LEASE AGREEMENT
This LEASE AGREEMENT, made and entered into as of the 14TH day of JULY,
1997 by and between Xxxxxxxxxx X. Xxxxxx, of Knoxville, Tennessee ("Lessor"),
and ACME TELEVISION OF TENNESSEE, LLC a TENNESSEE corporation, having its
principal place of business in KNOXVILLE, TENNESSEE ("Lessee").
WITNESSETH:
WHEREAS, Lessor is the owner of certain real property located in the Sixth
(6th) Civil District of Xxxx County, Tennessee, ("Property"); and
WHEREAS, there is presently located on the Property an office building and
warehouse ("Structure") having a street address of 00000 Xxxxxxx Xxxx,
Xxxxxxxxx, XX 00000; and
WHEREAS, Lessee is desirous of leasing approximately 8,000 square feet of
the Structure ("Demised Premises"), as delineated on the attached floor plan
under the terms and conditions contained herein.
NOW, THEREFORE, for and in consideration of the premises and the covenants
and agreements herein contained and for SIX THOUSAND & NO/100 DOLLARS (1ST
MONTH'S RENT) AND FOR SIX THOUSAND SIX HUNDRED & NO/100 DOLLARS (LAST MONTH'S
RENT) and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and evidenced on EXHIBIT A attached hereto and
incorporated herein by reference, Lessor and Lessee hereby mutually covenant and
agree as follows:
DEMISE, TERM AND RENT
Section 1.01 DEMISE AND INITIAL TERM. Lessor does hereby lease and demise
unto Lessee, and Lessee does hereby lease from Lessor, the Demised Premises for
a term of ONE HUNDRED TWENTY (120) months commencing on October 1, 1997, and
terminating on September 30, 2007, unless sooner terminated or extended as
herein provided ("Initial Term").
Section 1.02 OPTION TERMS. N/A
Section 1.03 RENT. Lessee shall make the following rental payments to
Lessor:
(a) Lessee covenants and agrees to pay Lessor as rent hereunder for the
Demised Premises during the Initial Term a monthly rent as follows:
$6,000/MONTH FOR THE FIRST 5 YEARS (60 MONTHS). INCREASE BY 10% TO $6,600/MONTH
STARTING WITH OCTOBER 1, 2002 THROUGH SEPTEMBER 30, 2007.
(b) Rent is due on the first day of each month. Rents received after the
tenth (10th) of any month will include a $25 late fee. Rent not received by the
last day of the month will be cause to void this Lease Agreement. All rents
shall be paid to Lessor without demand and without set-off at the offices of
XXXXXXXXXX XXXXXX CONSTRUCTION CO., INC., 00000 XXXXXXX XX., XXXXXXXXX, XX 00000
or at such other address as Lessor may from time to time designate to Lessee by
notice in the manner hereinafter provided.
All taxes, charges, costs and expenses which Lessee is required to pay
pursuant to SECTION 3.01 or other sections hereof, together with all interest
and penalties that may accrue thereon in the event of Lessee's failure to pay
such amounts, and all damages, costs and expenses which Lessors may incur by
reason of any default of Lessee or failure on Lessee's part to comply with the
term of this Lease, shall be deemed to be additional rent hereunder (hereinafter
called the "Additional Rent"), and in the event of nonpayment by Lessee within
the time period set forth above, Lessor shall have all the rights and remedies
with respect thereto as Lessor have for the nonpayment of the above specified
monthly rental.
COVENANTS AND WARRANTIES OF LESSOR
Section 2.01 ESTATE OF LESSOR. Lessor represents and warrants to Lessee
that they have full right and lawful authority to enter into this Lease, that
the Demised Premises are free and clear of all liens, exceptions, restrictions
and encumbrances created or granted by Lessor except those which are of record
in the Register's Office of Xxxx County, Tennessee.
Section 2.02 QUIET POSSESSION. Lessor covenants that Lessee, upon
performing and observing the covenants to be observed and performed by Lessee
under the terms of this Lease, shall peaceably hold, occupy and enjoy the
Demised Premises during the Term of this Lease without interference by Lessor or
by any other person claiming by, through or under Lessor.
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The Lessor covenants and warrants that at the time of delivery of possession,
the Demised Premises are and will be in compliance with all applicable laws,
ordinanaces, orders, rules and regulations, in a clean, safe, sanitary
condition, in good repair and in compliance with all federal, state and county
law.
TAXES, UTILITIES, COMMON AREA MAINTENANCE, ASSESSMENTS, CHARGES, COMPLIANCE
WITH LAW, AND LIENS
Section 3.01 RENTAL ADJUSTMENTS: As hereinafter used in this Lease with
reference to Lessee's obligations to pay taxes, maintenance costs, insurance
premiums or other amounts due hereunder, the Lessee's "pro rata" share thereof
shall be deemed to be equal to TWENTY EIGHT AND .57 PERCENT (28.57%) of the
total area of the Structure. In addition to the rentals hereinbefore required,
Lessee further agrees to pay as Additional Rent, the following items which may
be assessed by Lessor from time to time, and which shall be paid by Lessee
within thirty (30) days after demand therefor:
(i) All charges for electricity, water, gas, telephone and other
utilities furnished to the Demised premises or utilized thereon by or for
Lessee, it being understood and agreed that all electrical, natural gas, water
and/or sewer services shall be separately metered to Lessee's premises.
