EXHIBIT 10.10
STATE OF SOUTH CAROLINA )
) LEASE AGREEMENT
COUNTY OF SPARTANBURG )
THIS LEASE AGREEMENT made on the 14th day of February, 1999 by and between
BY-PASS 85 Associates, LLC, a South Carolina Limited Liability Company,
hereinafter called ("Lessor"), c/o Johnson Development Associates, P. O. ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇, INC., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ hereinafter called ("Lessee").
W I T N E S S E T H:
ARTICLE I
DESCRIPTION OF PREMISES
-----------------------
Lessor hereby leases to Lessee, and Lessee hires from Lessor, on the terms
and conditions hereinafter set forth, all that certain land, together with the
Improvements constructed thereon, known as 5.84 acres (the "Premises"), in
Spartanburg County, South Carolina, shown on the plat of survey captioned
Fairforest Business Center, Building B, attached hereto as Exhibit "A" (the
"Land") and Exhibits "B" and "C" (the "Improvements"). The building included in
the Improvements (the "Building") consists of 104,160 square feet of usable
space, more or less. Premises includes the Land, Improvements and Building.
ARTICLE II
INITIAL TERM
------------
The initial term of this Lease shall commence on April 10, 1999, in
conjunction with the completion of those improvements outlined in Exhibits "B"
and "C", as mutually agreed upon by Lessor and Lessee on Schedule B attached
hereto and issuance of Certificate of Occupancy (the "Commencement Date") and
shall run ten (10) years plus two (2) months. Lessee may extend the term of this
Lease Agreement for one consecutive 10 year term beginning on the first day of
the 122nd month following the Commencement Date. Lessee must notify Lessor in
writing of its election to extend at least 360 days prior to the expiration of
the initial lease term then in effect.
ARTICLE III
RENT
----
Lessee shall pay to Lessor, on or before the first day of each and every
month in advance, commencing on June 1, 1999 as set forth in Article II, above,
at Lessor's office
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or at such other place as Lessor may from time to time designate in writing, the
rent amounts stated in attached Schedule "A".
ARTICLE IV
BUILDING IMPROVEMENTS AND ALTERATIONS
-------------------------------------
As of the date of execution, Lessor represents and warrants that the Land
and Building comply with all laws and that there are no defects in the quality
or condition of the Land and Building that have not been disclosed to Lessee in
writing. Except as set forth herein, Lessor makes no warranties as to use,
habitability or suitability, with regard to the Premises and Improvements.
Lessee acknowledges and agrees that it has been given the opportunity to inspect
the Premises and is relying on its investigation of the property not upon
representation of the Lessor. Lessee shall have the right, during the term of
this Lease, and any extensions hereof, to make any non-structural alterations,
repairs, improvements, and installations of fixtures, but the same shall be made
at Lessee's own cost and expense and provided that Lessee shall comply with all
laws with respect to the same and such improvements are first approved by
Lessor, which approval shall not be unreasonably withheld or denied.
ARTICLE V
USE OF PREMISES
---------------
The Premises shall be used for office, warehouse, and manufacturing.
Lessee at all times shall fully and promptly comply with all laws, ordinances,
and regulations of every lawful authority having jurisdiction of said Premises,
as such shall relate to the cleanliness of said Premises and the character and
manner of operation of the business conducted in or at said Premises. Lessor
warrants that the Premises may lawfully be used for the purposes described in
this Article V.
ARTICLE VI
TAXES, ASSESSMENTS, UTILITIES AND MAINTENANCE
---------------------------------------------
a) Lessee shall pay real estate property taxes which may be levied or
assessed by any lawful authority against the Land and Improvements directly to
the levying authority. Lessee shall have the right in its own name or the name
of the Lessor to contest or review by legal proceedings or otherwise any such
taxes levied and Lessee shall be entitled to any refund.
b) Lessee shall pay all operating license fees for the conduct of its
business, and ad valorem taxes levied upon its trade fixtures, inventory and
stock of merchandise.
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c) Lessee covenants and agrees to pay for all water, gas, power, electric
current, garbage collection and removal, and sewer charges, and all other
utilities and utility charges served to the Building during the term of this
Lease and all extensions hereof. Lessor at its expense has installed all water,
gas, electric current and other meters needed to measure such utility usage at
the Building. During the term of this Lease or any extension thereof, Lessor and
Lessee shall, at each other's request, grant to any utility company so requiring
it such easements and rights-of-way as may be so required across the Land for
the benefit of the Premises, so long as no such easement or right-of-way will
interfere with Lessee's use of the Premises.
d) Lessee at its expense shall maintain site landscaping in a neat,
orderly condition similar to buildings and sites in its immediate vicinity lying
within Fairforest Business Park. Should Lessee not maintain in such condition,
Lessor may re-enter Premises and enter into such landscape maintenance contracts
as it deems appropriate, the cost of which maintenance contracts shall be borne
by Lessee as additional rent.
ARTICLE VII
MAINTENANCE AND REPAIR
----------------------
a) The Lessor agrees to maintain at its expense the structural components
of the Building to include the roof, floor, exterior walls (exclusive of glass,
plate glass doors and door mountings) and foundations, and all plumbing
collection lines (but not plumbing fixtures), driveways, parking areas, ramps,
fences, and other improvements to the Premises located outside the Building,
unless such maintenance is the result of abuse, neglect or damage caused by
Lessee, or its agents. Lessor may enter the Premises at reasonable business
hours of Lessee to inspect the Premises, make repairs required of Lessor under
the terms of this Lease or to make repairs to Lessor's adjoining property, if
any, but the same shall be made in such a manner as to not disturb Lessee in
operation of its business.
Lessee will use its best efforts to at once report to Lessor any defective
condition known to Lessee which the Lessor is required to repair. Lessor agrees
to repair any defects diligently and promptly, and, if Lessor shall fail to do
so, even after notice by Lessee and a reasonable time to perform, Lessee may
make such repair and deduct the cost thereof from the next installment of rent
payable hereunder.
b) Lessee agrees to keep and maintain the Building and the grounds on the
Premises at its expense in a good state of condition and repair except for those
items referred to in subparagraph (a) above. Lessee also agrees to keep all
building fixtures pertaining to the heating, air conditioning, ventilating,
electrical and plumbing systems in good order and repair at its expense. Lessor
will insure that all systems are in good working order at the commencement of
Lessee's occupancy. Lessor, upon completion of improvements, will assign all
warranties on the Building and its components to Lessee. Where warranties are
not assignable, Lessee shall assist Lessor in their enforcement
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should a warranty not be complied with or is violated by the warrantor. Lessor,
at its expense, will promptly repair any system or component of the Building not
covered by any other warranty that fails or proves itself to be defective and
such failure or defect is not the fault of the Lessee within one year after the
Commencement Date.
Except as provided in Article VII (a) above, Lessee also agrees to keep the
Building interior in proper condition and good appearance normal wear and tear
excepted.
Lessee agrees to return the Premises at the end of the Lease term and all
extensions in at least as good condition as Premises were when first leased,
normal wear and tear, damage by fire or other unavoidable casualty, taking by
eminent domain, damage caused by the acts of omissions of the Lessor excepted.
ARTICLE VIII
LESSEE'S OBLIGATION TO INSURE
-----------------------------
Lessee, at its sole cost and expense, and for the mutual benefit of Lessor
(and any loss payee with a valid legal or equitable interest in the Premises
designated by Lessor) and Lessee, shall carry and maintain the following types
of insurance in the amounts specified; a copy of the policies or certificates
evidencing such coverage shall be provided to the Lessor prior to occupancy by
Lessee:
a) Fire and extended coverage insurance covering the leased Premises
against loss or damage by fire and against loss or damage by other risks now or
hereafter embraced by "extended coverage," so called, for the full insurable
value of the leased Premises and Improvements.
b) Comprehensive public liability insurance, including property damage,
insuring Lessor and Lessee against liability for injury to persons or property
occurring in or about the leased Premises or arising out of the ownership,
maintenance, use or occupancy thereof. Such coverage shall be for any amount of
not less than $1,000,000 for each occurrence.
c) All policies of insurance (except liability insurance) shall provide
by endorsement that any loss shall be payable to Lessor or Lessee as its
respective interest may appear and at Lessor's request list other additional
insured as may be required. Lessee shall have the privilege of procuring and
obtaining all of such insurance through its own sources; however, the insurer
shall be reasonably acceptable to Lessor and shall be rated "A" by Best.
d) The Lessor and the Lessee and all parties claiming under them, by way
of subrogation or otherwise, hereby mutually release and discharge each other
from all claims and liabilities arising from or caused by any hazard covered by
insurance on the Premises or covered by insurance in connection with property on
or activities conducted on the
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Premises, regardless of the cause or the damage or loss, provided, however, that
the releases contained herein shall be applicable and in force and effect only
with respect to loss or damage occurring during such time as the releasor's
insurance policy shall contain a clause or endorsement to the effect that any
such release shall not adversely affect or impair said policy or prejudice the
right of the releasor to recover thereunder.
e) Except as otherwise provided within this Lease, Lessor shall not be
liable for any loss or damage occasioned by failure to keep said Premises free
from refuse, obnoxious odors,, vermin, or other foreign matter; defective
wiring, plumbing, gas, steam, sewer, water or other pipes or fixtures; any
defect or malfunction, bursting leaking, running, or clogging of any heating or
air conditioning equipment, cistern, tank, boiler, washstand, closet or waste
pipe; water, snow, ice or other foreign matter being upon or coming through the
roof, skylights, trap doors, windows, or otherwise; failure to comply with Lease
covenants by other tenants of Lessor; acts or negligence of guests, invitees and
employees of Lessee or other occupants of said Premises; acts of negligence of
any owners or occupants of adjacent or contiguous property or their employees;
theft, acts of God, acts of negligence of any persons not in the employ of or
acting for Lessor.
f) Lessee shall save and keep Lessor harmless and indemnified from all
loss and damage to any person or property while on the Premises except as to
negligent acts or omissions by Lessor, its agents and/or employees or otherwise
provided for within this Lease.
