Exhibit 10(b)
. Lease on building and land located at 00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxxxx
Xxxxx Xxxxxxxx 00000.
. No other real property.
THIS LEASE dated this 24/th/ day of July 1998, by and between D1D2, LLC
("Landlord") and U.S. Auctions, Inc. ("Tenant") hereinafter designated in
Section 1.4 hereof.
ARTICLE 1
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BASIC LEASE TERMS
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1.1 Landlord: D1D2, LLC
1.2 Landlord's Address: 000 X Xxxxx Xxxx Xxxx
Xxxxxx Xxxx Xxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxx
1.3 Landlord's Telephone Number: (000) 000-0000
1.4 Tenant: U.S. Auctions, Inc.
X.X. Xxx 000
Xxxxxxx Xxxxxxx, XX 00000
1.6 Tenant's Telephone Number: (000) 000-0000
1.7 Tenant's Premises Name: U.S. Auctions, Inc.
1.8 Permitted Use: Retail/auctions
1.9 General Location or Retail Center: Highway 278 at Plantation Business Park
Bluffton, South Carolina
1.10 Size of Premises: 19,840 Square Feet
1.11 Location of Premises: Entire One (1) story building
1.12 Lease Term: Ten (10) years, to commence and terminate
as set forth in Article 3.
1.13 Minimum Guaranteed Rental Rate Paid in Advance at the Beginning of Each
Year:
Year 1: $281,926.00 Annual Rent
Year 2: $286,886.00 Annual Rent
Year 3: $291,846.00 Annual Rent
Year 4: $296,806.00 Annual Rent
Year 5 $301,766.00 Annual Rent
Year 6: $306,726.00 Annual Rent
Year 7: $311,686.00 Annual Rent
Year 8: $316,646.00 Annual Rent
Year 9: $321,606.00 Annual Rent
Year 10: $326,566.00 Annual Rent
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1.14 Xxxxxxx pays the following as additional rent on a monthly basis:
(a) Pro rata share of real estate taxes as set forth in Article 6.
(b) Pro rata share of Common Area Maintenance Costs (including
insurance) as set forth in Article 9
(c) Any applicable sales tax on the above
1.15 Tenant's percentage of pro-rata share of real estate taxes, building
insurance and common area maintenance costs: One hundred (100%) percent
(of a total of 19,840 square feet) of the retail building and sixty-five
(65%) percent (19,840 square feet out of a total of 30,718 square feet)
of the entire complex. Breakdown of percentages shall be defined in
Article 9.
1.16 Contents of Lease:
Pages 1 through 19
Articles 1-32
EXHIBITS:
A. Office Building Layout and Floor Plan
B. General Rules and Regulations
This Article 1 is intended as a summary of certain of the terms of this
Lease, which terms are more fully set forth in subsequent Articles
hereof.
ARTICLE 2
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PREMISES
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2.1 Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, a portion of a building located as generally described in
Section 1.9 and as shown on Exhibit A hereto (hereinafter referred to as
the "Retail Center"). Exhibit B sets forth the general layout of the
Retail Center. Exhibit B attached represents Tenant's required build-out
to be performed by Landlord. The minimum guaranteed rental rate
reflected in 1.13 includes a One Hundred Eighty Thousand and no/100
($180,000.00) Dollars construction allowance required by the Landlord to
build-out Tenant's space as identified in Exhibit B.
2.2 Landlord provides that the HVAC shall provide a temperature not to
exceed seventy-five (75) degrees in the summer months in the auction
area. This temperature shall be based at six (6) feet above floor
elevation. Should the existing system not be sufficient to maintain that
temperature level, the Landlord agrees to add additional air
conditioning to achieve the 75 degree temperature at Landlord's expense.
Should the Tenant require a temperature lower than 75 degrees, any
expense shall be Tenant's responsibility.
2.3 The Demised Premises (hereinafter referred to as the "Premises") is
delineated on the floor plan attached hereto as Exhibit A and is the
size specified in Section 1.10 hereof.
2.4 Leasable Area shall be measured on the sides from center of partition to
center of partition, but including the full width of any end wall; and
on the front and rear, said measurement shall include the full width of
the walls. In computing the leasable area of the office center no
deductions shall be made for columns, partitions, stairs or other
structures or equipment.
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ARTICLE 3
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LEASE TERMS
-----------
3.1 The term of this lease shall commence upon issuance of a certificate of
occupancy by the County of Beaufort for the improvements of the Tenant's
Premises, which shall occur on or before October 1, 1998.
3.2 This Lease shall terminate on the last day of the month in which the
tenth (10/th/) anniversary of the commencement date shall fall upon the
completion of Tenant's space or upon termination of any option period.
ARTICLE 4
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RENT
----
4.1 During the term of this Lease, Tenant shall pay to Landlord Minimum
Guaranteed Rental as specified in Section 1.13. This rental shall be
payable in advance on or before the first (1/st/) day of each calendar
year during the term. If said rent is not received on or before the
eight (8/th/) day in the calendar year, Tenant must pay a late charge of
One Thousand and no/100 ($1000.00) Dollars. For each additional day the
rent is late, Tenant shall pay an additional charge of Two Hundred Fifty
and no/100 ($250.00) Dollars. Tenant shall deposit with Prudential
Commercial Services, to be held in escrow, Twenty-five Thousand and
no/100 ($25,000.00) Dollars upon execution of the lease by all parties.
This deposit shall be non-refundable to Tenant and be applied towards
the first year's annual rental payment due upon receipt of the
Certificate of Occupancy fifteen (15) days after the execution of the
Lease by all parties an additional Twenty-five Thousand and no/100
($25,000.00) Dollars shall be deposited in escrow with Prudential
Commercial Services, which shall also be non-refundable to the Tenant
and applied towards the first year's annual rental payment. The balance
of the first year's annual rent will be paid by Tenant upon receipt of
the Certificate of Occupancy by the County of Beaufort for the
improvements of Tenant's Premises, which shall occur on or before
October 15, 1998.
ARTICLE 5
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TAXES
-----
5.1 As part of the Tenant's Minimum Guaranteed Rental, Tenant agrees to pay
Landlord, Tenant's pro rata share of all real estate taxes or other
forms of taxes, which may be levied or assessed against the land,
buildings and all other improvements in the complex. Tenant shall pay
its pro rata share of taxes only during the months leased and such
payment shall be part of the Tenant's monthly common area maintenance
charge.
