PREMISES
7.01 Repairs by Landlord. The Landlord shall, at its sole cost and expense, keep and maintain the
foundations, roof, and structural portions of the exterior walls of the Premises (except any walls,
whether temporary or permanent, installed by Tenant), in good condition and repair, except for
repairs or replacements occasioned or required by reason of the acts of the Tenant, its employees,
agents, invitees, licensees, or contractors. The Tenant agrees to give the Landlord written notice
of the necessity for repairs or replacements coming to the attention of the Tenant. The Landlord
shall not be obligated to make any repair or replacement required of it until notice in writing
from Tenant of the need for same. The Landlord shall have a reasonable time after Tenant’s written
notice in which to make such repair or replacement. In addition, the Landlord shall be responsible
for the cost of replacing the heating, air-conditioning and ventilation system and units (“HVAC”);
provided however, Tenant shall be responsible for the replacement of any HVAC unit installed or
replaced in or on the Premises since January 15, 2007. The provisions of this Article shall not
apply in the event of damage or destruction by fire or other casualty or taking under a power of
eminent domain, in which event the obligations of the Landlord shall be controlled by the terms of
Article XIII and Article XIV. The Landlord shall not be liable for any damage done to the personal
property or leasehold improvements of Tenant occasioned by or from the electrical system, the
heating or cooling system, the plumbing and sewer systems, nor for damage occasioned by snow or ice
being upon or coming through the roof, walls, windows, doors or otherwise, in, upon or about the
Premises, except to the extent resulting from the negligence or unlawful or willful acts of
Landlord, its agents, employees, and contractors, or resulting from the failure of Landlord to
perform its obligations hereunder; nor for any damage arising from acts or negligence of other
occupants of the property of which the Premises is a part. The Landlord shall not be liable for any
damage occasioned for failure to keep the Premises in repair, unless the Landlord is obligated to
make such repairs under the terms hereof and unless
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notice of the need for repairs has been given the Landlord and a reasonable time has elapsed and
the Landlord has failed to make such repairs. Landlord shall not be liable to Tenant for any
damages to person or property resulting from fire or other hazards, except to the extent resulting
from the negligence or unlawful or willful acts of Landlord, its agents, employees, and
contractors, or resulting from the failure of Landlord to perform its obligations hereunder,
regardless of the cause thereof, and the Tenant hereby releases the Landlord from all liability for
such damage.
7.02
Repairs by Tenant. Subject only to the obligations of the Landlord set forth in Section
7.01 hereof, the Tenant shall keep and maintain the Demised Premises and every part thereof and any
fixtures, facilities or equipment contained therein, in good condition and repair, including, but
not limited to floors, the heating, air-conditioning, ventilating, fire protection, electrical,
plumbing and sewer systems, the exterior door, security grilles, window frames and all portions of
the store front area. Tenant shall (a) make any routine and regularly scheduled repairs thereof,
and (b) any non-routine and non-regularly scheduled repairs, maintenance or any replacements
thereof. The Tenant shall at its expense contract with a reputable firm for periodic servicing of
the heating, air-conditioning, and ventilation systems as recommended by the manufacturer of such
equipment. The Tenant shall also at its expense maintain pest (including termite) control,
inspection, and treatment of the Demised Premises. If the Tenant refuses or neglects to commence or
complete any of the obligations above set forth promptly and adequately, the Landlord may, but
shall not be required to do so, make or complete any maintenance or repairs and the Tenant shall
pay the cost thereof to the Landlord upon demand as additional rent hereunder. Alterations to the
Demised Premises by Tenant, after the Rent Commencement Date hereof shall be made only with prior
written consent of the Landlord and under Landlords control and supervision. However, the
Landlord’s consent shall not be unreasonably withheld or delayed in case of minor alterations to
conform the Demised Premises to the use of Tenant’s business. Regardless of any obligations
otherwise imposed upon Landlord, Tenant shall pay for the cost of any repairs or damage resulting
from the negligence or the unlawful or willful acts of its employees, agents or invitees, except to
the extent covered by insurance required to be carried by Landlord hereunder. Further permission is
hereby granted by Landlord to Tenant to upfit the Demised Premises by painting, redecorating or
carpet replacement all at the expense of Tenant, it being understood and agreed that the Tenant
takes and accepts the Demised Premises in their present condition “as is, where is” after
inspection by Tenant and without representation or warranty by Landlord or any agent of Landlord.
7.03 Maintenance of Grounds and Parking, Driveways. In the outdoor areas depicted on Exhibit
C, the Tenant shall either use its own personnel or employ a grounds maintenance service to
periodically keep the grass and weeds mowed, the shrubs pruned and the driveways, sidewalk and
parking areas swept in a neat, clean and sightly condition, with any expenses attendant thereto to
be paid by Tenant. In the event that the Landlord in his discretion should reasonably conclude that
such grounds and parking area maintenance is not being adequately carried out by said Tenant, then
Landlord is hereby authorized to employ a grounds maintenance service at what the Landlord
reasonably considers to be a market price for similar services and to xxxx Tenant the cost thereof
on a quarterly or more frequently periodic basis, which the Tenant agrees to pay upon receipt.
Tenant shall be responsible for repairs to the parking areas and driveways for any damage caused by
excessive wear and tear by Tenant or Tenant’s invitees.