(ii) Lessee's pro rata share of all taxes assessed by any proper
taxing authority against the Structure or the or the Property; provided,
however, that Lessee shall be solely and exclusively responsible for payment of
all taxes assessed against any property owned or used by or for Lessee within,
upon or about the Demised Premises or installed by Lessee within or upon the
Demised Premises or arising out of the conduct and operation of Lessee's
business within, upon or about the Demised Premises.
(iii) The Lessor will maintain the building in good functioning
condition. Lessee will maintain all consumable items, i.e., light bulbs and HVAC
filters, and maintenance work caused by use, such as clogged drains, janitorial
and paint touch-up.
(iv) Lessee will pay a pro rata share (28.57%) for property and
liability insurance on the Property and Structure.
(v) The Lessee will pay pro rata share for fire department
protection (28.57%).
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(vi) Lessee will pay a pro rata share (28.57%) for all common
area maintenance.
Lessee agrees to pay monthly to Lessor a sum representing Lessee's pro rata
share of the costs as defined above. Lessee shall pay to Lessor the estimated
share of $665.00 each month along with each rent payment as the Lessee's share
of said expenses during the term of the Lease. Lessor will reconcile the charges
on an annual basis and refund any difference promptly. Any additional charges
owed by Lessee will be due in 60 days after presentation of reconciliation by
Lessor.
Section 3.02 LESSOR'S RIGHTS UPON NONPAYMENT. Subject to the terms and
provisions of Section 3.05 hereof, Lessor shall have the right after delinquency
at all times during the term hereof to pay any taxes, assessments, utility
charges, common area expenses, levies, interest or other charges upon the
Demised Premises, and to pay, cancel and clear all tax sales, liens, charges and
claims upon or against the Demised Premises or any improvements that are now, or
may be hereof, placed thereon, and to redeem said Demised Premises from the
same, or any of them, from validity of the same. Any sums so paid by Lessor
shall become Additional Rent due and payable by Lessee on the next day after
such payment by Lessor, together with interest at the rate of fifteen percent
(15%) per annum from such date to the day of payment thereof by Lessee to
Lessor.
Section 3.03 COMPLIANCE WITH LAWS. Prior to occupancy of the Demised
Premises, Lessor, at its cost and expense, shall comply with and cause the
Demised Premises to comply with all applicable federal, state, county and
municipal laws, rules, orders, regulations and ordinances affecting the Demised
Premises (all or any one of which are herein referred to as "Regulations").
Thereafter, if Lessee, by its actions causes the non-conformance, then Lessee
will bear the cost and expense of compliance.
Section 3.04 LIENS. In the event Lessee makes any improvements to portions
of the Demised Premises pursuant to SECTION 5.01 hereof, Lessee shall not permit
any liens to attach to Lessor's interest in the Premises. If any mechanics lien
or other lien or order for the payment of money shall be filed against the
Demised Premises or improvements thereon by reason of, or arising out of, any
labor or material furnished or alleged to have been furnished to or for Lessee
at the Demised Premises, or for or by reason of any change, alteration or
addition by the Lessee, or the cost or expense thereof or any contract relating
thereto, or against Lessor, then Lessee shall within thirty (30) days after the
filing of any such lien cause the same to be
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canceled and discharged of record, by bond or otherwise, at the election and
expense of Lessee, and shall defend on behalf of Lessor, at Lessee's sole cost
and expense, any action, suit or proceeding which may be brought thereon or for
the enforcement of such lien, liens or orders, and Lessee shall pay any damages
and discharge any judgment entered thereon and shall indemnify and save harmless
Lessor from any claim or damage resulting therefrom. If Lessee fails to keep
this covenant, in addition to any other remedies available to Lessor under this
Lease or otherwise, Lessor may at its option discharge such lien, in which event
Lessee agrees to pay Lessor, on demand, a sum equal to one hundred fifteen
percent (115%) of the amount of the lien thus discharged by Lessor plus Lessor's
attorney's fees.
Section 3.05 PERMITTED CONTESTS. Lessee, at its expense, may contest (by
appropriate legal proceedings conducted in good faith and with due diligence),
the amount, validity or application, in whole or part, or any tax or charge
referred to in SECTION 3.01 hereof, or any Regulation referred to in SECTION
3.03 hereof, provided that Lessee shall give Lessor prior written notice of such
contest and Lessee shall have deposited with Lessor or the taxing authorities a
surety company bond in such sum and upon such conditions as will assure payment,
upon termination of such proceedings, of the amount of taxes or other charge so
contested and unpaid, together with all interest and penalties in connection
therewith and all charges that may or might be assessed against or become a
charge on the Demised Premises in said proceedings. Upon the termination of such
proceedings, Lessee shall deliver to Lessor proof of the amount of the
imposition as finally determined in such proceedings. Lessor, on behalf of
Lessee and at Lessee's sole expense, shall join in any such proceedings and
shall cooperate with Lessee to the end that such proceedings may be brought to a
successful conclusion. Lessee shall be entitled to any refund of any such tax or
other charges and penalties or interest thereon which shall have been paid by
Lessee. Lessee shall indemnify and save harmless Lessors from responsibility,
financial or otherwise, arising out of any such proceedings.
USE AND SURRENDER OF THE DEMISED PREMISES
Section 4.01 USE OF THE DEMISED PREMISES. Lessee may use the Demised
Premises exclusively for the purpose of conducting the development of computer
software, provided, however, that such use shall not constitute a public or
private nuisance or violate any applicable law, ordinance or regulation. No
activity will take place which would interfere with the other tenants of the
building. The Lessor shall have the right of approval of all electronic
equipment installed in or on the Demised Premises. Such approval shall not be
unreasonably withheld.