5.2 Tenant agrees to pay, prior to delinquency, any and all taxes and
assessments levied or assessed during the term hereof upon or against:
(a) all furniture, fixtures, equipment and any other personal property
located within the Premises;
(b) all alterations or improvements of whatsoever kind, made by the
Tenant to the Premises; and
(c) the rentals or any other payments payable hereunder by Tenant to
Landlord
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(other than Landlord's federal and state income taxes thereon),
whether the obligation for the payment of such taxes shall be upon
Landlord or Tenant.
5.3 Should any governmental authority require that a tax, other than the
taxes above mentioned, be paid by Tenant, but collected by Landlord, for
and on behalf of said governmental authority, and forwarded by Landlord
to said governmental authority, the same shall be paid be Tenant to
Landlord, and be collectible by Landlord, and payment thereof enforced
in the same fashion as provided for the enforcement of payment of rent
hereunder, only for purpose of this Lease Agreement and payable as
billed.
5.4 Landlord shall have the unrestricted right, but not the obligation to
contest the validity or amount of any property tax by appropriate
proceedings, and if Landlord shall institute any such contest,
proceeding, or action upon whatever terms Landlord may determine. In the
event Landlord receives any refund of such taxes (and provided Tenant is
not then in default of any of the terms of this lease), Landlord shall
credit such proportion of such refund as shall be allocable to payments
of taxes actually made by Tenant (less costs, expenses and attorney's
fees) against the next succeeding payments of rent.
ARTICLE 6
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INSURANCE
---------
6.1 Tenant agrees to secure and keep in force from the date Landlord shall
deliver possession of the Premises to Tenant and throughout the term of
this Lease, at Tenant's own expense:
(i) Comprehensive General Liability Insurance on an occurrence basis
with minimum limits of liability in an amount of Five Hundred
Thousand ($500,000.00) Dollars for bodily injury, personal injury
or death to any one person, and One Million ($1,000,000.00)
Dollars for bodily energy, personal injury or death to more than
one person and One Hundred Thousand ($100,000.00) Dollars with
respect to damage to property, including water damage and
sprinkler leakage legal liability, if any;
(ii) Fire Insurance, with extended coverage and vandalism and
malicious mischief endorsements, in an amount adequate to cover
the full replacement value of all fixtures and contents in the
Premises in the event of fire or other casualty; and
(iii) Plate Glass Insurance covering all plate glass in the Premises.
6.2 All Comprehensive General Liability Insurance to be procured by Tenant
in pursuance of the section shall be insured in the names of and for the
benefit of Tenant and Landlord, and its designee(s), by one or more
responsible insurance companies satisfactory to Landlord and licensed to
do business in the state where the Retail Center is located; and at
Tenant's option, such insurance may be carried under a blanket policy
covering the Premises and any other of Tenant's Premises.
All policies of insurance mentioned in this section shall contain the
following endorsements: (a) that such insurance may not be cancelled or
amended with respect to Landlord except upon fifteen (15) days prior
written notice from insurance company to Landlord sent by certified or
registered mail; (b) that Tenant shall be solely responsible for the
payment of all premiums under such policy and that Landlord shall have
no obligation for the payment thereof.
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6.3 As part of Tenant's Minimum Guaranteed Rental, Tenant agrees to pay to
Landlord Tenant's pro rata share of all insurance premiums, including
but not limited to fire insurance and extended coverage, and liability
insurance, that may be carried by Landlord covering the Retail Center.
Such payment shall be part of Tenant's monthly common area maintenance
charge.
6.4 Tenant shall not suffer anything to be or remain upon or about the
Premises, nor carry on nor permit in the Premises any trade or
occupation, or suffer to be done anything which may render an increased
or extra premium payable for the insurance of the Premises or the Retail
Center against fire, or other perils included under standard extended
coverage insurance, unless Landlord shall consent in writing, and if
such consent is given, Tenant shall pay such increased or extra premium
ten (10) days after Tenant shall have been advised of the amount
thereof.
ARTICLE 7
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REPAIRS
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7.1 Landlord will make necessary repairs to roof, roof structure, gutters,
downspouts, exterior walls (not including glass) and foundation walls of
the Retail Center during the original or any extended term of this Lease
after receiving notice from Tenant of the need for said repairs and
where said repairs are not in any way occasioned through the misuse or
neglect of Tenant or otherwise out of the occupancy of the Premises.
Where such repairs are occasioned through the misuse or neglect of the
Tenant or otherwise arise out of the occupancy of the Premises by
Tenant, its employees and invitees, same shall be made promptly by
Tenant, at its expense.
7.2 All repairs within the Premises, including storefronts, plate glass, and
entry doors, shall be the responsibility of Tenant. Tenant shall keep
the interior of the Premises together with all electrical, heating, air
conditioning, and other mechanical installations and equipment used by
or in connection with the Premises, in good order and replacement and
repair. Tenant will not overload the electrical wiring and will not
install any additional electrical wiring or plumbing unless it has first
obtained Landlord's written consent thereto, and, if such consent is
given, Tenant will install them at its own cost and expense. In
furtherance of the above, Tenant covenants and agrees to obtain a
maintenance, repair and service contract on the HVAC system, unless such
maintenance service and repair are covered by a comprehensive
maintenance, repair and replacement contract through Landlord, Tenant
agrees, within two (2) weeks of Landlord's request of evidence of such
contract covering units in Tenant's Premises, the either; enter into an
equivalent contract; or to enter into Landlord's comprehensive contract.
In the event that Tenant fails to do this, Landlord is hereby authorized
to provide such services on Tenant's units on a quarterly basis, and
Tenant agrees to promptly pay Landlord's standard contract charges for
such work. Notwithstanding the above, all repairs and replacements
within the Premises shall be the responsibility of the Landlord during
the initial twelve (12) months of the lease term.
7.3 If Tenant does not proceed to make repairs imposed upon it within seven
(7) days after receiving written notice from Landlord, or after
receiving notice by telephone in the event of emergencies, then Landlord
may, at its option enter the Premises and do the things specified in
said notice, without liability on the part of Landlord; and Tenant
agrees to pay promptly upon demand any reasonable cost or expense
incurred by
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Landlord in doing such work. Landlord agrees, after written notice from
Tenant, to make such repairs of which it is required and perform its
obligations hereunder as promptly as reasonably possible under the
circumstances.