7.04 Alterations and Remodeling. With the permission and prior written consent of the Landlord,
which shall not be unreasonably withheld, Tenant may make such alterations, additions, decorations
and changes to the interior of the building, parking lot and exterior lighting of the Premises as
it deems necessary for its purposes provided that the value of the buildings and improvements are
not thereby diminished subject to the following conditions:
a. That if any such work increases any insurance premiums, taxes, or other costs or expenses
relating to the Premises, Tenant shall timely and fully pay and satisfy same.
b. That no casualty or mechanics or materialmen’s claims or liens shall be created, and not bonded
over by Tenant, upon the Premises or elsewhere by reasons of or with respect to the
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work or a condition of the Premises thereafter resulting from said work; and
c. That upon expiration or any earlier termination of the Lease, Tenant shall, upon the election of
Landlord, promptly remove the alterations and repair and restore the Demised Premises at its cost
and expense to the condition existing next prior to installation of the same. Any and all
alterations, additions and improvements to the Premises (other than inventory and trade fixtures
and equipment) installed by or on behalf of Tenant shall immediately, at Landlord’s option, become
part of the Premises .and at the expiration or other termination of this Lease shall be surrendered
to the Landlord.
7.05 Compliance with Regulations. Tenant shall comply with all laws, ordinances, orders, rules,
regulations and requirements of all federal, state and municipal governments and appropriate
departments, commissions boards and officers thereof, which may be applicable to any Tenant
improvements. Tenant will likewise observe and comply with the requirements of all policies of
public liability, fire and all other types of insurance and all other instruments of record at any
time in force with respect to the Demised Premises.
7.06 Tenant’s Right to Contest Regulations. Tenant shall have the right, after notice to Landlord
to contest by appropriate legal proceedings, without cost or expense to Landlord, the validity of
any law, ordinance, order, rule, and regulation or requirement of the nature herein referred to and
to postpone Tenant’s compliance with the same, provided such contest shall be promptly and
diligently prosecuted by and at. the expense of Tenant so that Landlord shall not thereby suffer
any civil, or be subjected to any criminal, penalties or sanctions and that Tenant shall properly
protect and save harmless Landlord against any liability and claims for any such non-compliance or
postponement of compliance.
7.07 Satellite Dish. Tenant has the right to install a satellite dish or other electronic
transmitter (collectively the “Antenna”) on the roof of the Demised Premises in compliance with all
applicable laws. The cost of installation and maintenance thereof and the cost of any repairs to
the roof which are necessitated by the installation or repair of the Antenna shall be borne solely
by Tenant. Upon the termination of this Lease, Tenant has the right to remove any Antenna, and
Tenant shall repair any material damage to the roof occasioned by such removal.
7.08 Utilities. Landlord represents that the Demised Premises are served with heat, water, gas,
electricity and other utilities sufficient for Tenant’s use and that all such utilities are
separately metered to the Demised Premises. Tenant shall be solely responsible for and shall
promptly pay all charges for heat, water, gas electricity or any other utilities used or consumed
by Tenant on the Demised Premises.
ARTICLE IX
USE AND CONDUCT OF BUSINESS
USE AND CONDUCT OF BUSINESS
9.01 Use of the Premises. At the commencement of the Initial Term of this Lease, the Demised
Premises may be used by the Tenant for office space and warehousing, or other lawful purposes
provided such uses shall not affect the insurability of the Demised Premises. The Demised Premises
shall not be used for any illegal purposes, or in violation of any valid regulation of any
governmental body, nor in any manner to create any nuisance or trespass.
9.02 Nuisance. Tenant agrees not to create or allow any nuisance to exist on the Demised Premises,
and to xxxxx any nuisance that may arise, promptly and free of expense to Landlord.
ARTICLE X
QUIET ENJOYMENT
QUIET ENJOYMENT
10.01 It is a condition of this Lease is that Landlord has a good and marketable title to the
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Premises free and clear of all liens and encumbrances except those to which Tenant has specifically
consented in writing; that Landlord has the right to lease the same; that Landlord warrants and
will defend Premises unto Tenant against the lawful claims of all persons whomsoever; that so long
as the rents are being paid in the manner herein provided and the covenants, conditions and
agreements herein being all and singularly kept, fulfilled and performed by Tenant, Tenant shall
lawfully, peacefully and quietly hold, occupy and enjoy the Premises during the term herein granted
without any let, hindrance, ejection or molestation by Landlord or any person claiming under
Landlord.
ARTICLE XI
ENVIRONMENTAL
ENVIRONMENTAL
11.01 Landlord’s Environmental Warranty. To the best of Landlord’s knowledge, neither Landlord nor
any persons with whom Landlord has contracted (a) have caused any violation of any federal, state
or local law, ordinance, or regulation enacted related to environmental conditions on or about the
Premises, including, but not limited to soil and groundwater conditions. The term “Hazardous
Substance” as used herein shall include, without limitation, flammable, explosives, radioactive
materials, asbestos, polychlorinated biphenyls (PCB’s), chemicals known to cause cancer or
reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic products, and substances
declared to be hazardous or toxic under any law or regulation promulgated by any governmental
authority. Landlord agrees to indemnify and hold Tenant harmless for the demised premises as a
result of the demised premises use prior to January 15, 2007 entry upon same by the Tenant.
11.02 Hazardous Waste. Tenant covenants and warrants that it will not cause or permit to be brought
upon the Demised Premises or installed Improvements thereon any asbestos in any form, urea
formaldehyde insulation, transformers or any other equipment which contain dielectric fluid
containing levels of polychlorinated biphenyl in excess of fifty parts per million of any other
chemical material or substance which is regulated as toxic or hazardous or exposure to which is
prohibited, limited or regulated by any federal or state authority with the exception of Landlord’s
permission to allow Tenant to receive, store, distribute and transport such regulated hazardous
material/hazardous substances as are deemed normal and customary stock in Tenant’s industry. The
Tenant shall not install, store use, treat, transport or dispose of on the Demised Premises any
regulated hazardous or toxic materials or waste, and in the event of any such installation,
storage, use, treatment, presence, transportation or disposal during the term of this Lease the
Tenant shall remove any such hazardous materials or waste and comply with the regulations and
orders of any authority having jurisdiction of the same all at the expense of the Tenant, including
necessary removal, cleanup or other remediation, and if Tenant shall fail to proceed with such
removal or comply with such regulations or orders the Landlord may declare this Lease in default.
