EXHIBIT 10.11(b)
STATE OF SOUTH CAROLINA )
) LEASE AGREEMENT
COUNTY OF SPARTANBURG )
This Lease Agreement, made and entered into as of the 30th day of
November, 1998, by and between Xxxx Xxxx, LLC, a Limited Liability Company, of
Spartanburg County, South Carolina (hereinafter call the "Landlord") and ESA
Management, Inc., (hereinafter called the "Tenant").
W I T N E S S E T H :
1. LEASED SPACE. The Landlord hereby leases unto the Tenant, and the
Tenant hereby leases from the Landlord, upon terms and conditions hereinafter
set forth, that Class A office space (the "Leased Space") being Suites 6 and 7
of Building II of Landlord's Office building complex named "Xxxx Hill"
(hereinafter called the "Building") containing approximately 4,120 square feet,
located at 000 Xxxx Xxxx Xxxxxx in Spartanburg, South Carolina and non-exclusive
access to the Leased Space by way of the parking lot and roadways ("designated
"Common Areas"). A floor plan and the approximate location of the Leased Space
is shown on Exhibit A attached hereto.
2. ACCEPTANCE OF LEASED SPACE. Landlord has made no representation or
promises with respect to the Building, the leased space or this Agreement
(hereinafter the "Lease") except as set forth herein.
3. TERM. This lease shall commence upon the execution hereof and shall
continue in force for a term of three (3) years ending December 31, 2001.
4. COMMENCEMENT. This Lease shall commence on the date of execution.
Rent shall commence the later of: (i) upon completion of the Improvements or
(ii) occupancy (not later than January 1, 1999) noted on Exhibit B ("Rent
Commencement").
5. SURRENDER OF THE DEMISED PREMISES. The Tenant shall keep the Leased
Space in good order and repair, except the portions thereof to be repaired by
the Landlord as provided herein, and upon the expiration of or other termination
of this Lease, quit and surrender the Leased Space to the Landlord in the same
condition as at the commencement of the term, except as modified by any
improvement or modified with the Landlord's consent, natural wear and tear only
excepted and with carpets shampooed.
6. RENT. The Tenant shall pay the Landlord, at the Landlord's office or
at such other place as the Landlord may from time to time designate in writing:
Gross Rental Amount
Months 1-36: $4,635.00 per month - $55,620 per year
Months 37-72: $4,978.33 per month - $59,740 per year
The Rental Amount shall be paid in twelve (12) monthly installments,
which installments shall be due and payable on the 1st day of each month in
advance and without demand. Said monthly installments shall commence upon the
Rent Commencement Date. If the first day upon which rent becomes payable is
other than the first day of any calendar month, the rent for the balance of said
month shall be payable by Tenant at a daily rate based upon the monthly rent.
Regardless of this date on which the obligation to pay rent commences, if for
any reason the Landlord is unable to give Tenant possession of the premises,
then the rent shall xxxxx until occupancy is available to Tenant.
7. OPERATING EXPENSE ADJUSTMENT. Intentionally deleted.
8. LANDLORD'S SERVICES. Landlord shall, at its expense, furnish the
Office Space with (i) electricity for routine lighting and the operation of
general office machines such as typewriters, dictating equipment, desk model
adding machines and the like, which use 110 volt electric power, (ii) heat and
air conditioning during reasonable and usual business hours (exclusive of
Saturday, Sundays and holidays) reasonably required for the occupation of the
Office Space, such heat and air conditioning to be provided by utilizing the
existing systems in the Building, it being expressly understood and agreed by
the parties that Landlord specifically shall not be liable for any losses or
damages of any nature whatsoever incurred by Tenant due to any failure of the
equipment to function properly, or while it is being repaired or due to any
governmental laws, regulations or restrictions pertaining to the furnishing or
use of such heat and air conditioning, (Tenant shall take all reasonable steps
to minimize utility consumption by cutting off lights when Office Space is not
in use and operate HVAC system at reasonable temperatures (70 degrees winter/75
degrees in summer). (iii) lighting replacement for Building standard lights,
(iv) toilet room supplies, (v) daily janitor service as is customarily furnished
in first class office buildings in Spartanburg, South Carolina, (vi) water,
(vii) sewage. (viii) and maintain the exterior grounds and parking lot in a neat
and orderly condition. Landlord shall not be liable for any damages directly or
indirectly resulting from, nor shall any Rental herein set forth be abated by
reason of (1) installation, use, or interruption of use, or any equipment in
connection with the furnishing of any of the foregoing services, or (2) failure
to furnish, or delay in furnishing, any such services when such failure or delay
is caused by accident or any condition beyond the reasonable control of Landlord
by the making of necessary repairs or improvements to the Office Space or to the
Building. The temporary failure to furnish any such services shall not be
construed as an eviction of Tenant or relieve Tenant from the duty of observing
and performing any of the provisions of this Lease.
