EXHIBIT 10.44
COMMERCIAL LEASE AGREEMENT
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THIS COMMERCIAL LEASE AGREEMENT ("Lease") is made and entered into as of
March 1, 1998, by and between Xxxx Xxxxxxxx, Xx. ("Lessor"), and Premier
Graphics, Inc., a Delaware corporation ("Lessee").
1. Term and Premises. Subject to the terms and conditions set forth
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herein, Lessor hereby leases and lets to Lessee, and Lessee leases and accepts
from Lessor, for a term of ten (10) years, commencing on the date the warehouse
facility is completed and made available to Lessee (the "Commencement Date"),
and expiring on the tenth (10th) anniversary of the Commencement Date (the
"Term"), that certain real property with a municipal address of 000 Xxx Xxxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxx, 00000 and more particularly described in Exhibit A
hereto (the "Premises").
2. Basic Rent. During the first five (5) years of the Term, Lessee shall
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pay Lessor, at the address of Lessor indicated herein, the sum of Ninety -Seven
Thousand Five Hundred and 00/100 Dollars ($97,500.00) per year ($3.25 per square
foot) as rent for the Premises (the "Basic Rent"). The Basic Rent shall be paid
to Lessor in monthly installments of Eight Thousand One Hundred Twenty-Five and
00/100 Dollars per month ($8,125.00), which monthly rental payments shall be
paid in advance on the first day of each calendar month during the term of this
Lease. During the second five (5) years of the Term, the Basic Rent shall
escalate at the beginning of each year at the rate of five percent (5%) per
year. If the Term does not commence on the first day of a calendar month, Lessee
will pay in advance, on the first day of the Term, a pro rata part of the
regular monthly rent installment, based on the number of days of the Term
occurring within the calendar month in which the Term commences; and the rent
installment due on the first day of the last calendar month occurring during the
Term shall be similarly prorated. All rental payments shall be considered "past
due" on the fifteenth (15th) of the month in which they are due, and if said
payment has not been received by the Lessor by such date there will be a late
charge of five percent (5.0%) of the monthly rental on all such "past due
rentals," it being agreed that such is the reasonable additional expense
incurred by Lessor in handling such late payments. All rental payments and other
payments by Lessee to Lessor shall be mailed or delivered to Lessor at the
address of Lessor indicated herein or to such other person or address in such
city as Lessor may direct by written notices to Lessee. Lessee hereby waives any
and all notices and demands for payment of the monthly rental payments of Basic
Rent due under this Lease to Lessor.
3. Additional Rent. In addition to the payment of Basic Rent, Lessee shall
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pay all of the following costs arising from or related to the Premises, which
costs shall be collectively referred to herein as additional rent ("Additional
Rent"):
(a) Maintenance of Premises. Lessee shall, at its sole expense, take
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good care of the Premises and any building now or hereafter erected
thereon, both inside and outside, and keep the same and all parts thereof
in good order and condition, suffering no waste or injury,
and shall, at Lessee's sole expense, promptly make all needed maintenance
or repairs, in and to any building or structure or equipment now or
hereafter erected upon the Premises, including all fixtures, machinery,
heating, plumbing and electrical systems and other equipment now or
hereafter belonging to or connected with the Premises or used in their
operation. All such repairs shall be of first class quality sufficient for
the proper maintenance and operation of the Premises. Lessee shall not
obstruct or permit the obstruction of the street or sidewalk and shall keep
the sidewalk and curb adjoining the Premises clean and free of snow and
ice. If Lessee fails to make such repairs or maintenance promptly, or
within fifteen (15) days of occurrence, Lessor may, at its option, make
them, and Lessee shall repay the cost thereof to Lessor on demand.
Notwithstanding anything to the contrary contained herein, Lessor shall be
required to make all repairs to the Premises that are structural in nature,
which shall include repairs to the roof, and load bearing walls unless
caused by Lessee's negligence. Lessee shall immediately report any damage
or malfunction which occurs with respect to the Premises.