Tenant shall indemnify Landlord and hold Landlord harmless from any and all losses, damages or
expenses which may be incurred by Landlord for the presence or removal from the Demised Premises of
any such hazardous materials or waste related to any activity of Tenant on the Demised Premises and
the liability of the Tenant to Landlord under the covenants hereof shall survive termination of
this Lease or any transfer of the leasehold estate or the fee estate by either Landlord or Tenant.
11.03 Other. Under no circumstance shall Tenant install or have installed any environmental
monitoring xxxxx on the Demised Premises unless so required by an appropriate local, state or
federal governmental unit and with full knowledge of Landlord prior to installation of any
monitoring xxxxx.
ARTICLE XII
SIGNAGE
SIGNAGE
Tenant may furnish and install a storefront sign reasonably acceptable to the Landlord. The
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Tenant shall not place, erect nor maintain on any exterior surface of the Demised Premises, or
anywhere outside of the Demised Premises, any sign, lettering decoration, or advertising, except
such signs as may be permitted by the Landlord such approval not to be unreasonably withheld. The
Tenant shall, at its expense, maintain such permitted or required signs in a good state of repair
and upon vacating the Demised Premises, the Tenant agrees to remove all signs and to repair all
damage caused by such removal.
ARTICLE XIII
DESTRUCTION
DESTRUCTION
If, during the Base Term of this Lease or any extension thereof, the Demised Premises is:
(a) destroyed by fire or any other casualty whatsoever, or;
(b) partially destroyed so as to render the Demised Premises unfit for occupancy or Tenant’s
reasonable beneficial use and enjoyment or conduct of Tenant’s usual business therein, or;
(c) destroyed by a casualty which is not covered by the insurance required to be carried by
Landlord hereunder;
then Landlord shall make its reasonable determination as to the length of time to complete such
repairs within thirty (30) days of the casualty and shall notify Tenant of same as provided herein.
In the event restoration is reasonably estimated by Landlord to take more than one hundred fifty
(150) days from the date of notice to Tenant of such repairs then Tenant may terminate the lease.
In case of the total or partial damage or destruction to the Premises, Landlord shall reenter and
repossess the same or any part thereof for the purpose of removing or repairing the loss or damage
and shall proceed with due diligence to the repair of same unless, under the foregoing provisions
of this Article XIII, the Lease shall have been terminated. The rent during the period of such
repairs shall be wholly abated if Tenant is not able to conduct its usual business in any portion
of the Demised Premises in the normal course; and if only a portion of the Demised Premises is
unavailable to Tenant for Tenant’s reasonable beneficial use and enjoyment or Tenant’s conduct of
Tenant’s usual business therein, the rent shall be abated for such dispossession or unavailability
pro rata, based on the portion of the Demised Premises in which Tenant is able to conduct its
business in the normal course. Any rent abatement under this Article XIII shall commence as of the
date of the destruction. If more than twenty percent (20%) of the demised premises is not useable,
then the rent shall be wholly abated.
Landlord shall not be required to rebuild, repair, or replace any part of the personal property,
furniture, equipment, fixtures, and other improvements which may have been placed by Tenant within
the Demised Premises, unless the damage thereto is caused by the sole negligence or willful act or
omission or default hereunder of Landlord or Landlord’s agents, employees, subtenants, assignees,
or independent contractors. Any insurance which may be carried by Landlord or Tenant for damage to
the Demised Premises or to any personal property, fixtures, and related items therein shall be for
the sole benefit of the party carrying such insurance and under its sole control; provided,
however, Landlord shall carry insurance for the benefit of Landlord and Tenant sufficient to cover
the full replacement cost of the shell of the Demised Premises and an amount equal to the initial
Tenant improvements and related allowances set forth in this Lease as well as insurance sufficient
to cover Tenant’s furniture, equipment, fixtures, personal property, and other improvements that
Landlord shall have liability therefore under this Lease.
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Should the Demised Premises be destroyed or damaged by fire or other casualty that is due to the
direct negligence or willful or wanton conduct of Tenant or Tenant’s agents, employees, subtenants,
assignees or independent contractors, Landlord may repair such damage, and there shall be no
apportionment or abatement of rent.
ARTICLE XIV
CONDEMNATION
CONDEMNATION
Landlord, within five (5) days of Landlord’s receipt of any notice of the institution of
condemnation proceedings or threat thereof with respect to all or any part of the Demised Premises,
shall give written notice to Tenant of the same. Tenant shall have the right and option, to
terminate this Lease within sixty (60) days after receipt of said notice from the Landlord should
such condemnation. effect twenty percent (20%) or more of the Demised Premises, or result in the
reduction of twenty percent (20%) or more of those parking spaces shown on Exhibit C, or
adversely affect any point of access or any driveway that is critical to the conduct of Tenant’s
business operations at the Demised Premises, and Tenant determines that such condemnation will
interfere with Tenant’s ability to continue its business operations in substantially the same
manner or space as existed prior to the condemnation or deed in lieu thereof. Tenant’s obligation
under this Lease including but not limited to Tenant’s obligation to pay rent hereunder, shall
cease upon Tenant’s termination of this Lease pursuant to the terms of this Article; however, the
Tenant shall be obligated to pay all rent due on or before the date of termination down through the
date Tenant surrenders possession of the Premises to the Landlord.
