1
EXHIBIT 10.2
L E A S E
- - - - -
BETWEEN
X. X. Xxxxxx
AND
ALPHABET, INC.
(Greenwood)
DATE: 10/1/93
--------
2
L E A S E
- - - - -
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEMISED PREMISES .......................... 1
ARTICLE II TERM OF LEASE ............................. 1
ARTICLE III RENT ...................................... 2
ARTICLE IV RENT TO BE NET TO LANDLORD ................ 2
ARTICLE V TAXES AND UTILITY EXPENSES ................ 2
ARTICLE VI USE OF PREMISES ........................... 4
ARTICLE VII ALTERATIONS ............................... 5
ARTICLE VIII MAINTENANCE OF DEMISED PREMISES ........... 6
ARTICLE IX REQUIREMENTS OF PUBLIC AUTHORITY .......... 6
ARTICLE X TENANT'S TAXES ............................ 7
ARTICLE XI MECHANIC'S LEAN ........................... 7
ARTICLE XII DESTRUCTION OF DEMISED PREMISES ........... 8
ARTICLE XIII TRADE FIXTURES IN DEMISED PREMISES ........ 9
ARTICLE XIV ACCESS TO DEMISED PREMISES ................10
ARTICLE XV SURRENDER OF DEMISED PREMISES .............11
ARTICLE XVI INDEMNITY AND INSURANCE BY TENANT .........11
ARTICLE XVII ASSIGNMENT AND SUBLETTING .................14
ARTICLE XVIII EMINENT DOMAIN ............................14
ARTICLE XIX DEFAULT BY TENANT .........................15
ARTICLE XX WAIVER OF TENANT'S DEFAULT ................17
ARTICLE XXI DEFAULT BY LANDLORD .......................18
ARTICLE XXII SUBORDINATION .............................18
ARTICLE XXIII ESTOPPEL CERTIFICATE BY TENANT ............19
ARTICLE XXIV OPTION TO PURCHASE ........................19
i
3
ARTICLE XXV TERM "LANDLORD" .......................... 20
ARTICLE XXVI HOLDING OVER ............................. 20
ARTICLE XXVII QUIET ENJOYMENT .......................... 21
ARTICLE XXVIII WAIVER OF SUBROGATION .................... 21
ARTICLE XXIX TITLES OF ARTICLES ....................... 22
ARTICLE XXX NOTICES .................................. 22
ARTICLE XXXI DEFINITION OF TERMS ...................... 22
ARTICLE XXII INVALIDITY OF PARTICULAR PROVISIONS ...... 22
ARTICLE XXXIII PROVISIONS BINDING ....................... 23
ARTICLE XXXIV RELATIONSHIP OF PARTIES .................. 23
ARTICLE XXXV SHORT-FORM LEASE ......................... 23
ARTICLE XXXVI COMPLETE AGREEMENT ....................... 23
ii
4
L E A S E
- - - - -
THIS LEASE ("Lease", made at , 0000 X. Xxxxxx Xx., Xxxxxx, Xxxx, this
1st day of October, 1993, by and between X.X. Xxxxxx, having an office at 0000
Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxx 00000, hereinafter referred to as "Landlord",
and Alphabet, Inc., an Ohio corporation, having an office at 0000 X. Xxxxxx
Xxxxxx, Xxxxxx, Xxxx 00000, Attention: President, hereinafter referred to as
"Tenant".
W I T N E S S E T H:
- - - - - - - - - -
ARTICLE I
---------
DEMISED PREMISES
----------------
Landlord, for and in consideration of the payment of the rent and the
performance by Tenant of the covenants and agreements as hereinafter set forth,
does hereby demise, let and lease unto Tenant and Tenant does hereby accept from
Landlord the property located at 000 Xxxxxxxxxx Xxxxx, xx xxx Xxxx xx Xxxxxxxxx,
Xxxxxx of Greenwood, State of South Carolina and outlined in "red" on the site
plan marked EXHIBIT "A" attached hereto and made a part hereof and described on
EXHIBIT "B" attached hereto and made a part hereof together with the buildings
and improvements constructed thereon (collectively, the "Demised Premises") .
The building (the "Building") which is part of the Demised Premises contains
approximately Fifty-Six Thousand (56,006) square feet of space.
ARTICLE II
----------
TERM OF LEASE
-------------
To have and to hold the Demised Premises unto Tenant for a term of
eleven (11) years commencing on October 1, 1993 ("Commencement Date"), and
ending on September 30, 2004. The term "Lease Year" as used herein shall mean
each twelve (12) month period beginning on the Commencement Date and each
anniversary thereof.
1
5
ARTICLE III
-----------
RENT
----
Tenant covenants and agrees to pay Landlord rent for the Demised
Premises, without deduction or set-off and without demand from the Commencement
Date through the one hundred thirty second (132nd) month of the term of this
Lease, the annual amount of One Hundred Fifty Seven Thousand Two Hundred Dollars
($157,200) payable in equal monthly installments of Thirteen Thousand One
Hundred Dollars ($13,100) each on the first (1st) day of every month in advance.
ARTICLE IV
----------
RENT TO BE NET TO LANDLORD
--------------------------
It is the intention of the parties that the rent payable hereunder shall
be net to Landlord so that this Lease shall yield to Landlord the net annual
rent specified herein during the term of this Lease, and that all costs,
expenses and obligations of every kind and nature whatsoever relating to the
Demised Premises shall be paid by Tenant.
ARTICLE V
---------
TAXES AND UTILITY EXPENSES
--------------------------
1. Tenant shall, during the term of this Lease, as additional rent, pay
and discharge punctually, as and when the same shall become due and payable, all
taxes, special and general assessments, water, rents, rates, and charges, sewer
rents and other governmental impositions and charges of every kind and nature
whatsoever, extraordinary as well as ordinary ("Taxes") , and each and every
installment thereof which shall or may during the term of this Lease by charged,
levied, laid, assessed, imposed, become due and payable, or liens upon or for or
with respect to the Demised Premises or any part thereof, or any buildings,
appurtenances or equipment owned by Tenant thereon or therein or any part
thereof, together with all interest and penalties thereon, under or by virtue of
all present or future laws, ordinances, requirements, orders, directives, rules
or regulations of the Federal, State, County, Town and City Governments and of
all other governmental authorities whatsoever and all sewer rents and charges
for water, steam, heat, gas, hot water, electricity, light and power, and other
service or services, furnished to the Demised Premises or the occupants thereof
during the term of this Lease ("Utility Expenses").
