EXHIBIT 10.9
LEASE AGREEMENT
BETWEEN
XXXXXXX EQUITIES INC.
("LANDLORD")
and
DEVON INDUSTRIES INC.
("TENANT")
LEASE AGREEMENT
January 5, 1994
This Lease Agreement ("Lease") is entered into as of the date first set forth
above by Xxxxxxx Equities Inc. ("Landlord") and Devon Industries, Inc.
("Tenant").
Background
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Landlord intends to acquire an existing 60.735 square foot building ("Existing
Building"), construct an expansion thereto of approximately 65.761 square feet
("Expansion") and lease the combined facility ("Building") to Tenant. The
Building will be situated on a site in Rock Hill, South Carolina, which site is
more particularly described in attached Exhibit A ("Land").
Agreement
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Landlord and Tenant hereby agree as follows:
Section 1. Lease of Property. Landlord hereby leases the Land, the Building and
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all related site Improvements (collectively the "Property") to Tenant upon the
terms and conditions set forth in this Lease.
Section 2. Construction of Improvements. Landlord and Tenant have approved
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preliminary specifications for the Expansion and all related site Improvements
(collectively the "Improvements"), which preliminary specifications are attached
hereto as Exhibit B (preliminary Specifications"). Tenant has authorized
Landlord to proceed with the preparation of final architectural and engineering
drawings, plans and specifications for the improvements. Once those drawings,
plans and specifications are completed, Landlord will deliver a full set thereof
to Tenant for its review and approval. Tenant will notify Landlord within 15
days after its receipt of such drawings, plans and specifications of its
approval thereof or its objections to anything contained therein, which
objections, if any, will be premised solely upon the fact that such drawings,
plans and specifications are inconsistent with the approved Preliminary
Specifications attached hereto as Exhibit B. If Landlord does not modify the
drawings, plans and specifications to meet Tenant's reasonable objections within
15 days after its receipt of Tenant's objection notice, then Tenant will have
the right to terminate this Lease with no obligation whatsoever to Landlord. If
Landlord satisfies Tenant's reasonable objections or if Tenant has no such
objections, then the drawings, plans and specifications as approved by Tenant
will constitute the "Final Plans and Specifications" and will be deemed
Incorporated herein by this reference.
If Tenant desires to make any revisions to the Final Plans and Specifications
(which, for this purpose, will include any desired repairs or improvements to
the Existing Building), Tenant will so notify Landlord and Landlord will then
cause its general contractor to prepare a cost estimate for the making of such
changes. Landlord will promptly notify Tenant of any increased costs or savings
resulting from such changes and Tenant will then have the right to require
Landlord to cause such changes to be made to the Final Plans and Specifications.
If the aggregate of all such changes (net of any savings) results in a net
increase in the cost of the construction of the Improvements, then Tenant will
pay Landlord such net increase within ten days after Landlord's written demand
for the payment thereof. At Tenant's election, any net increase in the cost of
the construction of the improvements resulting from any of the aforementioned
changes may be funded by a per square foot increase in the Base Rent in an
amount equal to $.01 per square foot for every $9.730 of such net increase in
construction costs. If any change requested by Tenant will, in the judgment of
Landlord's contractor cause a delay in the anticipated date for the substantial
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completion of construction of the improvements, then Landlord will so notify
Tenant and the contemplated substantial completion date will be deferred
accordingly. For the purposes of this Lease, the term "Final Plans and
Specifications" will include all change orders which are submitted and approved
in the manner set forth in this Section 2. Landlord hereby acknowledges and
agrees that if Tenant adds a mezzanine within the Building at its sole cost and
expense, then such addition will not in any event change the square footage of
the Building or increase the Base Rent payable by Tenant hereunder.
Landlord will cause the improvements to be constructed in accordance with the
Final Plans and Specifications. Landlord will use its best efforts to
substantially complete construction of the improvements on or before May 31,
1994, subject to delays caused by the occurrence of events beyond its reasonable
control ("Delay Events"), including, without limitation, labor troubles,
inability to procure materials, restrictive governmental laws and
pronouncements, acts of God, unseasonable weather, Tenant's failure to respond
to the drawings, plans and specifications submitted to it for its review and
approval within the 15-day period mandated in this Section 2 and Tenant's
requested change orders. Upon the occurrence of any Delay Event, the targeted
date for the substantial completion of the construction of the improvements will
be extended by a number of days equal to the number of days of the delay caused
by the occurrence of such Delay Event. For the purposes of this Lease, the
improvements will be deemed "substantially completed" on the earlier of: (a)
the date on which Tenant occupies the Building for the conduct of its business
operations (including, without limitation, the testing of the sorter to be used
by Tenant in the Building); or (b) the date on which Landlord completes
construction of the improvements in accordance with the Final Plans and
Specifications (subject to such punchlist construction items as are mutually
agreed upon by Landlord and Tenant) and a certificate of occupancy for the
improvements is issued by the appropriate governmental authority, which
certificate of occupancy will permit Tenant to operate its business in the
normal course. If Landlord fails to substantially complete construction of the
improvements on or before October 31, 1994, for any reason other than the
occurrence of a Delay Event (as that term is earlier defined in this Section 2),
then Tenant will have the right to terminate its obligation under this Lease by
delivering written notice of termination to Landlord on or before 30 days after
such outside date for substantial completion.
It is possible that the Building may be expanded in the future by the addition
of a second phase of the construction ("Future Phase"). Once the plans and
specifications for such Future Phase are agreed to by Landlord and Tenant,
Landlord agrees to take the following actions: (y) bid the construction of the
Future Phase to a list of contractors mutually agreeable to Landlord and Tenant;
and (z) price the resulting increase in Base Rent based upon then prevailing
financing conditions and the duration of the lease term.
Section 3. Lease Term. The initial term of this Lease will be for a
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period of 15 years ("Lease Term"), commencing on the date of the "substantial
completion" of the improvements (as that term is defined in Section 2) and
ending on the fifteenth anniversary thereof.
Tenant will have an option to extend the Lease Term for up to two
consecutive renewal terms of five years each. Tenant's right to exercise its
option to extend the Lease Term for any such renewal term will be expressly
conditioned upon both of the following conditions being satisfied with respect
to such renewal term: (a) Tenant must give written notice to Landlord of its
election to extend the Lease Term for such renewal term at least twelve months
prior to the scheduled commencement date of such renewal term: and (b) on the
date of the exercise of such option and on the scheduled date for the
commencement of such renewal term, the Lease must be in full force and effect
without any material default by Tenant thereunder. Tenant's occupancy of the
Property during any such renewal term will be upon the same terms and conditions
which govern its occupancy of the Property during the Lease Term, except that
the Base Rent payable during each such renewal term will be adjusted in the
manner hereinafter described in Section 4 to reflect increases in the Consumer
Price Index. All references in this Lease to the "Lease Term" will include any
renewal term exercised by the Tenant pursuant to this Section 3.
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Section 4. Rent. The Base Rent payable by Tenant is set forth below:
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PSF Monthty Annual
Lease Period Base Rent Base Rent Base Rent
------------- --------- --------- ---------
Years 1 - 5 $2.81 $29,621 $355,452
Years 6 - 1 0 3.08 32,467 389,604
years 11 - 15 3.38 35,630 427,560
The annual Base Rent payable by Tenant during any renewal term exercised by
Tenant will be adjusted in the manner hereinafter described to take into
consideration increases in the Consumer Price Index. The annual Base Rent
payable by Tenant in any renewal term will be an amount equal to the product of
the Bass Rent payable by Tenant during the immediately preceding five-year
period, multiplied by a fraction having as its numerator the New Index and
having as its denominator the Base Index. For the purposes of this Lease, the
term "Consumer Price Index" refers to the Consumer Price Index . All items,
U.S. City Average for Urban Wage Earners and Clerical Workers, as promulgated by
the Bureau of Labor Statistics of the U.S. Department of Labor or if such index
is discontinued, then a comparable successor index. For the purposes of this
Lease, the "New Index" refers to the most recently published Consumer Price
Index as of the first day of the year for which Base Rent is then being
computed. For the purposes of this Lease, the "Base Index" refers to the
Consumer Price Index published for the month which is 60 months prior to the
month of the New Index. Notwithstanding anything to the contrary contained in
this Lease, the Base Rent payable by Tenant during any renewal term exercised by
Tenant will in no event be less the Base Rent payable by Tenant during the
immediately preceding five-year period. For the purposes of this Lease, a
"year" refers to each consecutive 12-month period during the Lease Term, with
the first such year beginning on the commencement date of the Lease Term and
terminating 12 months thereafter.
Each monthly installment of Base Rent will be due and payable in advance on or
before the first day of each calendar month during the Lease Term. Each such
installment will be paid to Landlord at its address set forth in Section 30 (or
such other address as Landlord may designate from time to time). If the Lease
Term commences on a day other than the first day at the month or terminates on a
day other than the last day of the month, then the installment(s) of Base Rent
for such month(s) will be adjusted accordingly. If any Installment of Base
Rent is not received within ten days after Landlord by its due date, then a late
payment charge of 5% of such past due amount will be assessed and will be
immediately due and payable from Tenant. In addition, Base Rent which is more
than ten days past-due will thereafter bear interest until paid at a rate equal
to 2% over Citibank's published prime lending rate ("Delinquent Rate"). All
Installments of Base Rent will be paid by Tenant without demand and without any
rights of reduction, counterclaim or offset. Tenant hereby agrees to pay as
additional rent any sales, use or other tax (other than income taxes) now or
hereafter imposed by any governmental authority upon the rent and other sums
payable by Tenant hereunder.
Section 5. Net Lease. It is the intention of Landlord and Tenant that,
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except as otherwise expressly provided herein, this Lease is a net lease; that
is, this Lease shall yield, absolutely net to Landlord, the Base Rent specified
in Section 4 hereof in each month during the Lease Term. Except as otherwise
expressly provided herein, all costs, expenses and obligations of every kind and
nature whatsoever relating to the Property which may arise or become due during
the Lease Term in connection with the ownership, use, operation, management,
maintenance and repair at the Property will be paid by Tenant and Landlord will
indemnified and held harmless by Tenant from and against the same.
Section 6. Taxes and Expenses. Tenant will at all times throughout the Lease
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Term pay the following expenses (Property Expenses"): (a) all real and personal
property taxes, assessments and other governmental impositions and charges of
every kind and nature whatsoever, provided, however, that to the extent the real
estate taxes on the Property are increased in any one year by more than 10%
over the then existing year's taxes solely as a result of Landlord's sale of the
Property to a third party, then Tenant will not be liable for the payment of the
excess of any such increase over the aforementioned 10% base number; (b) all
rents and charges for water, sewer, gas,
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electricity and other utility services furnished to the Property; (c) all
licenses, permit fees and other charges imposed by any governmental or quasi-
governmental authority solely with respect to Tenant's use of the Property or
Tenants business operations; (d) any assessments or other charges imposed by any
landowner's association having jurisdiction over the Property; e) the cost of an
annual property management inspection of the Property in an amount up to but not
exceeding $ 1,000 per year (Tenant will not, however, be responsible for the
payment of any other property management fees); (f) all premiums and other
charges related to any insurance related to the Property or Tenant's use thereof
which is required to be maintained hereunder; and (g) except as otherwise
expressly provided herein, all other costs and expenses of any kind or nature
whatsoever. whether foreseeable or unforeseeable, related to ownership, use,
operation. management, maintenance, repair of the Property. Tenant will pay all
such Property Expenses punctually as and when the some become due and payable so
as to avoid the imposition of late charges, penalties or interest thereon.