ARTICLE XV
DEFAULT
DEFAULT
15.01 Default by Tenant. The occurrence of any of the following events shall constitute a default
under this Lease:
a. Tenant fails to pay any installment of rent within ten (10) business days after such installment
is due, and fails to cure such delinquency within five (5) business days after actual receipt of
written notice thereof by Tenant from Landlord:
b. Tenant fails to pay any additional item or any other charge or sum required to be paid by Tenant
hereunder within thirty (30) days after actual receipt of written notice thereof by Tenant from
Landlord; or
c. Tenant fails to perform or commence in good faith and proceed with reasonable diligence to
perform any of its covenants under this Lease within thirty (30) days after actual receipt of
written notice thereof by Tenant from Landlord; provided, however, that if such default is of a
nature that it cannot reasonably. be cured in thirty (30) days, then such period shall be extended
for the amount of time reasonably required to cure such default but only if, within such thirty
(30) day period, Tenant commences to cure such default and, thereafter, diligently pursues such
cure to completion.
15.02 Landlord’s Remedies. In the event Tenant is in default pursuant to the conditions set forth
in Section 15.01 above, Landlord, during the continuation of such default, shall have the option of
pursuing either of the following remedies:
a. Landlord may terminate this Lease, in which event Tenant immediately shall surrender possession
of the Premises. All obligations of Tenant under the Lease, including Tenant’s obligation to pay
rent under the Lease, shall cease upon the date of termination except for Tenant’s obligation to
pay rent due and outstanding as of the date of termination.
b. Landlord, without terminating the Lease, may require Tenant to remove all property from
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the Premises within thirty (30) days so that Landlord may re-enter and relet the Premises to
minimize Landlord’s damages. In the event Tenant shall fail to remove all property within thirty
(30) days after said demand, Landlord shall be entitled to remove Tenant’s property to a storage
facility, and all reasonable costs of such removal and storage shall be deemed additional rent
under the Lease for which Tenant is responsible for payment. Landlord may enforce all of its rights
and remedies under this Lease, including the right to recover the rent as it becomes due hereunder,
provided that Landlord shall have an affirmative obligation to use Landlord’s best efforts to reIet
the Premises and to mitigate its damages under the Lease.
c. Landlord may accelerate and declare the entire remaining unpaid rent for the balance of this
Lease to be immediately due and payable forthwith and may, at once, take legal action to recover
and collect the same, such amount being discounted to present value using the prime rate published
by a national bank acceptable to Tenant and Landlord and such amount reduced by the amount of rent
Landlord will receive by reletting the Premises for the remainder of the term or portion thereof.
d. If this Lease is terminated as set forth, Landlord may relet the Premises (or any portion
thereof) for such rent and upon such terms as Landlord is able to obtain (which may be for lower or
higher rent, and for a shorter or longer term), and Tenant shall be liable for all damages
sustained by Landlord, including but not limited to any deficiency in rent for the duration of the
Base Term or then current Renewal Term (or for the period of time which would have remained in the
Base Term or then current Renewal Term in the absence of any termination, leasing fees, attorneys’
fees, other marketing and collection costs and all repairs required as a result of Tenant’s
occupancy of the Demised Premises.
e. Nothing contained herein diminishes any right Landlord may have under South Carolina law to xxx
Tenant for damages in the event of any default by Tenant under this Lease, or from pursuing any
other remedy available to Landlord at law or in equity.
15.03 Waiver of Lien. If the laws of the State in which the Demised Premises are located provide
Landlord with a lien, a right of distraint, or any other priority (such rights being referred to
herein as “Landlord’s Rights”) with respect to the tangible personal property and trade fixtures
(“Collateral”) Tenant now or hereafter locates in the Demised Premises, then Landlord waives, and
shall not hereafter assert or enforce, Landlord’s Rights with respect to the Collateral.
15.04 Landlord’s Default. If Landlord either fails to perform any obligation specified in this
Lease, or breaches or fails to satisfy any representation, .warranty or covenant specified in this
Lease, then, in addition to any other remedies to which Tenant may be entitled under this Lease, at
law or in equity, Tenant may, after the continuance of any such default for ten (10) days (for
monetary default or failure to maintain the Demised Premises in a dry and watertight condition) or,
except in the case of an emergency, for thirty (30) days (for any other nonmonetary default) after
notice thereof by Tenant to Landlord, cure such default or breach, or otherwise take such
preventative or protective action respecting the Demised Premises and Tenant’s operations therein
as Tenant in good faith reasonably determines to be necessary, appropriate, or expedient, all on
behalf and at the expense of Landlord, and do all necessary work and make all necessary payments in
connection therewith. Landlord shall pay Tenant the cost so paid by Tenant within ten (10) days
after notice from Tenant that such cost has been incurred. If Landlord fails to pay the amount
requested by Tenant within such ten (10) day period, then Tenant may recoup from rent thereafter
due to Landlord the amount necessary to satisfy the payment of such indebtedness.
ARTICLE XVI
BANKRUPTCY OR INSOLVENCY
BANKRUPTCY OR INSOLVENCY
In the event that Tenant shall be adjudged bankrupt or insolvent or if any receiver shall be
appointed for the business and property of Tenant and not discharged in ninety (90) days, or if any
assignment shall be made of Tenant’s property for the benefit of creditors, then Landlord may
terminate this Lease forthwith.
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ARTICLE XVII
TENANT’S RIGHT TO SUBLEASE AND ASSIGN
TENANT’S RIGHT TO SUBLEASE AND ASSIGN
17.01 Tenant may not sublet the Premises or assign this Lease without the prior written consent of
the Landlord, which shall not be unreasonably withheld and if such consent is granted, Tenant shall
remain liable to Landlord for the faithful performance of all of the covenants and conditions,
including rental payment, required to be kept and performed under the terms of this lease.