Section 4.02 FOR LEASE SIGNS BY LESSOR. Lessor or Lessor's agents, at any
time within ninety (90) days before the expiration of any term hereof, shall
have the right to enter upon
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the Demised Premises and to affix upon any suitable part thereof a notice or
notices for the leasing of the Demised Premises, which Lessee shall not remove,
and Lessor shall further be allowed to show the Demised Premises to prospective
tenants during such 90 day period.
Section 4.03 SIGNS. Any signs erected on the Demised Premises must conform
with the general architectural scheme of the Demised Premises and the Structure.
The design, size and location of any such signs must be approved by Lessor prior
to the installation thereof.
Section 4.04 SURRENDER OF DEMISED PREMISES.
(a) It is agreed that at the termination of this Lease, Lessee may remove
any movable personal property which Lessee has placed in the Demised Premises,
except any property which has been attached to the Demised Premises in such a
manner as to become a fixture, including, but not limited to, such property as
electric and gas fixtures, switches and controls, floor and wall coverings,
heating and air conditioning equipment and alterations, additions or
improvements of any kind to the Demised Premises, all of which shall become the
property of Lessor upon the termination of this Lease, provided, however, that
no such alterations, additions or improvements may be made to the Demised
Premises without the prior written consent of Lessor as herein specified, and
provided further, that the foregoing rights of Lessee are subject to the
Landlord's lien provided for herein.
(b) Lessee covenants and agrees, at the expiration or earlier termination
of this Lease, whether by limitation, forfeiture or otherwise, to quit,
surrender and deliver to Lessor possession of the Demised Premises with all the
improvements thereon (excluding any personal property properly removed under
SECTION 4.04 (A) above) free from all liens thereon, in good condition and
repair, ordinary wear and tear excepted, all of which shall become and remain in
the property of Lessor. Lessee's obligations to observe or perform this covenant
shall survive the expiration or other termination of the term of this Lease. If
Lessee shall default in so surrendering the Demised Premises, Lessee's occupancy
subsequent to such expiration or termination, in the absence of written consent
of the Lessor to remain in the Demised Premises for a specified period of time,
shall be deemed to be a tenancy-at-will and in no event for month-to-month or
year-to-year and it shall be subject to all the terms, covenants and conditions
of this Lease applicable thereto, and no extension or renewal of this Lease
shall be deemed to have occurred by such holding over.
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Section 4.05 NOISE, OBSTRUCTION AND NUISANCES. Lessee covenants that it
will not (i) display any merchandise or maintain any stands in front of the
Demised Premises; (ii) erect or maintain any barricade or scaffolding which may
obscure the signs, entrances or show window of any other tenant in the
Structure, or tend to interfere with any such other tenant's business; (iii)
create or maintain, or allow others to create or maintain, any nuisances,
including without limiting the foregoing general language, loud noises, sound
effects, offensive odors and smoke or dust in or about the Demised Premises;
(iv) place or maintain any signs in any parking area serving the Demised
Premises; (v) commit any waste; (vi) maintain or allow to be maintained any
devices or similar devices, the effect of which will be visible from the
exterior of the Demised Premises; or (vii) store or maintain within or around
the Demised Premises any explosive material or any other hazardous material or
condition that could adversely affect the Property, Structure or the other
tenants thereof.
CONSTRUCTION OF IMPROVEMENTS, REPAIRS AND ALTERATIONS AND INSPECTIONS DURING
THE TERM
Section 5.01 Construction of Improvements, Alterations and Additions by
Lessee. Lessee shall not make any alteration, improvement or addition to the
Demised Premises without the prior written consent of the Lessor, which consent
shall not be unreasonably withheld. Lessor specifically consents to Lessee's
installation or erection at the Demised Premises of additional engineering
equipment such as satellite receiving antennas, studio transmitter links,
microwave antennas or similar devices, necessary or useful to the operation of
Lessee's television station, consistent with industry standards as to design,
installation and local zoning and building codes. Lessee shall advise Lessor of
such installations before they are performed. All alterations, improvements, and
additions (i) shall be performed at the sole cost and expense of Lessee in
compliance with all laws and regulations of any federal, state, or local
governmental body, and (ii) shall, at the expiration of the lease term, become
and remain the property of Lessor except that any video production or broadcast
related equipment installed by Lessee shall remain the property of Lessee unless
abandoned at the end of the term of the Lease, and (iii) shall be consistent
with the overall design and use of the Demised Premises and property and not
interfere with other tenants of the Demised Premises and Property. In
contracting for any alterations, improvements or additions, Lessee shall not act
as the agent of Lessor. Lessee, in regards to the Demised Premises only, shall
be responsible for compliance with the requirements of the Americans with
Disabilities Act to the extent that any repair, alteration, improvement or
addition requires such compliance.
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Section 5.02 MAINTENANCE AND REPAIR. Lessee shall at Lessee's own cost and
expense throughout the term of this Lease, and so long as it shall remain in
possession of the Demised Premises, keep and maintain in good repair and in a
reasonably satisfactory condition of cleanliness, including reasonably periodic
painting of the interior of the Demised Premises, all portions thereof (except
the main walls, roof, and structural portions of the Demised Premises, as
hereinafter provided) appurtenances and machinery therein which are brought into
and become a part of the real estate, and all glass, including but not limited
to plate glass, windowpanes, etc., to the satisfaction of Lessor and of the
municipality and any other governmental authorities during the term of this
Lease.