2
6
2. In the event the Demised Premises are part of a larger tax parcel and
are not a separate tax parcel, Tenant shall pay to Landlord, as additional rent,
its proportionate share of all real estate taxes and assessments which become
due and payable during the term of this Lease prorated on a daily basis for any
partial year. Such payment shall be made by Tenant delivering to Landlord ,
contemporaneously with the monthly installments of rent payable by Tenant, an
amount equal to one-twelfth (1/12th) of Tenant's proportionate share of the real
estate taxes and assessments as shown on the most recent tax duplicate. If, upon
the determination of the amount of the real estate taxes and assessments, the
total amount of funds deposited by Tenant are not sufficient to pay Tenant's
proportionate share of the real estate taxes and assessments then due, then
Tenant agrees to remit to Landlord the shortage promptly upon receipt of a
statement therefor from Landlord. In the event Tenant has deposited funds from
Landlord for the payment of the real estate taxes and assessments for such year
in excess of the amount required, then the overage shall be credited to the next
month's deposit to be made by Tenant hereunder. Tenant's proportionate share
shall be determined on an equitable basis taking into consideration, without
limitation, the square footage of the Demised Premises, including the Building,
and the square footage of the total tax parcel and all buildings thereon.
3. Tenant shall be deemed to have complied with the covenants of this
Article if payment of such Taxes shall have been made either within any period
allowed by law or by the governmental authority imposing the same during which
payment is permitted without penalty or interest or before the same shall become
a lien upon the Demised Premises, and Tenant shall produce and exhibit to
Landlord satisfactory evidence of such payment, if Landlord shall demand the
same in writing.
4. Tenant or its designees shall have the right to contest or review all
such Taxes by legal proceedings, or in such other manner as it may deem suitable
(which, if instituted, Tenant or its designees shall conduct promptly as its own
cost and expense, and free of any expense to Landlord, and, if necessary, in the
name of and with the cooperation of Landlord and Landlord shall execute all
documents necessary to accomplish the foregoing) . Notwithstanding the
foregoing, Tenant shall promptly pay all such Taxes if at any time the Demised
Premises or any part thereof shall then be immediately subject to forfeiture, or
if Landlord shall be subject to any criminal liability, arising out of the
nonpayment thereof.
5. The legal proceedings referred to in the preceding paragraph 4 shall
include appropriate certiorari proceedings and appeals from orders therein and
appeals from any judgments, decrees or order. In the event of any reduction,
cancellation or discharge, Tenant shall pay the amount finally levied or
assessed against the Demised Premises or adjudicated to be due and payable on
any such contested Taxes.
3
7
6. Landlord covenants and agrees that if there shall be any refunds or
rebates on account of the Taxes paid by Tenant under the provisions of this
Lease, such refund or rebate shall belong to Tenant. Any such refunds received
by Landlord shall be deemed trust funds and as such are to be received by
Landlord in trust and paid to Tenant forthwith. Landlord will, upon the request
of Tenant, sign any receipts which may be necessary to secure the payment of any
such refund or rebate, and will pay over to Tenant such refund or rebate as
received by Landlord. Landlord further covenants and agrees on request of Tenant
at any time, and from time to time, but without cost Landlord, to make
application individually (if legally required) for separate tax assessments for
such portions of the Demised Premises as Tenant shall at any time, and from time
to time, designate. Landlord hereby agrees upon request of Tenant to execute
such instruments and to give Tenant such assistance in connection with such
applications as shall be required by Tenant.
7. Nothing herein or in this Lease otherwise contained shall require or
be construed to require Tenant to pay any inheritance, estate, succession,
transfer, gift, franchise, income or profit taxes, that are or may be imposed
upon Landlord, its successors or assigns.
ARTICLE VI
----------
USE OF PREMISES
---------------
1. Tenant covenants and agrees that the Demised Premises during the term
hereof shall be occupied and used for manufacturing, assembly and related
operations and for no other purpose whatsoever without the written consent of
Landlord.
2. Tenant covenants and agrees to use, maintain and occupy the Demised
Premises in a careful, safe and proper manner and will not permit waste therein,
nor shall Tenant vacate or abandon the Demised Premises during the term of this
Lease, and shall not permit the Demised Premises to remain unoccupied, except
during any period of reconstruction or repairs or during any period required to
make alternations as provided by the terms of this Lease. Tenant will keep the
Demised Premises and appurtenances and the adjoining areas and sidewalks in a
clean, safe and healthy condition and further agrees to clean the snow and ice
from driveways and parking lots on the Demised Premises and from the sidewalks
contiguous to the Demised Premises. Tenant will not permit the Demised Premises
to be used in any way which will injure the reputation of the same.
3. Tenant covenants and agrees not to use or occupy or suffer or permit
the Demised Premises or any part thereof to be used or occupied for any purpose
contrary to law or to the rules or regulations of any public authority. If
Tenant shall install any electrical equipment that overloads the lines in the
Demised Premises,
4
8
Tenant shall, at its own expense, make whatever changes are necessary to comply
with the requirements of the insurance underwriters and governmental authorities
having jurisdiction thereof.
4. Tenant agrees to indemnify Landlord for all costs and expenses
including attorneys' fees, due, in whole or in part, to Tenant's activities
involving the use, shipment, storage, or discharge of hazardous wastes,
hazardous substances, solid wastes, wastewater, or process water, that may
result in any requirements, liabilities or claims to remedy or clean-up such
wastes, whether based upon a statue, regulation, order of a governmental agency,
or a private claim. These requirements, liabilities or claims include, but are
not limited to, those arising out of the Clean Air Act, the Clean Water Act, the
Resource Conservation and Recovery Act, the Comprehensive Environmental
Response, Compensation and Liability Act, the Toxic Substances Control Act, the
Safe Drinking Water Act, and the state counterparts of such statutes. This
indemnification applies to, but is not limited to, claims or liabilities
regarding air pollution, water pollution, land pollution, groundwater pollution,
solid and hazardous waster management, and toxic or hazardous substances
control.
ARTICLE VII
-----------
ALTERATIONS
-----------
1. Tenant covenants and agrees not to make or permit to be made any
alterations, improvements and additions to the Demised Premises or any part
thereof except by and with the written consent of Landlord first had. If the
reasonably estimated cost of such alterations exceeds Ten Thousand Dollars
($10,000.00), Tenant shall have prepared a set of plans and specifications which
shall be submitted to Landlord for approval, and Landlord agrees that approval
of said alterations as shown on said plans and specifications shall not be
unreasonably withheld.
2. All alterations, improvements and additions to the Demised Premises
permitted to be made by Tenant shall be made in accordance with all applicable
laws and, except for removable trade fixtures, shall at once when made or
installed be deemed to have attached to the freehold and to have become the
property of Landlord and shall remain for the benefit of Landlord at the end of
the term or other expiration of this Lease in as good order and condition as
they were when installed, reasonable wear and tear excepted; provided, however,
if prior to the termination of this Lease, or within fifteen (15) days
thereafter Landlord so directs by written notice to Tenant, Tenant shall
promptly remove the additions, improvements, fixtures and installations which
were placed on the Demised Premises by Tenant and which are designated in said
notice and repair any damage occasioned by such removal and in default thereof
Landlord may effect said removals and repairs at Tenant's expense.