ARTICLE 8
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COMMON AREAS
------------
8.1 All common areas and other common facilities (hereinafter collectively
called "Common Areas") made available by Landlord in or about the Retail
Center shall be subject to the exclusive control and management of
Landlord, expressly reserving unto Landlord, without limitation, the
right to erect and install within the parking areas, and other common
areas, planters, pools, sculpture, or otherwise. "Common Areas" shall
mean all areas, space, facilities, equipment, sidewalks, parking areas,
driveways, landscaped areas, loading docks, if any, signs and special
services form time to time made available by Landlord for the common and
joint use and benefit Landlord, the Premises in and/or adjoining the
Retail Center, Tenant, and other Tenant's of the Retail Center, Tenant
and their respective employees, customers and other invitees. Landlord
hereby expressly reserves the right, from time to time: to change the
area, and arrangement of the parking areas and other facilities and
other facilities forming a part of said Common Areas; to close
temporarily all or any portion of the Common Areas for the purpose of
making repairs or changes thereto and to discourage non-customer parking
and to establish, modify and enforce reasonable rules and regulations
with respect to the Common Areas and the use to be made, hereof.
Landlord shall operate, manage, equip, light and maintain the common
areas in such manner as Landlord, in its sole discretion may from time
to time determine, and Landlord shall have the sole right to employ and
discharge all personnel with respect thereto. Tenant is hereby given a
license (in common with all others to whom Landlord has or may hereafter
grant rights) to use, during the term of this Lease, the Common Areas of
the Retail Center; provided, however that if the size, location or
arrangement of such Common Areas, or the type of facilities at any time
forming a part thereof, be changed or diminished, Landlord shall not be
subject to any liability therefore, nor shall Tenant be entitled to any
compensation or diminution of such areas to be deemed a constructive or
actual eviction.
8.2 Landlord shall not be responsible for any merchandise; cash or any other
valuables left in Common Areas at any time (before, during or after
hours of operation).
ARTICLE 9
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COMMON AREA MAINTENANCE COSTS
-----------------------------
9.1 Landlord shall maintain the Common Areas in good order, clean condition
and repair. As part of Tenant's Minimum Guaranteed Rental, Tenant agrees
to pay Landlord, Tenant's pro rata share of costs of the building and
complex of the Common Area Maintenance Costs. "Common Area Maintenance
Costs" shall mean the total costs and expenses incurred in operating,
maintaining and repairing the Common Areas. Tenant shall be responsible
for one hundred (100%) percent of the Common Area Maintenance Costs for
the Retail Building and sixty-five (65%) percent of the Common Area
Maintenance Costs for the complex with the exception of the elevator
maintenance contract for which the office tenants shall be one hundred
(100%) percent responsible.
The Common Area Maintenance Costs for the office building shall include:
1. Dumpster
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2. Sprinkler alarm monitoring, if necessary
3. Interior pest control
4. Repairs and/or replacements in the office building
The Common Area Maintenance Costs for the complex shall include:
1. Real Estate Taxes
2. Building insurance
3. Management
4. Landscaping
5. Water and sewer
6. Exterior utility charges
7. Any other charges not noted above
8. Repairs or replacements on the exterior of the complex
ARTICLE 10
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UTILITIES
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11.1 Tenant shall pay directly to local utility companies the total cost of
electricity, fuel and other special fees, including required deposits
for utilities or services used in or for the Premises. Water and sewer
charges will be included in the common area maintenance with the
exception of extraordinarily high users, who will be individually
metered. Landlord shall not be liable for any interruption in the supply
of any utility services to the Premises, nor shall any such interruption
in the supply of any utility services to the Premises, nor shall any
such interruption constitute any ground for an abatement of any other
rents reserved hereunder, unless caused by Landlord. Tenant shall not at
any time overburden or exceed the capacity of the mains, feeders, ducts,
conduits or other facilities by which utilities are supplied to the
Premises.
ARTICLE 12
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DESTRUCTION
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12.1 If the Premises shall be partially damaged by any casualty insurable
under the Landlord's insurance policy, Landlord shall, upon receipt of
the insurance proceeds, repair the same, and the minimum rent shall be
abated proportionately as to that portion of the Premises rendered
untenable. If the Premises (a) by reason of such occurrence is rendered
wholly untenable, or (b) should be damaged as a result of a risk which
is not covered by Landlord's insurance, or (c) should be damaged in
whole or in part during the last two (2) years of the term, Tenants
shall vacate and surrender the Premises to Landlord, upon Landlord's
request. Tenant's liability for rent upon the termination of this Lease
shall cease as of the day following the event of damage. In the event
Landlord elects to repair the damage insurable under Landlord's
policies, any abatement of rent shall end five (5) days after notice by
Landlord to Tenant that the Premises has been repaired. Nothing in this
section shall be construed to xxxxx percentage rent; but in the event
Tenant's minimum rent shall have been abated pursuant to this Section
16.1, that amount of Gross Sales after which percentage rent shall be
paid, as set forth in Section 1.14 hereof, shall be reduced by a
percentage equal to the percentage of the Lease Year during which
minimum rent was abated. If the damage is caused by the negligence of
the Tenant, it's employees, agents or concessionaires; there shall be no
abatement of rent. Unless this lease is terminated by Landlord, Tenant
shall repair and refixture the interior of the Premises in a manner and
to at least a condition equal to that existing prior to its destruction
or casualty and the proceeds of all insurance carried by
8
Tenant on its property and improvements shall be held in trust by Tenant
for the purpose of said repair or replacement.
ARTICLE 13
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CONDEMNATION
------------
13.1 If the whole of the Premises shall be acquired or taken by eminent
domain, then this Lease shall terminate as of the date Tenant is no
longer permitted to use the Premises.
13.2 If any part of the Premises shall be taken rendering the remaining
portion unsuitable for the business of the Tenant, then this Lease shall
terminate as aforesaid. If such partial taking is not extensive enough
to render the Premises unsuitable for the business of the Tenant, then
this Lease shall continue in effect except that the minimum rent shall
be reduced in the same proportion that the floor area of the Premises
taken bears to the original floor area thereof.
13.3 If this Lease is terminated as provided in this Article, rent shall be
paid up to the day that Tenant is no longer permitted to use the
Premises and Landlord shall make an equitable refund of any rent paid by
Tenant in advance.