Tenant will have the right at its sole expense to contest the amount of any such
Property Expense by legal or administrative proceeding, so long as Tenant takes
all appropriate action to insure that no lien is placed on the Property to
secure payment of the same. Tenant will also have the right to seek tax
abatements, reduction, exemptions and other similar tax relief with respect to
the Property and Tenant's business operations. Landlord agrees to permit any
applications in connection therewith be filed in its name: provided, however,
that Landlord will in no event be obligated to incur any out-of-pocket expenses
in connection with any such applications.
Tenant will provide Landlord with evidence of the payment of any Property
Expense within ten days after Landlords written request therefor. The
determination of whether any particular Property Expense is attributable to the
Lease Term and, hence, is the obligation of Tenant hereunder, will be mode based
upon the accrual method of accounting. Notwithstanding anything to the contrary
contained in this Lease, Tenant will not be obligated to pay any inheritance,
estate, succession, gift, franchise, income or profit taxes that may be imposed
on Landlord.
Section 7. Maintenance and Repair. Tenant will at its sole expense
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maintain the Property in a good condition and order of repair. Except as
otherwise expressly provided herein, Tenants maintenance obligation will extend
to and include the repair and replacement, if necessary, of all interior,
exterior, structural, non-structural and mechanical elements and systems of the
Building and all parking areas, sidewalks, landscaping and other improvements
associated with the Property. Any repairs or replacements made to the Property
by Tenant pursuant to this Section 7 will be made in a good and workmanlike
manner with materials at least equal in quality and grade to those originally
contained in the Property. Tenant will also be responsible and pay for all
landscaping, cleaning, janitorial, snow and ice removal services required to
maintain and operate the Property in a reasonable good manner. Notwithstanding
anything to the contrary contained herein, Landlord (and not Tenant) will be
responsible for any required replacement of the root of the Building (although
the repair of the roof will continue to be the obligation of Tenant hereunder).
Except as otherwise expressly provided above, Landlord will not at any time
during the Lease Term be required to furnish any services or facilities or make
any improvements, repairs, replacements or alterations to the Property.
Section 8. Use of Premises. Tenant may use the Property for any lawful
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purpose. Tenant will not cause or permit any waste or damage to the Property
and will not occupy or use the Property for any business or purpose which is
unlawful, hazardous, unsanitary, noxious or offensive.
Section 9. Governmental Requirements. Tenant will at its sole expense
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comply with all laws and other governmental requirements which are not or
hereafter in force pertaining to the Property, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act, the
Clean Air Act, the Hazardous Materials Transportation Act, the resource
Conservation and Recovery Act, the Water Pollution Control Act and any other
federal, state or local law or requirement pertaining to environmental matters.
Tenant's obligation under this Section 9 will not extend to: (a) its remedying
of any noncompliance which existed as of the commencement of the Lease Term: or
(b) its compliance with any law or other governmental requirement which applies
to the ownership of real estate generally and not specifically to Tenant's
occupancy or use of the Property.
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Section 10. Signs. Tenant may place any sign of advertising material on
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the Property,. which compiles with the requirements of the industrial park in
which the Property is located, as well as those of all applicable governmental
authorities.
Section 11. Leasehold Improvements. Tenant may make alterations to the
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Property without first obtaining Landlord's consent thereto, so long as all of
the following conditions are satisfied with respect to each contemplated
alteration:
(a) The alteration will not affect the structural integrity of the Building or
otherwise diminish the value or marketability of the Property:
(b) The alteration is constructed by Tenant at its sole cost and expense and in
a good and workmanlike manner in strict compliance with the requirements
of all applicable governmental authorities; and
(c) With respect to any alteration which costs more than $10,000, Tenant shall
have first provided Landlord with a complete set of all construction and
engineering drawings, plans and specifications for the subject alteration.
Section 12. Mechanics Liens. Tenant will indemnify and hold Landlord
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harmless from any liability or expense associated with its construction of any
alteration, addition or improvement to the Property. Tenant will immediately
discharge any mechanics lien filed against the Property in connection with any
work performed by or at the request of Tenant.
Section 13. Assignment and Subletting. Tenant may not assign the Lease or
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any part of the Property, without the prior written consent of Landlord. Tenant
may sublet all or any part of the Property to any third party, without first
obtaining the consent thereto of Landlord, so long as Tenant first notifies
Landlord in writing of the identity and proposed use of the subtenant, and
Tenant remains fully liable to Landlord under this Lease.
Section 14. Subordination. This Lease is subject and subordinate to all
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mortgages now or hereafter affecting or covering the Property or any part
thereof and to all renewals, modifications, replacements or extensions thereof.
Tenant agrees to attorn to and recognize the mortgagee or the purchaser at
foreclosure sale as Tenant's landlord for the balance of the Lease term. Tenant
hereby agrees, however, that such mortgagee or purchaser at foreclosure sale
will not be (v) liable for any act or omission of Landlord, (w) subject to any
monetary offsets which Tenant might have against Landlord, (x) bound by any rent
or additional rent which Tenant may have paid to Landlord for more than the
current month, (y) bound by any amendment or modification of this Lease made
without its consent, provided Tenant is notified in advance of the existence of
the mortgagee and the requirement that the mortgagee must consent to any such
amendment or modification, or (z) liable for the return of any security deposit,
except to the extent that the security deposit has been transferred to any
mortgagee or subsequent purchaser. The aforesaid subordination, nondisturbance
and attornment provisions will be self-operative; however, Tenant agrees to
promptly execute any other reasonable agreement submitted by Landlord in
confirmation or acknowledgment of the same. Tenant's subordination and
attornment obligation under the Section 14 will be expressly conditioned upon
the mortgagee agreeing to recognize this Lease in its entirety, including,
without limitation, all of Tenant's purchase and renewal options hereunder.
Section 15. Limitation of Landlord's Personal Liability. Tenant will look
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solely to Landlord's interest in the Property for the remediation of any alleged
breach of this Lease by or the recovery of any judgment against Landlord; it
being the express intent of the parties hereto that neither Landlord, nor any of
its shareholders, employees or agents will ever be personally liable for any
such remediation or judgment.
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Section 16. Indemnification and Insurance. Landlord will not be liable for
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and Tenant will indemnify and hold Landlord harmless from any liability or
expense associated with any damage or injury to any person or property
(including, without limitation, any person or property of Tenant or anyone
claiming under Tenant) which arises directly or indirectly in connection with
the Property or Tenant's use or occupancy thereof; provided, however, that
Tenant will not be obligated to indemnify Landlord as to any liability or
expense occasioned by the fault or negligence of Landlord. All property stored
or placed by Tenant in or about the Property will be so stored or placed at the
sole risk of Tenant.
Tenant will at its sole expense maintain in full force and effect at all
times during the Lease Term: (a) comprehensive public liability insurance for
personal injury and property damage with liability limits of not less than
$1,000,000 for injury to one person, $2,000,000 for injury from one occurrence
and $ an umbrella liability coverage of $4,000,000; (b) fire and extended
coverage insurance on the improvements in an amount equal to the full
replacement value thereof; and (c) rent loss insurance in an amount equal to six
months Base Rent under this Lease. Each insurance policy required to be
maintained by Tenant hereunder will name Landlord and such other persons as
Landlord may designate as additional insureds and will specifically provide that
such insurance policy cannot be terminated without giving at least ten days
prior written notice to Landlord. Tenant may maintain the required insurance
coverages under a blanket or umbrella policy.
Landlord will indemnify and hold Tenant harmless from any liability or
expense associated with any liabilities, losses, damages, suites, actions,
fines, penalties, claims or demands of any kind and asserted by or on behalf of
any person, entity, independent contractor or governmental authority arising
solely out of the construction activities undertaken by landlord to accomplish
the work set forth in the Final Plans and Specifications or the making of any
repairs or maintenance by landlord which are required to be performed by its
pursuant to Section 2 of this Lease.
Section 17. Hazardous Substances. Tenant will not use, store, generate,
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manufacture, transport, dispose of or release any Hazardous Substance (as that
term is hereinafter defined) in or about the Property, except for immaterial
amounts that are exempt from or do not give rise to any violation of applicable
law. Tenant agrees to indemnify and hold Landlord harmless from any liability
or expense incurred by or claimed against Landlord as a result of Tenant's
breach of the covenant contained in this paragraph (including, without
limitation, the fees of Landlord's attorneys and consultants and the cost of any
required remediation or clean-up). The foregoing covenant will survive the
termination of this Lease. For the purposes of this Section 17, the term
"Hazardous Substance" means any "hazardous substance", "Toxic substance" (as
those terms are defined in the Comprehensive Environmental Response,
compensation and Liability Act), "hazardous waste" (as that term is defined in
the Resource conservation Recovery Act), polychlorinated biphenyis, asbestos,
radioactive material or any other pollutant, contaminant or hazardous, dangerous
or toxic chemical, material or substance which is regulated by any federal,
state or local law, regulation, ordinance or requirement. To the extent any
remediation of any Hazardous Substance is required at the Property as a result
of any occurrence which is beyond the reasonable control of either Landlord or
Tenant, then the costs of any such remediation will be shared equally by
Landlord and Tenant. Notwithstanding anything to the contrary contained herein,
Landlord hereby acknowledges and agrees that Tenant will not have any liability
for the presence of any Hazardous Substance disclosed in any Phase I
environmental assessment report obtained by Landlord prior to its acquisition of
the Property, nor will Tenant have any liability for the presence of any
Hazardous Substance which was present on or about the Property prior to the date
of Tenant's occupancy thereof (unless caused by Tenant's intentional or
negligent acts).
Section 18. Surrender of Premises. Upon the termination of Tenant's right
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of possession under this lease, Tenant will immediately surrender possession of
the Property to Landlord in good repair and "broom clean" condition, reasonable
wear and tear excepted. Tenant will at the same time remove all of its trade
fixtures from the Property. Tenant will promptly repair any damage caused to
the Property by the removal of any of such trade fixtures.