5
9
3. In the event of the making of such alterations, improvements and
additions as herein provided Tenant further agrees to indemnify and save
harmless Landlord from all costs, expenses, liens, claims or damages arising out
of, or resulting from the undertaking or making of said alterations, additions
or improvements.
ARTICLE VIII
------------
MAINTENANCE OF DEMISED PREMISES
-------------------------------
1. Landlord shall not be liable for any repairs or replacements of any
kind or nature whatsoever with respect to the Demised premises or to any
appurtenances thereof, such non-liability to extend, but not by way of
limitation, to the structural portion of the exterior or interior of any
building comprised in the Demised Premises, the roofs thereon, the fixtures,
pipes and appliances thereof, the parking and landscaped area surrounding said
buildings and the driveways and all utility lines serving the Demised Premises.
2. Tenant covenants and agrees to keep and maintain the Demised Premises
in good order, condition and repair, and to promptly make all repairs or
replacements becoming necessary during the term of this Lease including, but
without limitation, repairs or replacements of roof, structural portions of any
buildings on the Demised Premises, windows, doors, glass (which shall be
replaced with glass of the same size and quality) , electrical, plumbing and
sewage lines and fixtures within the Demised Premises, and all heating, air
conditioning and ventilating equipment and ducts and vents attached thereto,
including any of such equipment which may, with Landlord's consent, be mounted
on the roof of the Demised Premises, interior walls, floor covering and ceilings
and all elevators, docks, conveyors, fire extinguishers and building appliances
of each kind, driveways, sidewalks, parking and landscaped areas.
3. On default of Tenant in making any repairs or replacements required
to be made by Tenant hereunder or in maintaining the Demised Premises, Landlord
may, but shall not be required to make such repairs or replacements or to
maintain the Demised Premises for Tenant's account, and the expense thereof
shall constitute and be collectible as additional rent, payable by Tenant on
demand, or, at Landlord's election, together with the next installment of rent
due hereunder.
ARTICLE IX
----------
REQUIREMENTS OF PUBLIC AUTHORITY
--------------------------------
1. During the term of this Lease, Tenant shall, at its own cost and
expense, promptly observe and comply with all present and future laws,
ordinances, requirements, orders, directives, rules and regulations of the
Federal, State, County, Town, Village and City
6
10
Governments and of all other governmental authorities affecting the Demised
Premises or appurtenances thereto or any part thereof whether the same are in
force at the commencement of the term of this Lease or may in the future be
passed, enacted or directed, and Tenant shall pay all costs, expenses,
liabilities, losses, damages, fines, penalties, claims and demands that may in
any manner arise out of or be imposed because of the failure of Tenant to comply
with the covenants of this Article IX.
2. Tenant shall have the right to contest by appropriate legal
proceedings diligently conducted in good faith, in the name of the Tenant, or
Landlord (if legally required), or both (if legally required) , without cost or
expense to Landlord, the validity or application of any law, ordinance, rule,
regulation or requirement of the nature referred to in paragraph 1 of this
Article and, if by the terms of any such law, ordinance, order, rule, regulation
or requirement, compliance therewith may legally be delayed pending the
prosecution of any such proceeding, Tenant may delay compliance therewith until
the final determination of such proceedings.
3. Landlord agrees to execute and deliver any appropriate papers or
other instruments which may be necessary or proper to permit Tenant so to
contest the validity or application of any such law, ordinance, order, rule,
regulation or requirement and to fully cooperate with Tenant in such contest.
Article X
---------
TENANT'S TAXES
--------------
Tenant covenants and agrees to pay promptly when due all taxes assessed
against Tenant's fixtures, furnishings, equipment and stock- in-trade placed in
or on the Demised Premises during the term of this Lease.
ARTICLE XI
----------
MECHANICS' LIEN
---------------
1. If, because of any act or omission of Tenant, any mechanic's lien or
other lien, charge or order for the payment of money shall be filed against any
portion of the Demised Premises, Tenant shall, at its own cost and expense,
cause the same to be discharged of record or bonded within ninety (90) days
after written notice from Landlord to Tenant of the filing thereof unless Tenant
shall contest the validity of such lien by appropriate legal proceedings
diligently conducted in good faith and without expense to Landlord; and Tenant
shall indemnify and save harmless Landlord against and from all cost,
liabilities, suits, penalties, claims and demands on account thereof.
7
11
2. If Tenant shall fail to cause such liens to be discharged of record
or bonded within the aforesaid ninety (90) day period or satisfy such liens
within sixty (60) days after any judgment in favor of such lien holders from
which no further appeal might be taken, then Landlord shall have the right to
cause the same to be discharged. All amounts paid by Landlord to cause such
liens to be discharged shall constitute additional base rent payable by Tenant
to Landlord.
ARTICLE XII
-----------
DESTRUCTION OF DEMISED PREMISES
-------------------------------
1. In the event of damage to or destruction of the Demised Premises from
any cause whatsoever, Tenant shall immediately proceed with the reconstruction,
repair or rehabilitation of the damaged portion of the Demised Premises and
shall complete the repair, rehabilitation or reconstruction thereof so that the
Demised Premises is an architecturally whole unit, the same as nearly as
possible to its condition immediately prior to such damage and destruction. Such
repair, rehabilitation or reconstruction shall be made in accordance with the
terms hereof within a reasonable time thereafter, it being specifically
understood that there shall be no abatement of rent during any period of time
while the Demised Premises or a portion thereof are not usable by Tenant.
2. If during the last year of the term of this Lease, sixty percent
(60%) or more of the Demised Premises, exclusive of excavations and foundations,
are destroyed by fire or other casualty insured against, Tenant shall have the
right and option to terminate this Lease in lieu of rebuilding;
provided,however, that Tenant exercises this option within sixty (60) days after
the occurrence of the fire or other casualty insured against; in such an event
Tenant shall assign to Landlord all its rights to the proceeds from any and all
insurance covering the Demised Premises and relating to such fire or other
casualty insured against; and in addition thereto shall pay to Landlord any
deficiency by reason of Tenant's failure to insure the Demised Premises as
required by Article XVI herein. During the period in which Tenant shall have the
option to terminate this Lease in lieu of rebuilding as above provided, Tenant
shall carry all insurance required to be carried under the terms of Article XVI
with carriers approved by Landlord, which approval shall not be unreasonably
withheld. Tenant will give notice to the Landlord the amount, carrier and type
of insurance, and in the event that Landlord determines that the amount is
insufficient, Landlord shall so notify Tenant within ninety (90) days after
notice has been received as aforesaid; in such event this dispute shall be
promptly arbitrated by a member of the American Institute of Real Estate
Appraisers (MAI) appointed by the then acting Secretary of the Greenwood Real
Estate Board of Realtors of similar entity.