13.4 Tenant shall not be entitled to and expressly waives all claims to any
condemnation award for any taking, whether whole or partial, and whether
for diminution in value of the leasehold or to the fee; provided,
however, Tenant shall have the right to the extent that the same shall
not reduce Landlord's award, to claim from the condemnor, but not from
Landlord, such compensation as may be recoverable by Tenant in it's own
right for damage to Tenant's business and fixtures, if such claim can be
made separate and apart from any award to Landlord, and without
prejudice to Landlord's award.
ARTICLE 14
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MECHANIC'S LIENS
----------------
14.1 Should any mechanic's, materialmen's, or any other lien be filed against
the Premises, the Office Center or any part thereof for any reason
whatsoever by reason of Tenant's acts or omissions or because of a claim
against Tenant, Tenant shall cause the same to be cancelled or
discharged of record by bond or otherwise within ten (10) days after
notice by Landlord.
ARTICLE 15
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LIABILITY
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15.1 Tenant shall indemnify Landlord and save it harmless from suits,
actions, damages, liability and expense in connection with loss of life,
bodily or personal injury or property damage arising from or out of the
use or occupancy of the Premises or any part thereof, or occasioned
wholly or in part by any act or omission of Tenant, its agents,
contractors, employees, servants, invitees, licensees or
concessionaires.
15.2 Tenant shall give prompt notice to Landlord in case of fire or accidents
in the Premises or in the building of which the Premises is a part, or
of defects therein or any fixtures or equipment.
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ARTICLE 16
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QUIET ENJOYMENT
---------------
16.1 Tenant, upon paying the rent and performing all of the terms on its part
to be performed, shall peaceably and quietly enjoy the Premises,
subject, nevertheless to the terms of this lease and to any mortgage,
ground lease or agreements to which this Lease is subordinated.
ARTICLE 17
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ACCESS TO PREMISES
------------------
17.1 Landlord shall have the right to place, maintain and repair all utility
equipment of any kind, upon or under the Premises as may be necessary
for the servicing of the Premises and other portions of the Office
Center. Landlord shall also have the right to enter the Premises to
inspect or exhibit the same to prospective purchasers and mortgagees.
If, in an emergency only, the Tenant shall not be present to permit
entry into the space, Landlord may enter the same by use of reasonable
force without incurring liability therefore and without in any manner
affecting the obligations of this Lease. The Provisions of this article
shall in no wise be construed to impose upon Landlord any obligation
whatsoever for the maintenance or repair of the building or any part
thereof, except as otherwise herein provided.
ARTICLE 18
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DEFAULT
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18.1 The following events shall at the option of the Landlord be deemed to be
events of default by Tenant under this Lease:
(a) Tenant shall fail to pay any rents, or other charges and such
failure shall continue for ten (10) days upon receipt of notice
from Landlord;
(b) Tenant shall fail to comply with any provision of this Lease other
that the payments of rent, and shall not cure such failure within
thirty (30) days after written notice to Tenant;
(c) Tenant shall be the subject of any action or proceeding relating to
bankruptcy or insolvency as set forth in Article 21 hereof.
18.2 If Tenant should desert or abandon the Premises and/or cease operation as
a going concern prior to expiration of the term of this Lease, then in
any such event and in addition to all other rights and remedies it may
have according to this Lease or provided by law, then Landlord, at its
option may declare the term of this Lease ended, re-enter the Premises,
and recover from Tenant the balance of any rent due and all future rents
due under the current lease term and any reasonable expenses, including
attorney's fees, incurred in connection with the recovery of the Premises
and any rent due. Notwithstanding the above, Landlord shall use its
reasonable efforts to lease the Premises if Tenant becomes in default.
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ARTICLE 19
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BANKRUPTCY OR INSOLVENCY
------------------------
19.1 If at any time after the date of this Lease (whether prior to the
commencement of or during the term of this Lease), any of the following
shall occur:
(a) The institution of any proceedings in bankruptcy, insolvency or
reorganization against Tenant pursuant to any federal or state law
now or hereafter enacted, or the appointment of any receiver or
trustee for all or any portion of Tenant's business or property or
against the leasehold estate created hereby, and any such
proceedings, process or appointment be not discharged and dismissed
within thirty (30) days from the date of such filing, appointment
or issuance; or
(b) The entry of decree or order for relief by a court having
jurisdiction in the Premises in respect of Tenant in an involuntary
case under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of Tenant or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs and the
continuance of any such decree or order unstayed and in effect for
a period of thirty (30) consecutive days; or
(c) The commencement by Tenant of a voluntary case under the federal
bankruptcy laws, as nor constituted or hereafter amended, or any
other applicable federal or state bankruptcy, insolvency, or other
similar law, or the consent by it to the appointment of or taking
possession by a receiver, liquidator, assigned, trustee, custodian,
sequestrator (or similar official) of Tenant or for any substantial
part of its property, or the making by it of any assignments for
the benefit of creditors, or the failure of Tenant generally to pay
its debts as such debts become due, or the taking of action by
Tenant in preparation for in furtherance of any of the foregoing;
shall be deemed to constitute and shall be construed as a
repudiation by Tenant's obligations hereunder and shall cause this
Lease ipso facto to be canceled and terminated, without thereby
----------
releasing Tenant; and upon such termination, Landlord shall have
the immediate right to re-enter the Premises and to remove all
persons and properties therefrom and this Lease shall not be
treated as an asset of the Tenant's estate and neither the Tenant
nor anyone claiming by, through or under Tenant by virtue of any
law or any order of any court, shall be entitled to the possession
of the Premises or to remain in the possession thereof. Upon the
termination of this Lease, as aforesaid, Landlord shall have the
right to retain as partial damages, and not as a penalty any
prepaid rents and any security deposited by Tenant hereunder and
Landlord shall also be entitled to exercise such rights and
remedies to recover from Tenant damages, unless any statute or rule
of law governing the proceedings in which such damages are to be
proved shall lawfully limit the amount of such claims capable of
being so proved, in which case Landlord shall be entitled to
recover, as for and liquidated damages, the maximum amount which
may be allowed under any such statute or rule or law. As used in
this Article, the term "Tenant" shall be deemed to include Tenant
and its successors and assigns, and the guarantor of Tenant's
obligations under this Lease, if any.
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ARTICLE 20
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ATTORNEY'S FEES
---------------
20.1 In the event that either party hereto brings legal action against the
other arising out of this Lease, both parties agree to arbitration as
the source of resolving the issue.
