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EXHIBIT 10.8
LEASE AGREEMENT
LANDLORD & TENANT
1. THIS LEASE AGREEMENT, entered into this 27th day of March 1995, by and
between Cummins Station LLC corporation with its principal office and place of
business in Nashville, Tennessee, hereinafter called "Landlord," and NewOrder
Media, Inc. hereinafter called "Tenant."
WITNESSETH:
PREMISES
2. That the Landlord, for and in consideration of the payments hereinafter
stipulated to be made by Tenant, and the covenants and agreements hereinafter
contained to be kept and performed by Tenant, does by these presents hereby
lease unto the Tenant, and Tenant does by these presents hereby lease from
Landlord, the use and occupancy of
See Exhibit "A"
Suite 450
containing approximately 6,954 square feet and being the leased premises as
shown by design attached hereto as Exhibit "A," and incorporated herein, and
being a part of that building known as Cummins Station, situated on ___________
in Nashville, Tennessee, on a tract of land owned by Landlord more particularly
described in a certain warranty deed of record in the office of The County
Recorder.
TERM
3. TO HAVE AND TO HOLD the same for the term of 5 years next ensuing from
and after the 1st day of May, 1995, and ending on the 30th day of April, 2000,
unless the term hereby demised shall be sooner terminated as hereinafter
provided.
RENT
4. Tenant shall pay to Landlord as rent at the office of Landlord in
Nashville, Tennessee, or as may be directed the sum of $52,155.00/yr., years 1 &
2, $59,109.00/year, years 3, 4 & 5 per annum for the original term hereof,
except as noted hereinafter, payable in installments of $4,346.25/month, years 1
& 2, $4,925.75/month years 3, 4 & 5 per month for each and every month during
the original term hereof, the first such installment being on the first day of
the first calendar month of said term, and another such installment being due
and payable on the first day of each and every succeeding calendar month of said
term, in advance, until the full payment of the total sum shall be made. Any
rental not paid when due shall bear interest at the rate of 10 per cent per
annum from the date payment was due until paid.
CONDITIONS
5. This lease is entered into upon the understanding and agreement that the
same shall be subject to the following express terms and conditions and rules
"Exhibit B" attached, each and every one of which the parties hereto covenant
and agree to keep and perform:
FIRST: That Tenant agrees to pay to Landlord the sums herein, specified
during the original and any renewal term hereof without demand, and without
counterclaim, deduction, or set-off, and to comply with the terms and provisions
of this lease.
USE
SECOND: That Tenant will use and occupy said premises for offices for
computer software, design & related services and for no other purpose; that
Tenant will keep said demised premises in good repair and tenantable condition
and shall quit and surrender said premises peaceably at the end of the original
or any renewal term hereof in as good condition as the reasonable use thereof
will permit; and that Tenant will replace at his own expense any and all broken
glass in and about said premises, if due to Tenant's negligence, with glass of
the same size and quality, including all signs thereon. If Tenant fails to make
proper repairs, Landlord, at its option, may make such repairs at Tenant's
expense.
CONDITIONS OF PREMISES
THIRD: That no representations, except as are contained herein or endorsed
hereon, have been made to the Tenant respecting the condition of said premises.
The taking possession of the said premises by the Tenant shall be conclusive
evidence against the Tenant that premises were in good and satisfactory
condition when possession of the same was so taken; and the Tenant will, at the
termination of this lease, by lapse of time or otherwise, return said premises
to the Landlord in as good condition as when received, loss by fire, storm or
other casualty and ordinary wear excepted.
SUBLETTING & ASSIGNMENT
FOURTH: That the Tenant will not assign this lease nor any interest
hereunder; and will not permit any assignment hereof by operation of law; and
will not sublet said premises or any part thereof; and will not permit the use
of said premises by desk tenants or any parties other than the Tenant, and the
agents and servants of the Tenant, without first obtaining the written consent
of the Landlord, which shall not be unreasonably withheld. Landlord may assign
his lease or any part thereof or right thereunder.
ALTERATIONS & IMPROVEMENTS
FIFTH: No alterations, additions or improvement to the leased premises,
except such as may be provided for in this lease, shall be made without first
having the consent, in writing, of the Landlord, and any improvements, additions
or alterations made by the Tenant after such consent shall have been given,
including any and all fixtures installed, excepting trade fixtures, shall at
Landlord's option remain on the premises as the property of the Landlord,
without compensation to Tenant, or shall be removed therefrom and the premises
restored to their original condition at cost to Tenant, at the expiration or
sooner termination of this lease. The Tenant shall at his own cost repair any
damage caused by the removal of trade fixtures restoring the premises to their
original condition at his own expense. The Tenant agrees to save Landlord
harmless on account of claims for mechanics, materialmen or other liens in
connection with any alterations, additions, or improvements to which Landlord
may give its consent in connection with the leased premises, and Tenant will, if
required by Landlord, furnish such waiver or waivers of lien or bond in form and
with surety satisfactory to Landlord, as Landlord may require before starting
any work in connection with alterations, additions or improvements to the leased
premises.
LIMITS OF USE & PEACEFUL ENJOYMENT
SIXTH: That the Tenant will not use or permit upon said premises anything
that will invalidate any policies of insurance now or hereafter carried on said
building or that will increase the rate of insurance on said demised premises or
on the building of which said demised premises are a part; that the Tenant will
not use or permit upon said demised premises anything that may be dangerous to
life or limb; the Tenant will not in any manner deface or injure said building
or any part thereof, or overload the floors of said premises, it being mutually
agreed that in no event shall any weight placed upon said floors exceed
seventy-five pounds per square foot of floor space covered; that the Tenant will
not permit any objectionable noise or odor to escape or be emitted from said
premises in any way tending to create a nuisance,
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or tending to disturb any other tenant in said building or the occupants of
neighboring property, or tending to injure the reputation of the said building:
the Tenant will comply with all governmental, health and police requirements and
regulations respecting said premises.