9. CONSTRUCTION OF PREMISES. Landlord shall undertake at its expense
those improvements noted on Exhibit B ("The Improvements").
10. TENANT IMPROVEMENTS AND ALTERATIONS. The Tenant shall have the
right, initially and from time to time, to make improvements or alterations to
the Leased Space, subject to the following conditions:
A. No improvement or alteration shall at any time be made
which shall impair the structural soundness or diminish the value of the
Building.
B. No improvement or alteration requiring an inspection or
approval by any municipal or other governmental authority having jurisdiction
over such improvements or alterations shall be made at any time without first
obtaining the Landlord's written approval therefore, but such approval shall not
be unreasonably withheld by the Landlord. No structural improvement or
alteration involving an expenditure in excess of $1,000.00 shall be made without
first obtaining the Landlord's written approval of the plans therefor, but such
approval shall not be unreasonably withheld by the Landlord. The Tenant shall
furthermore first obtain the Landlord's written approval before any modification
or changes are made in such plans after Landlord's approval thereof.
C. No improvement or alteration shall be undertaken until the
Tenant shall have procured and paid for all required municipal and other
governmental permits and authorizations of the various municipal departments and
governmental subdivisions having jurisdiction.
D. All work done in connection with any improvements or
alterations shall be done in good and workmanlike manner and in compliance with
all building and zoning laws, and with all other laws, ordinances, rules,
requirements of any federal, state or municipal government or agency having
jurisdiction and shall be completed free of all mechanics or materialman's
liens.
E. Any improvement or alteration to the Leased Space, except
moveable furniture and trade fixtures placed by Tenant in the Leased Space,
shall at once become the absolute property of the Landlord and shall remain upon
and be surrendered with the Leased Space as part thereof at the termination of
this Lease without disturbance or injury.
11. REPAIRS AND MAINTENANCE. Landlord will, at its own cost and
expenses, except as may be provided elsewhere herein, make necessary repairs of
damage to the Leased Space, Common Areas, including restrooms, structural
members of the Building, the parking lot, the landscape areas and equipment used
to provide the services referred to in Section 8, unless any such damage is
caused by acts or omissions of Tenant, is agents, customers, employees, or
invitees, in which event Tenant will bear the cost of such repairs. Tenant will
not injure the Leased Space or the Building, but will maintain the Leased Space
in a clean, attractive condition and in good repair, except as to damage to be
repaired by Landlord as provided above. Upon termination of this Lease, Tenant
will surrender and deliver up the Leased Space to Landlord in the same condition
in which it existed at the commencement of the Lease with all carpets shampooed,
excepting only ordinary wear and tear and damage arising from any cause not
required to be repaired by Tenant. This Section 11 shall not apply in the case
of damage or destruction by fire or other casualty which is covered by insurance
maintained by Landlord on the Building (as to which Section 20 shall apply) or
damage resulting from an eminent domain taking (as to which Section 19 hereof
shall apply).
12. LOSS OR DAMAGE AND INSURANCE. The Landlord shall not be liable for
any damage to property in the Leased Space or on the Premises caused by gas,
smoke, steam, electricity, ice, rain or snow which may leak from any part of the
Building, or from pipes, appliances or plumbing works. Landlord shall not be
liable for any damage or injury to person or property sustained by Tenant or
others due to the happening of any accident on the Premises,
or due to any negligence of any tenant or occupant of the Building, or any other
person, other than Landlord or its agents.
The Tenant agrees to indemnify and hold Landlord harmless from
all claims for personal injuries, death and property damage which occur as a
result of the operation of Tenant's office on the premises, or which result from
any work done on the premises by Tenant or any contractor selected by or for
Tenant.
Tenant shall carry a minimum of $1,000,000.00 liability insurance
policy covering Tenant's business operations on the premises and Landlord shall
be named as an additional insured thereunder. Tenant shall also carry insurance
for the full insurable value of Tenant's trade fixtures, furnishings and all
other items of personal property of Tenant located on or within the Leased
Space.