ARTICLE 21
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SUBORDINATION AND NOTICE TO MORTGAGEE
-------------------------------------
21.1 The Tenant's interest in this Lease is subordinate to any mortgage liens
on the Office Center, and Tenant shall, upon Landlord's request,
subordinate this Lease to any lien placed by Landlord upon the Office
Center of which the Premises forms a part, with an insurance company,
bank, or any other institutional lender, provided that such lender
agrees that if Tenant is not then in default under this Lease, this
Lease shall not terminate as a result of the foreclosure of such lien,
and Tenant's rights under this Lease shall continue in full force and
effect and Tenant's possession be undisturbed except in accordance with
the provisions of this Lease. Tenant will, upon request of such
lienholders, be a party to such an agreement, and will agree that if
such lienholder succeeds to the interest of Landlord, Tenant will
recognize said lienholder (or successor-in-interest of the lienholder)
as its Landlord under the terms of this Lease. Tenant agrees that in the
event that such institutional lender shall request that the Lease be
modified as a condition precedent to its making a loan on the Office
Center of which the Premises forms a part, Tenant shall consent to the
making of such modifications as such institutional lender shall
reasonably request. In the event that Tenant shall refuse to make any
such changes requested by such institutional lender, Landlord shall have
the option of canceling this Lease, in which event it shall become null
and void and neither party hereto shall have any further obligation to
the other. Landlord shall also have the right to subordinate this Lease
to existing other leases in the Office Center.
21.2 Anything in this lease to the contrary not withstanding Tenant agrees
that it will not terminate this Lease because of Landlord's default in
the performance hereof until Tenant has first given written notice to
Landlord and to the holder of any mortgage provided Tenant has been
notified of such mortgagee's name and address) specifying the nature of
any such default by Landlord and allowing Landlord and such mortgage
holder, or either of them, thirty (30) days after the date of such
notice to cure such default or a reasonable period of time in addition
thereto if circumstances are such that said default cannot reasonably be
cured within said thirty (30) day period.
ARTICLE 22
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ASSIGNMENT AND SUBLETTING
-------------------------
22.1 Tenant shall not assign this Lease in whole or part or sublet all or any
part of the Premises, nor permit other persons to occupy the Premises or
any part thereof, nor grant any license or concession for all or any of
the Premises, without the written consent of Landlord, which shall not
be unreasonably withheld.
Any consent by Landlord to an assignment or subletting of this Lease
shall not constitute a waiver of the necessity of such consent for
subsequent assignment or subletting and shall not relieve Tenant of
liability hereunder. An assignment for the benefit of Tenant's creditors
of otherwise by operation of law shall not be effective to
12
transfer or assign Tenant's interest under this Lease unless Landlord
shall have first consent thereto in writing. Notwithstanding the above,
it is understood and agreed that Tenant may assign this Lease without
Landlord's consent, at any time during the term of this Lease to any
parent corporation or wholly owned subsidiary corporation of Tenant or
to the surviving corporation in connection with a merger or
consolidation or a reorganization or sale between Tenant and any of its
subsidiaries, provided, however, Tenant shall notify Landlord of any
such assignment. Approval to assign this Lease or sublet all or a part
of the Premises, shall not be unreasonably withheld by Landlord and such
assignment shall not relieve original Tenant (assignor) of all terms and
conditions of this Lease.
ARTICLE 23
----------
TENANT'S IMPROVEMENTS, INSTALLATIONS AND ALTERATIONS
----------------------------------------------------
23.1 The obligations of Landlord and Tenant relative to the initial design
and construction of the Premises (and the building in which the Premises
is located) are as set forth in Exhibit C attached hereto.
23.2 Tenant shall fully equip the Premises with all trade fixtures and
equipment, lighting fixtures, furniture, furnishings and floor
coverings, and any other fixtures and equipment necessary for the proper
operation of Tenant's business.
23.3 In the event Tenant engages in the preparation of food or baked goods,
Tenant agrees at the Tenant's own expense: (a) to install dry chemical
extinguishing devices (such as ansul) approved by the local fire
insurance rating organization and Landlord's insurance carriers, and to
keep such devices in good working order and repair and regularly
serviced under a maintenance agreement as may be required by Landlord or
by such fire insurance rating organization or carriers; (b) to keep and
maintain all exhaust dusts and filters in a clean condition; (c) to
place and Premises Tenant's garbage and refuse; and (d) to install
within or without the Premises, as may be required by governing codes, a
grease trap of a pattern and make approved in writing by Landlord, and
to keep and maintain the same in a clean and sanitary condition and in
good working order and repair. In the event Tenant engages in the use,
sale or storing of flammable or combustible materials, Tenant agrees to
install and maintain similar chemical extinguishing devises referred to
in subdivision (a) above. In the event gas is used in the Premises,
Tenant agrees to install a proper gas cut-off valve. If Tenant shall
fail to install any such devices referred to in this Article and/or to
subscribe to the servicing thereof, Landlord shall have the right to
enter the Premises to make such necessary installations and charge the
cost of same and/or the servicing thereof to Tenant, as additional rent
hereunder.
23.4 Tenant may make nonstructural alterations or improvements to the
interior of the Premises in a good and workmanlike manner in conformity
with all the law, ordinances and regulation of public authorities having
jurisdiction thereof. Tenants shall not make any alterations to the
foundation, roof, exterior, walls, gutters and downspouts, or any
structural portions of the Premises without first obtaining the written
consent of Landlord. Any installations and improvements made by Tenant
in or about the Premises shall remain the property of Tenant during the
term of this Lease; provided, however, that any and all such
installations and improvements shall become the property of Landlord
and shall remain upon and be surrendered with the Premises as a part
thereof at termination of this Lease.
23.5 If during the term of this Lease, or at the termination thereof, Tenant
removes any
13
equipment or trade fixtures, Tenant, at its expense, will repair any
structural damages, including walls, floors or roof and wall secure any
gas, electrical or water hook-ups to the satisfaction of Landlord.
ARTICLE 24
----------
DELIVERY AT END OF LEASE
------------------------
24.1 Any holding over after the expiration of this term or any renewal term
shall be construed to be a tenancy from month to month at the rents
herein specified, and shall otherwise be on the terms herein specified
so far as applicable. However, in the event Tenant continues on a month
to month term after the expiration of the Lease, then Tenant shall
notify Landlord in writing six (6) months prior of its intention to
remain on a month to month basis. Notwithstanding the above, Landlord
shall have reasonable access to the Premises during such month to month
tenancy.
