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EXHIBIT 10.9.6
LEASE AGREEMENT
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
1. PARTIES
This agreement, together with any extensions or amendments, hereinafter
called "LEASE", is entered into this the 30th day of July,1 997, by and between
NANCO I, LLC hereinafter called "LANDLORD" and Diamond Sports Group hereinafter
called "TENANT".
2. PREMISES
Subject to the terms, conditions and agreements to be performed by TENANT
set forth in this LEASE, hereinafter called "Covenants", LANDLORD leases to
TENANT the following premises, ("PREMISES"), for the term provided below. The
PREMISES are located in the Town of Indian Trail, Union County, and State of
North Carolina, and are more particularly described as follows: 123 Associate
Lane, Xxxxxx Xxxxx Xxxxxxxx Xxxx, Xxxxxx Xxxxx, XX 00000. Also described as lot
10 on exhibit A, Indian Trail Business Park, Phase I.
3. COMMON AREAS
3.01 TENANT and its employees, agents, invitees and licensees are granted
the right, in common with others, to the use, as available, of the parking
areas, sidewalks, driveways, loading platforms and ramps and other facilities
located at 123 Associates Lane, Xxxxxx Xxxxx Xxxxxxxx Xxxx, Xxxxxx Xxxxx, XX
00000 and designated for the common use of tenants (collectively called "Common
Areas"). LANDLORD may modify easements relating to or close portions of such
Common Areas, or enlarge, diminish or rearrange the location and arrangement of
the Common Areas, as LANDLORD shall see fit, provided that TENANT's use of the
PREMISES shall not be adversely affected thereby.
3.02 LANDLORD shall have the right to adopt rules and regulations relating
to the use of Common Areas by TENANT, and to modify or amend such rules and
regulations as in its judgment from time to time is necessary for the
preservation of good order.
4. TERM AND POSSESSION
4.01 The term of this LEASE shall be for a period of 29 months to commence
on August 1, 1997, and to terminate on December 31, 1999, unless sooner
terminated as hereinafter provided.
4.02 LANDLORD shall deliver possession of the PREMISES to TENANT on the
commencement date of this LEASE or at such time as this LEASE is fully executed
by both parties, if later.
4.03 The delivery of possession of the PREMISES to TENANT is contingent
upon LANDLORD having lawful possession of the PREMISES as of the commencement
date of this LEASE. If TENANT is not given possession on or before the rent
commencement date, Base Monthly Rent will not commence until the date
possession is delivered to TENANT, but such late delivery shall have no effect
on the expiration date of the LEASE term, and LANDLORD shall have no liability
for the delay.
4.04 TENANT agrees that LANDLORD has no obligation to make any improvement
or modifications to the PREMISES, except those modifications shown on
Attachment C and that TENANT shall accept possession of the PREMISES in an "AS
IS" condition.
4.05 See Attachment B.
5. HOLDING OVER
Holding over after the expiration of the original term of this LEASE, or
after the expiration of any extended term, with the consent of LANDLORD but
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without a written agreement shall constitute an extension of this LEASE on a
month-to-month basis with either party having the right to terminate this LEASE
at the end of any calendar month upon thirty (30) days prior written notice to
the other. If TENANT holds over without the consent of LANDLORD, there shall be
no extension of this LEASE by operation of law, and TENANT shall be liable to
LANDLORD for all damages resulting from its wrongful holdover. Any holdover
occupancy shall be subject to the same covenants as set forth in this LEASE
except for Base Monthly Rent which shall be equal to 150% of the highest Base
Monthly Rent payable during the original term or immediately preceding extended
term.
6. BASE MONTHLY RENT/ADDITIONAL MONTHLY CHARGES
TENANT agrees to pay LANDLORD "Base Monthly Rent" for the PREMISES,
as well as additional monthly charges payable under Article 8, in accordance
with the following schedule:
BASE
MONTHLY ADDITIONAL MONTHLY
PERIOD RENT CHARGES* TOTAL ANNUALLY
------ ---- -------- ----- --------
8-1-97 xx 00-00-00 $ 3,633.33 $ 3,633.33 $ 43,599.96
7. TIME AND PLACE OF PAYMENT
7.01 Base Monthly Rent and other charges are payable monthly in
advance; THEY ARE DUE THE FIRST DAY OF EACH CALENDAR MONTH. If the rent
commencement date of this LEASE begins on a day other than the first day of a
calendar month, Base Monthly Rent and other charges for the first partial month
shall be prorated on a per diem basis. Notwithstanding anything contained
herein to the contrary, the first partial or full monthly payment shall be paid
upon execution and delivery of this LEASE to LANDLORD.