ARTICLE IX
DESTRUCTION OF BUILDING
-----------------------
a) In the event of any damage to the Building or any part thereof, which
damage does not render the Building, in Lessee's reasonable judgment wholly
unfit for its intended use or occupancy by Lessee, and which damage is covered
and insured against by the extended coverage fire insurance agreed to be
maintained by Lessee during the term or until the sooner termination hereof,
this Lease shall remain in full force and effect, and Lessee shall be entitled
to abatement of a fair and just portion of the rent and taxes according to the
usable space from the time of such damage until said Premises are completely
reinstated or restored. If in Lessee's reasonable judgement the Building is
rendered wholly unfit for its intended use or occupancy by Lessee and a
contractor mutually acceptable to both Lessor and Lessee determines that the
Building cannot be completely restored within 180 days of the fire or casualty,
then either party hereto may terminate this Lease effective as of the date of
fire or casualty. It is understood, however, between parties that, at Lessee's
option, the term of this Lease shall be extended for a period of time equal to
the amount of time, if any, Lessee is required to close its business at the
Premises as the result of the casualty or casualties provided for under the
terms of this Article and the rent and taxes for such period of time shall
▇▇▇▇▇. If the fire and extended coverage proceeds are inadequate to finance
completely the restoration of the Premises, or the damage is not covered by fair
and extended coverage insurance, Lessor may elect to pay
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the difference in the cost of restoring the Premises above the insurance
proceeds. Should Lessor fail to exercise this election, and the fire and
extended coverage proceeds remain inadequate to finance completely the
restoration of the Premises or the damage is not covered by the fire and
extended coverage, Lessee may, at its option, terminate the Lease or Lessee may
pay for the difference in the cost of restoring the Premises above the insurance
proceeds. If Lessee elects to pay such difference, the rent and taxes shall
▇▇▇▇▇ until restoration is completed. Lessor is obligated to restore the
Premises if Lessee elects to pay said difference above the insurance proceeds.
b) If Lessee does not terminate the Lease, then Lessor shall, with
reasonable diligence after the occurrence of the event causing damage, cause
said Building to be repaired and restored in the same general condition to which
it existed at the time of the occurrence of said event, but in any event, Lessor
shall have the period of not more than 180 days in which to complete said
restoration from the date of the fire or other casualty. Lessor will within 15
days give written notice to Lessee that Lessor intends to complete within 180
days of the occurrence. Lessor shall receive all of the proceeds from the
insurance award paid on said damage upon completion of the restoration, but the
excess over the cost to restore the Premises shall be paid to Lessee.
ARTICLE X
CONDEMNATION
------------
If the whole of the Premises, or such portion thereof as will make the
Premises unusable, in Lessee's reasonable judgment, for the purpose herein
leased, be condemned by any legally constituted authority for any public use or
purpose, then in either of said events, the Lease shall expire and the term
hereby granted shall cease from the time when possession thereof is taken by
public authorities, and rent shall cease and rent shall be accounted for as
between Lessor and Lessee as of that date. Such termination, however shall be
without prejudice to the rights of either Lessor or Lessee to recover
compensation and damage caused by condemnation from the condemnor. It is further
understood and agreed that neither Lessee nor Lessor shall have any rights in
any award made to the other by any condemnation authority.
ARTICLE XI
MORTGAGE FINANCING AND SUBORDINATION
------------------------------------
a) This Lease and all of Lessee's rights hereunder are and shall be
subordinate to any mortgages which Lessor may place upon the Premises, provided
mortgagee(s) and Lessee shall enter into a Nondisturbance and Attornment
Agreement. Lessee shall execute and deliver upon demand, any further instruments
subordinating this Lease to the lien of any such mortgage or mortgages. All
subordinations provided for herein shall be upon the express condition that this
Lease shall be recognized by the mortgagees and that the rights of Lessee shall
remain in full force and effect during the term of this Lease and
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any extensions thereof, notwithstanding any default by the mortgagors with
respect to the mortgages or any foreclosure thereof, so long as Lessee shall
perform all of the covenants and conditions of the Lease, and all subsequent
subordination instruments shall contain express provisions to this effect.
Lessee agrees to execute all agreements reasonably required by Lessor's
mortgagee or any purchasers at a foreclosure sale or deed in lieu of
foreclosure, for purpose of subordination provided such mortgagee or purchaser
executes a Nondisturbance Agreement with Lessee and the rights of Lessee shall
remain in full force and effect during this Lease and any extension thereof.
Under no circumstances will Lessee be held liable for the mortgage debt.
b) Lessee shall use its best efforts to give prompt written notice to
each mortgagee of record of any default of Lessor hereunder, and Lessee shall
allow such mortgagee a reasonable length of time (in any event, not more than 60
days from the date of such notice) in which to cure any such default. Any such
notice shall be sent to the Mortgage Loan Department of any such mortgagee at
its home office address. Lessee shall not be required to give notice under this
paragraph unless the mortgagee requests in writing from Lessee that such notice
is required. Responsibility for furnishing the address of the mortgage holder
shall rest upon such mortgage holder.
ARTICLE XII
COVENANTS AGAINST LIENS
-----------------------
Lessee expressly covenants and agrees that it will, during the term hereof,
promptly remove or release, by the posting of a bond or otherwise, as required
or permitted by law, any lien attached to or upon said Premises or any portion
thereof by reason of any act or omission on the part of Lessee, and hereby
expressly agrees to save and hold harmless Lessor from or against any such lien
or claim of lien. In the event any such lien does attach, or any claim of lien
is made against said Premises, which may be occasioned by any act or omission
upon the part of Lessee, and shall not be thus released within 30 days after
notice thereof, Lessor, in its sole discretion (but nothing herein contained
shall be construed as requiring it so to do), may pay and discharge the said
lien and relieve the said Premises from any such lien, and Lessee agrees to pay
and reimburse Lessor upon demand for or on account of any expense which may be
incurred by Lessor in discharging such lien or claim, which sum shall include
interest five (5) percentage points over the NationsBank Prime Interest Rate,
not to exceed the maximum interest rate then in effect in the state being the
situs of the Premises, from the date such lien is paid by Lessor until the date
Lessor is reimbursed by Lessee; provided, however, that if Lessee has reasonable
cause to contest the validity or correctness of any such lien, it may do so and
in such event no breach of this Lease shall result.
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ARTICLE XIII
REMEDIES ON DEFAULT
-------------------
a) It is mutually agreed that if any payment of any rent agreed upon
hereunder is not paid by Lessee when due and remains unpaid for more than 15
days past the due date, then Lessee shall have the right to cure the default in
payment within 7 days after notice from Lessor to Lessee of the occurrence of
the default, provided, that if such default is cured within the 7 days after
notice, Lessee shall pay to Lessor as additional rent a late charge of five (5%)
percent of the rent then owing; or if Lessee shall be in default in performing
any of the terms or provisions of this Lease other than the provision requiring
the payment of rent and such default is not cured (or if Lessee has not
commenced action to cure where a cure cannot practicably be completed in a
timely manner) within thirty (30) days after notice by Lessor; or if Lessee is
adjudicated bankrupt; or if a permanent receiver is appointed for Lessee's
property and such receiver is not removed within 45 days after written notice
from Lessor to Lessee to obtain such removal; or if, whether voluntarily or
involuntarily, Lessee takes advantage of any debtor relief proceedings under any
present or future law, whereby the rent or any part thereof is, or is proposed
to be, reduced or payment thereof deferred; or if Lessee makes an assignment for
benefit of creditors, or if Lessee's effects should be levied upon or attached
under process against Lessee, not satisfied or dissolved within 45 days after
written notice from Lessor or Lessee to obtain satisfaction thereof, then and in
any of said events, if such condition is not corrected or eliminated within
seven (7) days after notice from Lessor to Lessee of the existence of the
condition, Lessee shall be in default hereunder.
b) In the event of any breach of this Lease by Lessee which is not
properly cured, Lessor shall be immediately entitled to collect the sum of all
rent reserved in this Lease Agreement for the balance of the Lease Term but only
if the alleged breach is not disputed in good faith by Lessee, less the
reasonable rentable value of the Premises for the remainder of the Term, such
sum to be discounted to present value using the NationsBank Prime Interest Rate,
and Lessor may, at its option, cancel and terminate this Lease or take such
other legal action for the enforcement of the terms hereof as it may be advised;
and it shall be lawful for Lessor or its agents to reenter and forthwith
repossess all and singular the Premises without hindrance or prejudice to its
right to distrain for all rent due or to become due under this Lease. The
election of Lessor to lease or sublease the Premises to another Lessee shall not
affect Lessor's right to charge Lessee with all rent due to become due
hereunder; provided, however, that any rental received from such other tenants
shall be credited upon the entire amount of rental due, plus costs and expenses,
from Lessee under the terms of this Lease, but in no event shall any amount of
rent received in excess of the amount due be credited to Lessee. Lessor shall
not be required to exercise any other right granted to Lessor hereunder. Lessor
shall have, in addition to any other remedies which it may have, the right to
invoke any remedy allowed by law or in equity to enforce Lessor's rights as if
reentry and other remedies were not herein provided for. In any event, Lessor
shall be entitled to recover from Lessee, in addition to any rent provided for
herein, any other amount necessary to compensate Lessor for all the detriment
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proximately caused by Lessee's failure to perform its obligations under this
Lease, including but not limited to reasonable leasing fees and upfit charges.
c) If Landlord shall be in default in the performance of any of its
obligations hereunder, Tenant, without any obligation to do so, in addition to
any other rights it may have in law or equity, may elect (but shall not be
obligated) to cure such default on behalf of Landlord after written notice
(except in the case of emergency) to Landlord. Landlord shall reimburse Tenant
upon demand for any sums paid or costs incurred by Tenant in curing such
default, including interest thereon from the respective dates of Tenant's making
the payments and incurring such costs, at NationsBank's then published prime
interest rate. Landlord shall in no event be in default in the performance of
any of Landlord's obligations hereunder unless and until Landlord shall have
failed to perform such obligations within ten (10) days or such additional time
as is reasonably required to correct any such default after written notice by
Tenant to Landlord properly specifying wherein Landlord has failed to perform
any such obligation.
ARTICLE XIV
ENTRY FOR CARDING, ETC.
-----------------------
Lessor may card Premises "For Sale" and "For Rent" One Hundred Twenty (120)
days before the expiration of this Lease or any extension hereof, unless Lessee
has already notified Lessor of its intention to extend this Lease. Lessor may
enter the Premises at reasonable business hours of Lessee to exhibit same to
prospective purchasers or tenants.
ARTICLE XV
PERSONAL PROPERTY
-----------------
It is contemplated that Lessee shall make certain leasehold improvements to
the Premises as well as install certain trade fixtures and other personal
property. Lessor and Lessee agree that all such leasehold improvements installed
by Lessee shall, upon the termination of the Lease, remain on the Premises and
become the property of Lessor unless Lessee removes at its own expense and
repairs any damage to the Premises caused by such removal. Personal property and
trade fixtures shall remain the property of Lessee. Lessee shall repair and
clean up any damage to the Premises caused by the removal of such personal
property and trade fixtures at any time. Lessor and its mortgagee and/or
mortgagees shall execute and deliver to Lessee upon request documents which
waive any lien of Lessor and Mortgagee, if any, as to furniture, fixtures, trade
fixtures, equipment and inventory leased or financed by Lessee which waiver
shall be effective only during the term of such encumbrance by Lessee.
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ARTICLE XVI
ASSIGNMENT AND SUBLETTING
-------------------------
Lessee shall not, without the prior written consent of Lessor endorsed
hereon, which will not be unreasonably withheld, assign or sublet this Lease or
any interest hereunder. Consent to any assignment shall not destroy this
provision, and all later assignments shall be made likewise only on the prior
written consent of Lessor. Assignee of Lessee at option of Lessor shall become
directly liable to Lessor for all obligations of Lessee hereunder. Any
assignment by Lessee shall not relieve Lessee of any liability hereunder.