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Section 19. Casualty. If the Property or the Building is damaged by
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fire, explosion, the elements or other causality during the Lease Term so as to
render the property untenantable or unfit for the normal operation of Tenant's
business and if the Property cannot be repaired within 180 days from the date of
the occurrence of such casualty, then the Lease Term will, at the option of
Landlord or Tenant by written notice to the other within 30 days from the date
of such casualty, cease and become null and void from the date of such damage,
and Tenant will immediately surrender the Property and all Tenant's interests
therein to Landlord and will pay rent only through the time of such casualty, in
which event, Landlord may reenter and repossess the Property thus discharged
from this lease and may remove all parties therefrom. Should the Property be
rendered untenantable or unfit for the normal operation of Tenant's business,
but be repairable within 180 days from the date of the occurrence of said
damage, then Tenant will enter and repair the same with reasonable speed and the
rent will not accrue after said casualty or while repairs are being made, but
will recommence immediately once the said repairs are substantially completed.
If the Property is so lightly injured as not to be rendered untenantable and
unfit for the normal operation of Tenant's business, Tenant agrees to repair the
same with reasonable promptness and in that case the rent accrued and accruing
will not cease or terminate. In the event of partial damage to the Property,
such that portion of the Property remains tenantable and usable in the normal
operation of Tenant's business, the rent will xxxxx proportionately until
repairs are substantially completed. Tenant will immediately notify Landlord in
the case of fire or other damage to the Property.
Anything herein to the contrary, Tenant will not be liable for the cost of
any repairs in excess of the available casualty insurance proceeds, plus the
amount of any deductible, provided that Tenant has fully insured the Property as
required by the terms of this Lease. If the amount of the insurance proceeds
exceeds the cost of repairs, then any excess will belong to Tenant. If Landlord
or Tenant elect to terminate the Lease as provided herein, Landlord will be
entitled to receive all of the insurance proceeds. Landlord will make all
insurance proceeds payable with respect to the occurrence of such casualty
available to Tenant for the purpose of paying the costs (when and as incurred by
Tenant) of the reconstruction and repair of the Property.
Section 20. Condemnation. If all or any substantial part of the Property
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is taken by or under threat of condemnation so as to render the Property wholly
untenantable, then this Lease will automatically terminate as of the date of the
vesting of title to such property in the condemning authority. If a taking does
not render the Property wholly untenantable, then this Lease will not terminate
but will continue in full force and effect in accordance with its terms, except
that the Base Rent will be proportionately reduced to reflect the number of
square feet, if any, in the Building which was so taken. If any taking does not
result in the termination of this Lease, then Tenant will at its sole expense
make all repairs to the Property which are necessary to constitute the Property
as a complete architectural unit. The proceeds of any condemnation award
received by Landlord will be made available by Landlord to reimburse Tenant for
the cost of undertaking such work. For the purposes of this Section 20, the
Property will be deemed "wholly untenantable" if more than 60,000 square feet of
space in the Building is taken by or under threat of condemnation.
Landlord's and Tenant's respective rights to any award made by any
condemning authority will be determined in accordance with applicable law;
provided, however, that Landlord's mortgagee will be entitled to be paid in full
prior to Tenant receiving any portion of any such award. Except as otherwise
expressly provided in Section 20, the occurrence of a taking of any part of the
Property will in no event xxxxx or otherwise relieve Tenant from its obligation
to pay Base Rent and additional rent and perform its other obligations under
this Lease. Landlord will not be liable to Tenant for any inconvenience or
interruption to Tenant's business occasioned by any such taking.
Section 21. Holding Over. Tenant will not hold over in its occupancy of
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the Property after the expiration of the Leas Term without the prior written
consent of Landlord. If Tenant holds over without the prior written consent of
Landlord, then Tenant will pay of the Base Rent then in effect for each month
during the entire holdover term, in an amount equal to the product of the Base
Rent payable by Tenant during the immediately preceding five-
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year period, multiplied by a fraction having as its nominator the New Index and
having as its denominator the Base Index (as those terms are defined in Section
4 of this Lease). Any holding over with the prior written consent of Landlord
may thereafter be terminated at any time by either Landlord's or Tenant's
delivery to the other party of a 60-day prior written notice of the termination
of such holdover. Tenant will be entitled to the peaceful and quiet enjoyment
of the Property at all time during the Lease Term (and any renewal or extension
thereof), so long as Tenant is not in default in the performance of its
obligations thereunder.
Section 22. Default. If Tenant fails to pay any installment of Base Rent
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or any other sum payable by it hereunder within ten days after the date when
due, or if Tenant defaults in the performance of any of its other obligations
under this Lease and such default continues for 30 days after written notice
thereof is given to Tenant, the, in addition to any other legal rights and
remedies available to Landlord at law or in equity, Landlord may; (a) terminate
this Lease and declare immediately due and payable the present value of all Base
Rent and other sums payable over the remainder of the Lease Term, discounted at
a rate equal to the Delinquent Rate; or (b) reenter and attempt to relet the
Leased Premises without terminating this Lease, in which event Tenant will
remain obligated to pay to Landlord any deficiency between all sums payable by
Tenant pursuant to this Lease and any sums collected by Landlord from any
reletting of the Property (net of any sums paid by landlord in connection with
such reletting, including, without limitation, leasing commissions, attorneys'
fees and the cost of any improvements made to the Property). Landlord will also
have the right to take any action which it deems necessary or appropriate to
remedy Tenant's nonperformance, without any such action by Landlord being
construed as a curing or waiver by Landlord of Tenant's nonperformance. Any
expenses incurred by Landlord in taking any such action will be immediately due
and payable by Tenant to Landlord, together with interest thereon until paid at
the Delinquent Rate. In the event of a default by Tenant hereunder which leads
to Tenant's eviction from or vacation of the Property, Landlord agrees to use
its best efforts to re-lease the Property.
Section 23. Prevailing Party's Fees. If any legal action is commenced by
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either Landlord or Tenant, to enforce its rights hereunder, then all attorneys'
fees and other expenses incurred by the prevailing party in such action will be
promptly paid by the non-prevailing party. The prevailing party will be the
party that is awarded 1005 of its demands.
Section 24. Successors and Assigns. This Lease will be binding upon and
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inure to the benefit of the successors and assigns of Landlord and the
successors and permitted assigns of Tenant.
Section 25. No Waiver. No waiver of any covenant or condition of this
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Lease by either party will be deemed to constitute a future waiver of the same
or any other covenant or condition of this Lease. In order to be effective,
any such waiver must be in writing and must be delivered to the other party to
this Lease.
Section 26. Brokerage Commissions. Each of Landlord and Tenant hereby
----------------------
represents and warrants that it has not dealt or consulted with any real estate
broker or agent in connection with this Leas other than those real estate
brokers and agents specifically identified in the Agency Disclosure Statement
attached hereto as Exhibit C. Each of Landlord and Tenant agrees to indemnify
and hold the other harmless from and against any liability or expense occasioned
by its breach of the foregoing representation and warranty. Landlord will pay
those real estate brokers and agents specifically identified in the Agency
Disclosure Statement attached hereto as Exhibit C.
Section 27. Reasonableness of Consent. Landlord will not unreasonable
--------------------------
withhold or delay any consent or approval which is required to be given by it
pursuant to the terms of this Lease.
Section 28. Amendment. This Lease may not be amended except by a written
----------
instrument signed by both Landlord and Tenant.
Section 29. Governing Law. This Lease will be governed by and construed
--------------
in accordance with the laws of the State of South Carolina.
8
Section 30. Notices. All notices required or permitted to be given under
--------
this Lease must be in writing and must be delivered to Landlord and Tenant at
their addresses set forth below (or such other address as may hereafter be
designated by such party):
If to Landlord: Xxxxxxx Equities Inc.
Xxxxx 0000
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
If to Tenant: Devon Industries Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Any such notice must be personally delivered or sent by either registered or
certified mail or overnight courier.
Section 31. Option to Purchase. Tenant will have the option to purchase
-------------------
the Property at the following times for the following cash purchase prices:
Date of Purchase Per Square Foot Price
---------------- ---------------------
Upon substantial completion $28.15
of Improvements
At end of Year 1 28.66
At end of Year 2 29.58
At end of Year 5 30.65
The purchase price set forth above with respect to Tenant's purchase of the
Property presumes that Tenant will assume all existing obligations or options
with respect to any mortgage financing on the Property. Tenant will exercise
such option, if at all, by delivering written notice of exercise to Landlord no
later than 90 days prior to the scheduled date of purchase noted above.
Tenant's purchase of the Property will be closed on the date noted above by
Tenant's payment to Landlord of the purchase price in cash and Landlord's
execution and delivery to Tenant of a warranty deed for the Property. Tenant's
purchase of the Property will otherwise be governed by the terms and conditions
set forth in the standard form of purchase agreement which is attached hereto as
Exhibit C.
Tenant will also have a right of first refusal to purchase the Property. If
Landlord receives a bona fide offer ("Competing Offer") to purchase the Property
at any time during the Lease Term, then Landlord will give Tenant written notice
of the existence and terms and conditions of such Competing Offer. Tenant will
than have ten days in which to exercise its right of first refusal to purchase
the Property by delivering written notice of exercise to Landlord. If Tenant so
exercises its right to purchase the Property , then Tenant's purchase of the
Property will be upon all of the same terms and conditions as are contained in
the Competing Offer. If Tenant fails to properly exercise its right of first
refusal within the aforementioned ten-day period, then Tenant will be deemed to
have elected not to purchase the Property and Landlord will be free to sell the
Property to the person making the competing Offer. Tenant's right of first
refusal hereunder will be further conditioned upon this Lease Agreement being in
full force and effect without any default on the part of Tenant on the date of
Tenant's exercise of such right of first refusal.
9
Section 32. Financial Covenant. Tenant agrees that it will at all times
------------------
during the Lease Term maintain a net worth (calculated in accordance with the
generally accepted accounting principles) of not less than $3,000,000. If
Tenant's net worth ever falls below $3,000 000, then Tenant will promptly notify
Landlord of such state of affairs and, within ten days, after the date on which
Tenant's net worth falls below such amount, Tenant's controlling shareholder,
Xxx Xxxxxx, will be required to make the necessary equity contributions to bring
Tenant's net worth back to not less than $3,000,000. Xxx Xxxxxx is joining in
the execution of this Lease Agreement for the sole purpose of acknowledging and
confirming the equity contribution commitment owed by him to Landlord under this
Section 32.
In addition, Tenant will provide Landlord with Tenant's true, accurate and
complete financial statements (including a balance sheet and income and loss
statement) on an annual basis. Such financial statements will be provided to
Landlord within 60 days after the end of each of Tenant's fiscal year during the
Lease Term. Tenant will also provide Landlord with Prompt written notice of the
existence of any material change in any of the terms governing the provision of
deft financing to Tenant.
Section 33. Exhibits. All exhibits referred to in this Lease are
---------
incorporated herein by such reference.
10
Landlord and Tenant have executed this Lease as of the date specified in the
first page of this Lease.
Signed and acknowledged in the presence of:
LANDLORD:
Xxxxxxx Equities Inc.