7.02 Any installment of Base Monthly Rent or other charges due under
the Covenants of this LEASE not paid within ten (10) days of its due date shall
be subject to a late charge of five percent (5%) of the amount due.
7.03 Base Monthly Rent or other charges due under the Covenants of
this LEASE are payable to LANDLORD by mail or hand delivery at 000 XXXXXX XXXX,
XXXXXXXXX, XX 00000, or at such other place as LANDLORD may designate in
writing to TENANT.
8. TAXES/OTHER ASSESSMENTS
8.01. TENANT shall reimburse LANDLORD for TENANT's share of all
Texas, in excess of the base year taxes, that are payable against the land,
buildings and improvements comprising the PREMISES, and for annual installments
of special assessments (including interest) payable against the PREMISES, during
each calendar year during any part of which the term of this lease is in
effect. The Real Estate Taxes (ad valorem) for the base year is $2,200.00
TENANT's share of such costs shall be based on the ratio the total square foot
area of the leased premises bears to the total square foot, rentable floor area
in the PREMISES, but excluding portions of buildings for which such taxes and
assessments are directly allocated to their tenants. TENANT's share of the
first and last calendar years of the lease term shall be prorated based upon
the number of days of said calendar year during which the term of this lease is
in effect. TENANT shall pay all personal property and other taxes on its
property in the leased premises.
"Real Estate Taxes" shall mean all taxes, assessments, levies, or
charges, whether special, extraordinary, or otherwise and whether foreseen or
unforeseen, which may be levied, assessed or imposed on (1) the ownership of
and/or all other taxable interest in all land upon which the Building is
situated; (2) all Buildings, structures and other improvements situated
thereon; and (3) rents or rental income whether such tax
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be levied on the LESSOR or the LESSEE. The amount of Real Estate Taxes upon
which such payment is based shall be the most current notice of assessment or
tax xxxx concerning the entire Building, or if there are none, such amount as
LESSOR may reasonably estimate. Should the taxing authorities include in such
Real Estate Taxes the value of any improvements made by LESSEE, or include
machinery, equipment, fixtures, inventory, or other personal property of LESSEE,
then LESSEE shall also pay the entire Real Estate Taxes for such items. If the
amount paid by LESSEE for Real Estate Taxes exceeds the actual amount due (as
determined from the notice of assessment or tax xxxx actually covering the
period in question), the excess shall be credited on LESSEE's next succeeding
payment pursuant to this Section. If the amount paid by LESSEE is less than said
actual amount due, LESSEE shall pay the LESSOR the deficiency within ten (10)
days after notice from LESSOR. A tax xxxx submitted by LESSOR to LESSEE shall
be conclusive evidence of the amount of taxes assessed or levied, as well as the
items taxed. LESSEE at all times shall be solely responsible for and shall pay
before delinquent all municipal, county or state or federal taxes assessed
against any leasehold interest or any personal property of any kind owned,
installed, or used by LESSEE.
8.03 In addition, LANDLORD shall pay, if billed directly to LANDLORD,
all other fees, taxes, charges, or assessments of any kind (collectively,
"fees") that may be imposed upon the PREMISES by any governmental authority or
public utility, including but not limited to storm water runoff fees and trash
collection fees. TENANT shall pay to LANDLORD, as additional rent, its
proportionate share of such fees, calculated on an equitable basis agreed upon
by LANDLORD and TENANT. If such fees are imposed on a monthly basis by the
governmental authority or public utility, TENANT shall pay its share of such
fees to LANDLORD monthly, together with its monthly installment of Base Monthly
Rent. All fees billed directly to TENANT shall be paid by TENANT. TENANT shall
pay all ad valorem taxes levied upon TENANT'S Personal Property (defined in
Article 17) located in or on the Premises.
8.04 The Base Rental shall be adjusted in accordance with the terms
and conditions of the following.
The Base Rental stated in Section 6 shall be adjusted on each anniversary
of the Commencement Date to reflect any increase (but not any decrease) in the
numerical index of the "Consumer Price Index for Urban Wage Earners and
Clerical Workers - U.S. City Average. All Items" (1982-4 = 100) published by
The Bureau of Labor Statistics of the United States Department of Labor (the
"Index"). Tenant shall pay Landlord such "Adjusted Base Rental" to reflect
increases in the Index in accordance with this Section.