All such insurance shall be obtained from a company with at least a
Best "A" rating, and a certificate evidencing the issuance of such policy or
policies, together with evidence of the payment of premiums, shall be delivered
to Landlord before the commencement of the term of this lease, or before any
use, occupancy or possession of the Leased Space prior to the commencement of
the term of this Lease, whichever is sooner.
Not less than thirty days prior to the expiration of any such policy
or policies, evidenced of the renewal of such policy or policies, or a new
certificate, together with evidence of the payment of premiums for the renewal
period or new policy, as the case may be, shall be delivered to Landlord. All
such insurance shall contain an agreement by the insurance company that the
policy or policies will not be canceled, or the coverage changed, without thirty
day's prior written notice to Landlord.
The Landlord shall keep the Building insured against loss or damage
by fire with extended coverage endorsement in an amount sufficient to prevent
the Landlord from becoming a co-insurer under the terms of the applicable
policies but, in any event, in an amount not less than 80% of the full insurable
value as determined from time to time. The term "full insurable value" shall
mean actual replacement cost (exclusive of the cost of excavation, foundation,
and footings) without deduction for physical depreciation. Such insurance shall
be issued by financially responsible insurers duly authorized to do business in
this state.
13. USE OF LEASED SPACE. The Lease Space shall be used and occupied
by the Tenant as office space. Tenant shall not use the facilities as a retail
establishment in contravention of applicable zoning requirements of the City of
Spartanburg and/or any restrictive covenants prohibiting such use. The Tenant
shall not use the Leased Space in any manner which will increase the premium
rate for any kind of insurance affecting the Building, and if, because of
anything done or caused to be done, permitted or omitted by the Tenant, the
premium rate for any kind of insurance affecting the Building shall be raised,
then in such event, the amount of the increase in premium which the Landlord
shall be thereby obligated to pay for insurance shall be paid by the Tenant to
the Landlord on demand.
14. ENJOYMENT OF LEASED SPACE. The Tenant, on paying the Rent and
keeping and performing the agreements and covenants herein contained, shall have
the peaceful and quiet enjoyment of the Leased Space for the term hereof
subject, however, to the terms of this Lease.
15. ASSIGNMENT AND SUBLETTING. Lessee shall not, without the prior
written consent of Lessor endorsed hereon, assign this lease, or sublet the
premises, or permit the use of the premises or any part thereof by any party
other than the Lessee. Such consent shall not be unreasonably denied. Consent to
any assignment or sublet shall not destroy this provision, and all later
assignments or subleases shall not destroy this provision, and all later
assignments or subleases shall be made likewise only on the prior written
consent of the Lessor, which consent shall not be unreasonably withheld. No
assignment or sublease by the Lessee shall relieve the Lessee of liability
hereunder.
16. REMOVAL OF PERSONAL PROPERTY. The Tenant may remove all personal
property and those items specified in Paragraph 10(e) which it has placed in the
Leased Space, provided it repairs all damage to the premises caused by such
removal. If the Tenant shall fail to remove all such property from the premises
upon the termination of this Lease for any cause whatsoever, the Landlord may,
at its option, remove the same in any manner the Landlord shall choose and store
it without liability to the Tenant for loss. In such event, the Tenant shall pay
to Landlord on demand any and all expenses incurred in such removal, including
court costs, attorney's fees, and storage charges for the length of time the
same shall be in the Landlord's possession. Alternatively, the Landlord may, at
its option, without notice, and without legal process, sell the property or any
part thereof at a private sale for such price as the Landlord may obtain, and
apply the proceeds of the sale to any amounts due under this Lease and the
expenses incident to removal and sale of said property.
17. PERSONAL PROPERTY RISK. All personal property brought onto the
premises by the Tenant shall be at the risk of the Tenant only, and the Landlord
shall not be liable for theft thereof or damage thereto occasioned by an act of
any tenant, or other occupant of the Building, or any other person.
18. GOVERNMENTAL REGULATIONS. The Tenant shall, at its own expense,
promptly comply with all requirements of any legally constituted public
authority necessitated by reason of the Tenant's occupancy of the Leased Space.