8
12
3. Landlord at any time during the term of this Lease shall have the
right at Landlord's option to carry for its own account and at its expense
"Replacement Insurance," "Depreciation Insurance," or "Additional Coverage
Insurance" over and above the fire and extended coverage insurance required to
be carried by Tenant hereunder, provided that Landlord shall first advise Tenant
of the same, and the proceeds from any such insurance carried by Landlord shall
at all times be and become the property of Landlord. Tenant shall fully
cooperate with Landlord so that landlord will be able to carry such "Replacement
Insurance," "Depreciation Insurance" or "Additional Coverage Insurance."
ARTICLE XIII
------------
TRADE FIXTURES IN DEMAND PREMISES
---------------------------------
1. Removable trade fixtures shall not be deemed to become a part of the
Demised Premises unless so affixed to the realty as to damage the same in
removal. Tenant may, at the expiration of the term hereof, remove all of its
trade fixtures which can be moved without costly injury to, or undue defacement
of the Demised Premises, provided all rents stipulated herein are paid in full
and Tenant is not otherwise in default hereunder, and provided further that any
and all damage to the Demised Premises resulting from or caused by such removal,
shall be promptly repaired at Tenant's expense.
2. It is specifically understood and agreed that the following items now
located in and about the Demised Premises and any replacements thereof to be
made during the term of this Lease are a part of the Demised Premises and are
not the trade fixtures or equipment of the Tenant:
(a) All light and electrical fixtures and wiring of every nature
whatsoever, all conduit, light switches, fuse boxes, electrical receptacles
of every nature, all bus ducts and all fittings and plug-in devices used in
connection therewith.
(b) All heating and ventilating and air conditioning
equipment of every nature.
(c) All plumbing and sewer fixtures whether regular or special.
(d) All fences and gates of every nature whatsoever.
(e) All partitions whether temporary or permanent.
9
13
3. All personal property belonging to Tenant or to any other person,
located in or about any building of the Demised Premises , shall be there at the
sole risk of Tenant or such other person, and neither Landlord nor Landlord's
agents shall be liable for the theft or misappropriation thereof, nor for any
damage or injury thereto, or for damage or injury to Tenant or said other
persons or to other property, caused by water, snow, frost, steam, heat or cold,
dampness, falling plaster, sewers or sewage, gas, odors, noise, the bursting or
leaking of pipes, plumbing, electrical wiring and equipment and fixtures of all
kinds, or for any act, neglect or omission of any occupant of any building on
the Demised Premises or of any other person or caused in any other manner
whatsoever. Tenant agrees to protect, indemnify and save harmless Landlord from
all losses, costs or damages sustained by reason of any act or other occurrence
causing injury to any person or property whomsoever or whatsoever due to the use
of the Demised Premises or any part thereof by Tenant.
ARTICLE XIV
-----------
ACCESS TO DEMISED PREMISES
--------------------------
1. Tenant covenants and agrees to permit Landlord and
Landlord's agents to inspect and examine the Demised Premises at any reasonable
time to permit Landlord to make such repairs, decorations, alterations,
improvements or additions in and to the Demised Premises, that Landlord may deem
desirable or necessary for the preservation of the Demised Premises or which
Tenant has failed so to do, and for other reasonable purpose without the same
being construed as an eviction of Tenant in whole or in part, and the rent shall
in no wise xxxxx while such decorations, repairs, alterations, improvements or
additions are being made by reason of loss or interruption of the business of
Tenant because of the prosecution of such work.
2. Landlord and its agents shall also have the right to enter upon the
Demised Premises for a period commencing three hundred sixty (360) days prior to
the termination of this Lease for the purpose of exhibiting the same to
prospective tenants or purchasers. During said period Landlord may place signs
in our upon the Demised Premises to indicate the same are for rent or sale,
which signs shall not be removed, obliterated or hidden by Tenant.
3. If, during the last month of the term of this Lease, Tenant shall
have removed all or substantially all of Tenant's property therefrom, Landlord
may immediately enter and alter, renovate or redecorate the Demised Premises
without elimination or abatement of rent or other compensation and such action
shall have no effect on this Lease. Nothing herein contained, however, shall be
deemed or construed to impose upon Landlord any obligation, responsibility or
liability whatsoever for the care, supervision or repair of the Demised Premises
except in this Lease otherwise provided.
10
14
ARTICLE XV
----------
SURRENDER OF DEMISED PREMISES
-----------------------------
1. Tenant covenants and agrees to deliver up and surrender to Landlord
possession of the Demised Premises upon expiration of this Lease, or its earlier
termination as herein provided, broom clean and in as good condition and repair
as the same shall be at the commencement of the term of this Lease, or may have
been put by Landlord during the continuance thereof, ordinary wear and tear and
damage by fire or the elements not caused by the negligence or act of Tenant or
its agents, employees or invitees excepted, it being understood and agreed that
acceptance of delivery of the Demised Premises shall be deemed conclusive
evidence that the Demised Premises were in good order and condition at the
commencement of the term of this Lease.
2. Prior to Tenant's vacating or delivery up the Demised Premises to
Landlord, Tenant shall, at Tenant's cost and expense, remove all property of
Tenant and all alterations, additions and improvements as to which Landlord
shall have made the election provided for in Article VII hereof, and shall
repair any damage to the Demised Premises caused by such removal and restore the
Demised Premises to the condition in which they were prior to the installation
of the articles so removed. Any property not so removed and as to which Landlord
shall have not made said election, shall be deemed to have been abandoned by
Tenant and may be retained or disposed of by Landlord, as Landlord shall desire.
Tenant's obligation to observe or perform this covenant shall survive the
expiration of termination of the term of this Lease.
ARTICLE XVI
-----------
INDEMNITY AND INSURANCE BY TENANT
---------------------------------
1. Tenant covenants and agrees it will protect and save harmless and
keep Landlord forever harmless and indemnified against and from any penalty,
damages, charges or costs imposed or resulting from any violation of any law,
order of governmental agency or ordinance, whether occasioned by the neglect of
Tenant or those holding under Tenant, and that Tenant will at all times protect,
indemnify and save and keep harmless Landlord against and from all claims,
losses, costs, damages or expenses arising out of or from any accident or other
occurrence on or about the Demised Premises causing injury to any person or
property whomsoever or whatsoever, and will protect, indemnify, save and keep
harmless Landlord against and from any and all claims and against and from any
and all losses, costs, damages or expenses arising out of any failure of Tenant
in any respect to comply with or perform all the requirements and provisions of
this Lease.