The amount of the Adjusted Base Rental payable during the lease year
commencing on the first anniversary of the Commencement Date shall be calculated
by multiplying the Base Rental by a fraction, the numerator of which is the
Index for the month of the first anniversary of the Commencement Date and the
denominator of which is the Index level for the month of the Commencement Date.
The Adjusted Base Rental for each successive lease year shall be calculated by
multiplying the adjusted Base Rental for the immediately preceding lease year by
a fraction, the numerator of which is the Index for the beginning month of the
new lease year and the denominator of which is the Index for the beginning month
of the immediately preceding lease year. In no event shall the Adjusted Base
Rental for any lease year be less than the Base Rental or Adjusted Base Rental
for the Preceding year.
As soon as practicable after the publication of the Index for the month of
each anniversary of the Commencement Date, Landlord shall furnish to Tenant a
statement setting forth the Adjusted Base Rental payable by Tenant during the
next lease year (or partial lease year) of this Lease. Such adjusted Base
Rental shall be payable in equal monthly installments in advance on the first
day of each calendar month during the next lease year. In the event the
Adjusted Base Rental statement is not furnished Tenant by the anniversary of
the Commencement Date, Tenant shall continue to pay monthly installment of Base
Rental (or Adjusted Base Rental, if applicable); provided, however, once Tenant
is furnished the Adjusted Base Rental statement, Tenant agrees to pay the
Landlord with the
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next due rental installment the amount of the rental increase for the previous
months of the lease year for which rental increases were applicable but not
paid.
In the event that the Bureau of Labor Statistics shall change the base
period (now 1982-4 - 100), the new index numbers shall be substituted for the
old index numbers in making the calculations provided for in this Section 8.06.
It is agreed that in the event the aforesaid Index is discontinued or revised,
such other index as replaces the Index shall be used in order to obtain
substantially the same result as would be obtained if there had been no such
discontinuation or revision. If there shall be no such other index, the parties
shall accept a comparable statistical index of the purchasing power of the
consumer dollar as published at the time of such discontinuation or revision
by a responsible financial periodical or recognized authority. Any dispute
between the parties regarding any such discontinuation or revision shall be
determined by arbitration in accordance with the rules of the American
Arbitration Association then prevailing.
9. SECURITY DEPOSIT
9.01 TENANT shall deposit with LANDLORD upon execution of this
LEASE the sum of $3,633.33 as the security deposit for the performance of
TENANT's Covenants hereunder, including the payment of rent. The security
deposit shall not be considered as an advance payment of rent or as a measure of
the loss, cost, damage, or expense which is or may be sustained by LANDLORD. In
the event of a default by TENANT, LANDLORD at its option, may apply all or a
portion of the security deposit as may be necessary to cure the default. If
LANDLORD shall apply any portion of the security deposit to cure a default,
TENANT shall thereupon redeposit with LANDLORD such amount as is required so
that LANDLORD will have the full security deposit on hand at all times during
the term of this LEASE. Upon termination of this LEASE, provided TENANT is not
in default, LANDLORD shall refund to TENANT any then remaining balance of the
security deposit without interest. In case of a sale of the PREMISES, LANDLORD
shall pay over the unapplied portion of the security deposit to the new owner,
and from and after such transfer, LANDLORD shall be relieved of all liability
with respect to the security deposit.
9.02 TENANT shall deposit with LANDLORD upon execution of this
LEASE the sum of $3,633.33 as an additional security deposit for the
performance of TENANT's Covenants hereunder. This additional security deposit
shall apply as the November, 1997 rental payment.
10. USE OF PREMISES / HAZARDOUS MATERIALS
10.01 TENANT shall occupy and use the PREMISES for offices and
warehouse and as a distribution center for sports and corporate properties no
other purpose unless LANDLORD has specifically consented thereto in writing.
10.02 TENANT shall not use the PREMISES for any purpose that will
increase the fire or other insurance rates on the PREMISES above those
established for the use described above, and shall comply with all laws,
ordinances, rules and regulations of any public authority having jurisdiction
over the PREMISES.
10.03 No sound shall be emitted from the PREMISES which is
unreasonably loud or annoying; and no odor shall be emitted from the PREMISES
which is or might be noxious or offensive to others adjacent to the PREMISES
or on contiguous or nearby property.
10.04 TENANT shall not attach anything to the walls or doors of
the PREMISES with double-sided tape, glue or other type adhesives.
10.05 TENANT shall not maintain animals or birds in the PREMISES
or in the Common Areas.
10.06 TENANT shall not use kerosene or similar fluid-type space
heaters in the PREMISES unless specifically approved by LANDLORD in writing.