ARTICLE XVII
NOTICE OF DEMANDS
-----------------
a) Any notices or demands required or permitted by law, or any provision
of this Lease, shall be in writing, and if the same is to be served upon Lessor,
may be personally delivered to Lessor, or may be deposited in the United States
mail, registered or certified, with return receipt requested, postage prepaid,
and addressed to Lessor c/o Johnson Development Associates, P. O. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other address as Lessor may designate in
writing. If at any time, or from time to time, there shall be more than one
Lessor, one shall be designated in writing to receive all notices and rent
payments and service upon or payment to that one shall constitute service upon
or payment to all.
b) Any such notice or demand to be served upon Lessee shall be in writing
and shall be served either personally or be deposited in the United States mail,
registered or certified, with return receipt requested, postage prepaid, and
addressed to Lessee:
Hoke, Inc.
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ARTICLE XVIII
QUIET ENJOYMENT
---------------
Lessor covenants, warrants and represents that upon commencement of lease
term, the Premises will be free and clear of all liens and encumbrances
superior to the leasehold hereby created, except any bona fide mortgage or deed
---- ----
of trust given to secure a loan as provided for in Article XI above; that Lessor
has full right and power to execute and perform this Lease and to grant the
estate herein; and that Lessee on payment of the rent herein reserved and
performance of the covenants and agreements hereof shall peaceably and quietly
have, hold and enjoy the Premises and all rights, easements, appurtenances, and
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privileges belonging or in any wise appertaining thereto, during the initial
term of this Lease and any extensions thereof.
ARTICLE XIX
HOLDING OVER
------------
If Lessee shall remain in possession of the Premises or any part thereof
after the expiration of the term of this Lease or any extension hereof with
Lessor's acquiescence and without any agreement of the parties, then Lessee
shall be only a tenant at will, and there shall be no renewal of this Lease or
exercise of any option by operation of law. Such tenancy shall be at a rate of
50% higher than the lease rate in effect at the time of the expiration of the
Lease Term.
ARTICLE XX
REMEDIES CUMULATIVE NONWAIVER
-----------------------------
No remedy herein or otherwise conferred upon or reserved to Lessor or
Lessee shall be considered exclusive of any other remedy, but the same shall be
distinct, separate and cumulative and shall be in addition to every other remedy
given hereunder, or now or hereafter existing at law or in equity or by statute;
and every power and remedy given by this Lease to Lessor or Lessee may be
exercised from time to time as often as occasion may arise, or as may be deemed
expedient. No delay or omission of Lessor or Lessee to exercise any right or
power arising from any default on the part of the other shall impair any such
right or power, or shall be construed to be a waiver of any such default, or an
acquiescence therein.
ARTICLE XXI
FORCE MAJEURE
-------------
In the event either Lessor or Lessee shall be delayed, hindered, or
prevented from the performance of any act required hereunder, by reason of
governmental restrictions, scarcity of labor or materials, strikes, or any other
reasons beyond its control, the performance of such act shall be excused for the
period of delay and the period for the performance of such act shall be extended
for the period necessary to complete performance after the end of the period of
such delay.
ARTICLE XXII
PARTIAL INVALIDITY
------------------
If any term or provision of this Lease or the application thereof to any
person or circumstances shall, to any extent, be invalid or unenforceable, the
remainder of this
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Lease, or the application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Lease shall be valid and
be enforced to the fullest extent permitted by law.
ARTICLE XXIII
NATURE AND EXTENT OF AGREEMENT
------------------------------
This Lease creates only the relationship of Lessor and Lessee between the
parties hereto as to the Premises alone; and nothing herein shall in any way be
construed to impose on either party hereto any obligations or restrictions not
herein expressly set forth. For example, nothing herein shall in any way
restrict or obligate business on the Premises; and nothing herein shall in any
way restrict Lessee in the operation of its business in locations other than the
Premises.
ARTICLE XXIV
RUBBISH REMOVAL
---------------
Lessee shall keep the Premises clean, both inside and outside, at its own
expense, and will remove the ashes, garbage, excelsior, straw and other refuse
from said Premises. Lessee shall not burn any materials unless part of Lessee's
permitted manufacturing process or rubbish of any description upon said
Premises. Lessee also agrees to keep the parking area on the Premises free from
rubbish, dirt, ashes, garbage, excelsior, straw and other refuse. Lessee agrees
to keep all accumulated rubbish in covered containers in sites approved by
Lessor and to have same removed regularly. In the event Lessee fails to keep the
Premises and other portions heretofore described in the property condition,
Lessor may cause the same to be done for Lessee, and Lessee hereby agrees to pay
the expense thereof on demand, as additional rent.
ARTICLE XXV
GOVERNMENTAL ORDERS
-------------------
Lessee agrees, at its own expense, to promptly comply with all requirements
of any legally constituted public authority made necessary by reason of Lessee's
occupancy of said Premises. Lessor agrees to comply promptly with any such
requirements if not made necessary by reason of Lessee's occupancy.
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ARTICLE XXVI
ATTORNEY'S FEES
---------------
If Lessor shall be made a party to any litigation commenced by a third
party for which Lessee has agreed to indemnify Lessor for herein, Lessee shall
pay all costs, expenses and attorney's fees incurred by Lessor in connection
with such litigation, except in the event that such litigation shall determine
that Lessor has been negligent or committed a breach of this Lease and shall
adjudicate that Lessor is liable therefore.
ARTICLE XXVII
SALE BY LESSOR
--------------
In the event of a sale or conveyance by Lessor of the Premises, and upon
the receipt by Lessee of a copy of a written agreement providing that the
Purchaser has assumed all of Lessor's obligations hereunder, the same shall
operate to release Lessor from any future liability upon any of the covenants or
conditions, expressed or implied, herein contained in favor of Lessee, except
for Lessor's obligations in Article XXIX and in such event Lessee agrees to look
solely to the responsibility of the successor in interest of Lessor in and to
this Lease. This Lease shall not be affected by any such sale, and Lessee agrees
to attorn to the purchaser or assignee.
ARTICLE XXVIII
ESTOPPEL CERTIFICATES
---------------------
Lessee shall at any time and from time to time, upon not less than 30 days
prior request by Lessor, execute, acknowledge, and deliver to Lessor a statement
in writing, and in recordable form, certifying the date of commencement of this
Lease, that this Lease is unmodified and in full force and effect (or if there
has been modification, that same is in full force and effect as modified and
stating the date of the modification) and further stating the dates to which the
rent and other charges have been paid and setting forth such other matters as
may reasonably be requested by Lessor.
ARTICLE XXIX
COMPLIANCE WITH ENVIRONMENTAL REGULATIONS
-----------------------------------------
a) Lessee shall not cause or permit any hazardous wastes, hazardous
substances, toxic substances, or related materials (collective "Hazardous
Materials") to be used, generated, stored or disposed of on, under or about, or
transported to or from the Premises (collectively "Hazardous Materials
Activities") except in compliance with all applicable federal, state and local
laws, regulations and orders governing such Hazardous Materials or Hazardous
Materials Activities, which compliance shall be at Lessee's sole
13
expense. Additionally, Lessee shall not cause or permit any Hazardous Materials
to be disposed of on, under or about the Premises without the express prior
written consent of Lessor, which may be withheld for any reason and may be
revoked at any time.
b) At the expiration of the lease, including any extensions, Lessee shall
remove from the Premises, at Lessee's sole expense, all Hazardous Materials
located, stored or disposed of on, under or about the Premises which were first
brought to or used, stored or disposed of on the Premises by Lessee or by
Lessee's employees, agents, contractors, licenses or invitees. Lessee shall
close, remove or otherwise render safe any Buildings, tanks, containers, or
other facilities related to the Hazardous Materials Activities conducted or
permitted on the Premises in the manner required by all applicable laws,
regulations, ordinances or orders. Lessee shall be solely responsible for the
transportation, handling, use or reuse and disposal of such Hazardous Materials
after their removal from the Premises.
c) Lessor shall not be liable to Lessee or to any other party for any
Hazardous Materials Activities conducted or permitted on, under or about the
Premises by Lessee or by Lessee's employees, agents, contractors, licenses or
invitees. Lessee shall indemnify, defend and hold Lessor harmless from any
claims, damages, fines, penalties, losses, judgment costs and liabilities
arising out of or related to any Hazardous Materials Activities conducted or
permitted on, under or about the Premises by Lessee or by Lessee's employees,
agents, contractors, licensees or invitees, regardless of whether Lessor shall
have consented to, approved of, participated in or had notice. This paragraph
shall survive the expiration or termination of this Lease.
d) Lessee shall be responsible for all reporting or notification
obligations of an owner, operator or person in control of petroleum products or
Hazardous Materials located on, under or about the Premises during the term of
this Lease or any extension hereof, under any applicable federal, state or local
law, regulation, ordinance or order.
e) Lessor represents and warrants to Lessee that to the best of its
knowledge after reasonable inquiry (i) prior to the date of this Lease no
Release of any Hazardous Substance or petroleum (including crude oil or any
fraction thereof) into, on or from the Premises has occurred nor does there
exist on, under or about the Premises any Hazardous Materials; (ii) there are no
underground storage tanks on the Premises; (iii) no asbestos containing
materials are installed in, used on or incorporated into the Premises; (iv) no
PCB's or PCB-containing materials are contained in any equipment, transformers
or other items at the Premises; and (v) Lessor and the Premises are in
compliance with all applicable Environmental Laws. As used in this Section,
"Release" and "Hazardous Substance" shall have the meanings given them in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. (S)9601 et seq. "Environmental Laws" means any local, state or federal
-------
law, rule, regulation or ordinance pertaining to environmental regulation,
contamination or clean-up.
14
f) Lessor shall fully and promptly pay, perform, discharge, defend,
indemnify and hold harmless Lessee from and against any and all claims, orders,
demands, causes of action, proceedings, judgements, or suits and all
liabilities, losses, reasonable costs or expenses (including, without
limitation, technical consultant fees, court costs, fines expenses paid to third
parties and legal fees) and damages arising out of or as a result of (i) the
existence of any Hazardous Materials, Hazardous Substance or petroleum
(including crude oil or any fraction thereof, "Petroleum") at, on or in the
Premises at the date of execution of this Lease Agreement or released by the
Lessor or anyone acting under Lessor's authority after execution of this Lease
not caused by Lessee or any officer, employee, invitee, agent or contractor of
Lessee or any other party who used, occupied or entered the Premises with
Lessee's consent, express or implied, or (ii) the migration to or from
neighboring properties of any Hazardous Substance or Petroleum not caused by
Lessee or any officer, employee, invitee, agent or contractor of Lessee or any
other party who used, occupied or entered the Premises with Lessee's consent,
express or implied, or (iii) any inaccuracy or breach of Lessor's
representations and warranties in subsection e) of Article XXIX. This paragraph
shall survive the expiration or termination of this Lease.
ARTICLE XXX
CAPTIONS
--------
The captions or headings of paragraphs in this Lease are inserted for
convenience only, and shall not be considered in construing the provisions
hereof if any questions of intent should arise.