All property of every kind which may be on the Demised Premises during the
term hereof shall be at the sole risk of Lessee or those claiming under Lessee
and Lessor shall not be liable to Lessee or to any other person whomsoever for
any injury, loss or damage to any such property in or upon said Demised
Premises, or the entrances, sidewalks and walkways adjoining same unless such
injury, loss or damage results, directly or indirectly, from Lessor's gross
negligence or willful misconduct.
Section 5.03 LESSOR'S DUTIES WITH REFERENCE TO ROOFS, MAIN WALLS AND
STRUCTURAL PORTIONS OF DEMISED PREMISES. Anything herein contained to the
contrary notwithstanding, Lessor covenants and agrees to maintain the roof of
the Structure, the main walls thereof and the other structural portions of the
Demised Premises, in good repair, but Lessor shall not be liable to Lessee or
Lessee's agents, employees and invitee for any damages resulting from failure to
maintain same unless and until written notice of the existence and approximate
location of any damage thereto has been received by Lessor or his agent and a
reasonable time allowed for making needed repairs after receipt of said notice
has lapsed, but in all events within 30 days.
Section 5.04 INSPECTION BY LESSOR. Lessor and Lessor's agents shall have
the right to enter the Demised Premises at all reasonable hours for the purposes
of (i) inspecting same; (ii) performing obligations of Lessor under this Lease;
(iii) performing obligations of the Lessee hereunder in which the Lessee may
neglect or refuse to perform; (iv) showing the Demised Premises to persons
wishing to purchase Lessor's interest therein; and (v) within the 90 day time
period set forth hereinabove, showing the Demised Premises to prospective
tenants if Lessee does not extend the lease term. The provisions contained in
this section shall not impose on Lessor any of Lessee's obligations under this
Lease, nor shall it create any liability of Lessor by virtue of Lessor's having
inspected the Demised Premises.
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Section 5.05 CONSTRUCTION OF IMPROVEMENTS BY LESSOR. Lessor hereby
reserves the right at any time to make alterations or additions to the Structure
and to construct additional improvements on the Property, all without notice to
or the consent of Lessee so long as Lessee's space is not affected nor its use
or access thereto impaired.
INSURANCE
Section 6.02 CLASSES OF INSURANCE. Lessee during the term of this Lease
shall keep in full force and effect the policies of insurance described below,
with the coverage in amounts not less than those specified:
(a) LIABILITY INSURANCE. Lessee agrees to maintain at its expense at all
times during the lease term full general liability insurance properly protecting
and indemnifying Lessor and naming Lessor and Lessor's lender (if requested) as
additional insureds in an amount not less than $300,000.00 per accident for
injuries or damages to persons, and not less than $500,000.00 for damage or
destruction of property, written by insurers acceptable to Lessor and licensed
to do business in the State of Tennessee. Lessee shall deliver to Lessor
certificates of such insurance, which shall declare that the respective insurer
may not cancel the same in whole or in part without giving Lessor and Lessor's
lender written notice of its intention so to do at least ten (10) days in
advance.
(b) WORKMEN'S COMPENSATION INSURANCE. Lessee agrees to maintain workmen's
compensation insurance covering all persons employed in connection with any work
performed by Lessee, and any all agents or employees of Lessee with respect to
whom death or bodily injury claims could be asserted against Lessor or Lessee as
required by applicable law.
Section 6.02 FAILURE TO PROCURE INSURANCE. In the event Lessee shall fail
to procure insurance required under this Article and fail to maintain the same
in force continuously during the term, Lessor shall be entitled to procure the
same and Lessee shall immediately reimburse Lessor for such premium expense.
Section 6.03 INCREASE IN FIRE INSURANCE PREMIUM. Lessee agrees not to keep
upon the Demised Premises any article or goods which may be prohibited by the
standard form of fire insurance policy. It is agreed between the parties that in
the event the insurance rates applicable to fire and extended coverage insurance
covering the Demised Premises shall be increased by reason of any use of the
Demised Premises made by the Lessee, then Lessee shall pay to Lessor such
increase in insurance as shall be occasioned by said use.
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Section 6.04 PROPERTY OF LESSEE. Lessee agrees that all property owned by
it in, on or about the Demised Premises shall be at the sole risk and hazard of
the Lessee. Lessor shall not be liable or responsible for any loss of or damage
to Lessee, or anyone claiming under or through Lessee, or otherwise, whether
caused by or resulting from a peril required to be insured hereunder, or from
water, steam, gas, leakage, plumbing, electricity or electrical apparatus, pipe
or apparatus of any kind, the elements or other similar causes, and whether or
not originating in the Demised Premises or elsewhere.
Section 6.05 LIABILITY OF TENANT. Lessee shall protect, indemnify and save
Lessor harmless from and against all and any liability and expense of any kind,
including reasonable attorney's fees, arising from injuries or damages to
persons or property in, on or about the leased premises arising out of or
resulting in any way from any act or omission of Lessee, its agents, servants
and employees, in the use of the Demised Premises during the term of this Lease.