10.07 TENANT shall not bring onto the PREMISES or Common Areas any
Hazardous Materials (as defined below) without the prior written approval by
LANDLORD. Any approval must be preceded by submission to LANDLORD of appropriate
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Material Safety Data Sheets (MSD Sheets). In the event of approval by LANDLORD,
TENANT covenants that it will (1) comply with all requirements of any
constituted public authority and all federal, state and local codes, statutes,
ordinances, rules and regulations, and laws, whether now in force or hereafter
adopted relating to TENANT's use of the PREMISES, or relating to the storage,
use, disposal, processing, distribution, shipping or sale of any hazardous,
flammable, toxic, or dangerous materials, waste or substance, the presence of
which is regulated by a federal, state or local law, ruling, rule or regulation
(hereinafter collectively referred to as "Hazardous Materials"); (2) comply
with any reasonable recommendations by the insurance carrier of either LANDLORD
or TENANT relating to the use by TENANT on the PREMISES of such Hazardous
Materials; (3) refrain from unlawfully disposing of or allowing the disposal of
any Hazardous Material upon, within, about or under the PREMISES or Common
Areas; and (4) remove all Hazardous Materials from the PREMISES, either after
their use by TENANT or upon the expiration or earlier termination of this LEASE,
in compliance with all applicable laws.
10.08 TENANT shall be responsible for obtaining all necessary permits in
connection with its use, storage and disposal of Hazardous Materials, and shall
develop and maintain, and where necessary file with the appropriate
authorities, all reports, receipts, manifests, filings, lists and invoices
covering those Hazardous Materials and TENANT shall provide LANDLORD with
copies of all such items upon request. TENANT shall provide within five (5)
days after receipt thereof, copies of all notices, orders, claims or other
correspondence from any federal, state or local government or agency alleging
any violation of any environmental law, or regulation by TENANT, or related in
any manner to Hazardous Materials. In addition, TENANT shall provide LANDLORD
with copies of all responses to such correspondence, at the time of the
response.
10.09 TENANT hereby indemnifies and holds harmless LANDLORD, its
successors and assigns from and against any and all losses, liabilities,
damages, injuries, penalties, fines, costs, expenses and claims of any and
every kind whatsoever (including attorney's fees and costs, expenses or claims
asserted or arising under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, from time to time, and
regulations promulgated thereunder, any so-called state or local "Superfund" or
"Superlien" law, or any other federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning any Hazardous Materials) paid,
incurred or suffered by, or asserted against, LANDLORD as a result of any
claim, demand or judicial or administrative action by any person or entity
(including governmental or private entities) for, with respect to, or as a
direct or indirect result of, the presence on or under or the escape, seepage,
leekage, spillage, discharge, emission or release from the PREMISES, or Common
Areas of any Hazardous Materials caused by TENANT or TENANT'S agents,
employees, invitees or successors in interest. This indemnity shall also apply
to any release of Hazardous Materials caused by a fire or other casualty to the
PREMISES or Common Areas if such Hazardous Materials were stored on the
PREMISES by TENANT, its agents, employees, invitees, or successors in interest.
10.10 If TENANT fails to comply with the Covenants to be performed
hereunder with respect to Hazardous Materials, or if an environmental protection
lien is filed against the PREMISES or Common Areas as a result of the actions of
TENANT, its agents, employees or invitees, then the occurrence of any of such
events shall be considered a default hereunder, and if such default shall not be
cured as provided in Paragraph 22.01, LANDLORD shall have such rights and be
permitted to exercise such remedies for such default as set forth in Article 22
(DEFAULT AND REMEDIES) of this LEASE.
10.11 TENANT will give LANDLORD prompt notice of any release of Hazardous
Materials, reportable or non-reportable, to federal, state or local authorities,
of any fire, or of any damage occurring on or to the PREMISES, the building of
which the PREMISES are a part, or any portion of the Common Areas.
10.12 TENANT will use and occupy the PREMISES and conduct its business
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in such a manner that the PREMISES are neat, clean and orderly at all times
with all chemicals or Hazardous Materials marked for easy identification and
stored according to all codes as outline above.
10.13 The warranties and indemnities contained in this Article 10
shall survive the termination of this LEASE.
11. UTILITIES/SERVICES
11.01 During the term of this LEASE, TENANT shall pay all charges for
utilities and/or services to the PREMISES that are metered separately or that
are available to TENANT. These include, but are not limited to, gas,
electricity, garbage disposal, telephone, and water/sewer charges.