19. CONDEMNATION. If the whole or any part of the Leased Space shall
be taken by any public authority under the power of eminent domain, such that
the contained occupation and use of the premises is unreasonably infringed, then
the terms of this Lease shall cease as to the part taken on the date possession
of that part is surrendered and any unearned rent paid or credited in advance
shall be refunded. The Tenant shall not be entitled to receive any part of any
award or awards that may be made or received by the Landlord. The Tenant may at
its own expense commence independent proceedings against the public authority
exercising the power of eminent domain to prove and establish any other damage
it may have incurred.
20. CASUALTY. If any of the Leased Space or the building is damaged
or destroyed by fire or other casualty insured under the standard fire insurance
policy with approved standard extended coverage endorsement applicable to the
Leased Space and Building, the Landlord shall except as otherwise provided
herein (but only to the extent the holder of the mortgage lien on the building
permits release of insurance proceeds), repair and rebuild such damage which
requires the Tenant temporarily to close its office therein, the rental fee
shall be abated for so long as the Tenant's office is reasonably closed. If such
repairs interfere with the use of the Lease Space, but do not necessitate the
actual closing thereof, the rental fee shall be equitably apportioned, for so
long as such repairs so interfere, in proportion to the extent to which there is
an actual interference with the Tenant's use of the Leased Space.
Notwithstanding the foregoing provisions, in the event the premises
shall be damaged by fire or other insured casualty due to the fault or neglect
of the Tenant, or the Tenant's servants, employees, contractors, agents,
visitors or licensees, then without prejudice to any other rights and remedies
of the Landlord, and provided the damage is repaired by the Landlord, there
shall be no apportionment or abatement of any rent.
If the Building is damaged or destroyed due to an event which is not
covered by insurance and Landlord determines not to repair or rebuild, or if so
covered, the Landlord determines not to repair or to rebuild, and such damage or
destruction renders the Leased Space unfit for use as office space, this Lease
will terminate and neither Landlord nor Tenant will have any further obligations
hereunder. Except to the extent provided for in this paragraph, neither the rent
payable by the Tenant nor any of the Tenant's other obligations under any
provision of this Lease shall be affected by any damage to or destruction of any
part of the Premises by any cause whatsoever, and the Tenant hereby expressly
waives any and all additional rights it might otherwise have under any law or
statue.
Tenant acknowledges that if, as a result of any casualty, whether
insured against or not, whether Landlord rebuilds or not, Tenant is forced to
rent temporary and/or permanent office space in another location, all expenses
of the relocation including but not limited to moving expenses, rental fees, and
security deposits shall be solely the Tenant's responsibility.
21. INSPECTION. The Landlord shall have the right to enter and grant
licenses to others to enter the Lease Space at any reasonable time during all
reasonable hours to examine the same or to make such repairs, additions, or
alterations as may be deemed necessary for the safety, comfort, or preservation
thereof, or of the Building and for the purpose of removing placards, signs,
fixtures, alterations, or additions which do not conform to the terms of this
Lease or to the rules and regulations of the Building and to exhibit the Leased
Space to prospective tenants or purchasers; provided, however Landlord warrants
that such activities will not be carried on at such times and in such manner as
to interfere unnecessarily with Tenant's enjoyment and use of the Leased Space.
22. MORTGAGES SUBORDINATION AND NON-DISTURBANCE. This Lease is and
shall remain subject and subordinate to all present or future mortgages
affecting the premises and the Tenant shall promptly execute and deliver to the
Landlord such documents as the Landlord may request, showing the subordination
of this Lease to such mortgages, and in default of the Tenant's doing so, the
Landlord shall be and hereby is authorized and empowered to
execute such documents in the name and as the act and deed of the Tenant. This
authority is coupled with an interest and is irrevocable.
Further, Landlord shall require from any mortgage holder an agreement
that the rights of Tenant under the Lease shall continue notwithstanding a
default of Landlord. The Landlord represents that any mortgagee has or will
covenant that in the event any mortgagee takes possession of the premises, it
will accept the Tenant as its Tenant for a period equal to the full unlapsed
portion of the term of this Lease; provided, however, the mortgagee may refuse
to accept the Tenant if default has occurred under the terms of this Lease.
23. SIGNS. Intentionally Deleted - see paragraph 37 below.
24. WINDOWS. All window treatments visible from the exterior of the
Building will conform to the specifications established by the Landlord or its
architect. Said specifications will be supplied to the Tenant by the Landlord
upon request.