(b) Maintenance of Common Areas. Lessee shall pay to Lessor, as
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Additional Rent, all costs and expenses of every kind and nature paid or
incurred by Lessor during the Term of the Lease (and any renewal term) in
operating, managing, equipping, lighting, repairing, replacing, policing
and maintaining the common parking and ingress and egress areas (herein
"Common Areas") of the Premises (except structural repairs as set forth in
Paragraph 3.a. above). Alternatively, Lessor may require Lessee to perform
(or cause to be performed) such maintenance. Such costs and expenses shall
include, but shall not be limited to: utilities, lighting the Common Areas,
if any, cleaning costs, expenses of planting, replanting and replacing
flowers, landscaping, water and sewerage charges, premiums for liability
and property damage, and fees for required licenses and permits.
(c) Taxes and Utilities.
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(i) Real Property Taxes. Lessee shall pay when due all real
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property taxes upon the Premises accruing with respect to or allocable
to the Term hereof. As used herein, the term "real property taxes"
shall include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than
inheritance, personal income or estate taxes) imposed on the Premises
by any authority having the direct or indirect power to tax, including
any city, state or federal government, or any school, agricultural,
sanitary, fire, street, drainage or other improvement district
thereof, as against any legal or equitable interest of Lessor in the
Premises or in the real property of which the Premises are a part, as
against Lessor's right to rent or other income therefrom, and as
against Lessor's business of leasing the Premises.
(ii) Personal Property Taxes.
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(1) Lessee shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment
and all other personal property of Lessee contained on the
Premises or elsewhere. When possible, Lessee shall cause said
trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real
property taxes.
(2) If any of Lessee's personal property shall be assessed
with Lessor's real property, Lessee shall pay Lessor the taxes
attributable to Lessee within ten (10) days after receipt of a
written statement setting forth the taxes applicable to Lessee's
property.
(d) Other Taxes. Lessee shall reimburse Lessor for any commercial
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lease tax, sales tax, gross receipts tax, privilege tax, or similar tax,
howsoever denominated, now or hereafter imposed on, measured by, or
assessed against the Basic Rent and Additional Rent (collectively, the
"Rents") paid to Lessor or received by Lessor pursuant to this Lease (or
any tax imposed or assessed in lieu thereof). Lessee shall pay said sums to
Lessor not later than ten (10) days from the date on which Lessee receives
notice from Lessor of the amount due.
(e) Utilities. Lessee shall pay for all water, gas, heat, light,
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power, telephone and all other utilities and services supplied to the
Premises.
(f) Insurance.
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(i) Fire and Casualty. During the entire Term hereof, Lessee
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shall procure and maintain at its (updated every two (2) years) sole
expense, insurance covering the Premises, for the full replacement
cost (updated every two (2) years) thereof, insuring against the
perils of fire, lightning, flood, earthquake, boiler and machinery,
extended coverage, vandalism and malicious mischief, extended by
Special Form Coverage Endorsement to insure against all other risks of
direct physical loss, and business interruption insurance (insuring
Lessor for up to twelve (12) months of Rents), such coverages and
endorsements to be as defined in the standard bureau forms prescribed
by the applicable insurance regulatory authority for the State of
Arkansas for use by insurance companies admitted in Arkansas for the
writing of such insurance on risks located within the state. Such
insurance shall be for the sole benefit of Lessor and under its sole
control. To the extent any mortgage or deed of trust now or hereafter
exists upon the Premises, all such policies shall contain standard
mortgage clauses. Lessee hereby waives, and releases Lessor (its
officers, agents and employees) from, all rights of recovery, claims,
causes of action, and rights of subrogation against them, for any loss
or damage that may occur by reason of any peril listed above, and
accordingly, all of the foregoing policies of insurance shall be
properly endorsed to prevent the invalidation of their coverages by
reason of such waiver and release.
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(ii) Liability. Lessee shall, at Lessee's expense, obtain and
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keep in force during the term of this Lease a policy of Commercial
General Liability Insurance (or policy with equivalent coverage)
insuring Lessee and Lessor against any liability arising out of the
use, occupancy or maintenance of the Premises.
(iii) Insurance Policies. The insurance companies issuing all
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policies shall be reputable and responsible companies in the insurance
industry, reasonably acceptable to both Lessor and Lessee. Lessee
shall deliver to Lessor copies of policies of liability insurance
required under this subparagraph or certificates evidencing the
existence and amounts of such insurance. No such policy shall be
cancelable or subject to reduction of coverage or other modification
except after thirty (30) days' prior written notice to Lessor. Lessee
shall, at least thirty (30) days prior to the expiration of such
policies, furnish Lessor with renewals or "binders" thereof.