Notwithstanding the foregoing, without Landlord’s prior written consent, but with at least fifteen
(15) days prior written notice to Landlord, Tenant may assign or sublet all or any part of Tenant’s
interest in this lease to any entity which acquires all or a majority of Tenant or Tenant’s
business, assets or stock (excluding any stock owned or retained by officers or employees of
Tenant) either through purchase or by any merger or consolidation, or any assignment by operation
of law, regardless of whether any such occurrence would be characterized by law or otherwise to
constitute an assignment or sublet; provided, however, that Tenant shall remain liable and
responsible for Tenant’s obligations under this Lease.
17.02 Violation. Any violation of any provision of this Lease, whether by act or omission, by any
assignee or subtenant of Tenant, shall be deemed a violation of such provision by the Tenant, it
being the intention and meaning of the parties hereto that the Tenant shall assume and be liable to
the Landlord for any and all acts and omissions of any and all assignees or subtenants of Tenant.
If the Premises or any part thereof is sublet or occupied by any person other than the Tenant,
Landlord, in the event of Tenant’s default, may and is hereby empowered to collect rent from the
subtenant or occupant; the Landlord may apply the net amount received by it to the rent herein
reserved and no such collection shall be deemed a release of the Tenant from the further
performance of the covenants herein contained.
ARTICLE XVIII
LANDLORD’S RIGHT TO MORTGAGE AND SELL
LANDLORD’S RIGHT TO MORTGAGE AND SELL
18.01 Estoppel Certificate. Within five business (5) days after written request therefor by either
Landlord or Tenant to the other, or in the event that upon any sale, assignment, hypothecation of
the Premises, and/or the land thereunder, or a leasehold loan by Tenant of its leasehold estate
herein, an Estoppel statement shall be required from Landlord or Tenant, Landlord and Tenant agree
to deliver to each other, in recordable form, a certificate to any proposed mortgagee or purchaser,
certifying that this Lease is in full force and effect, that there are no defenses thereto, or
stating those claimed by Landlord or Tenant, and as to such other matters as may be reasonably
requested.
18.02 Subordination and Attornment. Upon Landlord’s request, during the term of this Lease, Tenant
shall execute a subordination agreement in recordable form wherein Tenant shall agree that this
Lease is and shall be subordinate to the lien of any mortgages in any amount or amounts on all or
any part of the land or buildings comprising the Premises, or on or against Landlord’s interest or
estate therein; provided that such subordination agreement shall recite that the subordination of
Tenant’s interests pursuant thereto are subject to the agreement by the mortgagee named in any such
mortgage to recognize the Lease of Tenant in the event of foreclosure of any such mortgage if
Tenant is not in default under the Lease. Tenant covenants and agrees to execute and deliver upon
demand such further instruments evidencing such
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subordination of this Lease to the lien of any such mortgage as may be required by the Landlord
within ten (10) days of demand therefor. Notwithstanding anything hereinabove contained, in the
event the holder of any such mortgage shall at any time elect to have this Lease constitute a prior
or superior lien to its mortgage, then and in such event upon any such mortgage holder notifying
Tenant to that effect, this Lease shall be deemed prior and superior in lien to such mortgage
irrespective of whether this Lease is dated prior to or subsequent to the date of such mortgage or
lease.
If Landlord enters into one or more mortgages and Tenant is advised in writing of the name and
address of the mortgagee under such mortgage, then this Lease shall not be terminated or canceled
on account of any default by the Landlord in the performance of any of the terms, covenants or
conditions hereof on its part contained, until Tenant shall have given written notice of such
default to such mortgagee, specifying the default, in which event such mortgagee shall have the
right to cure Landlord’s default as otherwise provided herein and which cure shall be accepted by
Tenant.
Tenant shall, in the event any proceedings are brought for the foreclosure of or in the event of
sale under any mortgage made by the Landlord covering the Premises, attorn to the purchaser upon
any such foreclosure or sale and recognize such purchaser as the Landlord under this Lease.
18.03 Transfer of Landlord’s Interest. Landlord shall have the right to convey, transfer or assign,
by sale or otherwise, all or any part of its interest in this Lease or the Premises at any time and
from time to time and to any person, subject to the terms and conditions of this Lease. All
covenants and obligations of Landlord under this Lease shall not cease upon the execution of such
conveyance, transfer or assignment, but such covenants and obligations shall run with the land and
shall be binding upon any subsequent owner thereof.
ARTICLE XIX
SURRENDER OF PREMISES
SURRENDER OF PREMISES
19.01 Trade Fixtures. All store fixtures, equipment, and every other item of property not
permanently attached to the Premises and not paid for by Landlord, and .any of such items leased by
Tenant under bona fide leases from .third party owners, are to remain and be the property of Tenant
and Tenant is to have the right and privilege of removing any and all such property and equipment
at any time during the continuance of this Lease or any extensions hereof and within thirty (30)
days thereafter. In the event the aforesaid equipment is not removed by Tenant within said thirty
(30) day period, Tenant shall relinquish its rights to said property/equipment. If said equipment
is removed, Tenant shall restore the Premises to their condition prior to the removal of such
property. It is further understood and agreed that the buildings and structures installed on the
Premises by Landlord, may not be removed by Tenant at the termination of this Lease.
19.02 Surrender. The Tenant shall on the expiration or the sooner termination of the Lease term
surrender to Landlord the Premises, including all buildings, replacements, changes, additions, and
Improvements constructed or placed by the Tenant thereon, except for all moveable trade fixtures,
equipment, and personal property belonging to the Tenant, broom clean, free of sub-tenancies, and
in good condition and repair, reasonable wear and tear and casualty excepted.