11.02 LANDLORD shall have no liability to TENANT for disruption,
interruption, or curtailment of any utility or service to the PREMISES, whether
or not furnished at LANDLORD's expense.
11.03 TENANT shall take steps to transfer all utilities into its name
effective upon the commencement date of this LEASE, or at such time TENANT is
given possession of the PREMISES, if later.
11.04 Should Utilities be discontinued due to no fault of DSG. Rent
shall be abated accordingly.
12. MAINTENANCE BY LANDLORD
Except as provided in Paragraph 13.01, LANDLORD agrees, at its expense, to
maintain and keep in good repair the structural portions, exterior walls,
roofing and guttering of the PREMISES. LANDLORD shall correct any system that
is defective or deficient (not through the negligence of tenant).
13. MAINTENANCE BY TENANT
13.01 TENANT shall be responsible for the maintenance, repair and/or
replacement of any structural portions, exterior walls, roofing and guttering
of the PREMISES or any portion of the Common Areas if the necessity therefor is
occasioned by or through the negligence, abuse, or omissions of TENANT, its
agents, contractors, and invitees.
13.02 TENANT will maintain and keep the PREMISES in good order,
condition and repair, and will repair and/or replace, if needed, all other
parts of the PREMISES which are not the responsibility of LANDLORD, including,
but not limited to, heating, ventilating, and air conditioning (HVAC)
equipment, plumbing, electrical and other systems, including lighting fixtures,
and windows and doors of all types. The duty of TENANT to maintain the HVAC
systems in good order and repair shall specifically include without limitation
the duty to inspect same and replace filters therein as needed and to perform
regular periodic servicing.
13.03 TENANT shall be responsible for keeping the grounds including
the steps, ramps, loading platforms, etc. immediately in front of the PREMISES
(and to the rear, if applicable) free and clear of trash, debris, and weed
growth, and snow and/or ice at all times in order to keep the PREMISES in a
neat, presentable, and safe condition. TENANT will take steps to keep trash and
debris from blowing onto areas of neighboring tenants. TENANT shall not store
any item or abandon pallets or other unsightly items on the exterior (Common
Areas) of any building of which the premises are a part.
13.04 If damage shall occur to the parking lot and such damage is
caused by trash removal trucks contracted for by TENANT, then TENANT shall pay
to repair such damage.
13.05 If any maintenance or repairs which are required to be
undertaken by TENANT under this LEASE are not completed within ten (10) days
after such need arises or after notice from LANDLORD, or in the event of an
emergency, if such maintenance or repairs are not undertaken immediately, then
LANDLORD shall have the right (but not the obligation) to enter upon the
PREMISES and undertake the necessary maintenance or repairs on behalf of and at
the expense of TENANT. TENANT shall pay to LANDLORD the reasonable costs of
such maintenance or repairs within ten (10) days after written demand therefor,
as additional rent. Notwithstanding the foregoing, if any maintenance or
repairs required to be undertaken by TENANT cannot be completed within ten (10)
days, then LANDLORD shall have no self-help rights so long as TENANT prosecutes
the maintenance or repairs with due diligence and keeps LANDLORD fully informed
on the progress of
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said maintenance or repairs.
14. RETURN OF PREMISES TO LANDLORD
14.01 TENANT will return the PREMISES peaceably and promptly to
LANDLORD at the expiration of this LEASE, or earlier termination thereof, in as
good condition as they were at the commencement of this LEASE, ordinary wear
and tear and loss by fire and other casualty excepted.
14.02 TENANT will return the PREMISES in "broom-clean" condition
(free and clear of all Personal Property), and return all keys to LANDLORD.
14.03 At termination of this LEASE, all lighting fixtures and
lighting tubes and/or bulbs shall be returned to LANDLORD in good working
order.
14.04 At no time during the term of this LEASE shall TENANT have
the electrical service disconnected without first notifying LANDLORD of its
intent to do so and giving LANDLORD the opportunity to have the service
transferred into its name.
15. PARKING
TENANT understands and agrees that its parking shall be restricted to
the area immediately in front, and if applicable, to the rear of its PREMISES.
TENANT shall not park in a manner which would block or restrict the access of
other tenants to their leased premises.
16. ALTERATIONS
TENANT shall not make any alterations or improvements to the PREMISES
without submitting plans and specifications for such work for the prior written
consent of LANDLORD. In the event of such consent, TENANT will have the work
completed in good and workmanlike manner (meeting all local, state, federal, or
other codes) by a licensed contractor acceptable to LANDLORD, carrying adequate
general comprehensive liability insurance and workmen's compensation insurance.