4. Indemnification. Lessee shall indemnify, defend and hold Lessor
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harmless from and against any and all actions, claims, demands, costs (including
reasonable attorneys' fees), damages or expenses of any kind which may be
asserted against or incurred by Lessor as the result of any occurrence in or
about the Premises or by reason of Lessee's use or occupancy of the Premises, or
by reason of the failure of Lessee to perform any of its obligations under this
Lease.
5. Quiet Enjoyment. Lessor covenants that if Lessee shall keep and
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perform all of its covenants under this Lease, Lessee shall enjoy quiet,
peaceful and uninterrupted possession of the Premises against all persons.
6. Ingress and Egress. Lessor covenants that Lessee shall enjoy full
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ingress and egress to and from the Premises at all times.
7. Condition of Premises. Lessor shall deliver the Premises to Lessee in
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good condition, clean and free of debris. Lessee acknowledges that it has
received the Premises in acceptable condition and accept the Premises in it "AS
IS" condition.
8. Assignment and Subletting. The Premises shall be used for storage,
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distribution and related activities, and for no other purpose without the
written consent of the Lessor. Further, Lessee will not assign or sublet all or
part of this Lease without the prior written consent of Lessor, which consent
shall not be unreasonably withheld.
9. Legal Use and Violations: Insurance Coverage. Lessee will not occupy,
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or use or permit any portion of the Premises to be occupied or used, for any
business or purpose which is unlawful in part or in whole or deemed to be extra
hazardous, or permit anything to be done which will in any way increase the rate
of fire insurance on said building and/or its contents; and in the event
that by reason of acts of Lessee, there shall be any increase in rate of the
insurance on the building or its contents created by Lessee's acts or conduct of
business, then Lessee hereby agrees to pay such increase.
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10. Compliance with Laws and Regulations. Lessee shall keep and maintain
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the Premises in a clean and neat condition, and shall comply with all state,
federal, county and municipal laws, ordinances, orders, rules and regulations,
including, but not limited to, all environmental laws and regulations, with
reference to use, conditions or occupancy of the Premises.
11. Compliance with Environmental Laws.
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(a) Lessee shall comply, and Lessee shall cause any sublessee or any other
authorized occupant or user of the Premises to comply, at all times during the
Term of this Lease, with all Environmental Laws that are applicable to any
activities conducted at the Premises by Lessee or any sublessee or other
authorized occupant or user of the Premises.
For purposes of this Lease, the term "Environmental Laws" shall include any
and all federal, state or local laws, statutes, rules, regulations, ordinances
or orders (and any judicial interpretations thereof) governing, regulating or
otherwise providing for the protection of environmental quality and/or human
health, safety and welfare through the control, management, and/or restriction
of the use, handling, manufacture, generation, processing, treatment, storage,
emission, discharge, disposal, release or spillage of any contaminant, chemical,
material, pollutant or waste that may have hazardous, toxic or other adverse
impacts on the environment or human health, safety and welfare, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. 9601 et seq.) ("CERCLA"), the Hazardous
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Materials Transportation Act (49 U.S.C. 1002), the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. 6901 et seq.) ("RCRA"), the Toxic Substance
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Control Act (15 U.S.C. 2601 et seq.), the Federal Water Pollution Control Act
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(33 U.S.C. 1251 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), the Safe
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Drinking Water Act (42 U.S.C. 300f et seq.), and the Emergency Planning and
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Community Right-to-Know Ac to l986 (42 U.S.C. 11001 et seq.),each as heretofore
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and hereafter amended or supplemented, and any analogous present or future
local, state or federal statutes, rules, and regulations promulgated thereunder
or pursuant thereto.
(b) Lessee shall obtain, or cause any sublessee or other authorized user
or occupant of the Premises to obtain, all necessary permits, licenses,
certifications, and other authorizations (hereinafter "Permits") required by any
Environmental Laws in connection with Lessee's or any sublessee's, occupant's or
user's activities at or use of the Premises. Lessee shall comply, and cause
compliance, at all times with the terms and conditions of such Permits. Lessee
shall not use the Premises, or request a permit to use the Premises, as a
treatment, storage or disposal facility under RCRA or any similar federal, state
or local Environmental Law, without the prior written consent of Lessor. Lessee
shall not install any underground storage tanks at the Premises without the
prior written consent of Lessor, and if such consent is granted, Lessee shall be
fully responsible for compliance with all technical, financial responsibility,
and other requirements under any Environmental Law.