PERSONAL OR PROPERTY RISKS
SEVENTH: Landlord shall not be held responsible for and is hereby expressly
relieved from all liability by reason of any injury, loss or damage to any
person or property in or about the leased premises, unless caused by negligence
of Landlord, whether the loss, injury, or damage be to the person or property of
the Tenant or any other person. This provision shall apply especially (but not
exclusively) to damage caused by water, snow, frost, steam, sewage, illuminating
gas, sewer gas, or odors, or by the bursting or leaking of pipes or plumbing
works, and shall apply equally whether such damage be caused by the act or
neglect of other tenants, occupants or janitors of said building or of any other
persons, and whether such damage be caused or occasioned by anything above
mentioned or referred to, or by any other thing or circumstance, whether of a
like nature, or of a wholly different nature. If any such damage shall be caused
by the acts of neglect of the Tenant, the Landlord may, at its option, repair
such damage, whether caused to the building or the tenants thereof, and the
Tenant shall thereupon reimburse the Landlord the total cost of such damage both
to the building and to the tenants thereof. The Tenant further agrees that all
personal property upon the demised premises shall be at risk of the Tenant only
and that the Landlord shall not be liable for any damage thereto or theft
thereof. Nor shall the landlord be liable for the stoppage or interruption of
water, light, heat, air conditioning, janitor or elevator service, caused by
riot, strike, accident, or to make needful repairs, or by any cause over which
the Landlord has no control. Nor shall the Landlord be liable for any act or
neglect of the janitors or other employees not authorized by the Landlord. And
such failure, delay or default of the janitors or employees shall not be
construed or considered as an actual or constructive eviction of the Tenant nor
shall it in any way operate to release the Tenant from the punctual performance
of each and all of the other covenants herein contained by the Tenant to be
performed.
RIGHTS OF LANDLORD ON DEFAULT
EIGHTH: That if default shall at any time be made by said Tenant in the
payment of the rent hereby reserved, or any installment thereof, or if default
shall be made in any of the other covenants herein contained, to be kept,
observed and performed by the Tenant, or if the leasehold interest shall be
levied on under execution, or in the event of the insolvency or bankruptcy of
the Tenant, or the filing of any petition under the bankruptcy statute,
voluntarily or involuntarily and whether or not resulting in an adjudication in
bankruptcy, or in the event of a partial or general assignment for the benefit
of a creditor, then, and in any of said cases, the Landlord may, at its option,
at once, without notice to the Tenant, terminate this lease; and upon the
termination of said lease at the option of the Landlord as aforesaid, or at the
expiration by lapse of time of the term hereby demised, the Tenant will at once
surrender possession of said premises to the Landlord, and remove all effects
therefrom, and if such possession be not immediately surrendered, the Landlord
may forthwith re-enter said premises and repossess itself thereof as of its
former estate and remove all persons and effects therefrom, using such force as
may be necessary, without being deemed guilty of any manner of trespass or
forcible entry and detainer. And the Tenant expressly waives the service of any
notice of intention to terminate this lease or to re-enter said premises, and
waives the service of any demand for payment of rent or for possessions, and
waives the service of any and every other notice or demand prescribed by any
statute or other law, and agrees that the simple breach of any of the said
covenants shall, of itself, without the service of any notice or demand
whatever, constitute a forcible detainer by the Tenant of said premises, within
the meaning of the statutes, of the State of Tennessee. No receipt of moneys by
the Landlord from the Tenant, after the termination in any way of this lease, or
after giving of any notice, shall reinstate, continue or extend the term of this
lease or affect any notice given to the Tenant prior to the receipt of such
money, it being agreed that after the service of notice of the commencement of a
suit, or after final judgment for possession of said premises, the Landlord may
receive and collect any rent due, and the payment of said rent shall not waive
or affect said notice, said suit or said judgment. If the tenant shall not
remove all effects from said premises as above agreed, the Landlord may, at its
option, remove the same in any manner that the Landlord shall choose and store
the same without liability to the Tenant for loss thereof, and the Tenant will
pay the Landlord, on request, any and all expense incurred in such removal and
also storage on said effects for any length of time during which the same shall
be in the Landlord's possession; or the Landlord may at its option, without
notice, sell the said effects or any of the same for such price as the Landlord
may deem best and apply the proceeds of such sale upon any amounts due under
this lease from the Tenant to the Landlord, including the expenses of the
removal and sale.
RIGHTS OF LANDLORD ON ABANDONMENT
NINTH: That in event the Tenant shall vacate said premises or abandon the
same during the life of this lease, the Landlord may, at its option, without
terminating this lease, but the Landlord shall not be under any obligation to do
so, enter into said premises, remove the Tenant's signs therefrom, and relet the
same for the account of the Tenant, for such rent and upon terms as shall be
satisfactory to the Landlord, without such re-entry working a forfeiture of the
rents to be paid and the covenants to be performed by the Tenant during the full
term of this lease; and for the purpose of such re-letting the Landlord is
authorized to make any repairs, changes, alterations or additions in or to said
demised premises that may be necessary or convenient, and if a sufficient sum
shall not be realized monthly from such re-letting, after paying all of the
costs and expenses of such re-letting the collection of the rent accruing
therefrom each month to satisfy the monthly rent above provided to be paid by
the Tenant, then the Tenant will pay and satisfy such deficiency each month upon
demand therefor.
LOSS OR DAMAGE TO PREMISES
TENTH: Should the building upon the demised premises be totally destroyed
by fire or other cause, or so damaged that rebuilding or repairs cannot be
completed within one hundred and eighty (180) days from date of fire, or other
cause of damage, this lease shall terminate and the Tenant shall be allowed an
abatement of rent from the date of such damage or destruction. However, if the
damage is such that rebuilding or repairs can be completed within 180 days, the
Landlord covenants and agrees to make such repairs with reasonable promptness
and dispatch, and to allow Tenant an abatement in the rent for such time as the
building is untenantable, or proportionately for such portion of the leased
premises as shall be untenantable and the Tenant covenants and agrees that the
terms of this lease shall not otherwise be affected.