ARTICLE XXXI
MISCELLANEOUS
-------------
a) Compliance with Restrictive Covenants. Lessee acknowledges that
-------------------------------------
Restrictive Covenants encumber or will encumber the property. Lessee in its
occupancy of the Premises agrees to comply with the same. A copy of the
Restrictive Covenants is attached hereto as Exhibit "D".
b) Prior Agreements. This Agreement contains the entire agreement of the
----------------
parties with respect to the matters set forth herein. All prior Purchase
Contracts between the parties hereto (either with respect to the Premises or any
other property) are hereby deemed void and of no further force or effect.
c) Right to Sublet. Lessee shall have the right to sublet a portion of
----------------
the space to related entities. Such subletting will subject the sublessee to all
the rights, duties and obligations under this Lease Agreement but shall in no
way reduce, alter or amend any liability imposed against the Lessee under this
Lease Agreement.
15
THE ENCLOSED LEASE AND THE VARIOUS EXHIBITS AND SCHEDULES ATTACHED TO IT
SHOULD NOT BE CONSTRUED AS AN OFFER TO LEASE THE PREMISES REFERRED TO IN
THE DOCUMENT OR ON THE SITE PLAN. WE ARE SENDING THE DOCUMENT TO YOU AT
THIS TIME FOR NEGOTIATION PURPOSES. NO DOCUMENT, EXHIBIT, OR PLAN ARE
BINDING UNTIL DATED, SIGNED BY BOTH YOU AND US AND THE APPROPRIATE
WITNESSES, IF ANY. ALL CHANGES MUST ALSO BE INITIALED BY BOTH YOU AND US,
AND EACH PAGE AND ALL EXHIBITS MUST BE INITIALED.
16
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seals the day and year first above written.
WITNESSES: LESSOR: BY-PASS 85 Associates, LLC, a
South Carolina, Limited Liability Company
______________________________ By:____________________________(SEAL)
______________________________ Its: __________________________
LESSEE: ▇▇▇▇, INC.
______________________________ By:____________________________(SEAL)
______________________________ Its: __________________________
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ) ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ )
PERSONALLY appeared before me the first witness, whose name is subscribed
above, who on oath states that (s)he saw the within named BY-PASS 85 Associates,
LLC, a South Carolina Limited Liability Company, by A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, its
President sign, seal and deliver the within Lease Agreement, and that (s)he with
the second witness, whose name is subscribed above, witnessed the execution
thereof.
__________________________
SWORN to before me this ____
day of ____________, 1999.
Notary Public for South Carolina
My Commission Expires:______
STATE OF SOUTH CAROLINA ) PROBATE
COUNTY OF SPARTANBURG )
PERSONALLY appeared before me the first witness, whose name is subscribed
above, who on oath states that (s)he saw the within named ▇▇▇▇, INC., by
_______________________________, its _____________________ sign, seal and
deliver the within Lease Agreement, and that (s)he with the second witness,
whose name is subscribed above, witnessed the execution thereof.
__________________________
SWORN to before me this ____
day of ____________, 1999.
__________________________(SEAL)
Notary Public for ______________
My Commission Expires: _________
18
GUARANTY OF LEASE
In consideration of the execution of the foregoing Lease between BY-PASS 85
Associates, LLC, a South Carolina Limited Liability Company, as Landlord, and
▇▇▇▇▇ INDUSTRIES D/B/A ▇▇▇▇, INC., as Tenant, the undersigned, their
heirs/successors and assigns, hereby covenant and agree to and with the
Landlord, and the said Landlord's legal representatives, successors and assigns,
that if default at any time be made by the said Tenant in the payment of the
rent or the performance of the covenants contained in the within lease on the
Tenant's part to be paid or performed, the undersigned will well and truly pay
the said rent or any arrears thereof that may remain due unto the said Landlord,
and also all damages that may arise in consequence of the non-performance of
said covenants, or any of them without requiring notice of any such default from
the Landlord.
The duties of the undersigned under this Guaranty Agreement arise
irrespective of and without regard to lessee's solvency or ability to perform
and both the undersigned and the Tenant may be sued severally or jointly for any
default or failure by Tenant, its successor or assigns, in the performance of
any and all terms and obligations of said Lease. The undersigned represents that
Tenant is its wholly owned subsidiary and that the undersigned will receive or
have received a direct or indirect material benefit from the Lease transaction
arising out of Tenant's rights and obligations thereunder. The undersigned
further represents that execution and delivery of this Guaranty of Lease has
been duly considered and approved by the appropriate corporate governing group
as required by its Articles and By-Laws, and the officer(s) who execute and
deliver the same have been duly authorized and empowered to do so to bind the
undersigned.
This Guaranty Agreement does not limit the freedom of the Landlord and
Tenant, their respective heirs, successors and assigns, to amend or modify the
said Lease, and the validity of any such amendment or modification of the said
lease is in no way dependent on approval or concurrence by the undersigned, its
heirs or assigns. Neither the consent nor approval of the undersigned shall be
required in respect to any such amendment or modification, and the under signed
shall be bound hereunder as to the obligations and undertakings of the Tenant
under said lease as thus amended or modified.
With respect to any assignment of the foregoing lease to which the Landlord
gives consent, Landlord agrees to release the undersigned from their obligations
under this Guaranty; provided the Landlord is provided with substitute
--------
individual personal guarantors or corporate guarantors satisfactory to Landlord
who provide to Landlord then current audited financial statements showing an
aggregate net worth equal to or greater than the net worth of the undersigned
either according to the financial statements provided Landlord herewith, or as
of the time of the proposed assignment and consent to release from guaranty,
whichever is greater. The minimum net worth required in this subparagraph will
not be considered achieved if provided by more than two parties who are offering
their guarantees under such an assignment in order to meet the conditions
hereof. This in no way shall limit the total number of guarantors which may be
proposed upon any such
19
assignment. Such proposed new guarantors shall execute all documents deemed
necessary by Landlord so as to assure that in the event of default, Landlord
shall have personal jurisdiction over said guarantors and venue in the state
courts of general jurisdiction in the County of Spartanburg, State of South
Carolina.
Notices. All notices and other communications hereunder may be in writing
--------
and shall be delivered personally or may be sent by registered mail, certified
mail, or express mail service, postage prepaid and return receipt requested, or
by nationally utilized overnight delivery service, addressed to the undersigned
at the address stated below its signature or such address as the undersigned may
provide to the Landlord in writing from time to time.
This Guaranty shall be construed in accordance with the laws of the State
of South Carolina. In the event legal proceedings should hereafter be instituted
by one of the parties hereto against the other pertaining to this Guaranty or
the rights and obligations of the parties hereunder, it is agreed and stipulated
that the jurisdiction and venue for any and all such lawsuits lie exclusively in
the County of Spartanburg in the State of South Carolina.
DATED this _____ day of _________________, 19___.
WITNESSES:
____________________________ By: ___________________________
Its: ___________________________
____________________________
Attest: ________________________
Its: ___________________________
ADDRESS:
20
SCHEDULE "A"
YEARS RATE/SF ANNUAL RENT
----- ------- -----------
1-3 $5.12 $533,299.00
4-7 $5.44 $566,630.00
8-10 $5.78 $602,044.00
OPTION TO RENEW:
Lessee shall have the right to extend its lease commitment for an additional
ten-year term at the following rates, all other lease terms and conditions will
remain constant.
11-13 $6.14 $639,542.00
14-17 $6.54 $681,206.00
18-20 $6.95 $723,912.00
21
SCHEDULE B
Beyond those improvements outlined in Exhibit "B", the following will also be
provided by and paid for by Lessor for the benefit of Lessee:
(1) 10,000 square feet of finished office area including an employee
canteen/break area
(2) 4000 amp electrical service and switchgear
(3) 250 tons of plant air conditioning
(4) Painted and sealed plant floor utilizing epoxy paint
(5) Parking for 300 employees
(6) 4 plant restrooms
(7) $35,000 allowance for plant task lighting.
22
EXHIBIT "A"
[GRAPH APPEARS HERE]
[GRAPH APPEARS HERE]
EXHIBIT "B"
[GRAPH APPEARS HERE]
SPARTANBURG INDUSTRIAL PARK
[GRAPH APPEARS HERE]
SPARTANBURG INDUSTRIAL PARK
EXHIBIT "C"
HOKE MANUFACTURING UPFIT
------------------------
GENERAL
-------
This upfit is a design build, whereas all mention of Architect and Consultants
associated with design of this upfit are contracted to the General Contractor.
The specifications below are based on the conceptual outline drawing issued by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ undated (reviewed at 12/7/98 meeting with ▇▇▇▇▇▇▇ Development).
1. 5,000 SF First Floor; 5,000 SF Second Floor.
2. Second floor to be + 14'0" A.F.F. constructed with structural steel and a
poured concrete slab.
3. Metal stud and drywall partitions to above finished ceiling - extend to
structure above at perimeter as needed (all walls to have sound ▇▇▇▇▇),
(i.e. 2nd floor perimeter wall to above finished ceiling only).
4. 2 x 4 lay-in ceilings throughout with 2 x 2 in conference room.
5. Carpet with rubber base for all areas. Carpet base in conference room.
6. Ceramic tile with base in restrooms.
7. All walls to receive paint. Conference room has 1.00/SF wall cover
allowance.
8. All doors and frames to be painted.
9. Fire protection to code.
10. Plumbing fixtures to code (50 employees). Including (7) water closets, (2)
urinals, (5) lavatories, (5) floor drains, (1) 20 gallon hot water heater,
(2) drinking fountains, (2) break room sinks, and (1) service sink.
11. Typical office HVAC, multi-zone, standard controls. Includes approximately
40 tons of roof top unit air conditioning.
12. Standard office lighting and receptacles.
MANUFACTURING
-------------
1. Plant restrooms for 200 employees. Including (6) water closets, (2)
urinals, (4) lavatories, (4) floor drains, (2) 6 gallon water heaters, (2)
service sinks, (2) drinking fountains, and combination eye wash/shower
stations.
2. 250 tons of roof top unit air conditioning with gas heat.
3. 4,000 amp electrical service and panel.
CLARIFICATIONS TO SPECIFICATIONS
--------------------------------
1. Contract does not include:
a. Any warehouse painting, (i.e. overhead roof structure, walls or floor,
perimeter wall of office area.
b. Caulking of floor joints.
c. Floor sealer.
d. Material testing.
e. Cafeteria and meeting room.
2. Hardware allowance reduced to $150/door.
3. Utilize base building heat system as primary heat for proposed tenant
warehouse/ manufacturing area.
4. One set of stairs for office area, egress stairs to be by tenant with
tenant mezzanine.
5. ▇▇▇▇▇▇▇ wash sinks not included, lavatories can be reduced to one each and
credited
against two ▇▇▇▇▇▇▇'▇.