25. NOTICES. Any written notice required or allowed by this lease to
be given to either the Landlord or the Tenant shall be deemed given upon receipt
by certified or registered mail, postage prepaid, properly addressed to the
parties as follows:
Tenant: ESA Management, Inc.
c/o Extended Stay America, Inc.
000 Xxxx Xxx Xxxx Xxxx., Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
Attn: Development Counsel
Landlord: Xxxx Xxxx, LLC
c/o Johnson Development Associates, Inc.
X.X. Xxx 0000
Xxxxxxxxxxx, XX 00000
26. RULES AND REGULATIONS. The Landlord has made, or from time to
time may make, reasonable rules and regulations for the government of the
Building and Office Complex. These rules and regulations are, or shall be a part
of this lease and binding upon the Tenant to the same extent as if set out
herein and copies thereof shall be delivered to the Tenant.
27. ESTOPPEL CERTIFICATES. Tenant agrees to provide Landlord within
five days of a written request therefor a certificate in form and substance
satisfactory to Landlord stating (i) that this lease is in full force and
effect; (ii) the commencement date and term of this lease; (iii) the date
through which rent has been paid; (iv) that there are not defaults existing
under this Lease, or, if any default exists, specifying such default and the
actions required to remedy such default; and (v) such other matters as Landlord
may reasonably require.
28. OTHER DEFAULTS. In the event (i) the Tenant defaults in the
payment of rent for a period of ten days after the first day of each month, (ii)
the Leased Space shall be vacated (except pursuant to a permitted assignment or
sublease under paragraph 15; (iii) the Tenant shall fail to comply with any
material term of the Lease (other than payment of rent) or any of the rules and
regulations now or hereafter established for the government of the Building;
(iv) the
filing of any proceeding, whether voluntary or involuntary, in bankruptcy
seeking reorganization or relief under the Bankruptcy Code or other
insolvency law or regulations; (v) the Tenant becomes insolvent or makes a
transfer in fraud of creditors; or (vi) the Tenant makes an assignment for the
benefit of creditors; the Landlord may (i) terminate this Lease by giving
written notice to Tenant; (ii) take possession of and enter the Leased Space as
agent of the Tenant and relet them for such rent as is obtainable by reasonable
effort and collect from the Tenant the deficiency plus all actual, reasonable
costs or reletting, including, but not limited to, lease commissions, attorney's
fees and upfitting costs which Landlord deems necessary for a new tenant; and
(iii) pursue any other remedies which may be provided by law. Provided, however,
that should any event or condition described in items (ii) - (iii) of this
Paragraph 28 occur, such event or condition shall not constitute a default
should such event or condition be cured to the satisfaction of Landlord within
thirty (30) days from the occurrence of such event or condition, or a reasonable
period of time in addition thereto if circumstances are such that the default
cannot be reasonably cured within thirty (30) days and the defaulting Tenant
promptly takes action to cure such default and pursues such action with due
diligence.
29. COVENANTS AGAINST LIENS. Tenant 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 Tenant, and hereby expressly agrees to save and hold
harmless the Landlord 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
leased premises, which may be occasioned by any act or omission upon the part of
Tenant, and shall not be thus released within 30 days after notice thereof,
Landlord, in its sole discretion (but nothing herein contained shall be
construed as requiring it so to do), may pay and discharge the lien and release
the leased premises from any lien, and Tenant agrees to pay and reimburse
Landlord upon demand for or on account of any expense which may be incurred by
Landlord in discharging such lien or claim, which sum shall include interest at
the legal rate, from the date such lien is paid by Landlord until the date
Landlord is reimbursed by Tenant; provided, however, that if Tenant 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.
30. ENTRY FOR CARDING, ETC. Landlord may card premises "For Sale" at
any time and "For Rent" one-hundred twenty (120) days before the termination of
this Lease.
31. FORCE MAJEURE. In the event either Landlord or Tenant shall be
delayed, hindered, or prevented from the performance of any requirement
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.
32. ATTORNEY'S FEES. If Landlord shall be made a party to any
litigation commenced by or against Tenant, Tenant shall pay all costs, expenses
and attorney's fees incurred by Landlord in connection with such litigation,
excepting the event that such litigation shall determine that Landlord has
committed a breach of this Lease and shall adjudicate that Landlord is liable
therefore. In the event of any action at law or in equity between Landlord and
Tenant to enforce any of the provisions and/or rights hereunder, the
unsuccessful party to such
litigation covenants and agrees to pay to the successful party all costs and
expenses, including reasonable attorney's fees incurred therein by such
successful party, and if such successful party shall recover judgment in any
such action or proceeding, such costs, expenses and attorney's fees shall be
included in and as part of such judgment.