CONDEMNATION
ELEVENTH: If the whole of the demised premises shall be taken or condemned
by any competent authority for public or quasi public use or purpose, then, and
in that event, the term of this lease shall cease and terminate when the
possession of the demised premises so taken shall be required for such use or
purpose and without apportionment of the award. If any part, less than the
whole, of the demised premises shall be so taken or condemned, then, and in that
event, the Landlord shall have the option exercisable by notice in writing to
the Tenant within sixty (60) days from the notice to Landlord of the taking or
condemnation, to terminate this lease; and in the event Landlord does not
exercise its option reserved herein to so terminate this lease, it shall
continue with reference to the portion of the demised premises not taken or
condemned unless the same is rendered untenantable by such taking and
condemnation or cannot be made tenantable by repairs to be conducted by Landlord
at its expense. In either event, the entire award for the taking and
condemnation of the premises shall belong to Landlord, and Tenant shall have no
interest therein; and in the event this lease continues with reference to the
portion of the demised premises not taken, the rental specified hereunder shall
be prorated and adjusted on a square footage basis. In the event that this lease
terminates by a taking or condemnation of the whole of the demised premises or
by the election on the part of Landlord as provided herein, the current rental
shall in either case be apportioned to the date of termination of the lease.
REDECORATION
TWELFTH: That if the Tenant shall move from said premises at any time prior
to the termination of this lease, the Landlord shall have the right to enter
upon said premises for the purpose of decorating the same or making alterations
or changes therein, without such entry in any manner affecting the obligation of
the Tenant hereunder.
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MOVING TENANT
THIRTEENTH: Landlord reserves the right to move Tenant to other space in
said building on thirty days' notice. Tenant to have the option within ten days
from the date of said notice to agree with Landlord upon new space. In case
Landlord and Tenant do not agree within said ten days upon terms of removal,
then this lease to become null and void and of no further effect, after thirty
days from the date of above notice. Landlord agrees to pay expenses of moving
Tenant to the new space agreed upon.
RIGHTS OF LANDLORD
FOURTEENTH: The right of the Landlord to terminate this lease as herein set
forth is in addition to and not in exhaustion of such other rights that the
Landlord has, or causes of action that may accrue to the Landlord because of the
Tenant's failure to fulfill, perform or observe the obligations, agreements or
covenants of this lease, and the exercise or pursuit by the Landlord of any of
the rights or causes of action accruing hereunder shall not be an exhaustion of
such other rights or causes of action that the Landlord might otherwise have.
WAIVERS
FIFTEENTH: No waiver of any condition expressed in this lease shall be
implied by any neglect of the Landlord to declare a forfeiture on account of the
violation of such condition if such violation be repeated or continued
subsequently and no express waiver shall affect any condition other than the one
specified in such waiver, and that one only for the time and in the manner
specifically stated.
ATTORNEYS
SIXTEENTH: That the Tenant will pay all reasonable attorney's fees and
expenses the Landlord incurs in enforcing any of the obligations of the Tenant
under this lease, or in any litigation or negotiation in which the Landlord
shall without its fault, become involved through or on account of this lease.
LIENS
SEVENTEENTH: A first lien is hereby expressly reserved by the Landlord and
granted by the Tenant upon the term of this lease and upon all interest of the
Tenant in this leasehold for the payment of rent and also for the satisfaction
of any cause of action which may accrue to the Landlord by the provisions of
this instrument. A first lien is also expressly reserved by the Landlord and
granted by the Tenant upon all personal property, fixtures, improvements and all
other fixtures erected or put in place or that may be erected or put in place
upon the premises by or through the Tenant or other occupants for the payment of
rent and also for the satisfaction of any causes of action which may accrue to
the Landlord by the provisions of this instrument.
HOLD OVER
EIGHTEENTH: That the Tenant will pay to the Landlord, as liquidated
damages, double rent for all the time the Tenant shall retain possession of said
premises or any part thereof after the termination of this lease, whether by
lapse of time or otherwise; but the provisions of this clause shall not operate
as a waiver by the Landlord of any right of re-entry hereinbefore provided; nor
shall any waiver by the Landlord of its right to terminate this lease for breach
of covenant affect its right to terminate this lease for any later breach of the
same or another covenant.
AIR RIGHTS
NINETEENTH: It is understood and agreed that this lease does not grant any
rights to light and air over property except public streets adjoining the land
on which said building is situated.
HOLD HARMLESS
TWENTIETH: Tenant covenants to save and hold the Landlord harmless from
violations of the laws of the United States, of the State in which the demised
premises are located, and the ordinances and laws of the city in which the
demised premises are located.
EXTRA USE OF PREMISES
TWENTY-FIRST: That in consideration of the execution of this lease by the
Landlord, the Tenant shall not use said premises for any purpose except that
which is above specified, and in particular will not expose nor offer for sale
on said premises, any alcoholic or other liquors, tobacco, drugs, flowers,
candies, confections nor any other thing or things whether of a like or of a
wholly different nature, without the written consent of the Landlord, the right
being hereby reserved to the Landlord to grant to any person, firm or
corporation the exclusive right and privilege to conduct any particular business
in said building, and such exclusive right and privilege so granted shall be
binding upon the Tenant hereunder the same as though specifically incorporated
in this lease.
ELECTRICAL & MECHANICAL IMPROVEMENTS
TWENTY-SECOND: Tenant shall not install or connect any air conditioning
equipment, electric-driven motor or any electrical, gas or water appliance or
equipment, without first submitting the same to Landlord and securing its
written consent. If such consent is obtained, Tenant shall each month promptly
pay the prevailing City or utility district in which the demised premises are
located, rates for the gas, electricity and/or water used by the Tenant for the
operation of such appliances, in addition to the rent provided for in Section
FIRST of this lease. With respect to air conditioning or any other electrical,
gas or water appliance or equipment installed by or under Tenant, Landlord shall
have the right to require that the premises be restored to the condition
existing prior to the installation of said appliance, including the removal of
any or all ducts, wiring, piping, etc., and the repair and replacement of all
damage caused by such removal, or, at Landlord's option, the right to retain all
ducts, wiring, piping, etc., and the right to require the delivery of demised
premises in the condition as changed as the result of the installation of such
ducts, wiring, piping, etc. Unless parties agree to the contrary, nothing herein
shall, however, prevent Tenant from removing the air conditioning or other
electrical units installed by or under Tenant, provided Tenant is not then in
default hereunder.