EXHIBIT "D"
STATE OF SOUTH CAROLINA )
)
COUNTY OF SPARTANBURG )
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS
AND EASEMENTS FOR FAIRFOREST BUSINESS PARK,
A BUSINESS AND INDUSTRIAL PARK
THIS DECLARATION is made as of October 3, 1998 by By-Pass 85 Associates,
LLC, herein referred to as "Declarant".
The Declarant is the owner of a parcel of land, improved and unimproved,
("the Property"; also sometimes referred to herein as "the Park") being
approximately 104.92 acres, more or less, lying along Interstate 85 in
Spartanburg County, east of ▇▇▇▇▇▇▇▇▇▇ Road, described in attached Exhibit "A".
The Declarant now desires to establish for the Property a Declaration
establishing restrictions for the planned development of the Property as more
particularly stated herein.
ARTICLE I
GENERAL PROVISIONS
1. Establishment of Restrictions. Declarant does hereby subject the
-----------------------------
Property to certain conditions, covenants and restrictions
("Restrictions"), upon and subject to which all of the Property shall
be held, improved and conveyed in order to establish a general plan
for the improvement, development and maintenance of the Property for
use as an office, warehouse/distribution/manufacturing center park to
be known and do business as "Fairforest Business Park".
2. Binding Covenants. The conditions, covenants and restrictions run with
-----------------
the land and shall inure to the benefit of and be binding upon and
enforceable by Declarant, its heirs, personal representatives,
delegatees, successors or assigns and all persons deriving title
through Declarant.
3. Purpose of Restrictions. The purpose of these Restrictions is to
-----------------------
insure proper development and use of the Property as an
office/warehouse/distribution/manufacturing park, to protect the Owner
of each parcel against any improper development and use of surrounding
parcels as will depreciate the value of any parcel, to prevent the
erection on the Property of structures built of improper design or
materials, to encourage the erection of appropriate improvements at
appropriate locations, to prevent haphazard and inharmonious
improvements, to secure and maintain proper setbacks from streets and
adequate free spaces between structures, to enhance and protect the
value, desirability and attractiveness of all the Property, and in
general to provide adequately for a high type and quality of
improvement of the Property in accordance with a uniform plan of
development.
4. Definitions.
-----------
(a) "Declarant" shall mean the aforementioned and undersigned
Declarant and all successors, assigns or delegatees who shall
assume the obligations, and to whom Declarant, or its delegatee
herein, shall specifically assign in writing the right to enforce
these Restrictions.
(b) "Signs" shall mean all names, insignia, trademarks and
descriptive words or material of any kind affixed, inscribed,
erected or maintained on the Property or on any improvement
thereon.
(c) "Regulations" shall mean (i) all present or future applicable
laws, statutes, codes,
ordinances, rules, regulations, limitations, orders, judgments or
other requirements and subsequent amendments of any governmental
authority having jurisdiction and (ii) these Restrictions and
subsequent amendments of these Restrictions that may be enacted
pursuant to Article I, paragraph 5 below.
(d) "Submittals" shall include all documents required to be submitted
to Declarants for approval pursuant to Article X, paragraph 1
below.
(e) "Owner" shall include the record owner (including Declarant) of a
lot or Parcel (as defined herein), lessees, tenants, licensees,
occupants, or any other person or business entitled to or in
physical possession of the Property or any portion thereof. Any
duty or responsibility of the "Owner" set forth herein shall
apply jointly and severally to the record owner regardless of the
occupancy of the lot and Owner shall remain liable to perform all
such duties and responsibilities.
(f) "Parcel" shall designate a subdivided portion of the Property, as
may be permitted herein, and shall be deemed a Parcel for
purposes herein upon the recordation of a plat on the subdivided
portion or Parcel and with the present intent by its Owner to
develop a building improvement on that portion or Parcel.
5. Declarant has delegated to ▇▇▇▇▇▇▇ Development Associates, Inc.
("JDA"), the sole and exclusive authority to act for Declarant in
respect to the Restrictions or any provisions herein. JDA on behalf of
Declarant may, for the best interest of the Owners, transfer its
authority to the Owners as an Owners Association at any time if JDA on
behalf of Declarant deems this to be in the best interest of the
Property. At such time as Declarant and/or JDA on behalf of Declarant
no longer have an interest in any Property contained within the Park,
JDA on behalf of Declarant shall upon its own initiative or upon
request of the owners of a majority of the Property in the park (a
majority of the Property being determined on a square footage land
basis) make such a transfer. Any such transfer shall be in writing and
recorded in the public records of Spartanburg County.
ARTICLE II
USE AND OPERATIONS
1. Use. The Property shall be used for industrial, manufacturing,
---
warehousing, distribution, commercial or office purposes, as limited
herein.
2. Permitted Operations and Uses. The admission of any operation to
-----------------------------
Fairforest Business Park, hereinafter referred to as "Park", shall be
in compliance with zoning and environmental regulations as set forth
by local, state and federal regulatory agencies. Any operation and use
will be permitted if it is performed or carried out entirely within a
building that is so designed and constructed that the enclosed
operations and uses do not cause or produce any of the following
effects, discernable at any other Parcel of the Property or affecting
any adjacent Parcel of the Property (except during periods when
breakdown of equipment occurs in such a manner as to make it evident
that the effect was not reasonably preventable), unless otherwise
specifically prohibited herein and as follows, (collectively the
"Prohibited Effects"):
(a) Vibration, noise, sound or disturbance which is reasonably
objectionable due to shrillness or loudness.
(b) Smoke of a shade as dark or darker than that designated as No. 2
on the Ringelwann Chart, as published by the United States Bureau
of Mines, for a period
2
of three (3) minutes in any one (1) hour.
(c) Obnoxious odors.
(d) Dust, dirt or fly ash.
(e) Any emission of odorous, noxious, caustic, or corrosive matter,
whether toxic or non-toxic.
(f) Unusual fire or explosion hazard.
(g) Any public or private nuisance.
(h) Any lighting, light source, brightness or glare which is not
shielded and substantially confined within site or boundaries.
(i) Any electro-mechanical or electro-magnetic disturbance or
radiation.
(j) Any air or water pollution.
JDA on behalf of Declarant reserves the right to permit operation and
use in other than enclosed spaces provided (a) JDA on behalf of
Declarant deems such use or operation not to be feasible within
enclosed areas and (b) provided further that such unenclosed use or
operation shall nevertheless comply with all requirements of Article
II and shall not produce any of the Prohibited Effects, and (c)
provided further that such unenclosed operation or use shall be
adequately and properly screened from view from roadways in or around
the Park and from other Parcels. Before any such unenclosed use or
operation shall be permitted, formal action by JDA on behalf of
Declarant shall be effected in accordance with Article XI of this
instrument.
3. Prohibited Operations and Uses. The following operations and uses
------------------------------
shall not be permitted on any of the Property subject to these
Restrictions:
(a) Hazardous waste disposal or permanent storage;
(b) Labor camps;
(c) Trailer courts, mobile home courts, camping or recreations
vehicles;
(d) Drilling for and/or removal of oil, gas or other hydrocarbon
substances;
(e) Junk yards or landfills.
(f) Mining or commercial excavation of building or construction
materials unless utilized in on-site construction;
(g) Distillation of bones;
(h) Dumping, disposal, incineration or reduction of garbage, sewage,
offal, dead animals or refuse;
(i) Fat rendering;
(j) Stockyard, raising, or ▇▇▇▇▇▇▇▇▇ of animals;
3
(k) Tanning or curing of leather goods;
(l) Freight terminals or truck terminals;
(m) The manufacture, sale, rental, repair or storage of heavy
equipment, buses, trucks, trailers, automobiles, recreational
vehicles and mobile or trailer homes outside of any building;
(n) Unscreened outdoor storage or outdoor fabrication of any
machinery, parts, material, supplies or products;
(o) Junkyards, scrap metal yards and any use involving the storage or
processing or wrecked or junked motor vehicles or materials;
(p) Overnight parking of campers, mobile homes, boats, trailers or
motor homes, except those of an Owner's contractors and
subcontractors during the period of construction improvements;
(q) Erection and maintenance of structures of a temporary nature,
except those of an Owner's contractors and subcontractors during
the period of construction of improvements;
(r) Jails, prisons, labor camps, penal, detention or correction
facilities or farms;
(s) Cemetery or mausoleum;
(t) Racetracks, raceways and drag strips;
(u) Massage parlors, topless night clubs or similar business
operations;
(v) Refining of petroleum or its products;
(w) Smelting of iron, tin, zinc or other ores;
(x) Petroleum storage, other than as may be reasonably necessary for
the occupants' normal business operations, but the occupants may
not engage in petroleum storage as a primary purpose of its
business;
(y) Fertilizer manufacture;
(z) Coal or wood yard;
(aa) Manufacture or storage of explosives or fireworks;
(bb) Auction, public sale, flea market, yard sale or other similar
operations or other auction house operation;
(cc) Bingo or other gambling or game of chance operations;
(dd) Commercial or non-commercial recreational, athletic, sporting or
racing activities;
(ee) Entertainment, theatrical presentations or performance, and
(ff) Permanent residential uses such as houses, apartments and
condominiums.
4
ARTICLE III
SET BACK AND SIDE YARD
The front orientation of all buildings shall be stated on the construction
and site plans submitted to JDA on behalf of Declarant for approval. Any
reasonable questions of orientation shall be resolved by JDA on behalf of
Declarant. Front orientation of all buildings shall be a minimum of 110 feet
from the road right of way of ▇▇▇▇ ▇▇▇▇▇▇ Road. In instances where a building is
constructed on a corner lot, the side orientation of the building shall be a
minimum of 50 feet from the road right of way. No building or structure shall be
located closer than fifty (50) feet to any side property line to ensure that an
open area of at least fifty (50) feet shall exist between all adjacent but
separately owned improvements, both side and rear. Access drives shall be no
greater than twenty-four (24) feet wide, unless approved in writing by JDA on
behalf of Declarant. Turn-in- radii at intersection with road will not be less
than forty-five (45) feet without prior written approval by JDA on behalf of
Declarant. These set back and side yard requirements may be waived by JDA in
specific instances where it feels that conditions exist as would warrant such
deviation.
ARTICLE IV
BUILDING
1. All building improvements shall be constructed of masonry, precast
concrete panels, tilt-up concrete panels, stucco, its equivalent or
better.
2. Accessory buildings shall not be located nearer the street than the
rear of the main buildings and shall be constructed consistent with
the construction and color of the main buildings.
3. Loading docks shall not be on the front of the main building.
Provided, however, that JDA on behalf of Declarant may in its
discretion grant a variance to this provision in special instances
(i.e., topography); however, in such instances special screening must
be provided.
ARTICLE V
SITE LANDSCAPING AND MAINTENANCE
1. All building sites shall have a landscape plan approved in writing by
JDA on behalf of Declarant. Such approval shall not be unreasonably
withheld. The landscape plan shall develop the site attractively with
lawn, trees, shrubs and other plantings. Plantings, consistent with
the plans shall be made within three (3) months of building
completion, or at the first date of recommended planting for the
particular species. Further, each owner shall take all reasonable
steps to insure the survivability of its landscaping, including
fertilizing and watering when and where necessary.