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(c) Lessee shall not generate, manufacture, treat, dispose, release,
recycle, handle, use or otherwise manage, transport or deal with "Hazardous
Material" at or about the Premises; EXCEPT THAT Lessee is authorized to store,
handle, use, process, manufacture, and/or transport a substance or material that
is or contains a Hazardous Material, provided that such Hazardous Material is
not and does not contain a "hazardous waste" (as that term is defined in RCRA
and its implementing regulations) and: (i) such Hazardous Material is stored,
used, processed, manufactured, and/or otherwise handled in strict accordance
with all applicable Environmental Laws and manufacturers' specifications; or
(ii) such Hazardous Material is used by Lessee for cleaning, operation or
maintenance of the Premises, or implementation of health and safety measures at
the Premises, and it is stored, handled, used, and disposed of in strict
accordance with all applicable Environmental Laws and all manufacturers'
instructions.
For purposes of this Lease, the term "Hazardous Material" shall include:
(i) any "hazardous substance", as defined in CERCLA (42 U.S.C. 9601(14)), or
any so-called "superfund" or "superlien" law (and any judicial interpretations
thereof); (ii) any "toxic pollutant" as listed under 33 U.S.C. 1317(a); (iii)
any material defined as "hazardous waste" pursuant to 40 C.F.R. Part 260; (iv)
any petroleum or petroleum products, including crude oil or any fraction
thereof; (v) natural gas, natural gas liquids, liquefied natural gas or
synthetic gas usable for fuel; (vi) any "extremely hazardous substance" as
listed under 42 U.S.C. 11002(a); and (vii) any other substance, regardless of
physical form, that is specifically identified or listed for regulation by an
Environmental Law that is applicable to the Premises or to any activities
conducted at the Premises by Lessee or any sublessee or other authorized
occupant or user of the Premises.
(d) During the Term of this Lease, Lessee shall not cause or permit, as a
result of an intentional or unintentional action or omission on its part, or on
the part of any sublessee or other authorized user or occupant of the Premises,
any releasing, spilling, leaking, pumping, emitting, pouring, emptying or
dumping (hereinafter "Release") of any Hazardous Material into the environment,
including, without limitation, any surface or subsurface waters (including
groundwater), ambient air, or any land surface or subsurface strata. Lessee
shall give immediate oral and written notice to Lessor of any Releases of
Hazardous Material for which notification is required to any governmental
agency, detailing all relevant facts and circumstances. All Releases of
Hazardous Material during the Term of this Lease by Lessee or any sublessee or
other authorized user or occupant of the Premises will be promptly cleaned up or
remediated so as to satisfy any applicable cleanup or remediation standard or
objective established under an Environmental Law, all costs and expenses
associated with such cleanup or remediation shall be borne solely by Lessee, and
Lessee shall be deemed the owner of the Premises for purposes of completing
waste disposal manifests and similar documents.
(e) Lessee shall at all times keep the Premises free of any lien or
encumbrance against the Premises arising out of any environmental law, statute,
ordinance, regulation, rules, judgments or orders (hereinafter "Environmental
Lien") which results from any activity of Lessee or Lessee's sublessees or other
users or occupants of the Premises. In the event that an Environmental Lien
caused by Lessee or any sublessees or any other authorized occupants or users of
the Premises during
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the time Lessee is in, or has a right to, possession is filed against the
Premises during the Term, then within thirty (30) days from the date that Lessee
is given notice of the filing of the Environmental Lien, or within such shorter
period of time as required to prevent the governmental authority from causing
the sale of the Premises pursuant to the lien, then Lessee shall either (i) pay
the claim and remove the lien from the Premises, or (ii) furnish (a) a bond
satisfactory to Lessor in the amount of the claim out of which the lien arises,
(b) a cash deposit in the amount of the claim out of which the lien arises, or
(c) other security satisfactory to Lessor in an amount sufficient to discharge
the claim out of which the lien arises. If any Environmental Lien is filed
against the Premises which is not caused by Lessee or Lessee's sublessees or any
other authorized occupants or users of the Premises during the time Lessee is
in, or has a right to, possession, Lessee shall promptly notify Lessor upon
Lessee's obtaining knowledge of such lien.