STORAGE
TWENTY-THIRD: If Tenant shall fail to remove all effects from said premises
upon termination of this lease for any cause whatsoever, Landlord may at its
option remove the same in any manner that Landlord shall choose and store said
effects without liability to Landlord for loss thereof, and Tenant agrees to pay
Landlord on demand any and all expenses incurred in such removal, including
court costs and attorney's fees and storage charge on such effects for any
length of time the same shall be in Landlord's possession, or Landlord may at
its option without notice sell said effects or any part of the same at private
sale and without legal process for such price as Landlord may obtain and apply
the proceeds of such sale upon any amounts due under this lease from Tenant to
Landlord and upon the expense incident to the removal and sale of said effects.
DEFECTS
TWENTY-FOURTH: Said Tenant shall give to said Landlord or its agent prompt
written notice of any accident to or defects in the water pipes, gas pipes, air
conditioning apparatus, to be remedied by said Landlord with due diligence from
and after its receipt of any such notice.
SUBORDINATION
TWENTY-FIFTH: This lease is subject and subordinate to all present
mortgages affecting the real estate and improvements thereon of which the
demised premises form a part, and to all renewals and extension thereof, and to
any mortgage which may hereafter be executed affecting the same.
LIQUIDATED DAMAGES
TWENTY-SIXTH: It is agreed between the parties hereto that if the rent
stipulated herein at any time shall not be paid when due, then all subsequent
installments of rent, remaining unpaid, shall forthwith become due and payable
at the option of Landlord with notice to Tenant, and in case the said Tenant is
declared bankrupt or voluntarily offers to creditors terms of composition, or in
case a receiver is appointed to take charge of and conduct the affairs of
Tenant, such claim for further unpaid installments of rent due under this lease
shall be considered liquidated damages and shall constitute a debt provable in
bankruptcy or receivership.
REMEDIES
TWENTY-SEVENTH: No act or thing done by Landlord or its agents during the
term hereby granted shall be deemed an acceptance of a surrender of said
premises, and no agreement to accept a surrender of said premises shall be valid
unless the same be made in writing and subscribed by Landlord. The provision in
this lease of any particular remedy shall not preclude Landlord from any other
remedy Landlord might have, either in law or in equity, nor shall the waiver of
or redress for any violation of any covenant or condition in this lease
contained or any of the rules and regulations set forth herein in Exhibit "B" or
hereafter adopted by Landlord, prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation. In case it should be necessary or
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proper for Landlord to bring any action under this lease or to consult or place
said lease, for any amount payable by Tenant thereunder, with an attorney
concerning or for the enforcement of any of Landlord's rights hereunder, then
Tenant agrees in each and any such case to pay to Landlord a reasonable
attorney's fee. The receipt by Landlord of rent with knowledge of the breach of
any covenant in this lease contained, shall not be deemed a waiver of such
breach. The failure of Landlord to enforce any of the rules and regulations set
forth in Exhibit "B," or hereafter adopted, against the Tenant and/or any other
tenant in the building shall not be deemed a waiver of such rules and
regulations. The receipt by Landlord of rent from any assignee, under-tenant or
occupant of said premises shall not be deemed a waiver of the covenant in this
lease contained, against assignment, and underletting or an acceptance of the
assignee, under-tenant or occupant as Tenant, or a release of Tenant from the
further observance or performance by Tenant of the covenant in this lease
contained, on the part of the Tenant to be observed and performed. No provision
of this lease shall be deemed to have been waived by Landlord unless such waiver
be in writing signed by Landlord. In case of termination of this lease by
Landlord under any option herein provided for, Landlord may re-enter the
premises without notice or demand, and in that event rent shall become due and
be apportioned and paid up to and including the day of such entry.
COMPLETION OF PREMISES
TWENTY-EIGHTH: The parties hereto agree that if, through no fault of
Tenant, the demised premises shall not be ready for occupancy at the date upon
which the term hereby demised is to begin, the rent under this lease shall not
commence until the said demised premises are ready for occupancy, where-upon
this lease and all the covenants, conditions and agreements herein contained
shall be given full force and effect, and the allowance of rent herein provided
to be paid by Tenant for such period prior to delivery of the demised premises
to said Tenant for occupancy, shall be in full settlement of all claims which
Tenant might otherwise have by reason of said demised premises not being ready
for occupancy on the date of the beginning of the term as set forth herein. The
certificate of the architect or company in charge of the construction of said
building shall control conclusively the date upon which the demised premises are
ready for occupancy. The parties also agree that for the purpose of completing
or of making repairs or alterations in any portion of said building. Landlord
may use one or more of the street entrances, the halls, passageways and
elevators of said building; provided, however, that there shall be no
unnecessary obstruction of the right of entry to the demised premises while the
same are occupied.
ESCALATION
TWENTY-NINTH: Intentionally omitted.
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THIRTIETH: The Landlord covenants that the Tenant upon paying the rent
and complying with the terms, covenants and conditions aforesaid shall and may
peaceably and quietly have, hold, and enjoy the leased premises for the term
aforesaid.
Further, the Landlord and Tenant covenant with each other:
(a) That all rights and remedies of the Landlord under this lease shall be
cumulative, and none shall exclude any other rights and remedies allowed by law.
(b) That the word "Landlord" and "Tenant" wherever used herein shall be
construed to mean Landlords and Tenants in all cases where there is more than
one Landlord or Tenant, and the necessary grammatical changes required to make
the provisions hereof apply either to corporations or individuals, men or women,
shall in all cases be assumed as though in each case fully expressed.