11
15
2. Tenant agrees that, at its own cost and expense, it will procure and
continue in force, in the names of Landlord, Landlord's mortgagee(s) and Tenant
as their interests may appear, general liability insurance coverage against
injuries to persons occurring in, upon or about the Demised Premises, including
all damage from signs, glass, awnings, fixtures or other appurtenances now or
hereafter erected on the Demised Premises during the term of this Lease, such
insurance at all times to be in an amount of not less that One Million Dollars
($1,000,000) each occurrence and Two Million Dollars ($2,000,000) general
aggregate. Such insurance shall be written with a company or companies
authorized to engage in the business of general liability insurance in the State
of South Carolina, and there shall be delivered to Landlord customary insurance
certification evidencing such paid-up insurance and copies of the policies. Such
insurance shall further provide that the same may not be canceled, terminated or
modified unless the insurer gives Landlord and Landlord's mortgagee(s) at least
thirty (30) days's prior written notice thereof.
3. Tenant shall carry and pay for, for the account of Landlord
during the entire term of this Lease, the following types of
insurance:
(a) Insurance in an amount not less than eighty percent (80%) of
the replacement value of the buildings and other improvements now or at any
time hereafter situated on the Demised Premises (with carriers approved by
Landlord, which approval shall not be unreasonably withheld) , against loss
or damage by fire, lightning, such perils as are now or hereafter may be
comprehended within the term "extended coverage" and -vandalism and
malicious mischief, or if any building is equipped with automatic
sprinklers and plumbing eligible for "Superior Fdrm" of policy as issued by
the Sprinklered Risk Associations, against loss or damage by fire and such
other perils as are included in such "Superior Form", together with a "Riot
and Vandalism" endorsement and together with the "Agreed Amount Clause" and
"Replacement Cost Endorsement," if the same are then available. Said
replacement value shall be determined at the instance of Landlord not more
frequently than at annual intervals by an architect, contractor, appraiser,
appraisal company, one of the insurers selected by Landlord, or by
agreement of the parties; provided the method is approved by the insurers,
and shall exclude such values as are not insured by the standard fire
insurance policy, viz, excavation, underground foundations and piping and
architects' fees, and the amount of the insurance shall be adjusted
accordingly.
(b) Rent insurance (unless the risks covered by such insurance
is included in Tenant's business interruption insurance satisfactory to
Landlord) , to the extent obtainable from insurers of recognized
responsibility, against loss or damage resulting from the same risks as are
covered by the insurance mentioned in paragraph 3(a) of this Article in an
amount equal to one (1)
12
16
year's requirement of the basic rent, the estimated amounts payable by
Tenant for Taxes and Utility Expenses as provided in Article V, and
insurance premiums as provided in this paragraph and paragraph 2 of this
Article.
(c) All such policies of insurance shall be in the name of Landlord and
Tenant with a loss payable clause in favor of any holder of any mortgage on
the Demised Premises. It shall be the duty of Tenant to insure in its own
name all improvements and betterments as shall be installed at Tenant's
expense which remain the property of Tenant.
(d) All insurance proceeds shall be paid to and held by Landlord, as
Trustee, and shall be disbursed by such Trustee to Tenant from time to time
as work progresses for Tenant's use in rehabilitating or reconstructing or
repairing any destroyed portion of the Demised Premises, provided Tenant is
not in default in the payment of rent and there exists no other uncured
default or defaults on the part of Tenant; that plans, specifications,
names of contractors, copies of contracts, necessary permits and
indemnifications against liens, costs, damages and expenses of all kinds
are submitted to and approved by both Landlord and such Trustee, which
approval shall not be unreasonably withheld, and it is thereupon evident
that the destroyed portion of the Demised Premises can be rehabilitated or
reconstructed or repaired for the amount of the insurance moneys collected
or to be collected from the insurance companies insuring against the
casualty involved in such a manner as to place the Demised Premises in at
least as good condition as the property was before the occurrence of the
casualty. In the event that such insurance moneys are inadequate for the
purposes aforesaid, then Tenant shall deposit or shall cause to be
deposited with the Trustee sufficient funds to make up the difference
between the insurance moneys available or to be available and the actual
cost of rehabilitation, repair or reconstruction, plus any amount required
to cure any default in the Lease. Landlord and Tenant shall cooperate fully
in order that there shall be no unreasonable delays in commencement of any
of such work. In the event that Tenant is in default in the payment of rent
or in the performance or observance of any other terms, conditions or
covenants contained in this Lease, Landlord, at its option, may immediately
apply any such insurance moneys to correct such defaults and Tenant hereby
waives any rights that it may have to said insurance moneys for the
purposes hereinabove set forth. If the rehabilitation, reconstruction or
repair of the Demised Premises is completed in accordance with the terms
hereof for an amount of money less than the insurance moneys available and
provided that Tenant is not in default hereunder, Tenant shall have the
right to receive the excess of any such insurance moneys. Any fees charged
by the said Trustee pursuant to the provisions of this paragraph 3 of this
Article shall be borne solely by Tenant.
13
17
4. All insurance certifications referred to in this Section XVI are to
be provided by Tenant, and shall be for a period of not less than one (1) year,
it being understood and agreed that thirty (30) days prior to the expiration of
any policy of insurance Tenant will deliver to Landlord a renewal or new policy
to take the place of the policy expiring, with the further agreement that,
should Tenant fail to furnish policies as is provided in this Lease, and at the
times herein provided, Landlord may obtain such insurance and the premiums on
such insurance shall be deemed additional rent to be paid by Tenant unto
Landlord upon demand.
ARTICLE XVII
------------
ASSIGNMENT AND SUBLETTING
-------------------------
1. Tenant covenants and agrees not to assign this Lease or to sublet the
whole or any part of the Demised Premises, or to permit any other persons to
occupy same without the written consent of Landlord first had, reference
elsewhere herein to assignees notwithstanding. No consent of Landlord to a
particular assignment or subletting shall be deemed a consent to further
assignments or subletting. Any assignment or subletting, even with the consent
of Landlord, shall not relieve Tenant from liability for payment of rent or
other sums herein provided or from the obligation to keep and be bound by the
terms, conditions and covenants of this Lease. The acceptance of rent from any
other person shall not be deemed to be a waiver of any of the provisions of this
Lease and shall not constitute consent to the assignment of this Lease or
subletting of the Demised Premises.
2. If Tenant is a corporation, then any transfer of this Lease from
Tenant by merger, consolidation or liquidation, or any change in ownership or
power to vote of a majority of Tenant's outstanding voting stock shall
constitute an assignment for the purpose of this Lease and shall require the
written consent of Landlord first having been obtained.
3. An assignment for the benefit of creditor or by operation of law
shall not be effective to transfer any rights to any assignee, without the
written consent of Landlord first having been obtained.