ARTICLE 25
----------
FORCE MAJEURE
-------------
25.1 Landlord and/or Tenant, as the case may be, shall be excused for the
period of any delay in the performance of any obligations hereunder when
prevented from so doing by acts of God, but only to the extent that such
events occur prior to the commencement date of this Lease.
ARTICLE 26
----------
BROKER'S COMMISSION
-------------------
26.1 Tenant represents and warrants that there are no claims for broker's
commissions or finder's fees in connection with the execution of this
Lease, except for The Xxxxxx Company, Inc., and Prudential Commercial
Services agrees to indemnify Landlord against and hold it harmless from
all liabilities arising from any such claim, including any attorney's
fees incurred by Landlord.
ARTICLE 27
----------
CORPORATE TENANTS
-----------------
27.1 If Tenant is or will be a corporation, the persons executing this Lease
on behalf of Tenant hereby covenant and warrant that Tenant is a duly
incorporated or duly qualified corporation and is authorized to do
business in the State in which the Office Center is located, and that
person or persons executing this Lease on behalf of Tenant is an office
or are the officers of such Tenant, and that he or they as such officers
are duly authorized to sign and execute this Lease.
ARTICLE 28
----------
RECORDING
---------
28.1 Tenant shall not record this Lease, but will at the request of Landlord,
execute a memorandum thereof in recordable form specifying the date of
commencement and expiration of the term of this Lease and other
information required by statue. Either Landlord or Tenant may then
record said memorandum of Lease.
14
ARTICLE 29
----------
NOTICES
-------
29.1 Any notice to be given or served in connection with this Lease shall be
in writing and may be served by personal delivery upon the party, or
upon a corporate officer thereof, or may be served by certified mail
addressed as specified in Sections 1.2 and 1.5 hereof, as appropriate,
or to such other addresses as requested by either party in writing.
Notices served by mail shall be presumed to have been received three (3)
days after mailing. All rent and other payments shall be sent to
Landlord's address set forth in Section 1.2 unless Landlord shall direct
Tenant otherwise in writing.
ARTICLE 30
----------
GENERAL CONDITIONS
------------------
30.1 Any sum accruing to Landlord and Tenant under the provisions of this
Lease which shall not be paid when due shall bear interest at a rate of
ten (10%) percent from the date written notice specifying such non-
payment is served upon the defaulting party until paid.
30.2 If any term, covenant, condition or restriction of this Lease is held by
a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the provisions hereof shall remain in full force and
effect and shall in no way be affected thereby.
30.3 Nothing contained in this Lease shall be deemed or construed by the
parties hereto or by any third person to create the relationship of
principal and agent, or of partnership, or of joint venture, or of any
other association between the parties other than that of Landlord and
Tenant.
30.4 All reference to the term of this Lease shall include any extension of
such term.
30.5 Time is of the essence in the performance of each provision of this
Lease.
30.6 The waiver of performance of any covenant, term or condition of this
Lease by Landlord or Tenant shall not be construed as a waiver of any
subsequent breach of the same covenant, term or condition.
30.7 Any reference to pro rata share contained in this Lease shall be defined
as the gross leaseable area of the Premises divided by the gross
leaseable area of the Office Center, as shown in Exhibit A, excluding
any expansions to the Office Center.
30.8 This Lease, including the Exhibits, Riders and/or Addenda, if any
attached hereto, sets forth the entire agreement between the parties
hereto or their representatives are merged herein.
ARTICLE 31
----------
SIGNAGE
-------
31.1 All signage must be approved in writing by the Landlord prior to
installation; such approval shall not be unreasonably withheld. All cost
shall be at Tenant's sole costs
15
and expense. Tenant shall be granted major identity of its company name
subject to approval by any regulatory agency.
ARTICLE 32
----------
INTERIOR IMPROVEMENTS
---------------------
32.1 Landlord shall construct and improve the Premises at Landlord's sole
cost and expense as detailed on Exhibit "A".
IN WiTNESS WHEREOF, the Landlord and Tenant have caused this Lease to be signed
as of the day and year first above written.
LANDLORD:
WITNESS TO LANDLORD: D1D2, LLC
/s/ Member
--------------------------------- ------------------------------------
/s/ Member
--------------------------------- ------------------------------------
WITNESS TO TENANT: TENANT:
/s/ Xxxx X. Xxxxx U.S.Auctions, Inc.
---------------------------------
/s/ President
_________________________________ ------------------------------------
_________________________________ ____________________________________
16
EXHIBIT A
---------
Architectural drawing by Xxxxxxx Xxxxxxx, Architect,
of the proposed New Office Tenant Space at Xxx. 000,
Xxxxxxxx, Xxxxxxxx, S.C., in the Plantation Business Park,
dated 10/2/97
17
EXHIBIT B
---------
GENERAL RULES AND REGULATIONS
-----------------------------
1. The sidewalks, entrances, passages, courts, vestibules, corridors,
halls, delivery alleys and courtyards shall not be obstructed or
encumbered by any Tenant or used for any purpose other than ingress and
egress to and from the respective Premises (with the exception of
authorized "kiosks"), without the prior written consent of Landlord.
2. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Landlord. No
curtains, blinds, shades or screens shall be attached to or hung in, or
used in connection with any window or door of the respective Premises,
without prior written consent of Landlord.
3. No sign, signal, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any Tenant on any part of
the outside of the respective Premises, without the prior written
consent of Landlord. In the event of the violation of the foregoing by
any Tenant, Landlord may remove same without any liability and may
charge any expense incurred in such removal to the Tenants violating
this rule.
4. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air shall not be covered or obstructed by any Tenant,
nor shall any bottles, parcels or other articles by placed on the
windowsills.
5. No show cases, sales tables, merchandise displays, signs or other
articles shall be put in front of or affixed to any part of the exterior
of the building, nor placed in the halls, common passageways, corridors
or vestibules without prior written consent of Landlord.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purpose other than those for which they were constructed and no
sweepings, rubbish, rags or other substances shall be thrown therein.
All damages resulting from any misuse of the fixtures shall be borne by
the Tenant who (or whose servants, employees, agents, visitors or
licensees) shall have caused the same.
7. No Tenant shall cause or permit any unusual or objectionable odors to be
produced upon or released from the respective Premises.
8. No Tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of the Office Center or
those having businesses within them, whether by the use of any musical
instrument, amplified sound, unmusical noise, whistling, or singing, or
in any other way. No Tenant shall throw anything out of the doors,
windows or skylights down the passageways.