(c) Tenant hereby waives and renounces any and all homestead exemption
rights he may have now, or hereafter, under or by virtue of the constitution and
laws of the State in which the demised premises are located, or of any other
state, or of the United States, as against the payment of said rental or any
portion thereof, or any other obligation or damage that may accrue under the
terms of this agreement.
(d) It is understood and agreed between the parties hereto that notice from
the Landlord mailed or delivered to the premises leased thereunder shall
constitute sufficient notice to the Tenant to comply with the terms of this
contract.
(e) It is further understood and agreed between the parties hereto that any
charges against the Tenant by the Landlord for supplies, services, or work done
on the premises by order of the Tenant, or otherwise accruing under this
contract, shall be considered as rent due and shall be included in any lien for
rent due and unpaid.
(f) That all covenants, conditions, agreements and undertakings in this
lease shall extend to, and be binding on, the respective heirs, executors,
administrators, successors and assigns of the respective parties hereto the same
as if they were in every case named.
(g) That this lease embodies the entire agreement of the parties hereto and
that the same may not be altered, changed, or amended except by an instrument in
writing executed by both parties.
(h) That this lease shall be interpreted in accordance with the laws of the
State of Tennessee. If any clause or provision hereof should be determined to
be illegal, invalid or unenforceable under present or future laws effective
during the term of this lease or any renewal term hereof, then and in that
event, it is the express intention of the parties hereto that the remainder of
this lease shall not be affected thereby, and it is also the express intention
of the parties hereto that in lieu of each clause or provision of this lease
which may be determined to be illegal, invalid or unenforceable, there may be
added as a part of this lease a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
THIRTY-FIRST: Periodical replacement of fluorescent tubes and bulbs will be
provided by Landlord, but the cost of such replacement tubes or bulbs will be
borne by Tenant.
ADDENDA TO LEASE
THIRTY-SECOND:
See attached
IN WITNESS WHEREOF, the parties hereto have, on the day and year first above
written, executed this lease agreement in duplicate, one copy to be retained by
each of the parties and each such copy to be considered as an original for all
purposes.
ATTEST: CUMMINS STATION LLC
/s/ Xxxxx Xxxxxxxxxx By /s/ Landlord
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Landlord, Chief Member
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ATTEST OR WITNESS: NEWORDER MEDIA, INC.
/s/ Xxxxx Xxxxxxxxxx By /s/ Xxxx XxXxxxx
---------------------------------- ----------------------------------
Tenant, President
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EXHIBIT "B"
RULES AND REGULATIONS
Rule 1. No sign, picture, advertisement, or notice shall be displayed,
inscribed, painted or affixed, on any part of the outside or inside of said
building, or on or about the premises hereby demised, except on the glass of the
doors and windows of said premises and on the Directory Board of the building,
and then only of such color, size, style and materials as shall be first
specified by the Landlord in writing on this lease. No "For Rent" signs shall be
displayed by the Tenant, and no showcases, or obstructions, signs, flags, xxxxxx
poles, statuary, or any advertising device of any kind whatever shall be placed
in front of said building or in the passageways, halls, lobbies, or corridors
thereof by the Tenant; and the Landlord reserves the right to remove all such
showcases, obstructions, signs, flags, xxxxxx poles, statuary or advertising
devices and all signs other than those provided for, without notice to the
Tenant and at his expense.
Rule 2. The Tenant shall not, without the Landlord's written consent, put
up or operate any steam engine, boiler, machinery or stove upon the premises, or
carry on any mechanical business thereon, or do any cooking thereon, or use or
allow to be used upon the demised premises oil, burning fluids, camphene,
kerosene for heating, warming or lighting, or anything (except gas or
incandescent electric lights, and those only of such company or companies as may
be supplying the building) for illuminating said premises. No article deemed
extra hazardous on account of fire and no explosives shall be brought into said
premises.
Rule 3. No additional locks shall be placed upon any doors of the premises.
Upon the termination of the lease the Tenant shall surrender to the Landlord all
keys of the premises.
Rule 4. Safes, furniture, boxes or other bulky articles shall be carried
into the premises only with written consent of the Landlord first obtained, and
then only by means of the elevators, by the stairways or through the windows of
said building as the Landlord may in writing direct, and at such times and in
such manner and by such persons as the Landlord may direct. Safes and other
heavy articles shall be placed by the Tenant in such places only as may be first
specified in writing by the Landlord, and any damage done to the building or to
tenants or to other persons taking a safe or other heavy article in or out of
the demised premises, from overloading a floor, or in any other manner shall be
paid for by the Tenant causing such damage.
Rule 5. Elevator service and/or self-service elevator will be furnished by
the Landlord daily whenever said service shall, in the Landlord's judgement, be
required for the proper occupation and use of said premises.
Any person employed by the Tenant to do janitor work, shall, while in said
building and outside of said demised premises, be subject to and under the
control and direction of the Superintendent of said building (but not as agent
or servant of said Superintendent or of the Landlord).
The Landlord may retain a pass key to the premises and be allowed
admittance thereto at all times to enable its representatives to examine said
premises from time to time.
Rule 7. The Landlord and its agents shall have the right to enter the
demised premises at all reasonable hours for the purpose of examining or
exhibiting the same.
Rule 8. The Landlord, and its agents, shall have the right to enter the
demised premises at all reasonable hours for the purpose of making any repairs,
alterations, or additions which it or they shall deem necessary for the safety,
preservation, or improvement of said premises of said building, and the Landlord
shall be allowed to take all material into and upon said premises that may be
required to make such repairs, improvements and additions, or any alterations
for the benefit of the Tenant without in any way being deemed or held guilty of
an eviction of the Tenant; and the rent reserved shall in no wise xxxxx while
said repairs, alterations, or additions are being made; and the Tenant shall not
be entitled to maintain a set-off or counter-claim for damages against the
Landlord by reason of loss or interruption to the business of the Tenant because
of the prosecution of any such work. All such repairs, decorations, alterations,
additions, and improvements shall be done during ordinary business hours.