All alterations and improvements, including any modifications to the electrical
system, will become property of the LANDLORD and shall remain thereon at the
termination of this LEASE unless LANDLORD notifies TENANT that it will be
required to remove alterations or improvements and restore the PREMISES to its
prior condition. TENANT shall pay to LANDLORD as additional rent any increase in
ad valorem taxes as a result of any alterations or improvements.
17. PERSONAL PROPERTY/TRADE FIXTURES
TENANT shall store all of its trade fixtures, inventory,signs and
other personal property (collectively called "Personal Property") at its own
risk. LANDLORD and its agents, employees and contractors shall not be liable
for, and TENANT releases LANDLORD from, all claims for loss or damage to
TENANT'S Personal Property, no matter how caused. Provided TENANT is not then
in default hereunder, TENANT shall have the right to remove all Personal
Property from the PREMISES prior to the termination of this LEASE. If such
removal of TENANT's Personal Property results in any damage to the PREMISES,
TENANT, at its expense, agrees to make repairs needed in order that the
PREMISES shall be restored to the condition in which they were at the
commencement of this LEASE.
18. ABANDONMENT
TENANT shall not abandon the PREMISES at any time during the LEASE
term. If TENANT shall abandon the PREMISES or be dispossessed by process of
law, any Personal Property belonging to TENANT and left on the PREMISES shall,
at the option of LANDLORD, be deemed abandoned, and available to LANDLORD to
use or sell to offset any rent due or any expenses incurred by removing same
and restoring the PREMISES.
19. INSURANCE
19.01 LANDLORD shall keep in force, during the full term of this
LEASE, a policy of fire and extended coverage insurance covering the
building(s) containing the PREMISES with coverage in an amount not less than
90% of the
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replacement cost of the building(s). At LANDLORD's option, LANDLORD shall
maintain additional coverages in order to further protect its interest in the
building, e.g. "special extended perils" coverage or "all-risk" coverage. TENANT
shall pay any increased premiums for LANDLORD's property insurance coverage, if
such increase in caused by TENANT's use or occupancy of the PREMISES.
19.02 TENANT shall keep in force, during the full term of this LEASE, the
following insurance coverage:
(a) xxxxxxx'x compensation insurance in amounts required by law.
(b) a policy of commercial general liability insurance (1986 ISO Form or its
equivalent) with a combined single limit of not less than $1,000,000.00 for
each occurrence and not less than $2,000,000.00 in the aggregate. Said policy
shall also include coverage for fire and extended coverage legal liability with
limits of not less than $50,000.00 for each occurrence. Said policy shall be
issued by a nationally recognized insurance company authorized to do business
in North Carolina with a rating of not less than A:8 by A.M. Best Company. Said
policy shall name LANDLORD as an "additional insured" (with a contractual
liability endorsement) and provide that it shall not be canceled, non-renewed
or modified in any material respect unless and until LANDLORD is given at least
fifteen (15) days' notice in writing by the insurance company.
(c) a "special extended perils" and/or "all risk" policy of insurance covering
TENANT's improvements, trade fixtures, equipment, inventory and other Personal
Property located in or on the PREMISES, providing coverage to the extent of at
least ninety percent (90%) of the replacement cost of such property. LANDLORD
shall not be obligated to insure any Personal Property of TENANT placed in or
on the PREMISES.
19.03 TENANT shall furnish to LANDLORD, prior to occupancy, a copy of the
insurance policy or policies outlined in Paragraph 19.02, or certificates of
insurance evidencing same. At least fifteen (15) days prior to expiration of
any insurance policy, TENANT shall furnish LANDLORD with proof of renewal or
with proof of new coverage.
19.04 TENANT, its assignees and sublessees shall protect, defend,
indemnify and hold LANDLORD harmless from any and all liability, damages and
expenses, including court costs and attorney's fees, arising, directly or
indirectly, from any claim, demands, and judgments related to TENANT's use or
occupancy of the PREMISES and/or Common Areas.
20. MUTUAL WAIVERS; WAIVER OF SUBROGATION
LANDLORD and TENANT hereby release each other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured in policies of insurance covering
such property actually maintained by the releasing party, or required to be
maintained by such party under Article 19 above, even if such loss or damage
shall have been caused by the fault or negligence of the other party, or anyone
for whom such party may be responsible. TENANT's policies of hazard insurance
on its Personal Property shall contain a waiver of subrogation endorsement in
favor of LANDLORD and copies of same shall be delivered to LANDLORD upon
request.