_________________________
_________________________ By ___________________________
(Name) (Title)
TENANT:
Devon Industries Inc.
_________________________
_________________________ By ____________________________
(Name) (Title)
Xxx Xxxxxx, the controlling shareholder of Tenant, is executing this Lease for
the sole purpose of acknowledging and confirming his equity contribution
commitment pursuant to Section 32 of this Lease.
_________________________
_________________________ _________________________
Xxx Xxxxxx
State of __________
County of __________
Before me, a notary public in and for said state and county, personally
appeared __________, the __________ of Xxxxxxx Equities Inc., the Landlord in
the foregoing Lease, who acknowledged the signing of the Lease to be his or her
free act and deed on behalf of the Landlord.
Date: __________ ___________________
Notary Public
11
EXHIBIT A
---------
LAND
All that certain piece, parcel or tract of land lying, being and situate in
TechPark Area II, in the City of Rock Hill, York County, S.C., and being more
particularly described as follows: Beginning at an iron on the Southern edge of
100 foot right of way for TechPark Boulevard (at a point 650 feet Southwest from
the center line of S.C. Xxxxxxx #00 Xx-Xxxx) at its intersection with the
Western edge of variable width right of way for Lakeshore Parkway, and running
thence with the Western edge of Lakeshore Parkway (R/W is 11 feet off back of
curve) as follows: S. 05 11 28 E. 59.81 feet to a point; S. 03 37 42 E. 61.17
feet to a point; S. 05 19 09 E. 65.05 feet to a point; S. 08 08 55 E. 76.55 feet
to a point; S. 10 52 30 E. 70.32 feet to a point; S. 13 00 53 E. 59.31 feet to a
point; S. 15 06 05 E. 6.01 feet to an iron; S. 15 06 05 E. 59.80 feet to a
point; S. 17 42 39 E. 72.04 feet to a point; S. 19 54 55 E. 78.74 feet to a
point; S. 20 53 31 E. 57.98 feet to a point; S. 21 02 10 E. 98.04 feet to a
point; and continuing with the line of Lakeshore Parkway S. 20 28 52 E. 138.05
feet to an iron, (for a total distance along Lakeshore Parkway of 903.17 feet);
thence with the new division lines through property of the City of Rock Hill as
follows: S. 66 44 32 W. 583.78 feet to an iron; thence N. 61 48 28 W. 31.22
feet to an iron; thence N. 04 20 00 W. 165.82 feet to an iron; thence N. 26 17
41 W. 207.26 feet to an iron; thence N. 02 22 23 W. 212.34 feet to an iron;
thence N. 10 35 04 W. 165.24 feet to an iron; thence N. 67 59 04 E. 181.98 feet
to an iron; thence continuing with the new division line through property of the
City of Rock Hill N. 07 53 11 W. 185.40 feet to an iron rear corner of property
now or formerly of Xxxxxx; thence with the line of said property N. 56 15 15 E.
243.52 feet to an iron on the Northern side of the end or Western terminus of
TechPark Boulevard; thence with the end or terminus of said street S. 33 44 45
E. 100 feet to an iron on the Southern edge of TechPark Boulevard; thence with
the Southern edge of said street N. 56 15 15 E. 100 feet to the beginning;
containing 11.09 acres, more or less, the fore going description being in
accordance with two plats, showing a 3.95 acre, more or less, tract, and a 7.14
acre, more or less, tract, both entitled "Plat of Property of L'Arome (USA)
Inc., TechPark, Portion of Tract C, Area II," by Xxxxxxxx Engineering, Inc.
dated October 31, 1989.
EXHIBIT B
PRELIMINARY SPECIFICATIONS
--------------------------
00
Xxxxx Xxxxxxxxxx
Xxxx Xxxx, Xxxxx Xxxxxxxx
September 21, 1993
October 13, 1993
December 16, 1993
INDEX TO SPECIFICATIONS
Job Personnel........................................... 100.00
Project Mobilization.................................... 130.00
Project Clean-up........................................ 140.00
Permits, Fees, Taxes.................................... 153.00
Insurance............................................... 154.00
Architecture & Engineering.............................. 155.00
Site Clearing & Grading................................. 200.00
Structural Excavation................................... 220.00
Site Drainage & Underground Utilities................... 250.00
Site Improvements....................................... 260.00
Landscaping............................................. 280.00
Precast Concrete Exterior Wall/Foundation Wall Systems.. 300.00
Foundations............................................. 310.00
Interior Concrete Slabs................................. 320.00
Building System......................................... 500.00
Miscellaneous & Ornamental Metals....................... 550.00
Building Insulation..................................... 730.00
Thermal & Moisture Protections.......................... 780.00
Exterior Doors, Frames & Hardware....................... 800.00
Specialty Doors......................................... 830.00
Office Finishes......................................... 900.00
Loading Dock Equipment (Levelers)....................... 1185.00
Plumbing................................................ 1500.00
Fire Protection......................................... 1550.00
Heating, Ventilating & Air Conditioning................. 1560.00
Electrical.............................................. 1600.00
Qualifications & Exclusions............................. 1700.00
Devon Industries
Rock Hill, South Carolina
September 21. 1993
October 13, 1993
December 16, 1993
Page 100.00-1
JOB PERSONNEL
Contract Manager
----------------
A full time Contract Manager will be assigned to your project. He will be
responsible for your total
project execution, including but not limited to the followings
1. Reviews construction documents in preconstruction phase.
2. Assists in preparation of project bid packages
3. Develops subcontractor/supplier schedule of values and breakdown of work
4. Assists in analysis of bids received
5. Assists in preparation of subcontractor/supplier contracts
6. Supervises all project construction activities and has responsibilities for
quality of work and meeting job schedule.
7. Schedules and expedites subcontractors, suppliers, equipment and materials.
8. Creates master project schedule.
9. Inspects accuracy of project cost coding as required.
10. Monitors project costs - spot labor, subcontractors and suppliers.
11. Responsible to jobsite record drawings, development and maintenance.
12. Updates project construction schedules.
13. Maintains daily project log with all project detail.
14. Schedules inspections with building authorities.
15. Leads prejob, scheduling and project progress meetings with subcontractors.
16. Inspects subcontractors'work for compliance with contract documents and
quality
17. Controls and coordinates subcontractor/supplier change orders.
18. Responsible to insure daily cleanings by subcontractors to create and
maintain project site in a clean and safe condition.
19. Expedites material and deliveries after purchase orders have been issued.
20. Purchases material required in the field for miscellaneous and general
condition activities.
21. Responsible for checking material quantities delivered to project.
22. Maintains good customer and tenant relationships during construction.
23. Coordinates client prime change orders and work charges that are done on a
time and material basis.
24. Advises client of project progress at weekly Owner meetings.
25. Assists in updating estimating unit costs and man-hours when required.
26. Reviews and analyzes job costs during construction, on a cost to complete
basis.
27. Reviews overall project financial status reports.
28. Makes field studies to improve construction procedures, reduce costs and
increase quality.
29. Responsible for overall jobsite safety compliance.
30. Reviews and insures corrective action is taken on accident reports.
31. Periodically tests electrical cords and power tools for electrical ground
fault interruption (GFI).
32. Reviews monthly subcontractor xxxxxxxx and approves same for inclusion in
monthly draw requests.
33. Responsible for "as built' record drawings when project is completed.
34. Responsible for preparation of project 'Operations and Maintenance" manuals
for delivery to Owner at project substantial completion and turnover to
Owner.
35. Responsible to self-inspect and create detailed project punch lists for
completion prior to project walk through with Owner.
36. Responsible for on-time, at budget and at the desired quality completion of
the project.
37. Performs other duties as directed.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
Page 100.00-2
Project Executive
-----------------
The Contract Manager will report directly to the Project Executive. The Project
Executive, who is an executive officer of EXXCEL Contract Management, Inc., will
have total project control, and act as liaison between field, office, Architect
and Owner and perform the following:
1. Coordinate and be responsible for all construction activities.
2. Review construction documents for completeness in preconstruction phase
3. Review project cost estimates in preconstruction phase.
4. Communicate most efficient construction techniques to project Contract
Manager.
5. Review project construction schedules, and assist in expediting project
productivity to make up any schedule problems.
6. Control change order procedures and prime change orders.
7. Coordinate suppliers and subcontractors with Contract Manager.
8. Review job start-up package with Contract Manager.
9. Set up and implement company safety program. Inspect compliance at site.
10. Receive, review and approve paperwork from field as required.
11. Continually inspects for problems of safety, cost, schedule and quality,
and implement solutions to same.
12. Resolve any project disputes with subcontractors and suppliers.
13. Schedule and complete final punch lists and obtain customer signature on
completion forms.
14. Review ail approved invoices for payment.
15. Review monthly project draw requests.
16. Approve disbursing schedules to release funds.
17. Conduct prejob conference.
18. Attend weekly project and Owner meetings.
19. Perform other duties as directed.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December,16, 1993
Page 130.00-1
PROJECT MOBILIZATION
A temporary construction office will be set up on the site as soon as conditions
permit. Arrangements shall be made to maintain office and safety supplies.
Construction progress photos will be taken through construction duration.
Temporary electric service, water service, telephone service and sanitary
facilities will be provided as appropriate.
Other facilities, such as storage trailer and site protection, will be provided
in order to facilitate construction activities.
It is our intent to erect a project sign identifying our participation on the
project and Owner or occupants of the Building. Any additional signs required
by the Owner or the financial institution providing financing will be an
additional cost to the Owner.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 140.00-1
PROJECT CLEAN-UP
The project will be monitored to insure daily cleanup by subcontractors working
on the site.
Streets will be periodically machine cleaned as needed.
Paved parking areas will be machine cleaned or power washed clean as required
upon project completion.
Concrete floors will be machine power buffed in two (2) directions at completion
and vacuumed clean.
At the completion of the work, all systems will be cleaned and tested for proper
operation. During the work, various segments of the systems will be tested for
proper workmanship as required by building codes and good construction practice.
At the completion of the work, the premises will be swept broom-clean.
All construction rubbish, packing and similar materials resulting from
construction efforts YAII be remo ved from the site on a weekly basis.
Devon Industries
Rock Hill. South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 153.00-1
PERMITS, FEES & TAXES
The plans will be reviewed by all governing agencies to ensure acceptance and
code compliance, and to obtain the required building permits. In the event a
governing agency requests changes in the specifications and design which result
in increased construction costs, the Owner may, at its option, issue a prime
change order to cover such additional costs or revise construction documents to
reduce costs to offset the increases.
We will obtain all other necessary permits and licenses required for
construction of this project such as building and utility permits. The costs of
such permits and licenses are included in our proposal. Obtaining an occupancy
permit will be our responsibility.