(f) Lessee shall promptly provide to Lessor true and complete copies of
any and all submissions, filings, applications, claims, citations, notices, and
orders (hereinafter "Submissions") made by and between Lessee and the United
States Environmental Protection Agency or any other federal, state or local
authority pursuant to any Environmental Laws. To the extent that the law
governing the Submissions allows Lessee to file the Submissions under claim of
confidentiality, Lessee may request that Lessor retain, in confidence, any
copies of Submissions provided under this Paragraph 11 (f) and Lessor shall
honor that request.
(g) Lessee hereby agrees to defend, indemnify and hold Lessor and his
heirs and assigns harmless from and against any and all claims, proceedings
under any Environmental Law(s), lawsuits, administrative proceedings,
liabilities, losses, demands, fines, penalties, judgments, orders, notice
letters, damages, costs and expenses (including, without limitations, cleanup
costs and reasonable attorneys' fees, engineers' fees and consultants' fees
arising by reason of any of the aforesaid), arising from, out of, or by reason
of (i) any breach of this Paragraph 11, or (ii) any act or omission by Lessee,
Lessee's sublessees, or any other authorized occupants or users of the Premises
during the time Lessee is in, or has a right to, possession of the Premises
under this Lease, even if the act or omission is in compliance with the
provisions of Paragraph 11. This indemnification and the terms and provisions of
this Paragraph 11 shall survive the expiration or sooner termination of this
Lease.
(h) Lessor acknowledges that Lessee has not caused or contributed to any
Release of a Hazardous Material or any other condition of environmental
contamination at the Premises which occurred or came into existence prior to the
commencement of this Lease and Lessee's possession of the Premises thereunder
(hereinafter referred to as a "Preexisting Environmental Condition"); and Lessor
hereby fully and forever releases and discharges Lessee, its directors,
officers, employees, successors and assigns, from any and all claims, causes of
action, liabilities, losses, demands, fines, penalties, judgments, orders,
damages, costs and expenses (including, without limitation, reasonable
attorneys' fees, engineers' fees and consultants' fees), which in any way arises
out of, or results from, a Preexisting Environmental Condition.
12. Entry for Repairs and Inspection. Lessee shall permit Lessor and its
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officers, agents or representatives, the right to enter into and upon any and
all parts of the Premises at all reasonable hours to inspect same or clean or
make repairs or alterations or additions as Lessor may deem
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necessary or desirable. Lessee shall not be entitled to any abatement or
reduction of rent by reason thereof.
13. Condemnation. If the Premises or any portion thereof are taken under
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the power of eminent domain, or sold under the threat of the exercise of said
power (all of which are herein called "Condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever first occurs. If more than ten percent (10%) of
the floor area of any building on the Premises, or more than twenty-five percent
(25%) of the land of the Premises which is not occupied by any building, is
taken by Condemnation, Lessee may, at Lessee's option, to be exercised in
writing within ten (10) days after Lessor has given Lessee written notice of
such taking (or in the absence of such notice, within ten (10) days after the
condemning authority has taken possession) terminate this Lease as of the date
the condemning authority takes such possession. If Lessee does not terminate
this Lease in accordance with the foregoing, this Lease shall remain in full
force and effect as to the portion of the Premises remaining, except that the
rent shall be reduced in the proportion that the floor area of the building or
the area of unimproved land taken bears to the total floor area of the building
or land, whichever the case may be. Any award for the taking of all or any part
of the Premises under the power of eminent domain or any payment made under
threat of the exercise of such power shall be the property of Lessor, whether
such award shall be made as compensation for diminution in value of the
leasehold or for the taking of the fee, or as severance damages; provided,
however, that Lessee shall be entitled to any award for loss of or damage to
Lessee's trade fixtures and removable personal property. In the event that this
Lease is not terminated by reason of such Condemnation, Lessor shall to the
extent of the award received by Lessor in connection with such condemnation,
repair any damage to the Premises caused by such Condemnation; provided,
however, that if such Condemnation has taken more than thirty-thee and one-third
percent (33 1/3%) of the total floor area of the buildings on the Premises,
Lessor may, at Lessor's option, to be exercised in writing within ten (10) days
after Lessor has given Lessee written notice of such taking (or in the absence
of such notice, within ten (10) days after the condemning authority has taken
possession) terminate this Lease as of the date the condemning authority takes
such possession.