ARTICLE XX
SECURITY DEPOSIT
SECURITY DEPOSIT
20.01 Tenant has presently paid to Landlord the sum of Seventeen Thousand Eight Hundred Twelve and
50/100 Dollars ($17,812.50). (the “Present Security Deposit”) as security for the full and faithful
performance by Tenant of each and every term, covenant and condition of the current
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Lease. Tenant will pay to Landlord an additional sum of Five Thousand One Hundred Fifty-Six and
50/100 Dollars ($5,156.50) which will represent the “New Security Deposit” of Twenty Two Thousand
Nine Hundred Sixty-Nine and 00/100 Dollars ($22,969.00) as security for the full and faithful
performance by Tenant of each and every term, covenant and condition of this Lease. Landlord will
deposit the Security Deposit with a banking institution having federally insured deposits and all
interest, if any, will accrue to Landlord’s benefit. Landlord may combine the Security Deposit with
other funds of Landlord as long as permitted by the laws of South Carolina. Upon an Event of
Default by Tenant under this Lease, or if Tenant fails to perform any of the terms, provision and
conditions of this Lease as and when required, Landlord may use, apply, or retain the whole or any
part of the Security Deposit for the payment of any sum due Landlord or which Landlord may expend
or be required to expend by reasons of the Event of Default or failure to perform including, but
not limited to, any damages or deficiency in the reletting of the Premises, and Tenant will
forthwith upon demand restore the Security Deposit to the original sum deposited; provided,
however, that any such use, applications or retention by Landlord of the whole or any part of the
Security Deposit will not be or be deemed to be an election of remedies by Landlord or viewed as
liquidated damages, it being expressly understood and agreed that, notwithstanding such use,
application or retention, Landlord will have the right to pursue any and all other remedies
available to it under the terms of this Lease or otherwise. In the event Tenant complies with all
of the terms, covenants and conditions of this Lease, the Security Deposit, without interest and
less amounts due from Tenant to Landlord, will be returned to Tenant within thirty (30) days after
Tenant has vacated and surrendered the Premises in accordance with the terms hereof, so long as no
event of Default by Tenant will then be existing under the terms of this Lease, which such
obligation will survive the termination of this Lease. In the event of a sale of the Building or
the project, Landlord will have the right to transfer the Security Deposit and its rights and
liabilities associated with same to the purchaser, and in the event of such transfer Landlord will
thereupon be released for all liability for the return of the Security Deposit. In such event,
Tenant will look solely to the new landlord for the return of the Security Deposit.
ARTICLE XXI
MISCELLANEOUS
MISCELLANEOUS
21.01 Landlord’s Entry. The Landlord shall have the right, upon prior reasonable notice, to enter
upon the Premises at all reasonable times during the term of this Lease for the purposes of
inspection, maintenance, repair and alteration and to show the same to prospective Tenants or
purchasers.
21.02 Nature and Extent of Agreement. This instrument contains the complete agreement of the
parties regarding the terms and conditions of the Lease of the Premises, and there are no oral or
written conditions, terms, understandings or other agreements pertaining thereto which have not
been incorporated herein. This instrument may be amended from time to time by written addendum
signed by both parties. This instrument creates only the relationship of Landlord and Tenant
between the parties hereto as to the Premises; and nothing herein shall in any way be construed to
impose upon either party hereto any obligations or restrictions not herein expressly set forth. The
laws of the State of South Carolina shall govern the validity, interpretation, performance and
enforcement of this Lease.
21.03 Partial Invalidity. If any term, covenant or condition of this Lease or the application
thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the
remainder to this Lease, or the application of such term, covenant or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term, covenant or condition of this Lease shall be valid and be
enforceable to the fullest extend permitted by law.
21.04 Recording. This Lease shall not be recorded; however, upon the request of either party hereto
the other party shall join in the execution of a memorandum or so-called “short form” of this Lease
for the purpose of recordation. Said memorandum or short form of this Lease shall
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describe the parties, the Premises and the term of this Lease and shall incorporate this Lease by
reference.
21.05 Calculation of Time. Unless specifically stated otherwise, any reference to a specific period
of days shall be interpreted as a reference to calendar days; provided however, that if such period
would otherwise end on a Saturday, Sunday or generally recognized holiday, then the period shall be
deemed to end on the next business day.
21.06 Landlord’s Right to Perform Tenant’s Covenants. Tenant covenants and agrees that if it shall
at any time fail to pay any Taxes or other charges to be paid by Tenant in accordance with the
provision of Article IV, or to take out, pay for, maintain or deliver any of the insurance policies
required by Tenant in Article V, or shall fail, within the time limits after the notice therein
specified of any event of default has been given to make any other payment or perform any other act
on its part to be made or performed, then Landlord may, but shall not be obligated so to do, and
without further notice to or demand upon Tenant and without waiving or releasing Tenant from any
obligations of Tenant in this lease contained,
| a. | pay any taxes or other charges payable by Tenant pursuant to the provisions of Article IV, or | ||
| b. | take out, pay for and maintain any of the insurance policies required by Tenant | ||
| c. | make any other payment or perform any other act on Tenant’s part to be made or performed as in this Lease provided. |
21.07 Statement of Lease Commencement Date. Tenant at Landlord’s request, shall from time to time
execute and deliver a written statement confirming the commencement and termination dates of the
Lease Term.