Sales and/or use taxes are included in our proposal.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 154.00-1
SUMMARY OF INSURANCE COVERAGE
Comprehensive General Liability Insurance
-----------------------------------------
Terms: $1,000,000 General Aggregate
$1,000,000 Personal & Advertising Injury
$1,000,000 Each Occurrence
Umbrella Insurance
------------------
Terms: $2,000,000 Each Occurrence
$2,000,000 Aggregate
Commercial Auto
---------------
Terms: $1,000,000 Combined Single Limit
- Bodily Injury
- Property Damage Liability
Worker's Compensation and Employee's Liability
----------------------------------------------
Terms: $500,000 Each Accident
$500,000 Disease Policy Limit
$500,000 Disease-Each Employee
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 155.00-1
ARCHITECTURE & ENGINEERING
The architectural design of the building shall be provided by a licensed
architectural firm.
Each area of this project including, but not limited to, soils, structure,
mechanical and electrical design, will be engineered by professionals registered
in the State of South Carolina, who will make checks on the design-and
construction as needed.
Drawings will be adequate for the purposes of obtaining building peffnits and
properly defining the work to the various crafts employed on the project.
During the preparation of drawings and specifications and during the progress of
the work, we may also employ the services of other consultants whom we consider
appropriate, such as land surveyors, geotechnical experts, concrete testing
laboratories.
At the conclusion of the project, a set of "As-Built" record drawings will be
fumished to the Owner. The original tracings will be retained by the architect.
A reproducible set of sepia mylars will be retained by the architect, and in our
files. The Owner may purchase a reproducible sepia mylar set.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 200.00-1
SITE CLEARING & GRADING
The finished floor elevation has been determined to minimize grading and to
provide for a balancing of earthwork cut and fill. Fine grading will be limited
to areas under slabs and roadways. The final finish floor elevation may be
adjusted up or down to facilitate a balanced site.
Any excess topsoil will be wasted in mounded areas on site. The Owner shall
make available an area on an adjacent site for stockpiling of excess topsoil.
It is assumed that grading can be accomplished by normal machine methods. If
rock is encountered, the cost of its removal will be billed as an extra to our
base proposal. Initial soils test indicated that no rock is present.
Site work for utilities is included on-site for the building and parking areas
only.
Trees and on-site vegetation will be removed when required. Trees and stumps
will be burned as soon as possible. Stumps will be buried in borrow pits on
site under mounds and berms.
Erosion control will be provided. Cut, fill and compaction work to construct
the building pad, parking areas and landscape areas is included.
Machine work to dry high moisture content soils or lime stabilization is not a
part of the work and is excluded.
All remaining disturbed areas of the site will be covered with 6" of topsoil and
fine graded.
Soil poisoning is not included.
It is assumed that clearing and grubbing will be limited to a three (3) acre
area.
The existing asphalt access drive, concrete truck maneuvering lane, and asphalt
upper parking area affected by the building addition and dock area limits wiii
be demolished.
Grading will be performed to relocate a portion of the south spoils pile
affected by the buiiding expansion. T77e existing spoils pile shall remain.
Devon Industries
Rock Hill. South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 220.00-1
STRUCTURAL EXCAVATION
Excavation for foundations, pits and utility trenches will be made as necessary.
The removal of surface storm water from excavations is included in our proposal.
Backfill on the inside of foundation walls and at utility lines beneath exterior
paving will be suitably compacted with granular material to minimize settlement.
Excavation spoils will be wasted on-site in berrns.
An independent testing laboratory will be employed during earthwork operations
at the owners expense to monitor compaction of fill materials.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 250.00-1
SITE DRAINAGE & UNDERGROUND UTILITIES
The existing fire hydrant loop will be extended and three (3) additional fire
hydrants will be added.
The existing water service line to the building will be extended a maximum of
100'.
Tie into existing gas service piping is included.
The existing on-site sanitary sewers will not be affected.
A complete underground storm water control and removal system will be revised to
accommodate the new construction. The existing storm sewer system in the
affected construction area will be demolished.
Storm water detention will be provided by ponding designed within paved areas.
Telephone service conduit will be provided.
Primary electrical service will be tied into and extended from the existing
services.
It is assumed that all utilities which are being tied into are sized adequately
for the new building addition.
All roof drainage will be performed via building perimeter scuppers/downspouts.
All downspouts will empty onto splash blocks.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 260.00-1
SITE IMPROVEMENTS
Concrete Paving
---------------
Concrete paving for dock area will be 6" thick with 4" gravel base and extend
50' from dock face for a width of 195'.
The slabs will be placed over property compacted subgrade and brought to fine
grade with clean granular material.
Concrete used will have 4,000 psi compressive strength in 28 days.
Concrete finish will be a broom finish pitched for drainage to storm drainage
basins at a minimum 1 % slope.
9, 750 sqft. (50'x 195') of 4,000 psi concrete truck paving with 6" x 6" x 1 0/1
0 wire mesh reinforcing on compacted subgrade is included. Refer to Page
1800.00-1 for further definition of the concrete paving work.
Concrete Sidewalks
------------------
Sidewalks will be generally 6' wide, 4" thick, broom finished concrete, placed
over suitably compacted subgrade, fine graded with clean granular material.
Expansion joints will be suitably placed to minimize cracking at approximately
10'-0" +/- on center as construction requires.
Concrete Curbs
--------------
18" concrete curbs and gutter will be provided at the perimeter of all paved
areas. Refer to Page 1800. 00-1 for further definition of the curbing work.
Bituminous Paving
-----------------
2,008 sq. yds of heavy duty bituminous paving for truck court area shall be
placed over property compacted subgrade. 6" aggregate base with a 2" binder and
1" of type "F" topping. Refer to Page 1800. 00-1 for further definition of
paving work.
Miscellaneous Site Concrete
---------------------------
Xxxxxx will be provided at all exit doors not otherwise served by sidewalks or
paving.
Down spout water flow energy dissipation pads 3'-0"' x 3'-0" x 4" thick will be
provided at any downspouts not draining into underground stoffn system.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 280.00-1
LANDSCAPING - LAWNS, PLANTINGS AND IRRIGATION
Landscaping and an irrigation system will be provided on a design/build basis.
An allowance of $15,000.00 has been included for landscaping, plantings, seeding
and irrigation. This includes the cost to remove and relocate the planting areas
affected by the building expansion. Refer to Page 1700.00-1 for further
definition.
All areas disturbed by construction operations will be prepared and re-seeded
with turf grass.
Devon Industries
Rock Hill. South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 300.00-1
PRECAST CONCRETE EXTERIOR WALL/FOUNDATION WALL SYSTEM
The exterior wall system for the facility will be precast cored slab concrete
panels, installed vertically. Panels will be one piece, full height.
The concrete strength used to fabricate the panels will be as required by the
final panel structural design. Panels will be 8 nominal thickness.
The exterior panel surface will be a light raked finish with horizontal reveals
to be similar to the existing facility.
Provide reveals on new walls on the east and west elevations. The south wall
shall be a standard flush precast panel similar to the existing south wall with
intention of future expansion.
The precast on the east and west building elevations shall be stained to match
the existing brick surfaces.
All panel joints on the exterior wall surface will be sealed with xxxxxx xxx and
the joint caulked for appearance and weather tightness.
Precast panel finish will be smooth at dock shelter areas and below dock shelter
to grade to allow easy installation of shelters and future dock locks.
Panel bases will be aligned and positioned straight, and held in position by
non-structural alignment dowels and structural grout.
Panels will have embed weld plates at vertical side joints, welded together to
provide structural connection to resist lateral loads.
Interior panel finish will be a smooth steel formed finish.
The advantage of this approach is two fold. First, since the panels are
manufactured inside a building and shipped to the site, the quality of the
panels is greater than site cast. The most important advantage of this approach
is that the interior floors need not be poured until after the roof and walls of
building are constructed. When the site cast approach is utilized the floor
slabs are placed first to provide a casting bed for wall panels. Placing the
floor slabs without the protection of roof and walls greatly reduces the quality
of the floor.
Precast panels below dock pits shall be grouted solid. Precast cores at dock
shelter bumper guards will be grouted solid.
The cored construction of the precast wall panels also are foam insulation
filled in the precast subcontractor's storage yard, prior to delivery to the
site, resulting in a wall panel with an R=8.
Devon Industries
Rock Hill. South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 300.00-2
A parapet will extend along the east and west elevations.
Refer to Page 1800.00-1 for further definition of precast upgrade on the east
and west building
elevations.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 310.00-1
FOUNDATIONS
Exterior wall reinforced concrete trench foundations shall extend below the
frost line. We assumed 3,000 psf soil bearing can be obtained at that level.
Foundations will be properly engineered with suitable steel reinforcing for the
loads imposed by the structure and its attendant live, wind, dead and other
loads.
Concrete used in foundations will attain 3,000 psi compressive strength in 28
days.
Interior.building columns shall be supported by steel reinforced concrete pad
footings.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 320.00-1
INTERIOR CONCRETE SLABS
Interior concrete slabs will be 6" thick, unreinforced concrete. Concrete
compressive strength will be 4,000 psi in 28 days. Construction joints will be
placed to optimize flatness and levelness.
A floor flatness rating of FF25 will be achieved as measured by the Face Floor
Flatness Profile Number System. This system provides analytical guidelines for
floor surface definition and control. The system evaluates the floor curvature
(waviness, flatness) and inclination (tilt or levelness).
(NOTE:, An FF of 25 is similar to 1/4" In 10'-0" and an FF of 50 is similar to
1/8" in 10'-0"')
INTERIOR CONCRETE SLAB FINISH
Slab finish will be a hard troweled finish. A water soluble Sonosil cure and
seal will be applied to newly placed concrete.
The first 24'-0" of dock area slab will be reinforced with sheet mesh along the
full face of the dock area.
Floor slabs will be maintained in as clean a condition as possible during
construction.
All machines used for construction activities will be diapered to prevent oil
dripping on to the slab and staining the slab.
All rubber tires on equipment on the slab will be wrapped in burtap or taped to
prevent marking of the slab.
Slabs will be sawcut at all grid lines and at approximately 15'-0" +/- on center
in both directions, 1-1/2" deep in center bay, 3/4" deep elsewhere.
Column diamonds will be utilized to minimize cracking of slab at columns due to
differential movement.
Construction joints at non-dock areas will always be at column lines, where
minimal traffic will occur.
Interior floor slabs will be power machine cleaned and then treated with a
Lapidolith hardener/antidusting product or equal.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 500.00-1
BUILDING SYSTEM - CONVENTIONAL STEEL BUILDING SYSTEM
Building System Components
--------------------------
This system will be designed by a structural steel engineer to provide optimum
value.
The roof covering shall be single ballasted EPDM over 20 gauge roof deck.
This building is equipped with all necessary scuppers, expansion joints,
transition flashings and downspouts.
Structural Systems
------------------
General
-------
The building's framework shall consist of structural steel plate beam and column
interior main frames.
Components and fasteners of systems shall be marked and installed as indicated
on erection drawings and/or applicable Specifications.
Erection drawings shall carry the stamp of a Registered Professional Engineer.