Rule 9. If the Tenant desires telegraphic or telephonic connections, or the
installation of any other electrical wiring, the Landlord will, upon receiving a
written request from the Tenant, direct the electricians as to where and how the
wires are to be introduced and run, and without such directions no boring,
cutting or installations of wires will be permitted.
Rule 10. The Tenant shall not allow anything to be placed against or near
the glass in the partitions, between the premises leased and the halls or
corridors of the building, which shall diminish the light in, or prove unsightly
from the halls or corridors.
Rule 11. No electric current, intended for light or power purposes, shall
be used by the tenants, excepting that furnished or approved by the Landlord;
nor shall electric or other wires be brought into the premises, except upon the
written consent and approval of the Landlord.
Rule 12. The Tenant, when closing his office for business at any time,
shall see that all windows are closed, thus avoiding possible damage from fire,
storm, rain or freezing.
Rule 13. The Tenant shall not allow anything to be placed on the outside
window ledges of the premises, nor shall anything be thrown by the Tenant, or
his employees, out of the windows of the building; nor shall they undertake to
regulate the thermostats, if any, which control the heat or air conditioning.
Rule 14. The water and wash closets and other plumbing fixtures shall not
be used for any purposes 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.
Rule 15. No bicycle or other vehicle, and no animal shall be brought into
the offices, halls, corridors, elevators or any other parts of said building, by
the Tenant, his agents or employees.
Rule 16. No person shall disturb the occupants of this or any adjoining
building premises by the use of any musical instruments, unseemly noises,
whistling, singing or in any other way.
Rule 17. The premises leased shall not be used for lodging or sleeping, nor
for any immoral or illegal purposes or for any purpose that will damage the
premises.
Rule 18. The entrances, corridors, passages, stairways and elevators shall
be under the exclusive control of the Landlord and shall not be obstructed, or
used by the Tenant for any other purpose than ingress and egress to and from the
leased premises.
Rule 19. Canvassing, soliciting and peddling in the building is prohibited
and each Tenant shall co-operate to prevent the same.
Rule 20. All office or other equipment of any electrical or mechanical
nature shall be placed by Tenant in demised premises in approved settings to
absorb or prevent any vibration, noise or annoyance.
Rule 21. No water cooler, air conditioning unit or system or other
apparatus shall be installed or used by any Tenant without the written consent
of Landlord.
Rule 22. There shall not be used in any space, or in the public halls of
said 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
and side guards.
Rule 23. The Landlord reserves the right to make such other and further
reasonable rules and regulations as in its judgment may from time to time be
needful for the safety, care and cleanliness of the premises, and for the
preservation of good order therein, and any such other or further rules and
regulations shall be binding upon the parties hereto with the same force and
effect as if they had been inserted herein at the time of the execution hereof.
7
EXHIBIT A
Map with layout of floor plan of 4th floor, Suite 450, of 000 00xx Xxxxxx
Xxxxx with hand drawn heavy outline of leased space.
8
ADDENDUM TO LEASE
This Addendum To Lease, entered into as of this 12 day of March, 1995, by
and between NewOrder Media, Inc., a Tennessee corporation, ("Tenant") and
Cummins Station LLC, a Tennessee corporation ("Landlord"), supplements and is
hereby made a part of the Lease Agreement ("Lease") entered into between Tenant
and Landlord on the 27 day of March, 1995.
Section 3 of the Lease is hereby modified and amended to provide Tenant
with two (2) options to renew the Lease for additional terms of five (5) years
each. Rent during the first renewal term (May 1, 2000 - April 30, 2005) shall be
at the lessor of the then-current market base rent for comparable space in the
building or $7.00 per square foot. Rent during the second renewal term (May 1,
2005 - April 30, 2010) shall be at the lessor of the then-current market base
rent for comparable space in the building or $9.00 per square foot.
The following provisions of section 5 of the Lease enumerated below are
hereby modified and amended as follows:
Paragraph THIRD. Prior to the semicolon in the fourth line, insert
"provided, however, that the foregoing shall not apply as against Tenant with
respect to any defects that would not be obvious upon a general inspection of
the premises".
Paragraph FIFTH. Landlord hereby approves and consents to the preliminary
plans for leasehold improvements attached to this Addendum To Lease as Exhibit
A-1. Landlord's consent to the final plans substantially conforming to the
attached preliminary plans shall not be unreasonably withheld. Any provisions to
the Lease to the contrary notwithstanding, Tenant shall not be required by to
remove any improvements, additions or alterations that have been approved by
Landlord. Any provisions to the Lease to the contrary notwithstanding, Tenant
shall have at its option the right to remove the following items upon expiration
of the Lease: front receptionist's desk, kitchen cabinetry, installed kitchen
appliances, copy room cabinetry and lighting fixtures. In addition to the
aforesaid, Tenant shall have at its option the right to remove any Tenant
installed doors and door frames, provided that building standard doors and door
frames are installed as replacements at Tenant expense, and Tenant shall have
the right to remove any Tenant installed windows and window frames, provided
that building standard, finished walls are installed as replacements at Tenant
expense.
Paragraph SIXTH. Tenant shall in no way be responsible for the physical
condition of the premises to be in compliance with any requirements and
regulations mentioned in this paragraph. Compliance with such regulations shall
be the exclusive responsibility of Landlord (including, but not limited to,
compliance with federal and state environmental laws and the Americans With
Disabilities Act).
Paragraph SEVENTH. Any provisions to the Lease to the contrary
notwithstanding, in the event of any stoppage or interruption of water, light,
heat, air conditioning, janitor or elevator services, or any such condition that
shall render the premises or a portion thereof untenantable and should such
condition exist or continue for more than 72 hours, such condition shall
constitute a constructive eviction.
Landlord by TP
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Tenant by JM
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Paragraph EIGHTH. All waivers of notice set forth in this paragraph or
elsewhere in the Lease are hereby deleted therefrom. In the event of a default
by Tenant under the Lease, Landlord shall give Tenant written notice thereof and
a reasonable period to cure any alleged default, but in no case less than 10
days for a default that can be cured by money and 30 days for a non-monetary
default. In addition to the aforesaid, the filing of an involuntary bankruptcy
petition against Tenant shall not be an event of default unless such a petition
is not dismissed within 60 days from the filing thereof.