2. The upkeep and maintenance of all buildings and other improvements on
each Parcel shall be kept in a safe, clean, healthful and presentable
condition at all times. Should Owner fail to maintain its Parcel and
improvements at a minimum standard as reasonably determined by JDA on
behalf of Declarant, JDA on behalf of Declarant shall have the right
to undertake such maintenance on behalf of Owner and charge and
collect all such expenses from Owner under the provisions of Article
XIII.
3. The removal of debris, rubbish, trash, excess dirt, industrial wastes,
garbage and any other unsightly material from a Parcel shall be done
by the Owner and may be enforced under Article XIII.
4. JDA, on behalf of the Declarant and each parcel Owner and Tenant,
shall contract for the
5
provision of lawn, grounds and planting care for each Parcel in the
Park and for the Common Facilities. The contracts shall insure that
the Park and the improved Parcels are maintained uniformly in a neat,
orderly, and attractive manner and shall at a minimum include regular
grass cutting, edge trimming (weekly during the growing season);
regular fertilizing of grassed areas, trees and shrubs; aeration and
overseeding of grassed areas; sprinkler system maintenance; pre and
post emergent herbicide applications; mulching; shrub and tree
trimming as required; leaf collection; pavement sweeping; insect and
disease control and such other essential services. JDA shall select
the contractor or contractors which it feels can best maintain the
grounds to the appropriate standard. The Owner or Tenant of a Parcel
shall not be entitled to contract with another Contractor for the
provisions of the same services without the expressed written
permission of JDA, which permission JDA can deny, in its discretion.
JDA shall provide a copy of the maintenance contract(s) to the Owner
or Tenant and it shall be the responsibility of the Owner or Tenant,
as the case may be, to promptly comply with the contract as to its
Parcel and make prompt payment to the Contractor. In the event the
Owner fails within five (5) days of written notice by JDA on behalf of
Declarant or another Owner to comply with its landscape maintenance
contract, then JDA, on behalf of Declarant or such other Owner(s),
shall have the right, privilege and license to enter upon the premises
and make any and all corrections or improvements that may be
necessary, and, shall assess the total expense upon the Owner and/or
Tenant to meet such standards plus an administrative fee of ten
percent (10%) payable to JDA. If the Owner fails within thirty (30)
days to reimburse such total expense to JDA on behalf of Declarant or
such other Owner, then the Owner shall be responsible for all
additional costs, expense, and administrative fees and reasonable
attorney's fees incurred in an effort to enforce collection, whether
by legal action or negotiation.
ARTICLE VI
PARKING AND MANEUVERING
1. Parking spaces and driveways shall be paved with concrete, asphalt,
their equivalent or better and be properly maintained without
potholes, broken pavement or mud areas.
2. No parking will be permitted on streets or highways and all parking
shall be more than ten (10) feet back of the curb line of ▇▇▇▇ ▇▇▇▇▇▇
Road.
3. Parking spaces and driveways will be subject to landscaping
requirements of Article V. All parking areas shall conform to any
applicable zoning or other requirements of any governmental agency
having jurisdiction of the same.
4. Parking spaces and truck docks shall be so located that maneuvering in
streets or highways will not be necessary.
5. Curb and gutter sections at entrances and exits to building sites are
to match in size, quality and material on existing curb and gutters.
ARTICLE VII
OUTSIDE STORAGE
1. No outside storage will be permitted on the front of any parcel nor
within thirty (30) feet of any property line.
6
2. Outside non-vehicular or machinery storage areas shall be screened as
provided in number 3 below.
3. Any outside storage or parking of vehicles (other than employees or
automobiles), machinery or heavy equipment, or other unsightly devices
or apparatus will be permitted only if screened by earth berms or
plants or fencing which is in compliance with Article XI(1) so as to
substantially isolate such storage from view from roadways in or
around the Park and from other Parcels.
ARTICLE VIII
NUISANCE ABATEMENT
1. Accepted smoke, emission, and odor abatement practice shall be
followed to eliminate all smoke and objectionable odors as required by
Article II, Section 2(b).
2. Noise suppression devices shall be used where unusual operating noise
can be heard as specified herein more than 150 feet beyond the
property line of any parcel as required by Article II, Section 2(a).
ARTICLE IX
SIGNS
1. Neon-flashing signs, animated signs, billboards and all objects of an
unsightly nature are hereby prohibited. Signs which properly identify
the business or product of the industrial occupant are permitted but
must meet the approval of JDA on behalf of Declarant not to be
unreasonably withheld.
2. Signs erected between the main building and the street shall not
exceed the following dimensions:
(a) Identifying signs: ___ square feet
(b) Directional signs: ___ square feet
3. All signs must be in keeping with the general character of the Park.
4. Final size, design and lighting of all signs or any requested variance
thereto shall be the subject to approval by JDA on behalf of
Declarant, the criteria being the relationship between the size of
sign to the size of the building, visibility and the quality of the
sign.
5. Nothing herein shall prevent the erection of appropriate nonconforming
signs by JDA on behalf of Declarant to identify and/or advertise the
Property.
ARTICLE X
FILLED LOTS
No representation is made by either JDA on behalf of Declarant or Declarant
as to the condition and quality of the soil on any lot or Parcel of the
Property. All prospective purchasers of lots or Parcels shall be presumed to
have examined and inspected a lot in detail prior to closing and to have
determined the location and extent of any fill upon said lot or Parcel.
Subsurface exploration of site in regard to fill, suitability of soils, ground
water and other site investigation shall be the responsibility of Owner. No
building shall be erected on any lot or Parcel until the Owner or the Owner's
contractor shall have definitely determined firm footings.
7
The building line upon the plat is not a representation that any determination
has been made as to the suitability of building. All grantees shall be presumed
to have read these restrictive covenants.
ARTICLE XI
APPROVAL OF PLANS
1. Approval of Plants and Specifications. Before commencing the
-------------------------------------
construction or alteration of any building, enclosure, fences (vinyl
coated chain-length fencing may be permissible if approved), but only
in rear portions of any parcel, loading docks, parking facilities,
storage yards or any other structures and signage on or to any Parcel,
the Owner of such Parcel shall first submit site plans, including
storm water and erosion control plans, building plans and
specifications and landscape plans to JDA on behalf of Declarant for
its written approval, which approval shall not be unreasonably
withheld. In the event that JDA on behalf of Declarant shall fail to
approve or disapprove such building plans, specifications or site
plans within thirty (30) days after they have been submitted to JDA on
behalf of Declarant, such approval will not be required and this
covenant will be deemed to have been complied with.
2. Basis of Approval. Without limiting the generality of the foregoing,
-----------------
JDA on behalf of Declarant may disapprove any Submittals which are not
in harmony or conformity with other existing or proposed improvements
on or in the vicinity of the Parcel, or with Declarant's master
utility, circulation or general aesthetic or architectural plans and
criteria for the Parcel, the Property and general areas in which the
Parcel is located, including, but not limited to, such matters as
adequacy of Parcel and improvement dimensions or external structural
appearance, relation of topography, grade and elevation of the Parcel
being improved with neighboring sites and nearby streets, and the
effect of location and use of improvements in neighboring sites,
improvements or operations.
3. Exculpation. Neither JDA on behalf of Declarant nor Declarant shall be
-----------
liable in damages to anyone making Submittals as provided herein, or
to any Owner, licensee or other person subject to or affected by these
Restrictions, on account of (i) JDA on behalf of Declarant giving
approval or disapproval of any Submittal, whether or not defective;
(ii) any construction, performance or nonperformance by an Owner of
any work on the site of improvements, whether or not defective; (iii)
any construction, performances or nonperformance by an Owner of any
work on the site of improvements, whether or not pursuant to the
approved Submittals; (iv) any mistake in judgment, negligence, action
or omission relative to the exercise by JDA on behalf of Declarant of
Declarant's rights, powers and responsibilities hereunder; and (v) the
enforcement or failure to enforce any of these Restrictions. Every
person who makes Submittals to JDA on behalf of Declarant for approval
agrees by reason of such Submittal, and every Owner of a Parcel,
improvements or any portion thereof agrees by acquiring title or an
interest therein, not to bring any suit or action against JDA on
behalf of Declarant or Declarant seeking to recover any such damages.
The approval of any Submittal shall not constitute the assumption of
any responsibility by, or impose any liability upon, JDA on behalf of
Declarant or Declarant or their representative as to the accuracy,
efficacy or sufficiency thereof.
ARTICLE XII
COMPLIANCE WITH RULES AND REGULATIONS
The Owner, whether the occupant or not, of any site, lot or Parcel shall at
all times keep the premises, buildings, improvements and appurtenances in a
safe, clean, wholesome condition and comply in all respects with all government,
health, fire and police requirements and regulations, and any Owner will
8
remove, at his or its own expense, any rubbish, trash or debris of any character
whatsoever which may accumulate on said Parcel, site or lot. In the event the
Owner fails within five (5) days of written notice by JDA on behalf of Declarant
or another Owner to comply with any or all of the aforesaid Restrictions,
specifications and/or requirements, then JDA, on behalf of Declarant or such
other Owner, shall have the right, privilege and license to enter upon the
Parcel and make any and all corrections or improvements that may be necessary,
and, shall assess the total expense upon the Owner to meet such standards plus
an administrative fee of twenty percent (20%) payable to JDA. If the Owner fails
within thirty (30) days to reimburse such total expense to JDA on behalf of
Declarant or such other Owner, then the Owner shall be responsible for all
additional costs, expenses and administrative fees, and reasonable attorney's
fees incurred in an effort to enforce collection, whether by legal action or
negotiation.
ARTICLE XIII
ENFORCEMENT
1. Waiver of Unintentional Violation. JDA, on behalf of Declarant, may
---------------------------------
waive any unintentional and minor violation of these restrictive
covenants by appropriate instrument in writing; provided, however,
that such violation shall not permanently and adversely alter the
overall character and scheme of development in the Park.
2. Waiver. No waiver by JDA on behalf of Declarant of a breach of any of
------
these Restrictions and no delay or failure to enforce any of these
Restrictions shall be construed or held to be a waiver of any
succeeding or preceding breach of the same or any other of these
Restrictions. No waiver by JDA on behalf of Declarant of any breach or
default hereunder shall be implied from any omission by JDA on behalf
of Declarant to take any action on account of such breach or default
if such breach or default persists or is repeated, and no express
waiver shall affect a breach or default other than as specified in
said waiver. The consent or approval by JDA on behalf of Declarant to
or of any act by an Owner requiring JDA on behalf of Declarant's
consent or approval shall not be deemed to waive or render unnecessary
JDA on behalf of Declarant's consent or approval to or of any
subsequent similar acts by Owner.