Dimensions
----------
Bar Joist lengths as required to match bay spacing.
Roof slope shall be 1/8 : 12.
Building height shall be approximately 33'-8" with a clear height of
approximately 30' at the lowest interior structural point.
Bar joists vertical depth will be approximately 25.25".
Structural Design
-----------------
Vertical loads shall be supported by roof deck on bar joists which shall be
supported by steel interior frames and load bearing walls.
Lateral wind load resistance shall be provided by the roof deck diaphragm to
transfer the loads to the foundations. The loads will be transfer to walls in
shear and will be removed at the truss locations. Note this is only the
transfer of longitudinal shear to the wail panels. The wind forces against side
wall known as transverse forces will be resistal by the rigid frames.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 500.00-2
All structural mill steel sections or welded-up plate sections shall be designed
in accordance with AISC "Specifications for the Design, Fabrications, and
Erection of Structural Steel for Buildings". All cold-formed steel structural
members shall be designed in accordance with AISI "Specifications for the Design
of Cold-Formed Steel Structural Members".
The following loads applied to the building system will be in accordance with
the latest edition of the Southern Building Code.
Roof Loads
----------
The primary structure shall sustain within the stress limitations of the SBCC1
all "dead loads" including built-up roof plus a ground snow load less allowable
reductions.
Collateral Loads
----------------
The structural shall sustain all dead and live loads plus a three (3) pound per
square foot collateral load applied to all structural members with no tributary
area reductions.
Wind Loads
----------
The building shall sustain wind loads in accordance with the SBCC1 criteria
using a basic wind speed of 80 mph and an exposure factor of B.
Primary Framing
---------------
Interior steel frames shall consist of not rolled or welded-up plate sections.
Columns shall be constant depth sections. Members shall have necessary plates
and stiffeners factory welded and punched for primary and secondary structural
bolted connections. Connection bolts shall be high strength without washers and
shall be tightened by turn-of-the-nut method.
Load bearing concrete endwalls shall be designed with embed plates to support
endwall rafter beams.
Structurals
-----------
Components shall be factory welded, open web, plane trusses. Top and bottom
chord shall be hotrolled steel angle. The web diagonals shall be continuous
round bar, tube steel or angles. All connection holes shall be factory punched.
Deflection due to design live load shall not exceed 1:240.
All concentrated loads shall be reviewed by the manufacturer.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 500.00-3
Welding
-------
Factory welding procedure, operator qualifications and welding standards shall
be in accordance with American Welding Society structural welding code.
Field welded connections shall be performed by certified welders in accordance
with AWS.
Structural Painting
-------------------
Prior to painting the fabricator shall clean the steel of loose rust, loose mill
scale, dirt and other foreign material. Unless otherwise specified, the
fabricator shall not sandblast, flame clean, or pickle prior to painting. The
fabricator shall then factory coat all steel with one coat of xxxx primer paint
formulated to equal or exceed the performance requirements of Federal
Specification TT-P-636.
Metal Decking
-------------
Roof decking shall be 20 gauge factory painted xxxx. All exposed welding bums,
at both the top and bottom sides of the metal deck will be touched up to match
the shop coat following erection. Roof decking materials will be provided and
installed as required by Industrial Risk Insurers, Underwriters Laboratories and
Factory Mutual.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 550.00-1
MISCELLANEOUS & ORNAMENTAL METALS
Door Guard Posts
----------------
All dock doors and man doors vail be protected with steel guard posts on each
side to minimize damage to door jambs. They will be 6" in diameter extending
42" above grade and 42" below the grade and will be filled with concrete. These
guard posts will be painted with Federal Safety Yellow paint as approved by
OSHA.
Dock Pit Edge Angles
--------------------
Dock pit steel edge angles will be provided.
Dock bumper embed attachment plates will be provided.
Hand and Guard Rails
--------------------
Hand and guard rails will be provided at all exit stairs.
Protective Guards
-----------------
Guards will be provided at all sprinkler system test drains occurring at dock
side wall.
Devon Industries
RoCk Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 730.00-1
BUILDING INSULATION
System Building's Insulation
----------------------------
Roof Areas 1-1/2" isocyanurate rigid insulation
Precast Panels 2" rigid insulation
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 780.00-1
THERMAL AND MOISTURE PROTECTION
Insulation
----------
Insulation of the entire facility will be as required to conform with energy
conservation outlined in ASHRAE 90A and/or 90B and local or state requirements.
Roofing
-------
The roof vail be insulated with a minimum 1.6" of Manville R-11.1 poly-
isocyanurate insulation board (or equal). The roof shall have ten (10) lbs per
sq.ft. of stone ballast.
Roofing shall be EPDM single ply membrane .045 inches in thickness by Carlisle
Manufacturing or equal, installed as recommended by the manufacturer. Roofing
will be covered by the manufacturers standard ten (1 0) year guarantee.
The roofing system will consist of components manufactured by the same
manufacturer. The roofing system is designed to be free of leaks at all times
and designed and installed to prohibit standing water at any.location on the
roof.
The entire roof system shall consist of the following:
a. That which is described above.
b. Expansion joint curbs and nailers.
c. All necessary cant strips.
d. Drain lead and lead flashings at soil pipes.
e. Pitch pockets at small pipe penetrations.
The roofing installation will conform to the following conditions:
a. The current edition of the "National Roofing Contractors Association"
(NRCA) publications.
Gutters/Downspouts/Flasings
---------------------------
Provide gutters and downspouts at east/west building elevations.
Provide aluminum downspouts as required by code for positive drainage.
Install gutters with metal strap hangers at 2'-0" on center maximum.
All aluminum components shall be fumished with baked on acrylic enamel finish.
Sheet metal coping to be .032 aluminum with factory Kynar finish.
Skylights
---------
Provide (10) 4 x 8, double dome, white acrylic skylights.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 800.00-1
EXTERIOR DOORS, FRAMES &, HARDWARE
Hollow metal frames will be used throughout this project. These frames will be
consistent in manufacturer and design to provide a continuous appearance.
FAerior wall frames shall be of welded construction. Exterior frames shall be
grouted in place in addition to mechanical fasteners.
Insulated metal doors will be used as exterior exit doors and will be provided
with ail hardware, closers and rain caps. Quantity includes seven (7) total.
INTERIOR DOORS, FRAMES & HARDWARE
Interior door frames shall be knock-down type painted hollow metal. Doors at
high impact warehouse or manufacturing areas shall be painted hollow metal.
Hardware shall be standard commercial grade, brushed stainless steel, ADA lever
handles, 1-1 /2 pair hinges per door, closers by LCN or equal on rated doors and
doors with push pulls. Kick plates, stops, astragies and mutes will be
provided, where appropriate.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 830.00-1
SPECIALTY DOORS
Overhead Dock Doors
-------------------
Twelve (12) overhead dock doors will be provided 9'-0"xl0'-0" vertical rising
type with 10,000 cycle tension springs. Overhead doors will be manually
operated, sectional type, insulated and fabricated from 24 gauge steel with
steel back, and include center lift handle, both side rail security latches,
knotted pull down ropes, weather seals, 2" tracks and rollers and continuous
aluminum angle step ledge to assist closing.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 900.00-1
OFFICE FINISHES
A $20,000 upfit allowance for warehouse restrooms and office is included
utilizing the attached specifications as a basis - 800 xx.xx. at $25.00 per
xx.xx. Refer to Page 1700.00-1 for further definition.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13,1993
December, 16, 1993
Page 1185.00-1
LOADING DOCK EQUIPMENT (LEVELERS)
Twelve (12) truck dock doors with dock pit edge angle, frames, levelers,
shelters, bumpers, dock service outlets and dock lights will be provided.
Dock levelers are 6'x 8' by Rite-Xxxx or equal, as follows:
25,000 lb. standard capacity
Below dock operation, hydraulic controls
Full operating range toe guard protection
Conform to all ANSI and CS202 specifications
Dock shelters will be Fairborn Series 2000, rigid frame with Dynalon curtains,
custom bumpers and custom fit draft pads.
Dock lights by Phoenix or equal.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 1500.00-1
PLUMBING
Plumbing Fixtures
-----------------
The quantity of plumbing fixtures will be determined within the $20,000
allowance for warehouse
restrooms and offices.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 1550.00-1
FIRE PROTECTION SYSTEM
The fire protection system for the building will be designed to meet all local
and state building codes. NFPA 13 and NFPA 231-C, 1991 Edition will be utilized
for design guidelines.
We have based our costs on the assumption that water pressure and volume of flow
is adequate for the proposed use and needs.
No less than one (1) riser per 40.000 sq.ft. will be provided. Hose connections
and hose stations will not be. provided. Main sprinkler header lines, drop
piping and pendant heads will be provided.
Column protection heads will not be provided, but will be required where racking
exceeds 15' height and encloses columns as a component of in-rack sprinklers.
In-rack sprinklers are excluded from this proposal.
System final design will be based on the latest applicable NFPA standards for
maximum 20' rack storage, for designated commodity storage class on double row
racks with minimum 8'-0" aisles. A wet sprinkler system will be used.
This proposal is based on a density of 0.390 gallons per minute at the most
remote 2,000 square feet.
No smoke vents or smoke curtains are included.
The system will include a 500 gpm capacity for in-rack sprinklers.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 1560.00-1
HEATING, VENTILATING & AIR CONDITIONING
Energy Supply
-------------
Gas pipimg will be supplied to all gas-fired equipment. Piping shall be
schedule 40 black steel with malleable fittings.
Heating and Systems - Warehouse
-------------------------------
For the warehouse area, gas fired unit heaters hold the space temperature at or
above 60 degrees Fahrenheit in accordance with ASHRAE handbook recommendations
for this area.
Provide four (4), 54" roof vents and relocate three (3) existing louvers.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 13, 1993
December 16, 1993
Page 1600.00-1
ELECTRICAL
A complete electrical service in full compliance with all applicable codes shall
be provided as follows-
Meter Center and Main Switch Gear
---------------------------------
One (1) 225 AMP, 277/480 volt, 3-phase service panel to be extended from the
existing service location approximately 250 in.ft. Power will be metered through
the existing transformer located on the outside of the building.
All feeders shall use copper conductors.
All panel boards to be commercial quality and have copper xxxx bars, xxxx-type
circuit breakers, ground bars and full size neutral bar.
All disconnect switches to be heavy duty grade.
Tie in fire and security alarms into existing units.
Licjhtino Ecuipment
-------------------
400 watt metal halide high bay fixtures for warehouse area, two (2) per bay
provided - total 70 approximately 30 foot candles (average) - 30" above floor.
All high-bay lights will be switched from circuit breakers.
Exit lights per code.
Emergency lights per code.
Excludes telephone or computer wire, special intercom, fire siaffn, security or
other systems.
Site lighting includes three (3), 250 watt high pressure sodium wall packs, and
relocation of five (5) existing pole lights.