Section 6.06 REQUIREMENTS. All of the aforesaid insurance shall be written
in the name of Lessor (and any designee (s) of Lessor) and Lessee and shall be
written by one or more responsible insurance companies with a Bests Insurance
Guide rating of A+ authorized to do business in Tennessee; all such insurance
shall contain endorsements that: such insurance may not be canceled or amended
with respect to Lessor (or its designee) except upon ten (10) days' prior
written notice to Lessor (or such designee) by the insurance company. Lessee
shall be solely responsible for the payment of the premiums therefor and Lessor
(or its designee) shall not be required to pay any premium for such insurance.
The minimum limits of comprehensive general liability policy of insurance shall
in no way limit or diminish Lessee's liability hereunder. Lessee shall deliver
to Lessor at least ten (10) days prior to the expiration of such policy, either
a duplicate original or a certificate of insurance on all policies secured by
Lessee in compliance with its obligations hereunder, together with evidence
satisfactory to Lessor of the payment of the premiums therefor. If Lessee fails
to obtain and provide any or all of the aforesaid insurance, then Lessor may,
but shall not be required to, purchase such insurance on behalf of Lessee and
add the costs of such insurance as Additional Rent due under this Lease.
ASSIGNMENT, SUBLETTING AND MORTGAGING
Section 7.01 Assignment and Subletting. Lessee may not, without the prior
written consent of Landlord (i) assign this Lease or any interest in this Lease,
(ii) permit or suffer any assignment of this Lease by operation of law, (iii)
sublet all or any portion of the Demised Premises, or (iv) permit the use of the
Demised Premises by any party other than Lessee and
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its' partners, officers and employees. Lessor's consent to any proposed
assignemnt or subletting shall not be unreasonably withheld. Lessor may
reasonably withhold consent to any subletting or assignment unless (i) the
credit history, financial strength, and business reputation of the sublesses or
assignee is reasonably acceptable to Lessor and Lessor's lender, (ii) Lessee
pays the reasonable costs (including attorney fees) incurred by Lessor in
investigating the subletting or assignment, and (iii) the sublessee's proposed
use of the Demised Premises is consistent with the current uses of the Demised
Premises and Property. No assignment or subletting shall release Lessee from any
of the obligations set forth in the Lease.
Section 7.02 MORTGAGING. Lessee may not mortgage or
otherwise encumber its interest in the Demised Premises or the improvements
thereon unless approved in writing by Lessor.
DEFAULT
Section 8.01 EVENTS OF DEFAULT. The occurrence of any of the following
acts or events, shall constitute events of default under this Lease (herein
referred to as "Default"):
(a) Lessee fails to make any payment required hereunder when due;
(b) Lessee fails to fulfill or perform any of Lessee's covenants (other
than the payment of rent which is specified in SECTION 8.01 (A) above),
agreements or obligations under this Lease and such failure continues for a
period of fifteen (15) days after Lessor shall have given Lessee written notice
thereof and specifying the nature of such failure;
(c) If at any time during the term herein there shall be filed by or
against Lessee, or against any successor Lessee then in possession, in any court
pursuant to any petition in bankruptcy, alleging in insolvency, for
reorganization, for the appointment of a receiver, or for an arrangement under
the Bankruptcy Code, or if a similar type of proceeding shall be filed;
(d) If Lessee shall abandon the Demised Premises for a period of ten
(10) or more days; or
(e) If this Lease or the estate of Lessee hereunder shall be transferred
or passed to or devolve upon any other person, firm, association or corporation,
except with Lessor's consent.
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Section 8.02 RIGHTS OF LESSOR UPON DEFAULT. Upon the occurrence of any
Default hereunder, Lessor shall have the right, at its option, and without
further notice, to give Lessee written notice of the termination of this Lease
as of the date of such written notice or such date as may be specified in such
notice of termination. On such termination date, this Lease and the term hereby
granted and created, as well as all of the right, title and interest of Lessee
hereunder (without further action on Lessor's part or those claiming under
Lessor) shall wholly cease and expire, in the same manner and with the same
force and effect as if the expiration of time in such notice were the end of the
term herein originally demised. Lessor or those claiming under Lessor may
immediately or at any time thereafter, and without further notice or demand,
enter into and upon the Demised Premises or any part thereof, and repossess the
same as of Lessor's first and former estate, and expel Lessee and those claiming
under Lessee and remove Lessee's effects (forcibly, if necessary) without being
taken or deemed guilty of any manner of trespass and without prejudice to any
remedies that might otherwise be used for arrears of rent or breach of
contracts. Lessee agrees that, notwithstanding the termination of the Lease and
the possession regained by Lessor, it will indemnify Lessor against all loss of
rent which Lessor may suffer by reason of such termination, during the remainder
of the term hereof, as well as all other damages to which Lessor may be
entitled. It is especially agreed and understood that Lessor may retain all
advance rentals or deposits in Lessor's possession as and for damages to apply
against rentals to accrue during the remainder of the term hereof and any other
damages. Lessor shall not be required to relet the Demised Premises nor exercise
any other right granted to Lessor hereunder, Lessor shall exercise reasonable
efforts to minimize Lessee's loss as a result of Lessee's default. If Lessor
attempts to relet the Demised Premises, Lessor shall be the sole judge as to
whether or not a proposed tenant is suitable and acceptable.
Upon the occurrence of any Default hereunder, Lessor shall have, in
addition to any other remedies which it may have hereunder, the right to invoke
any remedy allowed at law or in equity to enforce Lessor's rights or any of
them, as if reentry and other remedies were not herein provided for, including
without limitation, the right to elect not to terminate this Lease and require
Lessee to cure any default hereunder.