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21. QUIET POSSESSION
LANDLORD covenants that it is the lawful owner of the PREMISES and has
the authority to enter into this LEASE with TENANT. LANDLORD agrees that TENANT
shall enjoy peaceful and quiet possession of said PREMISES during the term
hereof so long as TENANT performs the Covenants set forth in this LEASE.
22. DEFAULT AND REMEDIES
22.01 If TENANT shall default in payment of any rent or other sum
of money becoming due hereunder for a period of five (5) days after notice of
such default has been given to TENANT, or if TENANT shall default in
performance of any other Covenant of this LEASE and does not remedy such
default within ten (10) days after written notice thereof or does not within
such ten (10) days commence such act or acts as shall be necessary to remedy
such default and complete such act or acts promptly, or if TENANT shall be
adjudicated as bankrupt, or file in any court a petition in bankruptcy, or file
or have filed against it a petition for the appointment of a receiver or
trustee for all or substantially all of the assets of TENANT, or make an
assignment for the benefit of creditors, or if TENANT shall vacate or abandon
the PREMISES or any substantial part thereof, or suffer the LEASE or the
PREMISES, or any substantial part thereof, to be taken or encumbered under any
legal process and such taking or encumbrance is not dissolved within fifteen
(15) days, then in any of such events LANDLORD shall have all of the rights and
remedies permitted by law including, but not limited to, the right to evict
TENANT by summary proceedings and the right and option to remove all persons
and property from the PREMISES and dispose of or store such property as it sees
fit, all in accordance with applicable legal process. Following a default by
TENANT, LANDLORD may either terminate this LEASE, or it may terminate TENANT's
right to possession of the PREMISES, and re-enter the PREMISES, make such
repairs and alterations as are necessary to relet the PREMISES, and relet the
PREMISES for such terms and at such rent and upon such other terms and
conditions as LANDLORD may deem advisable. No re-entry by LANDLORD shall be
construed as an election to terminate this LEASE unless a written notice of
termination is given by LANDLORD to TENANT. In the event of any termination of
this LEASE, LANDLORD may recover from TENANT all damages resulting from the
breach, including, but not limited to, the present value of the difference
between: (1) the Base Monthly Rent and other sums that would be payable by
TENANT for the remainder of the term of this LEASE; and (2) the reasonable
rental value of the PREMISES for the remainder of the term of this LEASE. If
LANDLORD re-enters the PREMISES without terminating this LEASE, TENANT shall
remain liable for the payment of Base Monthly Rent and other sums payable under
this LEASE as and when they come due, but shall be entitled to a credit equal
to the amounts actually received by LANDLORD from reletting the PREMISES (net
of LANDLORD's expenses incurred in recovering possession of and reletting the
PREMISES).
22.02 In the event of any default by TENANT, whether or not
LANDLORD terminates this LEASE or TENANT's right to possession of the PREMISES,
TENANT shall be liable to LANDLORD for all costs LANDLORD shall incur in
repossessing or reletting the PREMISES or collecting sums due to LANDLORD,
including court costs and reasonable attorney's fees, together with interest
thereon at the rate of eighteen (18%) percent per annum from the date upon
which any such expense shall have been incurred.
22.03 TENANT understands and agrees that waiver by LANDLORD of
any default or breach of any Covenant herein shall not be construed to be a
waiver of that Covenant or of any subsequent breach thereof. In particular, the
acceptance of rent by LANDLORD without knowledge of the breach of any Covenant
of this LEASE shall not be deemed a waiver of such breach.
23. DAMAGE OR DESTRUCTION
23.01 If the PREMISES are destroyed or substantially damaged so
that the PREMISES cannot be repaired within sixty (60) days, as determined by
LANDLORD, then LANDLORD may elect to terminate this LEASE by giving written
notice to
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TENANT within thirty (30) days following the damage. If there are less than six
(6) months remaining under the term of this LEASE as of the date of damage, then
TENANT may elect to terminate this LEASE by giving written notice to LANDLORD
within thirty (30) days following the damage.
23.02 TENANT shall give immediate written notice to LANDLORD of
any damage to the PREMISES caused by fire or other casualty. If LANDLORD or
TENANT does not elect to terminate this LEASE as provided under Paragraph
23.01, LANDLORD shall proceed with reasonable diligence, at LANDLORD's expense,
to repair and rebuild the PREMISES to substantially the same condition which
existed prior to the occurrence of said damage or casualty; provided, however,
that in no event will LANDLORD be required to expend in excess of the fire and
extended coverage insurance proceeds actually received as a result of said
damage or casualty.