3. Who May Enforce. If any Owner, as defined herein, shall violate or
---------------
attempt to violate any of the covenants, Restrictions and conditions
set forth herein, it shall be lawful for JDA, on behalf of Declarant,
or other record Owner, to prosecute any proceedings at law or equity
against the person or persons violating or attempting to violate any
such covenant, restriction or condition and either prevent him/it from
so doing or to recover damages or other costs, expenses and attorney's
fees for such violation. Any person or persons acquiring, whether by
purchase, gift or otherwise, any Parcel to which these covenants,
Restrictions and conditions apply, shall be deemed to have consented
to the terms hereof, including the payment of reasonable attorney's
fees incurred by any proper person in any proceeding to enforce
compliance with these said conditions, covenants or Restrictions.
ARTICLE XIV
EASEMENTS
1. General Power to Grant Easements. JDA, on behalf of Declarant, shall
--------------------------------
have the right, in their reasonable discretion, to grant easements
over, through, across and under any of the Property for the purposes
of all electric, water, sewer, storm water, gas, telephone, cable
television, security systems and all other utilities necessary or
desirable, whether for the benefit of any building site or for the
Property used in common; provided such easements do not interfere with
existing improvements constructed, or in the process of being
9
constructed, or on the business then being conducted on such Property,
on the building sites or materially interfere with the future
construction of improvements on the building sites. Once established,
no structure, planting or other construction shall be placed within
such easements or permitted to remain within such easement which may
interfere with the installation and maintenance of utilities or which
may change the direction or flow of drainage channels in the easements
or which may obstruct or retard the flow of water through the drainage
channels in the easements. The easement area of each lot and all
improvements in it shall be maintained by the then Owner of the lot,
except for those improvements for which a public authority or utility
company is responsible.
ARTICLE XV
PERIOD OF EFFECTIVENESS
The above covenants shall be in effect for a period of twenty (20) years
from date of execution hereof and shall automatically renew for successive
periods of ten (10) years each, twenty (20) years from this date; unless,
however, that at any time within two (2) years before the expiration of said
period, the then Owners of two-thirds (2/3) of land area in the Park exclusive
of Common Areas may, by written declaration, signed and acknowledged by them and
recorded in the deed records in the RMC Office for Spartanburg County, terminate
such Restrictions, conditions and covenants.
ARTICLE XVI
ALTERATION AND CHANGES
This Declaration may be amended, modified or terminated only by an
instrument duly recorded in the Register of Deeds Office for Spartanburg County
signed by (i) the affirmative vote of record Owners representing seventy-five
percent (75%) of the square footage in the buildings in the Park as then
existing (ii) the Declarant, so long as Declarant owns any portion of the
subject Property and (iii) any first priority mortgage holder in the Property
and (iii) any first priority mortgage holder in the Property or any portion of
the Property which said Property or portion is further restricted by the
amendment, modification or termination, and said first priority mortgage holder
requires such first priority mortgage instrument of public record granting the
first priority security interest.
The Restrictions of this Declaration are intended to be superior to the
lien, security interest or charge of any mortgage made in good faith and for
value affecting or any portion thereof, or any improvement now or hereafter
placed thereon. However, a breach or violation of any of the Restrictions or
easements hereof shall not defeat or render invalid the lien or charge of any
such mortgage. The superiority of this Declaration shall be limited to the
extent that the title to any Property or portion thereof acquired through sale
under foreclosure shall be subject to the Restrictions and this Declaration
affecting the Property by virtue of the recordation of this Declaration.
ARTICLE XVII
CHANGE OF MASTER PLAN
JDA, on behalf of Declarant, intends to develop the Property in accordance
with a Master Plan. JDA, on behalf of Declarant, reserves the right
periodically to review and modify the Master Plan at its sole option. The Master
Plan shall not bind JDA on behalf of Declarant, their successors and assigns, to
adhere to said plan, nor shall JDA, on behalf of Declarant, be required to
follow any predetermined sequence or order of development.
ARTICLE XIII
ADDITIONAL LANDS
10
JDA, on behalf of Declarant, may bring within these Covenants, Restrictions
and Conditions additional lands and develop same before completing the
development of the Property. JDA, on behalf of Declarant, shall have the full
power to add to, subtract from and make changes in the Master Plan. Additional
lands, including property not owned by JDA on behalf of Declarant or Declarant
at the time of recording of this Declaration, may be made subject to, but not
limited to, this Declaration by filing a Supplemental Declaration with respect
to the additional property which shall extend the operation and effect of the
covenants and Restrictions of the Declaration to such additional property. A
Supplemental Declaration may contain additions and modifications of the
covenants and Restrictions contained in this Declaration as may be necessary or
convenient in the judgment of JDA on behalf of the Declarant to reflect the
different character, if any, of the added properties.
ARTICLE XIX
CONNECTION OF ROADS AND UTILITIES
JDA, on behalf of Declarant, its successors and assigns, shall have the
right, without the consent of the Owners, to connect and extend roads and any
and all services and utilities from any part of the Property to adjacent or
nearby property of third parties and to allow owners of property in such
adjacent or nearby property to use such roads for ingress and egress to a public
road and to connect to such utilities and services.
ARTICLE XX
RESUBDIVISION
1. No Parcel shall be subdivided or its boundary line changed without the
consent of JDA on behalf of Declarant; provided any two or more
Parcels may be combined (and later subdivided back into the original
Parcels so long as Article III is not violated).
2. Declarant, through JDA on behalf of Declarant, hereby expressly
reserves to themselves, their successors and assigns, the right to
subdivide, resubdivide or replat any part of the Property or Parcel it
owns shown on any plat in order to create a modified building lot or
lots, and to take such other steps as are reasonably necessary to make
such replatted lot suitable and fit as a building site to include, but
not be limited to the relocation of easements, walkways, rights of
way, roads and other amenities to conform to the new boundaries of
said replatted lots, provided that no lot originally shown on the
recorded plat is reduced under this Article XXI to a size more than
twenty percent (20%) smaller than the smallest shown on the first plat
of the subdivision section recorded in the public records.
ARTICLE XXI
COMMON AREA ASSESSMENT
There shall be imposed against each Parcel and its Owner the obligation to
pay quarterly assessments for the maintenance and upkeep of the "Common
Facilities" as defined below. The quarterly assessment, together with interest
and collection fees, if any, shall be a charge on each lot and each Owner
thereof and shall only be subordinate to ad valorem tax liens and valid
mortgages. Each assessment, together with interest, costs and reasonable
attorneys fees shall also be the personal obligation of the person or entity
that owned any such lot at the time the assessment fell due. The assessments
levied shall be used exclusively to promote the health, safety and welfare of
the Owners and shall include all costs and expenditures incurred by Declarant in
maintaining and operating the common areas of Fairforest Business Park,
including, but not limited to: road sweeping and ▇▇▇▇▇▇, ▇▇▇▇ removal, road
repairs and maintenance, including patching, resurfacing and repainting, common
area lighting (following initial installation by Declarant
11
at Declarant's cost), entrance sign lighting (following initial installation by
Declarant at Declarant's cost) and maintenance, security, landscape maintenance
and repair, including replacing and renovation of plant material, irrigation
expenses (following initial installation by Declarant at Declarant's cost),
maintenance of the storm water drainage and retention system, and other such
similar expenses that serve to enhance the beauty and ability of the Park.
Declarant may enter into reasonable contracts for the provision of said
services. An Owner's share of the common area expenditures shall be based on the
respective Owner's prorata share of the same, to be calculated by multiplying
the total expenditures by a fraction, having as its denominator all the acreage
in the Park (excluding acreage in the Common Facilities) and having as its
numerator the total acreage contained in the Property owned lease or otherwise
controlled by the respective Owner. Total expenditures and Owner's share shall
be calculated by JDA on behalf of Declarant and submitted with a statement of
account (quarterly or annually at JDA's election, on behalf of Declarant) to
Owner. Owner shall make payment within ten (10) days of submittal. JDA on behalf
of Declarant may elect to have Owner pay its estimated share of such expenses on
a monthly or quarterly basis based on anticipated expenses. Adjustment to the
estimated share of such expenses shall be made in February of each year. "Common
Facilities" are defined as the entrance and secondary roads including shoulders
and adjacent landscaped and/or grassy banks, the drainage ways and retention
area, the woodlands, the entrance areas including all landscaping and signage
area, the signage of the Park as more clearly shown on attached Exhibit "B".
Each Owner shall have the right to examine, audit and copy the books and records
regarding the assessments and its estimated share of such assessments. JDA shall
be permitted to change and receive an administrative fee of five percent (5%) of
the face amount of such contracts as it administers for the provision of
services to Owners or Tenants of the Property or individual parcels within the
Park.
ARTICLE XXII
SEVERABILITY
If any one or more of these covenants, Restrictions or conditions shall be
held void or unenforceable by judgment or court order, such judgment or court
order shall in no way affect any of the other remaining provisions which shall
remain in full force and of effect, they being expressly acknowledged and agreed
to be obligations severable and independent in nature.
ARTICLE XXIII
SCOPE OF RESTRICTIONS
These conditions, covenants and Restrictions apply only to the lots
designated upon the above referred to plat and specifically do not apply to any
other properties of Declarant adjoining said lots. Declarant specifically
reserves the right to hereinafter determine the status of said unsubdivided
properties.
ARTICLE XXIV
MISCELLANEOUS PROVISIONS
1. Constructive Notice and Acceptance. Every Owner who now or hereafter
----------------------------------
owns or acquires any right, title or interest in or to any portion of
said Property is and shall be conclusively deemed to have consented
and agreed to every covenant, condition and restriction contained
herein, whether or not any reference to this Declaration is contained
in the instrument by which such person acquired an interest in said
Property.
2. Mutually, Reciprocity, Runs with Land. All Restrictions, conditions,
-------------------------------------
covenants and agreements contained herein are made for the direct,
mutual and reciprocal benefit of each and every part and parcel of the
Property; shall create reciprocal rights and obligations between the
respective Owners of all parcels and privity of contract and estate
between all Owners of said parcels, their heirs, successors and
assigns, operate as covenants running
12
with the land for the benefit of all other parcels; provided, however,
that the provisions of this Declaration shall only be enforced by JDA
on behalf of Declarant or its assigns.
3. Captions. The paragraph headings or captions used herein are for
--------
convenience only and are not a part of this instrument and do not in
any way limit, define or amplify the scope or intent of the terms and
provisions hereof.
4. Notices. All notices, consents, requests, demands and other
-------
communications provided for herein shall be in writing and shall be
deemed to have been duly given if and when personally served or
twenty-four (24) hours after being sent by United States registered
mail, return receipt requested, postage prepaid, to the intended party
or its last known address.
IN WITNESS WHEREOF, Declarant has caused this instrument to be executed
this ___ day of ____________, 1998.
OWNER AND DECLARANT:
BY-PASS 85 ASSOCIATES, LLC
______________________________ By: ______________________________(SEAL)
Name: __________________________________
______________________________ Its: ___________________________________
DELEGATEE:
▇▇▇▇▇▇▇ DEVELOPMENT ASSOCIATES, INC.