21.08 Waiver. No delay or omission by Landlord or Tenant in exercising any right or power accruing
upon any non-compliance or default by Tenant or Landlord, as the case may be, shall impair any such
right or power or be construed to be a waiver of such non-compliance or default, except as
otherwise provided to the contrary in this Lease. A waiver by Landlord or Tenant of any of the
covenants of this Lease shall not be construed to be a waiver of any succeeding breach of such
covenant, or of any other covenant, condition or agreement contained in this Lease. The failure of
either party to seek redress for violation of, or to insist on the strict performance of, any
covenant of this Lease, whether by express waiver or otherwise, shall not prevent a subsequent
action that would have originally constituted a violation, from having all the force and effect of
any original violation.
21.09 “Reasonable Consent” Provisions. To the extent any provision of this Lease may call for the
“reasonable consent” of either party to be given,” and where written notice is given requesting
such consent as provided in Section 21.11, such consent shall be deemed “given” unless a written
refusal to consent is sent to the requesting party within ten (10) business days after the mailing
of the written request for consent.
21.10 Applicable Law. Any controversy or claim arising out of or relating to this Lease shall be
governed by the substantive law of the State of South Carolina without consideration of the
conflicts of law rules of said state.
21.11 Notices. Any notice allowed or required by this Lease Agreement shall be in writing, and (i)
shall be deemed effective three (3) business days following deposit, with proper postage attached
or fee paid when sent by either certified mail or registered mail, return receipt requested, with
proper postage prepaid, or (ii) the next business day following deposit with nationally recognized
overnight courier (for example, Federal Express). Notices shall be addressed as follows:
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By Tenant to Landlord: |
||
| EZE Management Properties Limited Partners | ||
| X.X. Xxx 0000 | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attn: J. Xxxxxxx Xxxxxxx | ||
By Landlord to Tenant: |
||
| Rockwell Medical Technologies, Inc. | ||
| 00000 Xxxxx Xxxx | ||
| Xxxxx, XX 00000 | ||
| Attn: Xxxxxx Xxxxx |
21.12 Captions. The captions or headings at the beginning of articles and sections of this Lease
are included for convenience only and in no way define, limit or describe the scope of any
provision hereof.
21.13 Binding Effect. This Lease shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
21.14 Duplicate Counterparts. This Lease may be executed in one or more counterparts, each of which
shall be an original and all of which shall constitute one and the same instrument.
21.15 Broker’s Representation. Each party represents that it dealt with no broker or brokers in
connection with the negotiation, execution and delivery of this Lease. Landlord and Tenant shall,
and do hereby indemnify, defend, and save the other harmless from and against any losses, damages,
penalties, claims or demands of whatsoever nature arising from a breach of its foregoing
representation including, without limitation, reasonable attorneys’ fees and expenses. The
representations and indemnifications set forth in this Section 21.15 shall survive the cancellation
or termination of this Lease.
21.16 Force Majeure. Landlord and Tenant shall be excused for the period of any delay in performing
any obligations under this Lease by reason of the wrongful or negligent acts or omissions of the
other party, their agents, employees, or contractors, or by reason of labor disputes, civil
disturbance, war, war-like operations, invasions, rebellion, hostilities, military or usurped
power, sabotage, governmental regulations or controls, fires or other casualty, or acts of God
(referred to collectively herein as “Force Majeure”). Notwithstanding the foregoing, nothing
contained in this Section 21.16 shall excuse either party from paying in a timely fashion any
payments due under the terms of this Lease.
21.17 Additional Documents. Each party shall, at the request of the other, execute, acknowledge,
(if appropriate) and deliver such additional documents and instruments, and do such other acts as
may be necessary or convenient to call out the purposes and intent of this Lease and to permit the
Tenant to record this Lease and grant security interests therein. This Lease may be signed in
triplicate originals by the parties.
21.18 Improvements by Landlord. In consideration of the execution of this Lease Landlord has
agreed to make certain improvements to the Leased Premises at its own expense and at no expense to
Tenant. Attached as Exhibit F is a summary of the improvements to be made by Landlord,
which summary has been approved by Tenant. The work necessary to accomplish the improvements will
commence as soon as practicable upon execution of this Lease. Landlord will coordinate the
performance of the work with Tenant so as to minimize any disruption to Tenant’s use of the Leased
Premises.
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ARTICLE XXII
OPTIONS TO PURCHASE
OPTIONS TO PURCHASE
22.01 Options. Landlord does hereby grant to Tenant the exclusive and irrevocable Options to
purchase both the land and Leased Premises and the first right of refusal to purchase the land and
20,362 square foot office building (“Office Building”) as shown on Exhibit E, together with
all rights, members and appurtenances thereto and all improvements, fixtures, equipment and
appliances located thereon. The option to purchase the Office Building may be exercised only if
the option to purchase the Leased Premises is exercised. These Options may be exercised by Tenant
paying to Landlord, as Xxxxxxx Money, the amount of Twenty-Five Thousand and No/100 Dollars
($25,000.00) for each property it desires to purchase and simultaneously providing written notice
to Landlord given in the manner provided in Section 21.11 hereof at any time after the Lease
Commencement Date but not less than 180 days prior to the end of the original or the extended Lease
Term. If either Option is exercised, this Section 22 of the Lease shall become a binding contract
for the sale of the specific property under the terms set forth herein. Landlord agrees not to
sell or enter into an agreement to sell Leased Premises during the base term without permission of
the Tenant.
22.02 Purchase Price. The purchase price of the Leased Premises shall be One Million Eight Hundred
Fifty Thousand and No/100 Dollars ($1,850,000). The purchase price of the Office Building shall be
Nine Hundred Twenty Five Thousand and No/100 Dollars ($925,000).
22.03 Costs and Prorations. Landlord shall pay the transfer tax or documentary stamp tax
applicable to the transaction contemplated hereby. Tenant shall pay the costs of recording all
documents to be recorded. Each party shall pay its own attorneys’ fees. Rent payable under this
Lease, if applicable to the property being purchased, shall be prorated as of the date of Closing.