9. No Tenant, nor any of Tenant's servants, employees, agents, visitors or
licensees, shall at any time bring or keep in the respective Premises
any flammable, combustible or explosive fluid, chemical or substance.
10. Each Tenant must, upon the termination of his tenancy, restore to
Landlord all keys of Premises, offices, and toilet rooms either
furnished to or otherwise procured by Tenant, and in the event safes,
closets and other lockable permanent fixtures are installed in the
respective Premises, give all keys or combinations thereto to Landlord
at the termination of the Lease.
18
11. The respective Premises shall not be used for lodging or sleeping or for
any immoral or illegal purpose.
12. All boxes must be broken down before being placed in dumpsters. All
plastic bags, wrapping paper, loose materials, etc. must be secured in
boxes or tied in bags prior to emptying into dumpster.
13. The requirements of each Tenant will be attended to only upon
application to the Landlord or operations manager. Landlord's employees
shall not perform any work or do anything outside of their regular
duties, unless under special instructions from Landlord or operations
manager.
14. Canvassing, soliciting and distribution of handbills other than in the
respective Premises is prohibited and each Tenant shall cooperate to
prevent the same.
15. There shall not be used in any space, or in the public halls of the
building, either by any Tenant or by jobbers or others, in the delivery
or receipt of merchandise, any hand trucks, except those equipped with
rubber tires.
00
XXXXX XX XXXXX XXXXXXXX )
LEASE MODIFICATION AGREEMENT
COUNTY OF BEAUFORT )
THIS AGREEMENT, made and entered into this 24/th/ day of July 1998 by and
between D1D2, LLC (hereinafter referred to as "Landlord"); and U.S.Auctions,
Inc. (hereinafter referred to as "Tenant").
WHEREAS, Landlord and Tenant entered into a Lease on the 24/th/ day of
July, 1998; and
WHEREAS, Tenant currently leases 19,840 square feet of space on lots 0-00,
Xxxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxx, XX; and
WHEREAS, said Lease Agreement between Landlord and Tenant shall be modified
upon the full execution of this agreement by both parties; and
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, it is agreed as follows:
1. Tenant shall have the option to terminate the Lease anytime after the
sixtieth (60/th/) month of the lease term by giving the Landlord three
months written notice of said termination. In the event Tenant elects to
terminate the Lease, then Tenant hereby agrees to pay Landlord a fee
equivalent to three (3) months of it's existing minimum base rental
(including Tenant's pro-rata share of common area maintenance, real estate
taxes and insurance) at the time of delivering such written notice to
Landlord.
THIS LEASE MODIFICATION AGREEMENT contains the entire agreement between the
parties and cannot be changed or terminated except by a written instrument
subsequently executed by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Termination Agreement
the day and year first above written.
LANDLORD:
WITNESSES: D1D2, LLC
/s/ Member
___________________________ -----------------------------------
/s/ Member
___________________________ -----------------------------------
WITNESSES: TENANT:
/s/ Xxxx X. Xxxxx U.S.Auctions, Inc.
---------------------------
/s/ President
___________________________ -----------------------------------
___________________________ ___________________________________
00
XXXXX XX XXXXX XXXXXXXX )
) LEASE MODIFICATION AGREEMENT
COUNTY OF BEAUFORT )
THIS LEASE MODIFICATION AGREEMENT ("Agreement"), is made and entered
into this 19/th/ day of July, 1999 by and between D1D2, LLC ("Landlord"); and
U.S. AUCTIONS, INC. ("Tenant").
WHEREAS, Landlord and Tenant entered into a Lease on the 24th day of
July, 1998; in which Landlord let, and Tenant leased, 19,840 square feet of
space on lots 0-00, Xxxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxx
("Lease"); and
WHEREAS, the Landlord and Tenant wish to amend the Lease as set forth
below; and
NOW THEREFORE, for valuable consideration, the receipt and legal
sufficiency of which is hereby acknowledged by both parties, it is agreed as
follows:
1. Incorporation of Lease - All terms, conditions, and obligations of
----------------------
the Lease are incorporated herein as restated. All capitalized terms herein
shall have the meanings defined in the Lease. In the event of any conflict
between the lease and this Agreement, the terms of this Agreement shall prevail.
The parties hereby ratify and reaffirm the Lease as amended by this Agreement.
2. Rent Modification - Section 1.13 of the Lease sets forth the
-----------------
Minimum Guaranteed Rental Rate. The Minimum Guaranteed Rental Rate for the Lease
Term is revised as follows:
Year 1: $299,584.00 Annual Rent
Year 2: $334,998.40 Annual Rent
Year 3: $340,454.40 Annual Rent
Year 4: $345,910.40 Annual Rent
Year 5: $351,366.40 Annual Rent
Year 6: $356,822.40 Annual Rent
Year 7: $362,278.40 Annual Rent
Year 8: $367,734.40 Annual Rent
Year 9: $373,190.40 Annual Rent
Year 10: $378,646.40 Annual Rent
21
Additionally, Section 4.1 of the Lease is hereby deleted and substituted
with the following text:
The Minimum Guaranteed Rental Rate set forth in Section 1.13 shall be
payable in equal monthly installments in advance on the first day of
each full calendar month during the Lease Term without any setoff,
deduction or prior demand whatsoever. If Tenant fails to pay any
rental monthly installment within ten (10) days after said installment
Is due, Tenant shall be obligated to pay a late payment charge equal
to ten percent (10%) of said monthly rental installment. In addition,
any monthly rental installment which is not paid within ten (10) days
after the same is due shall bear interest at the rate of twelve
percent (12%) from the first day due until paid.
Not withstanding the preceding, the monthly rental installments due
from July, 1999 through December, 2000, inclusive, shall be
$22,771.91. Said monthly rental installment is equal to the $74,896.00
balance owed to Landlord for calendar year 1999 rent plus the amount
owed for calendar year 2000 Annual Rent divided by eighteen.