______________________________ By: ______________________________(SEAL)
Name: __________________________________
______________________________ Title: _________________________________
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
) PROBATE
COUNTY OF SPARTANBURG )
Personally appeared before me the undersigned witness, who on oath states
that (s)he saw the within named BY-PASS 85 ASSOCIATES, LLC, a South Carolina
Limited Liability Company, sign, seal and deliver the within DECLARATION OF
COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR FAIRFOREST BUSINESS PARK,
A BUSINESS AND INDUSTRIAL PARK, and that (s)he with the second witness,
witnessed the execution thereof.
_______________________________________
Sworn to before me this ____
day of _____________, 1998.
______________________________(SEAL)
Notary Public for South Carolina
My commission expires: ___/___/___
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF SPARTANBURG )
Personally appeared before me the undersigned witness, who on oath states
that (s)he saw the within named ▇▇▇▇▇▇▇ DEVELOPMENT ASSOCIATES, INC., sign, seal
and deliver the within DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND
EASEMENTS FOR FAIRFOREST BUSINESS PARK, A BUSINESS AND INDUSTRIAL PARK, and that
(s)he with the second witness, witnessed the execution thereof.
_______________________________________
Sworn to before me this ____
day of _____________, 1998.
______________________________(SEAL)
Notary Public for South Carolina
My commission expires: ___/___/___
14
EXHIBIT "A"
LEGAL DESCRIPTION
FAIRFOREST BUSINESS PARK
All that tract or parcel of land, located in the County and State aforesaid on
the north side of Interstate 85 By-Pass, containing 104.92 cres, more or less,
and being more particularly shown on plat of survey entitled "▇▇▇▇▇▇▇
Development (▇▇▇▇▇▇ Property)" made by ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ and
Associates, Inc. dated May 24, 1996 and recorded on June 10, 1996 in Plat Book
134 page 103 in the Register of Deeds Office for Spartanburg County, to which
plat reference is hereby made for a more complete and perfect description.
This being the same property conveyed to By-Pass 85 Associates, LLC by deeds of
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. co-trustee in Deed Book 64H page 868, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as
Trustee in Deed Book 64H page 870; ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ as Trustee in Deed Book
64H page 872 and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ as Trustee in Deed Book 64H page 874, which
deeds were recorded on June 7, 1996.
15
CONSENT AND SUBORDINATION
-------------------------
The undersigned (i) is the holder of a first priority security interest by
virtue of a mortgage recorded in REM Book 1962, page 670 in the Spartanburg
County Register of Deeds Office, in certain property burdened by that certain
Declaration of Covenants, Conditions, Restrictions and Easements For Fairforest
Business Park (collectively the "Declaration"); and (ii) hereby subordinates the
lien of said Mortgage in and to the Declaration, so that the Declaration shall
be paramount and superior to the security interest of the undersigned; Except as
subordinated hereby, the aforedescribed mortgage recorded in REM Book 1962, Page
670 shall remain in full force and effect.
IN WITNESS WHEREOF, this ____ day of ______________, 1998.
NATIONSBANK OF SOUTH CAROLINA, N.A.
______________________________ By: ______________________________(SEAL)
______________________________ Its: ___________________________________
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF SPARTANBURG )
PERSONALLY appeared before me the undersigned witness who on oath states
that (s)he saw the within named NATIONSBANK OF SOUTH CAROLINA, N.A., by
_________________, its ___________________, sign, seal and deliver the within
Declaration, and that (s)he with the other witness, witnessed the execution
thereof.
________________________________________
SWORN to before me this _____
day of ______________, 1998.
16
GUARANTY OF RENT
----------------
In consideration of the execution of the foregoing Lease between BY-PASS
85, a South Carolina Limited Liability Company, as Landlord, and ▇▇▇▇, INC., as
Tenant, the undersigned, their heirs/successors and assigns, hereby covenant and
agree to and with the Landlord, and the said Landlord's legal representatives,
successors and assigns, that if default at any time be made by the said Tenant
in the payment of the rent on the Tenant's part to be paid, the undersigned will
well and truly paid the said rent or any arrears thereof that may remain due
unto the said Landlord.
With respect to any assignment of the foregoing lease to which the Landlord
gives consent, which shall not be unreasonably withheld, Landlord agrees to
release the undersigned from their obligations under this Guaranty; provided the
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Landlord is provided with substitute individual personal guarantors or corporate
guarantors satisfactory to Landlord. Such proposed new guarantors shall execute
all documents deemed necessary by Landlord so as to assure that in the event of
default, Landlord shall have personal jurisdiction over said guarantors and
venue in the state courts of general jurisdiction in the County of Spartanburg,
State of South Carolina.
Notices. All notices and other communications hereunder may be in writing
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and shall be delivered personally or may be sent by registered mail, certified
mail, or express mail service, postage prepaid and return receipt requested, or
by nationally utilized overnight delivery service, addressed to the undersigned
at the address stated below its signature or such address as the undersigned may
provide to the Landlord in writing from time to time.
This Guaranty shall be construed in accordance with the laws of the State
of South Carolina. In the event legal proceedings should hereafter be instituted
by one of the parties hereto against the other pertaining to this Guaranty or
the rights and obligations of the parties hereunder, it is agreed and stipulated
that the jurisdiction and venue for any and all such lawsuits lie exclusively in
the County of Spartanburg in the State of South Carolina.
DATED this 10th day of November, 1998.
WITNESSES: ▇▇▇▇▇ INDUSTRIES, INC.
/s/ [SIGNATURE ILLEGIBLE]^^ By: /s/ [SIGNATURE ILLEGIBLE]^^
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Its: Chief Financial Officer
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/s/ [SIGNATURE ILLEGIBLE]^^
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Attest: /s/ [SIGNATURE ILLEGIBLE]^^
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Its: Asst. Secretary
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ADDRESS: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[LETTERHEAD OF ▇▇▇▇▇▇▇ DEVELOPMENT ASSOCIATES, INC. APPEARS HERE]
November 10, 1998
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Right of Refusal on Adjacent Expansion Area
Dear ▇▇▇▇▇:
Please allow this letter to serve as confirmation of ▇▇▇▇'▇ right of first
refusal on the adjacent land to the Premises ("Adjacent Land") necessary to
accommodate an expansion of up to 200,000SF and additional employee parking
areas necessary as a result of the expansion. The Adjacent Land will be combined
with ▇▇▇▇'▇ existing land and replatted to form one lot or parcel in order that
the expansion may be directly connected to ▇▇▇▇'▇ existing leased building.
By-Pass 85, LLC confirms that the Lease Agreement and applicable Declaration of
Covenants either permit such expansion and replatting or will be amended by
By-Pass 85, LLC at such time so as to permit it.
As an additional inducement for ▇▇▇▇ to enter into the Lease Agreement with
By-Pass 85, LLC, ▇▇▇▇ shall have the following Rights of First Refusal:
1. ▇▇▇▇ shall have the right to match any bonafide offer to purchase, lease or
otherwise develop the Adjacent Land that is made by a third party, at arm's
length and which offer is acceptable by By-Pass. In the event of such
acceptable bonafide third party offer, By-Pass will give written notice to
▇▇▇▇ of such offer, which notice shall include the details of the bonafide
offer including price, lease rates, lease term and conditions. ▇▇▇▇ shall
have thirty (30) days within which to notify By-Pass of its intent to match
the bonafide offer to purchase, lease or otherwise develop the land.
Closing shall occur within forty-five (45) days of the date on which ▇▇▇▇
notifies By-Pass of its exercise of the Right of Refusal. Should ▇▇▇▇ fail
to provide such notice or notifies By-Pass of its intent not to exercise
its Right of Refusal within the thirty (30) day period, then By-Pass may
proceed to sell, lease or permit the third party to develop the Adjacent
Land in compliance with the terms and conditions of the bonafide third
party offer without any obligation to ▇▇▇▇. Should the bonafide offer from
the third party not be consummated within 120 days from the date of notice
from By-Pass, then ▇▇▇▇'▇ Right of First Refusal shall be renewed and the
above procedures shall be followed.
2. Should By-Pass elect to develop the Adjacent Land for speculative purposes
for its own or a related parties' account, then ▇▇▇▇ shall have the right
to lease the Adjacent Land and the improvements planned by By-Pass at a
rental rate per square foot of building space that is no greater than the
prevailing fair market rental rates for new building space with similar
uses and quality in the Greater Spartanburg area as may be verified at
either party's discretion by an MAI appraiser. The length of the lease
shall be negotiated in good faith between the
parties. The other terms and conditions shall be as stated in the Lease
Agreement. Upon By-Pass' decision to develop the property, By-Pass will
give written notice to ▇▇▇▇ which notice shall include the details of the
development of the Adjacent Land including building size and configuration.
▇▇▇▇ shall have thirty (30) days from receipt of By-Pass' notice within
which to notify By-Pass of its intention to negotiate its expansion. The
parties shall then have forty-five (45) days within which each shall
negotiate in good faith for the ▇▇▇▇ expansion on the Adjacent Land. If the
terms of such lease cannot be agreed upon within the forty-five (45) day
period, then By-Pass shall have no obligation to ▇▇▇▇ to lease the Adjacent
Land unless ▇▇▇▇'▇ Right of First Refusal is renewed as provided below.
Should ▇▇▇▇ fail to provide notice to negotiate within the thirty (30) day
period, then By-Pass shall have no obligation to ▇▇▇▇ to lease the Adjacent
Land. Should By-Pass not contract for construction of improvements on
speculation within one hundred fifty (150) days after By-Pass' notice to
develop, then ▇▇▇▇'▇ Right of First Refusal shall be renewed and the above
procedures shall be followed.
3. Should By-Pass 85, LLC elect to sell the Premises, ▇▇▇▇ shall have the
right to match any bonafide offer that is made by a third party at arm's
length and that is acceptable to By-Pass 85. By-Pass shall give ▇▇▇▇
written notice of the acceptable third party arm's length offer which
notice shall include all of the terms of the offer and ▇▇▇▇ shall have 7
business days to match all of the terms and conditions of the offer. Any
proposed transfer: 1) between any of the members of By-Pass 85 amongst
themselves; 2) to any other ▇▇▇▇▇▇▇ Development umbrella entity; 3) that is
part of a larger transfer of multiple properties to an unrelated third
party in an arm's length transaction; 4) that is the result of a court
mandated sale; 5) that is made for estate planning purposes shall be
exempt from this Right of First Refusal. A transfer under items 1, 2 or 5
of this paragraph 3 shall not extinguish ▇▇▇▇'▇ Right of First Refusal and
shall be binding on the transferee under items 1, 2 and 5.
The Rights of First Refusal stated in paragraphs 1, 2 and 3 are exclusive as to
▇▇▇▇ and its related companies and may not be assigned to any third party. ▇▇▇▇
may only exercise its right if it is in possession and occupancy of the Premises
and is actively operating in the Premises and not in default under the Lease
Agreement. These rights shall expire upon termination or expiration of the Lease
Agreement.
Sincerely yours,
/s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
GGS/hn
Acknowledged for ▇▇▇▇:
By /s/ [SIGNATURE ILLEGIBLE]^^
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Its: President
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Date: 11/10/98
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