14. Holding Over. Any holding over after the expiration of this Lease
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shall constitute a month-to-month tenancy, and Lessee shall be subject to all of
the terms, covenants and conditions of this Lease during such holdover period.
15. Damage or Destruction. Should the current building upon the Premises
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be totally destroyed by fire or other casualty, or so damaged thereby that
rebuilding or repairs cannot be completed within ninety (90) days from date of
the fire or casualty, this Lease shall terminate, and Lessee shall be allowed a
total abatement of the rent from the date of occurrence of such damage or
destruction. However, if the damage is such that rebuilding or repairs can be
completed within ninety (90) days, the Lessor covenants and agrees to make such
repairs within ninety (90) days and to allow Lessee an abatement of the rent for
such time as the building is untenantable, in proportion to the floor space
rendered untenable, and the Lessee covenants and agrees that the terms of this
Lease shall not be otherwise affected thereby.
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16. Events of Default: Remedies.
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(a) Default by Lessee. The occurrence of any one or more of the following
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events shall constitute a default and breach of this Lease by Lessee:
(i) The abandonment of the Premises by Lessee.
(ii) The failure by Lessee to make any payment of Basic Rent,
Additional Rent or any other payment required to be made by Lessee
hereunder, as and when due for a period of ten (10) days.
(iii) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or
performed by Lessee, other than described in clause (i) and (ii) above,
which failure then continues for a period of fifteen (15) days after
written notice thereof from Lessor to Lessee; provided, however, that if
the nature of Lessee's default is such that more than fifteen (15) days are
reasonably required for its cure, then Lessee shall not be deemed to be in
default if Lessee commences such cure within said fifteen (15) day period
and thereafter diligently prosecutes such cure to completion.
(iv) The making by Lessee of any general arrangement or assignment
for the benefit of creditors, the appointment of a trustee or receiver to
take possession of substantially all of Lessee's assets or of Lessee's
interest in this Lease, where possession is not restored to Lessee within
thirty (30) days, filing of a voluntary or involuntary petition in
bankruptcy or adjudication of Lessee as bankrupt or insolvent.
17. Remedies. In the event of any such default or breach by Lessee, Lessor
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may at any time thereafter, after written notice to Lessee as provided above,
and without limiting Lessor in the exercise of any right or remedy which Lessor
may have by reason of such default or breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event,
Lessor shall be entitled to recover from Lessee all damages incurred by
Lessor by reason of Lessee's default including, but not limited to, all
unpaid Basic Rent and Additional Rent for the balance of the Term (or any
extension thereof), the cost of recovering possession of the Premises and
any other sum of money or damages owed to Lessor pursuant to the terms
hereof. Lessor agrees to use reasonable effort in mitigating any damage
from a breach by Lessee.
(b) Maintain Lessee's right to possession in which case this Lease
shall continue in effect whether or not Lessee has abandoned the Premises.
In such event, Lessor shall be entitled to enforce all of Lessor's rights
and remedies under this Lease, including the right to accelerate all
remaining rent under the Lease.
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18. Alterations and Additions.
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(a) Lessee shall not, without Lessor's prior written consent, make any
alterations, improvements, additions, or utility installations in, on or about
the Premises, except for nonstructural alterations not exceeding $10,000 in
cumulative costs during the Term of this Lease. In any event, whether or not in
excess of $10,000 in cumulative cost, Lessee shall make no change or alteration
to the exterior of the buildings on the Premises without Lessor's prior written
consent. As used in this Paragraph 17, the term "utility installation" shall
mean carpeting, window coverings, air lines, power panels, electrical
distribution systems, lighting fixtures, space heaters, air conditioning,
plumbing, and fencing. Lessor may require that Lessee, at Lessee's sole expense,
remove any or all of said alterations, improvements, additions or utility
installations at the expiration of the Term, and restore the Premises to their
prior condition. Should Lessee make any alterations, improvements, additions or
utility installations without the prior approval of Lessor, Lessor may require
that Lessee remove any or all of the same at any time.
(b) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for use in
the Premises, which claims are or may be secured by any mechanics' or
materialmen's lien against the Premises or any interest therein. If Lessee
shall, in good faith, contest the validity of any such lien, claim or demand,
then Lessee shall, at its sole expense, defend itself and Lessor against the
same and shall pay and satisfy any such adverse judgment that may be rendered
thereon before the enforcement thereof against the Lessor or the Premises, upon
the condition that if Lessor shall require, Lessee shall furnish to Lessor a
surety bond satisfactory to Lessor in an amount equal to such contested lien
claim or demand indemnifying Lessor against liability for the same and holding
the Premises free from the effect of such lien or claim.