33. SALE BY LANDLORD. In the event of a sale or conveyance by
Landlord of the Office Complex, the same shall operate to release Landlord from
any future liability upon any of the covenants or conditions, expressed or
implied, herein contained in favor of Tenant, and in such event Tenant agrees to
look solely to the responsibility of the successor in interest of Landlord in
and to this Lease. This lease shall not be affected by any such sales, and
Tenant agrees to attorn to the purchaser or assignee.
34. COMPLIANCE WITH ENVIRONMENTAL REGULATIONS.
a) The Tenant shall not cause or knowingly 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
Tenant's sole expense. Additionally, Tenant shall not cause or knowingly permit
any Hazardous Materials to be disposed of on, under or about the premises
without the express prior written consent of the Landlord, which may be withheld
for any reason and may be revoked at any time.
b) Tenant shall be responsible for all reporting or
notification obligations of an owner, operator or person in control of petroleum
products or Hazardous Materials under any applicable federal, state or local
law, regulation, ordinance or order.
c) At the expiration of the lease, including any extensions,
Tenant shall remove from the premises, at Tenant'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 Tenant
or by Tenant's employees, agents, contractors, licenses or invitees. Tenant
shall close, remove or otherwise render safe any buildings, tanks, containers,
or other facilities related to the Hazardous Activities conducted or permitted
on the premises in the manner required by all applicable laws, regulations,
ordinances or orders. Tenant shall be solely responsible for the transportation,
handling, use or reuse and disposal of such Hazardous Material after their
removal from the premises.
d) Landlord shall not be liable to Tenant or to any other
party for any Hazardous Material Activities conducted or permitted on, under or
about the premises by Tenant or by Tenant's employees, agents, contractors,
licenses or invitees. Tenant shall indemnify, defend with counsel acceptable to
Landlord and hold Landlord harmless from any claims, damages, fines, penalties,
losses, judgments costs and liabilities arising out of or related to any
Hazardous Materials Activities conducted or knowingly permitted on, under or
about the premises by Tenant or by Tenant's employees, agents, contractors,
licensees or invitees, regardless of whether Landlord shall have consented to,
approved of, participated in or had notice of this paragraph shall survive the
expiration or termination of this lease.
35. LANDLORD'S LIEN. INTENTIONALLY DELETED.
36. SECURITY. INTENTIONALLY DELETED.
37. SIGNAGE. Tenant shall not paint or place signs upon the windows or
doors of the Leased Space except with the consent of the Landlord, which consent
shall not be unreasonably withheld or delayed and Tenant shall place no signs
upon the outside walls or the roof of the Building. Landlord shall provide
specifications for conforming signage, which signage shall be installed by
Tenant at its expense. Signage shall be individual 12" in height, satin finish,
250 brass letters with clear seal applied set off the wall with spacers and stud
mounted, center over premises.
38. RIGHTS AND REMEDIES. All rights and remedies of the Landlord herein
shall be cumulative, and none shall be exclusive of any other, or of any rights
and remedies allowed by law, and pursuit of any one of said rights or remedies
does not preclude pursuit of any one or more of the other of said rights or
remedies.
39. SEVERABILITY. If any term of this Lease is declared to be illegal
or unenforceable, the unaffected terms shall remain in full force and effect.
40. MEMORANDUM OF LEASE. This lease shall not be recorded. At the
request of either party, the Landlord and Tenant shall execute a short form or
Memorandum of Lease for recording in the Office of the Register of Mesne
Conveyance for Spartanburg County, South Carolina. The party requesting
recordation shall pay the recording charges.
41. CONTROLLING LAWS. This Lease is entered into in South Carolina and
shall be enforced and construed in accordance with the laws thereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed, all as of the day and year first above written.
WITNESSES: Landlord:
XXXX XXXX, LLC, a Limited Liability Company
------------------------------- By: /s/ A. Xxxxxx Xxxxxxx
---------------------
A. Xxxxxx Xxxxxxx
/s/ X. Xxxxxxxxxx Xxxxxxx Its: Co-Manager
-------------------------
Tenant:
ESA MANAGEMENT, INC.
-------------------------- By: /s/ Xxxxx X. Xxxxx
--------------------
Xxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxx Its: Vice President of Development
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