There shall be no proration of taxes or utility bills in the event the Leased Premises is being
purchased. In the event the Office Building is being purchased the taxes and utility bills will be
prorated as of the date of Closing.
22.04 Closing. The closing of the Option transaction contemplated by this Section shall be held
within one hundred eighty (180) days of Tenant’s notice of exercise of the Option at a location
mutually acceptable to Landlord and Tenant.
22.05 Destruction of Improvements. If the improvements within the Leased Premises or the Office
Building are destroyed or materially damaged after the date Tenant exercises the Option, the
acquisition transaction contemplated hereby shall close in the manner described in this Section
without a reduction in the purchase price and Landlord shall assign to Tenant Landlord’s right in
any insurance proceeds paid or to be paid in connection with such damage or destruction.
22.06 Option Remedies. In the event the acquisition transaction contemplated by this Section
fails to close by reason of Tenant’s failure to perform its obligations under the Option provisions
of this Lease, all Xxxxxxx Money paid by Tenant to Landlord shall be retained by Landlord as full
liquidated damages, the party herby acknowledging and agreeing the difficulty of ascertaining
Landlord’s damages in such circumstances. In the event that Landlord fails to perform its
obligations under the Option provisions of this Lease then, and in any such event, Tenant shall
have the right to receive a refund of any Xxxxxxx Money paid.
-18-
ARTICLE XXIII
OPTION TO LEASE OFFICE BUILDING
OPTION TO LEASE OFFICE BUILDING
23.01 Option. Landlord does hereby grant to Tenant the exclusive and irrevocable Option to lease
the Office Building, pursuant to terms and conditions essentially identical to those contained
herein. The Option may be exercised by Tenant paying to Landlord, as a Security Deposit, the
amount of Ten Thousand One Hundred Eighty and No/100 Dollars ($10,180.00) and simultaneously
providing written notice to Landlord given in the manner provided in Section 21.11 hereof at any
time after the Lease Commencement Date but not less than 120 days before Tenant desires to occupy
the Office Building. If the Option is exercised Landlord will submit to Tenant a separate Lease
Agreement.
23.02 Term. The Term of the Lease shall be no longer than the length of time remaining on this
Lease including any extension thereto.
23.03 Base Rent. The annual Base Rent during the Term shall be One Hundred Twenty Two Thousand
One Hundred Sixty and No/100 Dollars ($122,160.00) payable in equal monthly installments of Ten
Thousand One Hundred Eighty and No/100 Dollars ($10,180.00).
23.04 Additional Rent. Tenant shall also be responsible for the payment of certain costs
relating to real estate taxes and insurance premiums. Those amounts will be calculated when Tenant
exercises this Lease Option.
-19-
IN WITNESS WHEREOF, signed and executed this 19th day of March, 2008 to be effective as
of the date of the above-referenced lease.
| LANDLORD: EZE Management Properties Limited Partners | ||||
| By: | /s/ J. Xxxxxxx Xxxxxxx | |||
| J. Xxxxxxx Xxxxxxx | ||||
| Its: Chairman | ||||
| Date of Execution: March 19, 2008 | ||||
| TENANT: Rockwell Medical Technologies, Inc. | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Xxxxxx X. Xxxxx | ||||
| Its: Chief Financial Officer | ||||
| Date of Execution: March 19, 2008 | ||||
-20-
EXHIBIT A
SURVEY
SURVEY
-21-
EXHIBIT B
FLOOR PLAN
FLOOR PLAN
-22-
EXHIBIT C
BUILDING SITE PLAN
BUILDING SITE PLAN
-23-
EXHIBIT
D
604 HIGH TECH COURT
ESTIMATED SUMMARY OF RENT FOR YEAR 1
| ANNUAL | MONTHLY | |||||||
BASE RENT |
||||||||
Year 1 |
$ | 275,628.00 | $ | 22,969.00 | ||||
ADDITIONAL RENT |
||||||||
Real estate taxes ($0.637/sf) |
$ | 36,348.00 | $ | 3,029.00 | ||||
Insurance |
$ | 8,244.00 | $ | 687.00 | ||||
TOTAL ESTIMATED RENT FOR YEAR 1 |
$ | 320,220.00 | $ | 26,685.00 | ||||
-24-
EXHIBIT E
OFFICE SITE PLAN
-25-
EXHIBIT F
IMPROVEMENTS, APPROVED BY TENANT,
TO BE MADE BY LANDLORD
TO BE MADE BY LANDLORD
Rockwell Medical Technologies, Inc.
000 Xxxx Xxxx Xxxxx, Xxxxx, XX 00000
Plant Upgrades
000 Xxxx Xxxx Xxxxx, Xxxxx, XX 00000
Plant Upgrades
Construction of new liquid filling and powder filling area as designed,
along with first truck entrance curb improvements.
Item
|
Item Cost | |||
Concrete, Curb, Trench, Demo |
$ | 10,150.00 | ||
Metal Framing, Drywall, Ceiling |
42,000.00 | |||
Plumbing |
8,385.00 | |||
HVAC |
31,690.00 | |||
Electrical |
11,100.00 | |||
Overhead Doors |
4,500.00 | |||
Sump Drain Covers |
700.00 | |||
Personnel Doors, Materials, Labor |
3,900.00 | |||
Urethane Floor |
3,600.00 | |||
Sprinkler |
3,750.00 | |||
Paint |
9,000.00 | |||
Windows |
600.00 | |||
Bollards |
1,800.00 | |||
Project Overhead, Supervision, Project Management |
36,446.00 | |||
| 167,621.00 | ||||
Architect Fees |
1,917.00 | |||
| $ | 169,538.00 | |||
-26-