ARTICLE XVIII
-------------
EMINENT DOMAIN
--------------
1. In the event the Demised Premises or any part thereof shall be taken
or condemned either permanently or temporarily for any public or quasi public
use or purpose by any competent authority in appropriation proceedings or by any
right of eminent domain, the entire compensation award therefor, both leasehold
and reversion, shall belong to Landlord without any deduction therefrom for any
14
18
present or future estate of Tenant and Tenant hereby assigns to Landlord all its
right, title and interest to any such award. Tenant shall, however, be entitled
to claim, prove and receive in such condemnation proceedings such award as may
be allowed for fixtures and other equipment installed by it, but only if such
award shall be in addition to the award for the land and the building (or
portion thereof) containing the Demised Premises.
2. If the entire Demised Premises shall be taken as aforesaid, then this
Lease shall terminate and shall become null and void from the time possession
thereof is required for public use and from that date the parties hereto shall
be release from further obligation hereunder; but in the event a portion only of
the Demised Premises shall be so taken or condemned, then Landlord, at its own
expense, shall repair or restore, to the extent reasonably possible, the portion
not affected by the taking and thereafter the rental to be paid by Tenant shall
be equitably and proportionately adjusted.
3. Any such appropriation or condemnation proceedings shall not
operate as or be deemed an eviction of Tenant or a breach of Landlord's
covenant for quiet enjoyment.
ARTICLE XIX
-----------
DEFAULT BY TENANT
-----------------
1. All rights and remedies of Landlord herein enumerated shall be
cumulative, and none shall exclude any other right or remedies allowed by law.
Tenant covenants and agrees that if:
(a) Tenant shall fail, neglect or refuse to pay any installment
of rent at the time and in the amount as herein provided, or to pay any
other monies agreed by it to be paid promptly when and as the same shall
become due and payable under the terms hereof, and if any such default
shall continue for a period of more than fifteen (15) days; or
(b) Any voluntary or involuntary petition or similar pleading
under any section or sections of any bankruptcy act shall be filed by or
against Tenant, or any voluntary or involuntary proceeding in any court or
tribunal shall be instituted to declare Tenant insolvent or unable to pay
Tenant's debts, and the same shall not be dismissed or discharged within
thirty (30) days thereafter; or
(c) Tenant makes any assignments of its property for the benefit
of creditors or should the Demised Premises be taken under a levy of
execution or attachment in any action against Tenant and such levy,
attachment or assignment is not dismissed or discharged within thirty (30)
days; or
15
19
(d) Tenant shall abandon or vacate the Demised Premises or shall
fail, neglect or refuse to keep and perform any of the other covenants,
conditions, stipulations or agreements herein contained, covenanted and
agreed to be kept and performed by it, and in the event any such default
shall continue for a period of more than fifteen (15) days after notice
thereof given in writing to Tenant by Landlord; provided, however, that if
the cause for giving such notice involves the making of repairs or other
matters reasonably requiring a longer period of time than the period of
such notice, Tenant shall be deemed to have complied with such notice so
long as it has commenced to comply with said notice or has taken and
continues to diligently pursue all proper steps or proceeding under the
circumstances to prevent the seizure, destruction, alteration or other
interference with the Demised Premises by reason of non-compliance with the
requirements of any law or ordinance or with the rules, regulations, or
direction of any governmental authority as the case may be;
then Tenant does hereby authorize and fully empower Landlord or Landlord's agent
to cancel or annul this Lease at once and to re-enter and take possession of the
Demised Premises immediately, and by force if necessary, without any previous
notice of intention to re-enter , and to remove all persons and their property
therefrom, and to use such force and assists in effecting and perfecting such
removal of Tenant as may be necessary and advisable to recover at once first and
exclusive possession of the Demised Premises whether in possession of Tenant or
of third persons or otherwise, without being deemed guilty of any manner of
trespass and without prejudice to any remedies which might otherwise be used by
Landlord, in which event this Lease shall terminate and Tenant shall indemnify
Landlord against all loss of rent which LAndlord may incur by reason of such
termination during the residue of the term therein specified.
2. Any and all property which may be removed from the Demised Premises
by Landlord in accordance with the terms of this Lease may be handled, removed,
stored or otherwise disposed of by Landlord at the risk and expense of Tenant;
Landlord in no event shall be responsible for the preservation or safekeeping
thereof, except for its own negligence. Tenant shall pay to Landlord, upon
demand in writing, any and all expenses incurred with such removal, and all
storage charges against such property so long as the same shall be in Landlord's
possession or under the Landlord's control. If any property shall remain in the
Demised Premises or in the possession of Landlord and shall not be retaken by
Tenant within a period of thirty (30) days from and after the time when the
Demised Premises are either abandoned by Tenant or repossessed by Landlord under
the terms of this Lease, said property shall conclusively be deemed to have been
forever abandoned by Tenant, and Landlord, after giving Tenant fifteen (15)
days' written notice (all other notices required by statute or otherwise being
hereby expressly waived) , shall have the right to sell
16
20
any and all of said property at public or private sale and to apply the proceeds
of said sale first to the payment of all costs and expenses of conducting the
sale or caring for or storing said property, secondly toward the payment of any
indebtedness which may be or may become due from Tenant to Landlord, and thirdly
to pay to Tenant on demand in writing, any surplus remaining after all
indebtedness of Tenant to Landlord has been fully paid.
3. Landlord may, however, at its option, at any time after such default
or violation of condition or covenant, re-enter and take possession of the
Demised Premises without such re-entry working as a forfeiture of the rents to
be paid and the covenants, agreements and conditions to be kept and performed by
Tenant for the full term of this Lease. In such event, Landlord shall have the
right, but not the obligation, to divide or subdivide the Demised Premises in
any manner Landlord may determine and to lease or let the same or portions
thereof for such periods of time and at such rentals and for such use and upon
such covenants and conditions as Landlord may elect, applying the net rentals
from such letting first to the payment of Landlord's expenses (including
attorney's fees) incurred in dispossessing Tenant and reletting the Demised
Premises and the cost and expense of making such improvements in the Demised
Premises as may be necessary in order to enable Landlord to relet the same, and
to the payment of any brokerage commissions or other necessary expenses of
Landlord in connection with such reletting. The balance, if any, shall be
applied by Landlord from time to time on account of the payments due or payable
by Tenant hereunder, with the right reserved to Landlord to bring such action or
proceedings from the recovery of any deficits remaining unpaid as Landlord may
deem favorable from time to time, without being obligated to await the end of
the term hereof for the final determination of Tenant's account. Any balance
remaining, however, after full payment and liquidation of Landlord's account as
aforesaid shall be paid to Tenant with the right reserved to Landlord at any
time to give notice in writing to Tenant of Landlord's election to cancel and
terminate this Lease and the giving of such notice and the simultaneous payment
by Landlord to Tenant of any credit balance in Tenant's favor that may at the
time be owing to Tenant shall constitute a final and effective cancellation and
termination of this Lease and the obligations hereunder on the part of either
party to the other.