In the event Lessor does not exercise the rights of reentry hereinabove
given Lessor, Lessor may accept rent from any receiver, trustee, or other
officer in possession thereof, for the term of such occupancy without impairing
or affecting in any way the rights of Lessor against Lessee hereunder or his
right to such advance rentals or deposit. Any neglect or failure to enforce the
right of forfeiture of this Lease or reentry upon the breach of any of the
conditions, covenants, terms and agreements
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herein contained, shall not be deemed a waiver of such right upon any continuing
or subsequent breach of any such or any other condition, covenant, term and/or
agreement herein contained.
If Lessor shall deem it necessary to engage attorneys to enforce its
rights hereunder, with the determination of such necessity to be in the sole
discretion of Lessor, Lessee will reimburse Lessor for the reasonable costs and
expenses incurred thereby, including but not limited to court costs and
attorneys' fees.
MORTGAGE AND ESTOPPEL CERTIFICATE
Section 9.01 SUBORDINATION. This Lease shall be subject and subordinate at
all times to the lien of existing mortgages and of mortgages which hereafter may
be made a lien on the Demised Premises. Although no instrument or act on the
part of lessee shall be necessary to effectuate such subordination, Lessee
agrees it will execute such further instruments subordinating this Lease to the
liens of such mortgages as may be requested by the mortgagee at no cost or
expense to Lessee.
Section 9.02 RIGHTS OF LESSOR'S MORTGAGEE. Provided any of Lessor's
mortgagees advises Lessee of its lien (Mortgagee"), the following provisions
shall apply:
(a) CONSENT TO AMENDMENT. There shall be no cancellation, surrender or
amendment of this Lease by Lessor and/or Lessee without the prior written
consent of any of the Mortgagees.
(b) NOTICES. Lessor, upon delivering to Lessee any notice required to be
given to Lessee by Lessor under this Lease, shall simultaneously deliver a copy
of such notice to any of the Mortgagees.
Section 9.03 ESTOPPEL CERTIFICATE. Lessor and Lessee agree that Lessee
will at any time and from time to time, but not more than twenty (20) days after
written request by either of them to the other, execute, acknowledge and deliver
to the requesting party a statement in writing certifying that this Lease is
unmodified and is in full force and effect (or if there have been such
modifications, that the same is in full force and effect as modified, and
stating the modification) and the date to which the rental and other changes
have been paid in advance, it being intended that any such statement delivered
pursuant to this section may be relied upon by any prospective purchaser of the
fee, mortgagee or asignee of any mortgage upon the fee or leasehold interest in
the Demised Premises or by the assignee of the Lessee if such assignment is
permitted by the Lessor as otherwise herein required. The requesting party of
any such Estoppel Certificate shall bear the cost and expenses reasonably
incurred by the Lessor or Lessee, as the case may be, in connection with the
execution and delivery of such Estoppel Certificate.
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CONDEMNATION
Section 10.01 TAKING. Any taking during the Term of this Lease of any
interest in the Demised Premises as a result of the actual exercise of the power
of condemnation or eminent domain by the United States or any other body having
such power or any sale or other transfer of any such interest in lieu of or in
anticipation of the impending exercise of any such power, to any person legally
empowered to exercise such power shall, for the purposes of this Lease, be
herein referred to as a "Taking".
Section 10.02 TOTAL TAKING. In the event all of the Demised Premises or
such portion thereof as makes the residue of substantially no commercial value
to Lessee (as reasonably determined by Lessor) is subject to a Taking, this
Lease shall automatically terminate on the date that title to the Demised
Premises or portion thereof vests in the condemning authority; provided,
however, that the termination of this Lease shall not benefit the condemnor and
shall be without prejudice to the rights of either Lessor or Lessee to recover
just and adequate compensation from the condemning authority.
Section 10.03 PARTIAL TAKING. In the event less than all of the Demised
premises is subject to a Taking and/or the residue after a Taking remains of
substantial commercial value to Lessee (as reasonably determined by Lessor),
this Lease shall not terminate, provided, however, that (i) the rent payable
hereunder shall be equitably reduced by Lessor in proportion to the portion of
the Demised Premises which has been subject to a Taking; and (ii) such
continuing of this Lease shall be without prejudice to the rights of either
Lessor or Lessee to recover just and adequate compensation from the condemning
authority.
DAMAGE OR DESTRUCTION
Section 11.01 LESSEE TO GIVE NOTICE. In the event of any damage to or
destruction of the Demised Premises or any improvements or any part thereof,
Lessee will give written notice thereof to Lessor describing the nature and
extent of such damage or destruction.
Section 11.02 TOTAL DESTRUCTION. In the event all of the Demised Premises
or such portion thereof as makes the residue of substantially no commercial
value to Lessee is destroyed by fire or other casualty, (i) Lessor may, at its
option, promptly restore the Demised Premises as soon as reasonably possible to
the condition of the same prior to such damage or destruction, in which event
the rent payable hereunder shall xxxxx until the
14
completion of said restoration, or (ii) Lessor may terminate this Lease without
penalty. All insurance proceeds received by Lessor or Lessee pursuant to the
provisions of this Lease, less the cost, if any, of the recovery of said
proceeds, shall be applied to the payment for such restoration, if said
restoration is elected by lessor. Any balance of such proceeds thereafter
remaining shall be payable to Lessor. If Lessor elects not to so restore the
Demised Premises, then this Lease shall terminate as of the date of such damage
or destruction. Lessor shall notify Lessee within sixty (60) days after the date
of such damage or destruction of Lessor's election to restore or not to restore
the Demised Premises.