Devon Industries
Rock Hill, South Carolina
September 21, 1993
October 1 3, 1993
December 16, 1993
Page 1700.oo-i
QUALIFICATIONS & EXCLUSIONS
1. The following budgetary allowances have been established:
Building permits and utility fees $ 4,086
Landscaping, irrigation, seeding $15,000
Upfit - warehouse and offlce restrooms $20,000
Devon Industries
Rock Hill, South Camiina
September 21, 1993
October 13, 1993
December 16, 1993
Page 1800.00-1
OPTIONS
The following options are provided on an "add option" basis, and not included
within the proposal.
1. Site concrete, asphalt paving, concrete curbing and storm sewer (with site
limits). $48,850
It is assumed that this work would be included within the $200,000 mad
lmpmvement fund available for the pmject, based on the most recent
conversation between Xx. Xxxxxx Xxxxx Xxxxx - State Fund Administrator
and Xx. Xxxx Xxxxxxx -Rock Hill Economic Development Corp. (reference
letter dated 12/14/93 and section entitled "Detail of Road Improvement
Funds").
2. Upgrade precast on east and west building elevation
$15,170
On the east and west building elevations, the current design is based on
a lightly raked, stained precast panel to match the color of the
existing brick. Reveals will be cast into the panel at the same location
of the existing facility's reveals to continue the horizontal accent
lines.
The south elevation precast is based on a standard finish, flush natural
xxxx panel, similar to existing.
If the Arch Review Board for Tech Park requires additional brick accent
on the east and west elevation, an allowance of $0.75/sq. ft. of panel
surface area is included.
EXHIBIT c
AGENCY DISCLOSURE STATEMENT
---------------------------
Initialed and Approved by Tenant
13
FIRST AMENDMENT TO LEASE AGREEMENT
APRIL 29, 1994
This First Amendment to Lease Amendment to Lease Agreement ("First Amendment")
is entered into as of the date first set forth above by Xxxxxxx Equities Inc.
("Landlord") and Devon Industries Inc. ("Tenant").
BACKGROUND
----------
Landlord and Tenant entered into a Lease Agreement on January 5, 1994,
("Original Lease") pursuant to which Tenant agreed to lease an existing 60,735
square foot building and an attached 65,761 square foot expansion located on
approximately 11.09 acres in Rock Hill, South Carolina. Since the date of the
parties' execution of the Original Lease. Tenant has requested that Landlord
purchase some additional acreage (approximately 4.82 acres) located adjacent to
the existing site for the purpose, of future facility expansion. The Original
Lease provides that, at Tenant's request,. any net increase in the cost of the
project may be funded by a per square foot increase in the Base Rent in an
amount equal to $.01 dollars per square foot for every $9,730 of such net
increase. Landlord and Tenantt have now decided to enter into this First
Amendment to properly reflect the new Base Rent which flows from the increased
costs associated with the acquisition of the expansion land.
AGREEMENT
---------
Landlord and Tenant hereby as follows:
1. Expansion Land. The "Land" defined in the Original Lease is hereby
--------------
increased to include the 4.82 acre tract described in attached Exhibit A,
which Exhibit A is incorporated herein by this reference.
2. Modifications to Lease Economics. In view of the increased costs
---------------------------------
associated with the acquisition of the expansion land, the following
modifications to the Lease Economics are hereby agreed to by Landlord and
Tenant.
A. Base Rent
---------
Lease Period PSF Monthly Annual
------------ --- ------- ------
Period Base Rent Base Rent Base Rent
------ --------- --------- --------
Years 1 -5 $2.9191 $30,771.50 $369,258
Years 6-10 $3.1891 $33,617.50 $403,410
Years 11-15 $3.4891 $36,780.50 $441,366
Tenant acknowledges that the foregoing Base Rent adjustments are based solely
upon the "cash at closing" being expended by Landlord in connection with the
acquisition of the expansion land, and that a portion of the purchase price for
the expansion land is being carried by the seller in the form of a nonrecourse
promissory note. If and when Landlord is required to expend additional cash in
connection with the pay-off of such nonrecourse promissory note, then the Base
Rent will be further adjusted at that time in accordance with the formula for
increased costs set forth in the Original Lease.
B. Purchase Option Price:
----------------------
Date of Purchase Per Square Foot Price
---- ---------------------
Upon Substantial Completion $ 29.64
of Improvements
At End of Year One $ 30.15
At End of Year Two $ 31.07
At End of Year Five $ 32. 14
3. Future Change to Plans and Specifications. Any future changes to the final
-----------------------------------------
plans and specifications will be treated as a Change Order and will be
handled in the manner set forth in Section 2 of the Original Lease.
4. Miscellaneous. Except as other wise expressly provided in this First
--------------
Amendment, all of the terms and conditions of the Original Lease will
remain in full force and effect.
Landlord and Tenant have executed this First Amendment as of the date first set
forth at the beginning hereof.
Signed and acknowledged
in the presence of
XXXXXXX EQUITIES INC.
BY: _____________________
Xxxxxxx X. Xxxxx, Vice President
DEVON INDUSTRIES INC.
By: __________________________
Name Title
STATE OF OHIO
COUNTY OF FRANKLIN:
Before me a notary public in and for said state and county personally
appeared Xxxxxxx X. Xxxxx, the Vice President of Xxxxxxx Equities Inc., who
acknowledged the signing of the foregoing instrument to be his free act and deed
for the uses and purposes set forth therein.
IN WITNESS WHEREOF, I have signed my name and affixed rny official seal
April ___ 1994.
Notary Public
STATE OF California
COUNTY OF Los Angeles SS:
Before me a notary public in and for said state and county, personally appeared
Xxx Xxxxxxx, the President of Devon Industries, Inc., who acknowledged the
signing of the foregoing instrument to be his free act and deed for the uses and
purposes set forth therein.
IN WITNESS WHEREOF, I have signed my name and affixed my official seal on April
28, 1994.
XXXXXX X. XXX
-------------
Notary Public
All that certain piece parcel or tract of land lying, being and situate in
TechPark Area II, in the City of Rock Hill, York County, South Carolina, and
being more particularly shown and described and described on plat entitled
"Boundary and Physical Survey for Xxxxxxx Equities, Inc., Devon Industries,
Inc., First Union National Bank of North Carolina" drawn by Xxxxx Xxxxxx
Xxxxxxx, PLS, dated February 17, 1994, recorded in the office of the Clerk of
Court for York County, South Carolina, in Plat Book _____at Page ____ , as
follows: BEGINNING at an iron pin set on the Northern edge of right of way of
Lakeshore Parkway, corner of Tract C, property of Rock Hill Economic Development
(PB 103, PG 88) and running thence with the edge of Lakeshore Parkway as
follows: N- 68-22-02 E.
49.78 feet to an iron pin set, N. 60-25-17 E. 49.84 feet to an iron pin set, N.
53-18-41 E. 49.96 feet to an iron pin set, N. 49-35-51 E 49.80 feet to an iron
pin set, N. 44-36-10 E. 49-69 feet to an iron pin set, N. 37-10-00 E. 49.82
feet to an iron pin set, N. 31-15-30 E. 49.82 feet to an iron pin set, N. 24-
48-16 E. 49.76 feet to an iron pin set, N. 17-33-43 E. 49-90 feet to an iron pin
set, N. 12-04-26 E. 49.91 feet to an iron pin set, N. 06-09-22 E. 49.92 feet to
an iron pin set, N. 00-13-43 W. 49.99 feet to an iron pin set, N. 06-18-01 W.
49.80 feet to an iron pin set, N. 12-21-06 W. 49.67 feet to an iron pin set, N.
18-01-43 W. 50.00 feet to an iron pin set, and N. 20-22-35 W. 50 - 27 feet to an
iron pin found on line of propperty of NationsBank (DB 861, PG 330): thence with
the line of property of NationsBank S. 66-45-41. W. 583.79 feet to an iron pin
found; thence with the line of property of the City of Rock Hill S. 61-50-15 E.
82.25 feet to an iron pin found and S. 34-37-01 E. 128-51 feet to a point;
thence running with line of property of Rock Hill Economic Development (PB 103,
PG 88) S. 24-46-27 E. 310.24 feet to the point of beginning; containing 4.819
acres, according to said plat.
SECOND AMENDMENT TO LEASE AGREEMENT
January 13, 1995
This Second Amendment to Lease Agreement ("Second Amendment") is entered into as
of the date first set forth above by Xxxxxxx Equities Inc. ("Landlord") and
Devon Industries Inc. ("Tenant").
BACKGROUND
----------
Landlord and Tenant entered into a Lease Agreement on January 5, 1994,
("Original Lease") pursuant to which Tenant agreed to lease from Landlord an
existing 60,735 square foot building and an attached 67,878 square toot
expansion (increased from an originally contemplated 65,761 square foot
expansion) located on approximately on 15.9 acres in Rock Hill, South Carolina.
The Original Lease was amended by the parties' execution on April 29, 1994 of a
First Amendment to Lease Agreement. ALL capitalized terms which are used but
not defined herein will have the meanings attributed to such terms in the
Original Lease.
The Original Lease contained certain provisions addressing the economic
consequences of Tenant's requests for changes to the Final Plans and
Specifications referred to in the Original Lease. Since the date of the
parties' execution of the Original Lease and the aforementioned First Amendment
to Lease Agreement, Tenant has requested, and Landlord has made, a number of
changes to the Final Plan and Specifications. These changes have resulted in a
net increase in the cost of the construction of the Improvements. As a result,
Landlord and Tenant now desire to enter into this Second Amendment to property
reflect the new lease economics which flow from these increased construction
costs.
AGREEMENT
---------
Landlord and Tenant hereby agree as follows:
1. CHANGES TO FINAL PLANS AND SPECIFICATIONS. Landlord and Tenant hereby
-----------------------------------------
acknowledge that the Final Plans and Specifications have been changed to
reflect the various items set forth In Lease Amendment #1'S and 2, which
documents are attached hereto as Exhibit A ("Change Orders").
2. MODIFICATIONS TO LEASE ECONOMICS. In view of the increased costs
--------------------------------
associated with the Change Orders, the following modifications to the lease
economics are hereby agreed to by Landlord and Tenant. All of such modified
lease economics are based upon the assumption that Landlord will pay for
and amortize through Base Rent increase costs from Change Orders of
$536,608.
A. BASE RENT
---------
LEASE PERIOD PSF MONTHLY ANNUAL
PERIOD BASE RENT BASE RENT BASE RENT
------------ --------- --------- ---------
Years 1-5 $3.4163 $36,615.25 $439,383
Years 6-1 0 $3.6819 $39,461.25 $473,535
Years 11-1 5 $3.9770 $42,624.25 $511,491
B. PURCHASE OPTION PRICE:
---------------------
Date of Purchase Per Square Foot Price
---------------- ---------------------
Upon Substantial Completion
of Improvements $4,349,239
At End of Year One $4,441,253
At End of Year Two $4,570,131
At End of Year Five $4,730,484
C. Additional Improvement Costs. To the extent the increased costs
----------------------------
associated with the Change Orders exceed $536,608, Tenant hereby
acknowledges and agrees that it will be solely responsible for the
payment of all such Tenant Approved excess costs. All such Tenant
Approved excess costs will be paid by Tenant to Landlord within ten days
after Xxxxxxxx'x written demand for the payment thereof.