3. Security Deposit - The following text shall be added to the Lease as a
----------------
new Article 31:
Security Deposit - Tenant shall deposit with Landlord the sum of
TWENTY-TWO THOUSAND SEVEN HUNDRED SEVENTY ONE 91/100 DOLLARS
(22771.91) as a security deposit ("Security Deposit"). The Security
Deposit shall not bear interest to Tenant and shall be security for
the payment and performance of the obligations, covenants, conditions
and agreements in this Lease. The Security Deposit shall not
constitute an advance payment of any amounts owed by Tenant under this
Lease, or a measure of damages to which Landlord shall be entitled
upon a breach of this Lease by Tenant or upon termination of this
Lease. Landlord may without prejudice to any other remedy, use the
Security Deposit to the extent necessary to remedy any default in the
payment of any Rent installment or any other amounts due to Landlord
under this Lease, or to satisfy any other obligation of Tenant. In the
event Landlord uses any or all of the Security Deposit to remedy any
Tenant default, Tenant shall promptly restore the Security Deposit to
its original amount. If Landlord transfers its interest in the leased
premises during the Term, Landlord may assign the Security Deposit to
Its transferee who shall become obligated to the tenant for its return
pursuant to the terms of this Lease, and thereafter Landlord shall
have no further liability for the return of the Security Deposit. So
long as Tenant is not in default of any of the provisions of this
Lease, Landlord agrees to accept the payment of the Security Deposit
in six (6) equal monthly installments of FOUR THOUSAND ONE HUNDRED
SIXTY 80/100 DOLLARS ($4,160.89) each, due on the first day of each
calendar month beginning July, 1999 through December, 1999.
4. Application of Rents After Tenant Default - The following shall be
-----------------------------------------
added to the Lease as a new Section 18.3:
All rents received by Landlord in any reletting after Tenant's default
shall be
22
applied first to payment of such expenses as Landlord may have
incurred in recovering possession of the Leased Premises and in
reletting the same, including brokerage fees, second to the payment of
any costs and expenses incurred by Landlord either for making the
necessary repairs to fit the Leased Premises for reletting or in
curing a default on the part of the Tenant of any covenant or
condition herein. The remaining rent shall then be applied toward the
payment of the Minimum Guaranteed Rental Rate for the remaining term
of this Lease, together with interest and penalties as set forth
above, and Tenant expressly agrees to pay any deficiency then
remaining. Landlord shall in no event be liable in way whatsoever for
Landlord's failure to relet the Lease Premises and Landlord, at its
option, may refrain from terminating Tenant's right of possession, and
in such case may enforce against Tenant the provisions of this Lease
for the fall Lease Term.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day set forth above.
LANDLORD:
WITNESSES: D1D2, LLC
__________________________________ By:______________________________
Its: Member
__________________________________ -----------------------------
WITNESSES: TENANT:
U.S.Auctions, Inc.
__________________________________ By:______________________________
Its: Secretary
__________________________________ -----------------------------
23
GUARANTY OF LEASE
-----------------
THIS GUARANTY OF LEASE ("Guaranty") made this 19/th/ day of July, 1999, by
XXXXXXXXXXX.XXX, INC. a Nevada corporation ("Guarantor") in favor of D1D2, LLC a
South Carolina Limited Liability Company, ("Landlord").
WITNESSETH:
WHEREAS, Landlord has entered into a Lease Agreement ("Lease") dated July
25, 1998 as amended, with U.S. Auctions, Inc. ("Tenant"), which Lease demises
certain Leased Premises known as Lots 8 and 10, mailing address 18 Plantation
Business Park Drive, Xxxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000
located in the County of Beaufort, State of South Carolina ("Shopping Center");
WHEREAS, Guarantor has a financial interest in Tenant, and Landlord agreed
to amend the Lease in partial consideration of the execution and delivery of
this Guaranty; and
WHEREAS, Guarantor has examined the Lease and is fully cognizant of the
covenants, conditions, and agreements contained in it, and its obligations under
this Guaranty with respect to the Lease.
NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS that in consideration of
the premises and the sum of One Dollar and No/100 ($1.00) paid by Landlord to
Guarantor, the receipt and legal sufficiency of which is hereby acknowledged,
Guarantor agrees as follows:
I. Guaranty. Guarantor hereby unconditionally guarantees to Landlord the full
--------
and prompt performance and observance of all covenants, conditions, and
agreements provided in the Lease to be performed and observed by Tenant, its
successors and assigns.
2. No Release By Waiver. Guarantor agrees that its obligations under this
--------------------
Guaranty shall not be terminated, reduced, or affected in any way by reason
of the assertion by Landlord against Tenant of any right or remedy for the
enforcement of the obligations of Tenant under the Lease, or by reason of the
waiver by Landlord of, or its failure to enforce, any of the terms,
covenants, or conditions of the Lease, or the granting of any indulgence or
extension of time to Tenant. Guarantor waives notice of any of the foregoing
and of default by Tenant in payment of rent, and any other sum of money
required to be paid under the Lease, and breach by Tenant of any covenant,
condition, or agreement contained in the Lease. Guarantor further agrees that
its obligations hereunder shall apply with full force and effect to any
amendment, renewal, or extension of the Lease, even though made without
notice thereof to Guarantor.
3. Primary Obligation. Guarantor agrees that its liability under this Guaranty
------------------
shall be primary. Regarding any right of action which shall accrue to
Landlord under the Lease, Landlord may at its option proceed against
Guarantor without having commenced any action or having obtained any judgment
against Tenant. Guarantor waives any and all defenses available to it in
connection with the enforcement of the Guaranty, including, but not limited
to, the right
24
to require pursuit of any remedies against Tenant, or any other person, or
that resort be had to any security or to any balance of any account or
credit, before pursuit against Guarantor under this Guaranty.
4. Binding Effect. This Guaranty shall be binding upon Guarantor, its successors
--------------
and assigns, and shall inure to the benefit of Landlord, its successors and
assigns.
5. Severability. Should any provision of this Lease be void or become
-----------
unenforceable at law or in equity, the remaining provisions hereof shall
remain in full force and effect.
6. Governing Law. This Lease shall be governed by the laws of the State of
-------------
South Carolina.
7. Legal Costs. Tenant and Landlord agree that all costs, including reasonable
-----------
attorney's fees, of any legal action or suit in law or equity arising out of
the mutual covenants, promises and agreements of this Lease, shall be paid by
the unsuccessful party to such legal action.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day set
forth above.
LANDLORD:
WITNESSES: D1D2, LLC
/s/ By: /s/
-------------------------------- -----------------------------------
/s/ Its: Member
-------------------------------- ----------------------------------
GUARANTOR
WITNESSES: XXXXXXXXXXX.XXX, INC.
/s/ By: /s/
-------------------------------- -----------------------------------
/s/ Its: Secretary
-------------------------------- ----------------------------------
25