ARTICLE XX
----------
WAIVER OF TENANTS DEFAULT
-------------------------
No waiver of any covenant or any condition or of any breach of any
covenant or condition of this Lease shall be taken to constitute a waiver of any
subsequent breach of such covenant or condition nor to justify or authorize the
nonobservance of any other occasion of the same or of any other covenant or
condition hereof, nor shall the
17
21
acceptance of rent by Landlord at any time when Tenant is in default under any
covenant or condition hereof be construed as a waiver of such default or of
Landlord's right to terminate this Lease on account of such default, nor shall
any waiver or indulgence granted by Landlord to Tenant be taken as an estoppel
against Landlord, it being expressly understood that if at any time Tenant shall
be in default in any of its covenants or conditions hereunder an acceptance by
Landlord of rental during the continuance of such default or the failure on the
part of Landlord promptly to avail itself of such rights or remedies as Landlord
may have, shall not be construed as a waiver or such default, but Landlord may
at any time thereafter, if such default continues, terminate this Lease or
assert any other rights or remedies available to it on account of such default
in the manner hereinbefore provided.
ARTICLE XXI
-----------
DEFAULT BY LANDLORD
-------------------
Notwithstanding anything herein stated to the contrary, if Landlord
shall fail to perform any covenant, term or condition of this Lease upon
Landlord's part to be performed and, as a consequence of such default Tenant or
any person claiming through Tenant suffers any loss, injury or damage, it is
specifically understood and agreed that Landlord (its successors, assigns and
partner, if any) shall not have any personal liability therefor, Tenant hereby
agreeing to look solely to the equity of Landlord (its successors, assigns and
partners, if any) in the Demised Premises for the satisfaction of each and every
remedy of Tenant or any person claiming through Tenant in the event of such
failure by Landlord.
ARTICLE XXII
------------
SUBORDINATION
-------------
Landlord reserves the right and privilege to subject and subordinate
this Lease to all ground or underlying leases and all mortgages, which may now
or hereafter affect the Demised Premises, and to any and all advanced to be made
thereunder and all renewals, modifications, consolidations, replacements and
extensions thereof. Tenant covenants and agrees to execute promptly any
certificate that Landlord may request in confirmation of such subordination and
Tenant hereby constitutes and appoints Landlord as Tenant's attorney-in-fact to
execute any such certificate for or on behalf of Tenant.
18
22
ARTICLE XXIII
-------------
ESTOPPEL CERTIFICATE BY TENANT
------------------------------
Tenant agrees at any time and from time to time, upon not less
than ten (10) days' prior written request by Landlord, to execute and
acknowledge and deliver to Landlord a written statement certifying that this
Lease is unmodified and in full force and effect (or, if there had been
modifications, that the same is in full force and effect as modified and stating
the modifications) , and the dates to which the rent and other charges have been
paid in advance, if any, it being intended that any such statement delivered
pursuant to this Article may be relied upon by any prospective purchaser of the
fee' or mortgagee or assignee of any mortgage upon the fee of the Demised
Premises.
ARTICLE XXIV
------------
OPTION TO PURCHASE
------------------
Landlord hereby grants Tenant the right, privilege and option
("Option") to purchase the Demised Premises, on the terms and conditions
hereinafter set forth.
(a) The Option shall be exercisable by written notice from
Tenant to Landlord at least six (6) months prior to the expiration of the
term of this Lease. The Option shall be deemed to have been timely
exercised if the notice thereof is postmarked no later than midnight of the
last day on which the Option is exercisable.
(b) The purchase price for the Demised Premises shall be the
greater of (i) the fair market value of the Demised Premises or (ii) the
original purchase price expended by Landlord for the Demised Premises which
is One Million Forty Five Thousand Dollars ($1,045,000). The fair market
value shall be as determined by an appraisal of the Demised Premises
prepared by an MAI appraiser mutually agreeable to Landlord and Tenant. If
the parties cannot agree on an appraiser, each party shall select and MAI
appraiser and those two appraiser shall select a third MAI appraiser. The
average of the appraisal amounts determined by each of the appraisers shall
be the fair market value for the Demised Premises. The fees of the
appraisers shall be shared equally between the parties.
(c) The purchase price shall be paid in cash upon closing or
upon such other terms and conditions as may be agreed upon by Landlord and
Tenant.
19
23
(d) If the Option is exercised, closing of the transaction shall
take place as near as practicable to the expiration date of this Lease on a
date specified in writing by Tenant to Landlord at least fifteen (15) days
prior to the closing. The term "closing" shall mean the date upon which the
funds shall be disbursed to Landlord and the deed to the property being
purchased shall be recorded.
(e) In the event of sale hereunder, transfer shall be in fee
simple by warranty deed conveying the Demised Premises to Tenant, free and
clear of all liens and encumbrances whatsoever, except easements,
conditions, reservations of record, in any; zoning ordinances, if any;
liens or conditions created by or through Tenant; and real estate taxes and
assessments, both general and special, not yet due and payable. All costs
and expenses relating to the transfer of the Demised Premises, including,
without limitation, transfer and conveyance fees, title evidence and
recording fees, shall be borne by Tenant.
ARTICLE XXV
-----------
TERM "LANDLORD"
---------------
The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner (or ground lessor, as the case may be) for the time being
of the Demised Premises. If the Demised Premises or underlying lease, if any, be
sold or transferred, the seller thereof shall be automatically and entirely
released of all covenants and obligations under this Lease from and after the
date of such conveyance or transfer, provided that purchaser at such sale has
assumed and agreed to carry out all covenants and obligations contained in this
Lease to be performed on the part of Landlord hereunder, it being agreed that
the covenants and obligations contained in this Lease shall be binding upon
Landlord, its successor and assigns, only during their respective successive
periods of ownership.
ARTICLE XXVI
------------
HOLDING OVER
------------
If Tenant shall remain in possession of all or any part of the Demised
Premises after the expiration of the term of this Lease or any renewal thereof,
with the consent of Landlord, then Tenant shall be deemed a tenant of the
Premises from month-to-month at one and one-half times the most recent payable
by Tenant hereunder and subject to all of the terms and provisions hereof,
except only as to the term of this Lease.
20
24
ARTICLE XXVII
-------------
QUIET ENJOYMENT
---------------
Landlord covenants and agrees that if Tenant pays the rental and other
charges herein provided and shall perform all of the covenants and agreements
herein stipulated to be performed on Tenant's part, Tenant shall, at all times
during said term, have the peaceable and quiet enjoyment and possession of the
Demised Premises without any manner of hindrance from Landlord or any persons
lawfully claiming through Landlord, except as to such portion of the Demised
Premises as shall be taken under the power of eminent domain or condemnation.