(c) Unless Lessor requires their removal, as set forth in Paragraph 17.a.,
all alterations, improvements, additions and utility installations (except
utility installations which constitute trade fixtures of Lessee), which may be
made on the Premises, shall become the property of Lessor and remain upon and be
surrendered with the Premises at the expiration of the term. Notwithstanding the
provisions of this Paragraph 17.c., Lessee's machinery and equipment, other than
that which is affixed to the Premises so that it cannot be removed without
material damage to the Premises, shall remain the property of Lessee and may be
removed by Lessee.
19. Waiver. Failure of either party to declare any default immediately
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upon occurrence thereof or delay in taking any action in connection therewith
shall not waive such default, but either party shall have the right to declare
any such default at any time and take such action as might be lawful or
authorized hereunder, either at law or in equity.
20. Miscellaneous Terms.
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(a) Benefit. This Lease shall inure to the benefit of the parties hereto,
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and their respective heirs, personal representatives, successors and assigns.
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(b) Integration Clause; Modifications. This Lease and its exhibits and
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attachments contain all of the agreements between Lessor and Lessee relating to
the Lease of the Premises, and this instrument may not be altered, changed or
amended except by an instrument in writing signed by both parties hereto.
(c) Pronouns and Gender. When this Lease is executed by more than one
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person, it shall be construed as though Lessee were written "Lessees" and the
words in their number were changed to correspond and pronouns of the masculine
gender, whenever used herein shall include persons of the female sex, and
corporations, partnerships and associates of every kind and character.
(d) Notices and Addresses. All notices, offers, acceptances, waivers, and
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other communications under this Lease shall be in writing, and shall be deemed
to have been both given and received (i) when delivered to the party in person
or, (ii) if mailed, when deposited in the U.S. Mails, by certified mail, postage
prepaid, with return receipt requested, to the party at the following address:
If to Lessor: Xxxx Xxxxxxxx, Xx.
c/x Xxxxxxxx Litho
000 Xxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
If to Lessee: Premier Graphics, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
or to such other address as any party, by notice to all others, may designate
from time to time.
(e) Counterparts. This Lease may be executed in one or more counterparts,
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each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(f) Severability. If any one or more of the provisions contained in this
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Lease shall for any reason be held invalid, illegal or unenforceable for any
reason, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Lease, which shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. It is the
intention of the parties that if any provision of this Lease is capable of two
constructions, one of which would render the provision void and the other of
which would render the provision valid, then the provision shall have the
meaning which renders it valid.
(g) No Remedies Exclusive. Unless expressly stated to be exclusive, no
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remedy conferred herein shall be deemed to be exclusive of any other remedy
conferred herein or any other remedy now or hereafter available at law or
equity. All remedies conferred herein, and all remedies now or hereafter
available at law or equity, shall be deemed to be cumulative and not
alternative, and may
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be enforced concurrently or successively. The exercise of (or failure to
exercise) any one or more remedies shall not operate as a waiver of, or
constitute a bar to, the exercise of any other remedies.
(h) Governing Law. This Lease shall be governed by and construed in
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accordance with the laws of the State of Arkansas.
(i) Attorneys' Fees. In the event either party defaults in the performance
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of any of the terms, agreements or conditions contained in this Lease, and the
other party prevails in any legal proceeding against the defaulting party to
enforce this Lease, then the nondefaulting party shall be additionally entitled
to recover court costs and reasonable attorneys' fees from the defaulting party.
(j) Recording. Neither party shall record this Lease without the prior
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written consent of the other. However, either party may, at any time, elect to
record a memorandum of this Lease, which sets forth any terms hereof except the
amount of rents payable hereunder, and upon request, the other party shall duly
execute and acknowledge such a memorandum.
(k) Assignment. Lessor may assign this Lease to an entity controlled by
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Lessor and Lessor's family or to any purchaser of the Premises.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date first above written.
LESSOR:
By: /s/ Xxxx Xxxxxxxx, Xx.
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XXXX XXXXXXXX, XX.
LESSEE:
PREMIER GRAPHICS, INC.
By: /s/ Xxxx X. Xxxxxx
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Title: President
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