Section 11.03 PARTIAL DESTRUCTION. In the event less than all of the
Demised Premises is damaged or destroyed and/or the residue after damage or
destruction of the Demised Premises remains of substantial commercial value to
Lessee (as reasonably determined by Lessor), this lease shall not terminate;
provided, however, that Lessor shall promptly proceed to restore the portion of
the Demised Premises which was damaged or destroyed as nearly as possible to its
condition prior to such damage or destruction. All insurance proceeds received
by Lessor or Lessee pursuant to provisions of this Lease, less the cost, if any,
of the recovery of said proceeds shall be applied to the payment for such
restoration and any balance thereafter remaining shall be paid to Lessor. The
rent payable hereunder shall be reduced by mutual agreement of Lessee and Lessor
in proportion to the portion of the Demised Premises which has been damaged or
destroyed until the completion of the renovation thereof.
WAIVER OF SUBROGATION
Section 12.01 CONDITIONAL MUTUAL RELEASE AND WAIVER OF SUBROGATION. Lessor
and Lessee hereby release the other from any and all liability or responsibility
to the other or anyone claiming through or under them by way of subrogation or
otherwise for any loss or damage to property caused by fire or any extended
coverage or supplementary contract casualties, even if such fire or other
casualty shall have been caused by the fault or negligence of the other party,
or anyone for whom such party may be responsible, PROVIDED, HOWEVER, that this
release shall be applicable and in force and effect only with respect to loss or
damage fully covered by insurance and occurring during such time as the
releasor's insurance policies shall contain a clause or endorsement to the
effect that any such release shall not adversely affect or impair said policies
or prejudice the right of the releasor to recover thereunder. Lessor and Lessee
each agree that they will request their insurance carriers to include in their
policies such a clause or endorsement. If extra cost shall be charged therefor,
each party shall advise the other
15
thereof and of the amount of the extra cost, and the other party, at its
election, may pay the same, but shall not be obligated to do so.
CONDITION OF DEMISED PREMISES
Section 13.01 LESSEE'S INSPECTION; DISCLAIMER OF ANY REPRESENTATIONS BY
LESSOR. Except as otherwise set forth in this Lease, Lessee accepts this Lease
of the Demised Premises "as is" on the date of occupancy and further agrees
that, in taking this Lease, it is governed by its own inspection of the Demised
Premises and the plans for the rental space leased hereby and its own judgment
of their desirability for its purpose, and has not been governed or influenced
by any representation of Lessor as to condition and character of the Demised
Premises; that no agreements, stipulations, reservations, exceptions or
conditions whatsoever have been made or entered into in regard to the Demised
Premises or this Lease, which will in any way vary, contradict or impair the
validity of this Lease or any of its terms and conditions as herein set forth,
and that no modification of this Lease shall be binding unless it be in writing
and executed by all the parties hereto. Furthermore, Lessee takes this Lease on
the Demised Premises subject to all statutes, ordinances and regulations of
competent governmental authority affecting the occupancy and use thereof, the
construction and maintenance of improvements thereof, and the business and
occupations to be engaged in by Lessee, in force now or subsequently put in
force during the term of this Lease.
HAZARDOUS WASTE
Section 14.01 LESSOR'S PROTECTION FROM HAZARDOUS WASTE. Throughout the
term of this Lease Lessee shall not undertake or permit any use, storage,
installation, existence, release, threatened release, discharge, generation,
abatement, removal, disposal, handling or transportation on, under, or from the
Demised Premises of any hazardous or toxic substance or hazardous or toxic
waste, as defined by any applicable ordinance law, regulation or requirement of
any governmental body except if Lessee is in compliance with all applicable
ordinances, laws, regulations and requirements of any governmental body and such
use is customary for Lessee's use as herein defined. If Lessor is not satisfied
that such activities are in compliance with such ordinances, laws, regulations
or requirements, Lessee shall immediately, upon notice thereof, cease such
activities. Lessor shall have the right from time to time to conduct an
environmental audit of the Demised Premises and Lessee shall cooperate in the
conduct of such audit. If Lessee shall breach any covenant provided in this
SECTION 14.01, then, in addition to any other rights and remedies Lessor may
have under this Lease or otherwise, Lessor may require Lessee to take all
actions, or reimburse Lessor for the costs of
16
such actions taken by Lessor as are reasonably necessary to cure such breach.
The Lessor represents that to the best of its knowledge, without the benefit of
inspection and analysis, no hazardous or toxic substances or wastes exist within
the Demised Premises, the Building, or upon the property and Lessor agrees to
remove or cause the removal of all such substances and wastes not generated by
the Lessee, or allowed upon the property by the Lessee, from the Demised
Premises or the common areas of the building. Lessor shall not undertake or
permit any use, storage, installation, existence, release, threatened release,
discharge, generation, abatement, removal, disposal, handling or transportation
on, under or from the common areas of the Demised Premises of any hazardous or
toxic substance or hazardous or toxic waste, as defined by any applicable
ordinance, law, regulation or requirement of any governmental body except if
Lessor is in compliance with all applicable ordinances, law, regulations and
requirements of any governmental body. The obligations of Lessor and Lessee
under this Section shall survive the expiration or other termination of this
Lease.