ARTICLE XXVIII
--------------
WAIVER OF SUBROGATION
---------------------
Neither party nor its representatives, agents or employees shall be
liable to the other party or to anyone claiming through the other party or to
any insurance company (by way of subrogation or otherwise) insuring the other
party for any business interruption or for any loss or damage to any building,
structure or other tangible property, or injury to or death of person occurring
on or about the Demised Premises, or in any manner growing out of or connected
with Tenant's use or occupation of the Demised Premises, or the use or
occupation of the Demised Premises by Tenant's licenses, concessionaires or
tenants, even though such business interruption, loss, damage, injury or death
might have been occasioned by the negligence of such party, its agents or
employees; provided, however, that (i) such business interruption, loss, damage,
injury or death is or could be covered by a fire and extended coverage insurance
policy (with vandalism and malicious mischief endorsement attached) , by a
contents insurance policy or by a sprinkler leakage or water damage policy in
South Carolina regardless of whether such insurance policies are actually
carried, or (ii) to the extent of recovery under any other insurance carried
covering such business interruption, loss, damage, injury or death. Each
insurance policy carried by the parties hereto shall contain a clause to the
effect that the foregoing waiver shall not effect the right of the insured party
to recover under such policy. However, if by reason of the foregoing waiver
either party shall be unable to obtain any such insurance, such waiver shall be
deemed not to have been made by such party. If by reason of the foregoing
waiver, either party shall be unable to obtain any such insurance without the
payment of an additional premium therefor, then, unless the party claiming the
benefit of such waiver shall agree to pay such party for the cost of such
additional premium within thirty (30) days after notice setting forth such
requirement and the amount of the additional premium, such waiver shall be of no
force and effect as between such party and such claiming party.
21
25
ARTICLE XXIX
------------
TITLES OF ARTICLES
------------------
The titles of the Articles throughout this Lease are for convenience and
reference only, and the words contained therein shall in no way be held to
explain, modify, amplify, or aid in the interpretation, construction or meaning
of the provisions of this instrument.
ARTICLE XXX
-----------
NOTICES
-------
Any xxxx, statement, notice, communication or payment which Landlord or
Tenant may desire, or be required to give to the other party shall be in writing
and shall be sent to the other party by registered or certified mail to the
address specified on page 1 hereof as to Landlord and to the Demised Premises as
to Tenant, or to such other address as either party shall have designated to the
other by like notice, and the time of the rendition of such shall be when same
is deposited in an official United States Post Office, postage prepaid.
ARTICLE XXXI
------------
DEFINITION OF TERMS
-------------------
As used in this Lease and when required by the context, each number
(singular or plural) shall include all numbers, and each gender shall include
all genders; and unless the context otherwise requires, the word "person" shall
include individuals, corporations, firms, associations, partnerships and any
other type of entity.
ARTICLE XXXII
-------------
INVALIDITY OF PARTICULAR PROVISIONS
-----------------------------------
If any term or provision of this Lease or the application thereof to any
person or circumstance shall to any extend be invalid or unenforceable, the
other terms of this 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 affect thereby, and each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
22
26
ARTICLE XXXIII
--------------
PROVISIONS BINDING
------------------
Except as herein otherwise expressly provided, the terms and provisions
hereof shall be binding upon and shall inure to the benefit of the heirs,
executors, administrators, successors, and permitted assigns, respectively, of
Landlord and Tenant. Each term and provision of this Lease to be performed by
Tenant shall be construed to be both a covenant and a condition. The reference
contained to successors and assigns of Tenant is not intended to constitute a
consent to assignment by Tenant, but has reference only to those instances in
which Landlord may have given written consent to a particular assignment as
required by Article XVII hereof.
ARTICLE XXXIV
-------------
RELATIONSHIP OF PARTIES
-----------------------
Nothing contained in this Lease shall be deemed or construed by the
parties hereto or by any third party to create the relationship of principal and
agent or of partnership or of joint venture or of any association whatsoever
between Landlord and Tenant, it being expressly understood and agreed that
neither the computation of rent and other charges nor any other provisions
contained in this Lease nor any act or acts of the parties hereto shall be
deemed to create any relationship between Landlord and Tenant other than the
relationship of landlord and tenant.
ARTICLE XXXV
------------
SHORT-FORM LEASE
----------------
The parties will, at any time, at the request of either one, promptly
execute duplicate originals of an instrument, in recordable form, which will
constitute a short form of lease, setting forth a description of the Demised
Premises, the term of the Lease, and any other portions thereof, excepting the
rental provisions, as either party may request.
ARTICLE XXXVI
-------------
COMPLETE AGREEMENT
------------------
This writing contains the entire agreement between the parties hereto,
and no agent, representative, salesman or officer of Landlord hereto has
authority to make or has made any statement, agreement or representation oral or
written, in connection herewith, modifying, adding or changing the terms and
conditions herein set forth. No dealings between the parties or custom shall be
permitted to contradict various additions to or modify the terms hereof. No
modification of this Lease shall be binding unless such modification shall be in
writing and signed by the parties hereto.
23
27
IN TESTIMONY WHEREOF, Landlord and Tenant have caused this Lease
to be signed upon the day and year first above written.
SIGNED IN THE PRESENCE OF: LANDLORD
X.X. XXXXXX
/s/ Xxxxx X. Xxxxx
------------------------------ By: /s/ X.X. Xxxxxx
/s/ Joy Judge --------------------------------
------------------------------
------------------------------
------------------------------
TENANT:
ALPHABET, INC.
/s/ Xxxxx X. Xxxxx By: /s/ ? ?
------------------------------- --------------------------------
/s/ Joy Judge Its: Vice Chairman
------------------------------- ----------------------------
/s/ Xxxxx X. Xxxxx
------------------------------- And: /s/ ? ?
/s/ Joy Judge ------------------------------
------------------------------- Its: Vice President
---------------------------
24
28
STATE OF OHIO )
) SS:
COUNTY OF TRUMBULL )
Personally appeared before me, a Notary Public in and for said
County and State, by X. X. Xxxxxx, who acknowledged that he did sign
and seal the foregoing instrument; that the same is his free act and
deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal at November, this 29th day of 1993.
/s/ Xxx X. Xxxx
-------------------------------
Notary Public
My commission expires: __________
XXX X. XXXX PUBLIC
State of Ohio
My Commission April 3, 1995
29
STATE OF OHIO )
) SS:
COUNTY OF TRUMBULL)
Personally appeared before me a Notary Public in and for said County and
State, Alphabet, Inc. X. X. Xxxxxxx and Xxxxxxx X. Xxxx, its Vice
Chairman and Vice President, respectively, who acknowledged that they did sign
and seal the foregoing instrument for and on behalf of the Corporation, being
thereunto duly authorized by its Board of Directors; that the same is their free
act and deed individually and as such officers and the free act and deed of the
Corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at November,
this 29 day of 1993.
/s/ Xxx X. Xxxx
-------------------------------
Notary Public
My commission expires: __________
XXX X. XXXX PUBLIC
State of Ohio
My Commission April 3, 1995
26