3. Future Change to Plans and Specifications. Any Tenant agreed upon future
changes to the Final Plans and Specifications (in addition to the Change
Orders referred to in Exhibit A) which result in any net increase in the
cost of constructing the improvements will be paid by Tenant within ten
days after Xxxxxxxx'x written demand for the payment thereof.
4. MISCELLANEOUS. Except as other wise expressly provided in this First
--------------
Amendment, all of the terms and conditions of the Original Lease will remain in
full force and effect.
Landlord and Tenant have executed this First Amendment as of the date first set
forth at the beginning hereof.
Signed and acknowledged
in the presence of:
XXXXXXX EQUITIES INC.
BY:
--------------------------
Xxxxxxx X. Xxxxx, Vice President
XXXX X. XXXXXX
XXXXXX X. STARTON
DEVON INDUSTRIES INC.
By: ______________________
Xxxxxxx X. Xxxxxxx Vice President - 0perations
Name Title
STATE OF OHIO
COUNTY OF XXXXXXXX XX:
Before me, a notary public in and for said state and county, personally
appeared Xxxxxxx X. Xxxxx, the Vice President of Xxxxxxx Equities Inc., who
acknowledged the signing of the foregoing instrument to be his free act and deed
for the uses and purposes set forth therein.
IN WITNESS WHEREOF, I have signed my name and affixed my official seal on
January 13, 1995.
Xxxx X. Xxxxxx
Notary Public
STATE OF California
COUNTY OF Los Angeles SS:
Before me, a notary public in and for said state and county, personally
appeared Xxxxxxx Xxxxxxx, the Vice President of Devon Industries, Inc., who
acknowledged the signing of the foregoing instrument to be his free act and deed
for the uses and purposes set forth therein.
IN WITNESS WHEREOF, I have signed my name and affixed my official seal on
January 18, 1995.
Xxxxxxx X. Xxxxxxxx
Notary Public
LEASE AMENDMENT #1
------------------
Landlord:
Pizzuti Equities Inc.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Tenant:
Devon Industries, Inc.
TechPark
000 Xxxxxxxxx Xxxxxxx
Xxxx Xxxx, XX 00000
The purpose of this Lease Amendment is to document the "Additonal Improvements"
which have been incorporated into the plans and specifications based upon verbal
authorization by the Tenant.
Original "Additional Improvements" Allowance $500,000
Specific item Negotiated:
1. Add brick pattern to precast wall panels $ 31,150
2. Substitute roof drains with overflow scuffers in lieu of external gutters
$ 10,049
3. Provide sanitary lateral into the new addition $4,263
4. Additional architectural and engineering services required due to
adding land panels $8,640
5. Additional architectural and engineering services required for the
entry road By Others
6. Add cost for inspection of the existing building By Xxxxxxx
7. Add three (3) overhead doors at the south wall of the existing
building adjacent to the new addition $ 6,415
8. Wet cure floor slabs in lieu of liquid
membrane curing compound. $ 5,143
--------
Total Cost of Items Incorporated $ 65,660
========
Uncommitted "Additional Improvements" Allowance $434,340
LEASE AMENDMENT #2
------------------
Landlord:
Pizzuti Equities Inc.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Tenant:
Devon Industries, Inc.
TechPark
000 Xxxxxxxxx Xxxxxxx
Xxxx Xxxx, XX 00000
The purpose of this Lease Amendment is to document the "Additonal Improvements"
which have been incorporated into the plans and specifications based upon
previous verbal or written authorization by the Tenant with Exxcel Contract
Management.
Original "Additional Improvements" Allowance 500,000
Increase in Allowance per above
Less: 36,608
Lease Amendments Approved to Date (#1)
(65,660)
Current Uncommitted "Additional Improvements" Allowance 470,948
"Additional Improvements" per this Agreement:
------------------------------------------------
1. Foundations for silos at east side of
existing building (Option # 11) 22,359
2. New site access drive including curbs,
paving, and related grading (Option #12) $38,720
3. Architectural and engineering design fees
for site foundations and
access drive (Option #13) 9,570
4. Add two story Chiller Room addition per Exxcel's letter dated
October 20, 1994 (Option # 18) 59,000
5. Construct a Mezzanine at the east wall of the Warehouse above compressor
area and adjacent to the Chiller Room complete with concrete slab, perimeter
protection to meet code and stairs from Warehouse to Mezzanine and from
Mezzanine to Chiller Room roof (Option #1 9)
36,608
6. Construct Shipping and Receiving Offices and per Exxcel's proposal
of October 20, 1994 (Option #20)
$ 7,153
THIRD AMENDMENT OF LEASE AGREEMENT, made as of the 29th
day of February, 1996, between XXXXXXX/ROCK HILL DRIVE
DEVELOPMENT COMPANY, a Florida general partnership, and
the successor by assignment to Pizzuti Equities Inc.,
having an office at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx,
Xxxx 00000 (hereinafter referred to as "Landlord") and
DEVON INDUSTRIES, INC., a California corporation, having
an office at 0000 XxXxxx Xxxxxx, Xxxxxxxxxx, XX 00000,
(hereinafter referred to as "Tenant") .
W I T N E S S E T H:
WHEREAS Landlord and Tenant have previously entered into a Lease
Agreement dated January 5, 1994 (the "Original Lease") (as previously amended by
amendments respectively dated April 29, 1994 (the "First Amendment") and January
13, 1995 (the "Second Amendment") is hereinafter referred to as the "Lease"),
pursuant to which Landlord leased to Tenant certain property located in Rock
Hill, South Carolina (said property consisting of the "Building", the "Land" and
"all related site improvements" as such terms are defined in the Lease and
therein and hereinafter collectively referred to as the "Property";
WHEREAS Landlord and Tenant desire to modify and amend the Lease as
hereinafter provided;
NOW THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. Section 14 of the Lease, bearing the caption Subordination, is
hereby amended and restated to read as follows:
"Section 14. Subordination. This Lease is subject and subordinate to
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all mortgages now or hereafter affecting or covering the Property or any part
thereof (but no real property other than the Property) and to all renewals,
modifications, replacements or extensions thereof. Tenant agrees to attorn to
and recognize the mortgagee or the purchaser at a foreclosure (of such a
mortgage) sale as Tenant's landlord for the balance of the Lease Term. Tenant
hereby agrees, however, that such mortgagee or purchaser at a foreclosure sale,
will not be then:
a) liable for any act or omission of any prior landlord under the Lease
(including Landlord); or
(b) subject to any offsets or defenses which Lessee might have against
any prior landlord under the Lease (including Landlord); or
(c) bound by Tenant's payment of any rent or additional rent more than 30
days in advance of the due date to any prior landlord under the Lease (including
Landlord); or
(d) bound by any amendment or modification of the Lease made without such
mortgagee's prior written consent, provided Tenant is notified in advance of the
existence of the mortgage and the requirements that the mortgagee must consent
to in such amendment or modification; or
(e) liable for the return of any security deposit, except to the extent
that the security deposit has been actually transferred to such mortgagee or
subsequent purchaser.
Notwithstanding the foregoing, the subordination of this Lease is and
shall remain subject to the express condition that for so long as no default on
the part of Tenant shall exist and continue uncured beyond the expiration of any
applicable grace period, as would entitle Landlord to terminate this Lease or
would entitle Landlord to dispossess Tenant (hereinafter in this section called
(an "Event of Default"), (i) Tenant shall not be joined as a party defendant in
any foreclosure action or procedure which may be instituted by the mortgagee
under any mortgage to which this Lease is or shall be subject and subordinate;
and (ii) Tenant shall not be evicted from the Property or its leasehold asset
herein be terminated or disturbed nor shall any of Tenant's rights under this
Lease be affected in any way.
The aforesaid subordination, nondisturbance and attornment provisions will be
self-operative; however, Tenant agrees to promptly execute any other reasonable
agreement submitted by Landlord in confirmation or acknowledgement of the same.
Tenant's subordination and attornment obligation under this section are
expressly further conditioned upon (i) the mortgagee agreeing to recognize this
Lease in its entirety, including, without limitation, Tenant's purchase and
renewal options hereunder."
2. Section 19 of the Lease, bearing the caption "Casualty", is
hereinafter amended by inserting, after the word "unfit", appearing in the
second line thereof, the words "in Tenant's reasonable judgment"; and by
changing the words "180 days" twice appearing therein to "270 days".
3. Section 22 of the Lease is hereby amended by deleting the words,
"after the date when due", appearing in the second line, and substituting in
lieu thereof, the words "after the date when written notice thereof is given to
Tenant".
4. Section 31 of the original Lease, bearing the caption "Option to
Purchase" is hereby amended as follows:
by adding as a new second sentence in the first paragraph below the table, the
following sentence: "Alternatively, the Tenant may prepay the mortgage
(including any prepayment penalty as provided in the mortgage)"; and
by inserting, in the second line below the table appearing in said section,
after the word "Property", the words "The intent of the parties is that the
total purchase price to be paid for the Property is the "Per Square Foot Price"
as specified in the above table, and that the unpaid principal balance of any
existing mortgages covering the Property (and any accrued and unpaid interest
thereon but not any prepayment penalty, the payment of which will be the
separate and additional obligation of Tenant if the mortgages) are paid off at
closing) shall be allowed to Tenant as an offset against the purchase price."
5. Section 32 of the Lease is hereby deleted.
6. The parties acknowledge that the "Per Square Foot Price" set
forth in Section 2B of the Second Amendment is actually the total purchase price
to be paid for the Property.
7. The parties are hereby confirm and ratify the Lease as modified
hereby. No further amendments to the Lease may be made except by written
instrument signed by the parties (or the party to be charged). No changes may
be made orally to this Agreement.
9. The provisions hereof shall inure to the benefit of and be
binding upon the parties hereof and their respective legal representatives and
assigns.
IN WITNESS WHEREOF, the parties have executed this Third Amendment of
Lease Agreement as of the day and year first above written.
XXXXXXX/ROCK XXXX DRIVE
DEVELOPMENT COMPANY,
By XXXXXXX EQUITIES, INC.,
General Partner,
by s/s Xxxxxxx X. Xxxxx
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Name
Title Executive Vice President
DEVON INDUSTRIES, INC.,
By s/s Xxxxx Xxxxxx
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Name
Title: President
Graphic Controls Corporation, by signing below where indicated, hereby
guarantees the payment and performance of the obligations of Devon Industries
Inc., as Tenant, under the above Lease.
GRAPHIC CONTROLS CORPORATION,
By
Name: Xxxxx Xxxxxx
Title: President