Paragraph TENTH. This paragraph is to amended and modified to state
that in the event of any interruption of Tenant's business, due to damage by
fire or other act of God on the building upon the demised premises, lasting
longer in an uncorrected and unrepaired state for more than 96 hours, such
condition shall constitute a constructive eviction.
Paragraph ELEVENTH. Any provision to the Lease to the contrary
notwithstanding, in the event that the whole of the demised premises or a
portion thereof shall be taken or condemned by any competent authority for
public or quasi-public use, such an event shall be considered a constructive
eviction.
Paragraph THIRTEENTH. In the event that Landlord exercises its right to
move Tenant to another space in the building, such space shall be comparable to
Tenant's existing space in all material aspects including views from the space
and number of windows, and Landlord shall, at Landlord's sole cost and expense,
provide leasehold improvements to the new space comparable to Tenant's existing
space and reimburse Tenant for any and all costs incurred with the change of
location within the building.
Paragraph SIXTEENTH. This paragraph is hereby amended to delete the
phrase "or in any litigation in which Landlord shall, without its fault, become
involved through or on account of this lease."
Paragraph TWENTIETH. This section is deleted in its entirety and
replaced with the following: "Tenant and Landlord each covenants to save and
hold the other harmless from any costs or liabilities, including, but not
limited to, attorney's fees, arising from or related to any neglect act or
omission of the other."
Paragraph TWENTY-FIRST. Landlord and Tenant hereby stipulate and agree
that the purpose of this paragraph is to allow Landlord to control the nature
and extent of vending of the items mentioned in this paragraph within the
building.
Paragraph TWENTY-SECOND. This paragraph is amended by inserting, at
the beginning thereof, the following: "Except as otherwise provided in this
Lease or in the plans attached hereto,". Landlord agrees that there shall be no
separate metering for any utilities other than electrical and natural gas
service. Furthermore, Tenant shall not be required to remove any leasehold
improvements, additions or modifications installed in accordance with the terms
of the Lease, but Tenant shall be permitted to remove various installed
improvements as mentioned in section 5, paragraph fifth hereinabove. Landlord
and Tenant agree that Landlord shall be responsible for, and shall timely
undertake or cause to be undertaken, repairs and maintenance as necessary from
time to time in or to any of the common areas or parking areas; in particular,
without limiting the forgoing, Landlord shall be responsible for any leaks into
the premises, whether from outside the building or
Landlord by: TP
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10
from other tenant premises within the building. Landlord shall also be
responsible for building security and for ensuring that the common areas and
facilities are clean, comfortable and operational.
Paragraph TWENTY-FIFTH. This paragraph is amended by adding the
following to the end thereof. "Provided, however, that in the event the building
is sold at foreclosure or by deed in lieu of foreclosure, this Lease shall
continue in full force and effect as if such purchaser were the original
landlord, except that such purchaser shall not be liable for any act or omission
of any prior landlord and shall not be subject to any offsets or defenses which
Tenant might have against such prior landlord, and Tenant shall attorn to such
purchaser and recognize the same as Landlord hereunder, provided that such
purchaser agrees in writing not to disturb Tenant's possession of the premises."
Rule 8. in Exhibit "B" Rules And Regulations of the Lease is hereby
modified and amended to ensure that any repairs described in this paragraph must
not cause the business of Tenant to be unreasonably impaired, and Landlord
hereby agrees that any repairs that would cause aforesaid unreasonable
impairment must be performed after standard business hours.
The following additional terms are hereby made a part of the Lease:
LEASEHOLD IMPROVEMENTS. Tenant shall be responsible for its own
leasehold improvements made to the premises. An amount of sixty-one thousand
dollars ($61,000.00) of Tenant furnished leasehold improvements shall be paid by
Landlord, provided that Tenant furnishes Landlord with appropriate construction
invoices and lien waivers for construction. Landlord payment of the
abovementioned moneys is recognized and included in the rents due under section
4 of this Lease.
Landlord shall provide the secondary entrance into the demised space
and install the exterior, insulated walls demising the premises in such a
manner that said walls are ready-to-paint. Further, Landlord shall install four
(4) absent windows to the exterior of the building, located on the northern end
of Tenant premises, and shall install building standard storm windows on the
older exterior windows, located on the east and west ends of Tenant premises.
Landlord shall further demolish the brick and structure of the old freight
elevator currently occupying a portion of the premises and cause any piping
structures obscuring the window behind aforesaid freight elevator to be
relocated near the closest building support post. Landlord shall make all
abovementioned improvements in such a manner that Tenant's occupancy of the
premises and installation of leasehold improvements are not hindered.
CONSTRUCTIVE EVICTION. Any constructive eviction (as mentioned in
section 5 hereinabove) shall give Tenant the option to terminate the Lease, or,
at Tenant's election, an equitable adjustment or abatement of rent for the
period. In addition to the aforesaid, a constructive eviction that results in a
termination of the Lease shall also entitle Tenant to an award based on the loss
of the unamortized portion of the value of any improvements constructed or
placed by Tenant on the premises and any loss based on the interruption of
occupancy. Should any event that would cause a constructive eviction not result
in a termination of the Lease, Tenant is entitled, to any costs resulting from
any alterations or restorations that were necessitated by the said event.
PARKING. Landlord shall provide for Tenant and its invitees twenty (20)
parking spaces: eight (8) spaces to be located in the lot across from the main
entrance to the building on 10th Avenue South ("Lot A") and twelve (12) spaces
to be located in the lot at the south end of the
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building ("Lot B"). Further, Tenant shall have the right to lease up to and
including eight (8) additional spaces in Lot B at the rate of $40.00 per space
per month. Guests of Tenant shall be allowed to park in Lot A for thirty (30)
minutes without cost.