HOLD HARMLESS AGREEMENT
Section 15.01 LESSOR PROTECTED FROM CLAIMS OR DAMAGES. From and after the
day hereof, Lessee covenants and agrees to defend and hold Lessor harmless
against any and all claims, suits, damages or causes of action for damages,
arising from the date hereof, and against any orders, decrees or judgments which
may be entered in, as a result of any alleged injury to person and/or property
or alleged loss of life sustained in the Demised Premises and the buildings and
improvements thereon, by any person or persons whomsoever, except as such shall
result from the gross negligence or willful acts of Lessor or from a breach of
this Lease by Lessor.
MISCELLANEOUS
Section 16.01 WAIVER. Failure of Lessors to insist upon the strict
performance by Lessee of any term, condition or covenant on Lessee's part to be
performed pursuant to the term of this Lease or to exercise any option, right,
power or remedy of Lessors contained in this Lease shall not be deemed nor
construed as a waiver of such right now or subsequent hereto. No waiver of any
terms or provisions hereof shall be valid unless such waiver is in writing.
Section 16.02 SEPARABILITY. Each and every covenant and agreement
contained in this Lease shall be for any and all purposes hereof construed as
separate and independent and the breach of any covenant by Lessors shall not
discharge or relieve Lessee from its obligation to perform each and every
covenant and
17
agreement to be performed by Lessee under this Lease. All rights, power and
remedies provided herein may be exercised only to the extent that the exercise
thereof does not violate applicable law and shall be limited to the extent
necessary to render this Lease valid and enforceable. If any term, provision or
covenant of this Lease or the application thereof to any person or circumstance
shall be held to be invalid, illegal or unenforceable, the validity of the
remainder of this Lease or the application of such term, provision or covenant
to persons or circumstances other than those to which it is held invalid or
unenforceable shall not be affected thereby.
Section 16.03 NOTICES, DEMAND AND OTHER INSTRUMENTS. All notices, demands,
requests, consents and other instruments required or permitted to be given
pursuant to the term of this Lease shall be in writing and shall be deemed to
have been properly given (i) upon personal delivery, or (ii) upon deposit in the
United States Mail, if sent by first class, registered or certified United
States Mail, return receipt requested, addressed to each party hereto at:
Lessors: Xxxxxxxxxx X. Xxxxxx
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Lessee: Mechanical Data, Inc.
00000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
ATTN: Xxxxx Xxxxxx, President
or at such other address in the United States as Lessors or Lessee may from time
to time designate in writing and deliver to the other party.
Section 16.04 SUCCESSORS AND ASSIGNS. Each and every covenant, term,
condition and obligation contained in this Lease shall apply to and be binding
upon and inure to the benefit or detriment of the respective legal
representatives, successors and assigns of Lessor and Lessee. Whenever reference
to the parties hereto is made in this Lease, such reference shall be deemed to
include the legal representatives, successors and assigns of Lessor and Lessee
as if in each case expressed. The term "Person" when used in this Lease shall
mean any individual, corporation, partnership, firm, trust, joint venture,
business association, syndicate, government or governmental organization or any
other entity.
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Section 16.05 HEADINGS. The headings to the various sections of this Lease
have been inserted for purposes of reference only and shall not limit or define
the express terms and provisions of this Lease.
Section 16.06 COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which is an original, but all of which shall constitute
one instrument.
Section 16.07 APPLICABLE LAW. This Lease shall be construed under
and enforced in accordance with the laws of the State of Tennessee.
Section 16.08 ALL GENDERS AND NUMBERS INCLUDED. Whenever the singular or
plural number, or masculine, feminine or neuter gender is used in this Lease, it
shall equally apply to, extend to and include the other.
Section 16.09 TIME OF THE ESSENCE. It is specifically agreed that the
timely payment of each and every installment of rent and performance of each and
every one of the terms, covenants and conditions hereof is of the essence of
this Lease.
Section 16.10 SHORT FORM LEASE. The parties will at any time at the
request of either one, execute duplicate originals of any instrument in
recordable form which will constitute a short form lease or memorandum of lease
setting forth the description of the Demised Premises and the term of this Lease
so that it will not be necessary to record this Lease in its entirety.
Section 16.11 AMENDMENT OR MODIFICATION. Lessee acknowledges and agrees
that Lessee has not relied upon any statement, representations, agreements or
warranties except as expressed herein, that this Lease contains the entire
agreement of the parties, and that no amendment or modification of this Lease
shall be valid or binding unless expressed in writing and executed by the
parties in writing hereto in the same manner as the execution of this Lease.
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Section 16.12 SPECIAL STIPULATIONS. The attached Special Stipulations are
incorporated in and made a part of the within Lease, and if any are in conflict
with any terms of this Lease, the Special Stipulations shall control. See
attached Exhibit "B".
IN WITNESS WHEREOF, Lessor and Lessee have caused this LEASE AGREEMENT to
be executed as of the day and year first above written.
LESSOR:
/s/Xxxxxxxxxx X. Xxxxxx
-----------------------------------
XXXXXXXXXX X. XXXXXX
LESSEE: Acme Television of Tennessee, LLC
By: /s/Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
Title: Executive Vice President
The following page contains a list of Exhibits and Attachment which have
been intentionally omitted by the Registrants.
A copy of any omitted Exhibit or Attachment will be provided to the
Securities and Exchange Commission upon request.
Attachment - Floor Plan
Exhibit A - Receipt of Rent
Exhibit B - Special Stipulations