RIGHT OF FIRST REFUSAL. During the term of this Lease and provided that
Tenant is not in default of this Lease, Landlord agrees that prior to leasing to
a third party any part of the spaces immediately contiguous to Tenant's premises
("First Refusal Space"), Landlord shall notify Tenant in writing of Landlord's
intent to enter into negotiations with a third party to lease the First Refusal
Space. On or before the fifth (5th) business day after the receipt of such
notice, Tenant shall have the right to send to Landlord a notice stating that
Tenant elects to lease the First Refusal Space under the same terms, covenants
and conditions as the Lease except as outlined below.
The rents payable for the First Refusal Space shall be the prevailing
market rent, and Tenant shall provide any leasehold improvements to the First
Refusal Space. Landlord's consent to the aforesaid leasehold improvements shall
not be unreasonably withheld.
The First Refusal Space shall be added to Tenant's premises for the
remaining term of the Lease (including any extension term(s), if any). The First
Refusal Space shall become a part of Tenant's premises for all purposes of this
Lease, and any reference in this Lease to the term "Tenant premises" or
"premises" shall be deemed to refer to and include the First Refusal Space.
Tenant's obligation to pay any increased rents due to the addition of the First
Refusal Space shall commence with the date the First Refusal Space is made
usable by Tenant; said date shall be after a reasonable allowance of time that
shall be granted for Tenant to make any leasehold improvements to the First
Refusal Space.
Tenant's Right of First Refusal described herein is subordinate to any
rights of other tenants which exist as of the execution date of this Lease.
Promptly after Tenant's exercise of the Right of First Refusal, Landlord shall
prepare an amendment to the Lease to reflect changes in the size of Tenant
premises, rents due, and any other appropriate terms due to the addition of the
First Refusal Space. Tenant shall execute and return such an amendment to the
Lease within ten (10) days after its submission to Tenant.
This Right of First Refusal shall remain in effect during the term of
the Lease and shall be exercisable at any such time that Landlord seeks to lease
the First Refusal Space. This Right of First Refusal shall not be assignable.
REAL ESTATE BROKERAGE COMMISSION. Landlord shall pay Centennial, Inc.
a six percent (6%) commission based on the gross rent of $5.50 per square foot
for years one and two, $6.50 per square foot for years three, four and five.
Landlord by: TP
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L E A S E A M E N D M E N T A G R E E M E N T
NO. 1
This is to amend the Lease Agreement dated 3/27/95 between CUMMINS
STATION, L.L.C. Lessor and NEWORDER MEDIA, INC. Lessee for Suite 450 located on
the 4th level of Cummins Station as follows:
Rental Amounts Changed as follows:
5/1/95 -- 4/30/97 $50,447.04/yr. or $4,203.92/mo.
5/1/97 -- 4/30/2000 $57,401.04/yr. or $4,783.42/mo.
ALL OTHER TERMS, CONDITIONS AND AGREEMENTS OF THE ORIGINAL LEASE AGREEMENT SHALL
REMAIN IN FULL FORCE AND EFFECT.
CUMMINS STATION, L.L.C. NEWORDER MEDIA, INC.
BY: /s/ Lessor BY: /s/ Xxxx XxXxxxx
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LESSOR Chief Member LESSEE
6/6/95
-------------------------------- ----------------------------
DATE DATE
13
L E A S E A M E N D M E N T A G R E E M E N T
No. 2
This is to amend the Lease Agreement dated 3/27/95 and Lease
Amendment Agreement No. 1 dated 6/6/95 between CUMMINS STATION, L.L.C. Lessor
and NEWORDER MEDIA, INC. Lessee for Suite 450 located on the 4th level of
CUMMINS STATION as follows: Effective March 1, 1999, Lessee rents additional
space on the 0xx Xxxxx, Xxxxx 000, consisting of approximately 6,500 square feet
at the following rental rates:
3/1/99 -- 2/28/2001 $90,155.00/yr. or $7,512.92/mo.
3/1/2001 -- 2/28/2004 $92,170.00/yr. or $7,680.83/mo.
3/1/2004 -- 4/30/2005 $75,400.00/yr. or $6,283.33/mo. (no longer amortized)
Lessee shall take possession of said premises on August 1, 1998.
Twenty-four (24) parking permits included with this amendment (l4 in A Lot and
10 at the Shed). Optional parking spaces: $75 per month each, rate good for 6
years. This would be over and above the 8 optional spaces currently available at
$40 per month. Lessor to provide hole for interior stairwell. Lessee extends
term of original lease and amendment on Suite 450 from 4/30/2000 to 4/30/2005.
Rental rates for total leased area of 13,454 square feet are as follows:
3/1/99 - 4/30/2000 $147,556.00/yr. or $12,296.33/mo.
5/1/2000 - 2/28/2001 $138,833.00/yr. or $11,569.42/mo.
3/1/2001 - 2/28/2004 $140,848.00/yr. or $11,737.33/mo. (no longer amortized)
3/1/2004 - 4/30/2005 $124,078.00/yr. or $10,339.83/mo.
Dates to be determined.
Tenant shall have option to lease current MPL space and 2,200 square foot space
currently occupied. This option shall run concurrently with existing lease.
Option must be exercised within 5 days of notice.
Tenant shall have option to renew lease for two additional five year periods.
Rate for first five year option shall be $11.60/sq. ft. Rates for second five
year option shall be: 2 years at $13.00/sq. ft. and 3 years at $14.00/sq. ft.
Lessor shall amortize up to $83,850.00 on leasehold improvements on Suite 547.
Lessor's payment of this amount shall be recognized and included in the amounts
stated above. ALL OTHER TERMS, CONDITIONS AND AGREEMENTS OF THE ORIGINAL LEASE
AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT.
CUMMINS STATION, L.L.C. NEWORDER MEDIA, INC.
BY: /s/ LESSOR BY: /s/ Xxxxxx X. Xxxxx, Xx.
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LESSOR Chief Member LESSEE
9/22/98 9/22/98
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DATE DATE