23.03 If the LEASE is not terminated as provided under Paragraph
23.01, TENANT shall be entitled to a proportionate abatement of rent to the
extent of area damaged until TENANT regains use of the damaged area.
23.04 If the LEASE is terminated as provided under Paragraph
23.01, all payments of Base Monthly Rent and other sums due shall cease as of
the date of the damage, and all proceeds of any hazard insurance maintained by
LANDLORD under Paragraph 19.01 shall be the exclusive property of LANDLORD.
24. EMINENT DOMAIN
If a portion of the PREMISES or Common Areas is taken for any public
or quasi-public use under any governmental law, ordinance or regulation or by
right of eminent domain or by private purchase in lieu thereof, and such taking
has a material adverse effect on TENANT's operations in the PREMISES, then
either party hereto shall have the right to terminate this LEASE effective on
the date physical possession is taken by the condemning authority, by giving
written notice to the other party within thirty (30) days. If neither party has
elected to terminate this LEASE following such a taking, LANDLORD, at its own
expense (provided LANDLORD's first mortgage lender has made the proceeds of
condemnation available to LANDLORD for rebuilding) will repair and restore the
PREMISES to a tenentable condition, and the rent to be paid by TENANT hereunder
shall be proportionately and equitably reduced. TENANT hereby expressly waives
all rights to an award resulting from an eminent domain action affecting the
PREMISES, whether such award is compensation for damages to LANDLORD's or
TENANT's interest in the PREMISES, except that TENANT shall have the right to
pursue a separate award from the condemning authority for compensation or
damages for its Personal Property.
25. SUBORDINATION
This LEASE is subject and subordinate to any and all mortgages, deeds
of trust, or ground or underlying leases now or hereafter placed on the
PREMISES or the property of which the PREMISES are a part, provided TENANT's
quiet possession of the PREMISES under the Covenants of this LEASE shall not be
disturbed. This Paragraph shall be self-operative without any further
instrument necessary to effect such subordination; provided, however, if
requested by LANDLORD, TENANT shall promptly execute and deliver to LANDLORD
any such instrument evidencing subordination or the assignment of this LEASE as
additional security for any such mortgages, deeds of trust or leases.
26. ESTOPPEL CERTIFICATE
Within ten (10) days after a request by LANDLORD or any lender of
LANDLORD having an interest in the PREMISES, TENANT shall deliver a written
estoppel certificate, in form supplied by or acceptable to LANDLORD or such
lender, certifying any facts that are then true with respect to this LEASE. It
is the intent that any such certificate delivered pursuant hereto may be relied
upon by any prospective purchaser of the interest of LANDLORD in the PREMISES
or any part thereof, or by any lender or prospective lender having or intending
to obtain a security interest in the PREMISES, or by any landlord or
prospective landlord under any ground or underlying lease affecting the
PREMISES.
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27. ENTRY BY LANDLORD
LANDLORD and those persons authorized by it shall have the right to enter
the PREMISES at any time in the event of an emergency and at all reasonable
times otherwise for the purposes of inspection or making repairs or alterations
as may be deemed necessary or desirable by LANDLORD. In addition, during the
last six (6) months prior to the expiration of this LEASE, LANDLORD shall have
the right to enter the PREMISES during business hours, upon reasonable advance
notice, for the purpose of exhibiting the PREMISES to prospective tenants or
purchasers. TENANT agrees to cooperate with LANDLORD or LANDLORD's agent in
this respect.
28. SIGNS
28.01 TENANT shall have the right to erect reasonable and normal signage
relating to its business activities. The care and maintenance of such signage
shall be the responsibility of TENANT and shall remain the property of the
TENANT. However, LANDLORD, shall have the sole right to approve the size, type,
placement, and method of installation of any signage.
28.02 It is agreed that TENANT shall not paint any sign or affix any sign
with mastic at similar product on the exterior walls of the PREMISES or the
building of which the PREMISES are a part. If TENANT shall erect or have erected
any sign on an exterior wall or window, and if TENANT shall vacate the PREMISES
for any reason, it shall remove all signs so erected and repair any damage to
the PREMISES occasioned by the installation and removal.
28.03 LANDLORD or its designated agent(s) shall have the right to install
"For Lease" and/or "For Sale" sign(s) on the PREMISES during the last six
months of the LEASE term.
29. ASSIGNING AND SUBLETTING
29.01 TENANT shall not assign, mortgage, or encumber this LEASE, nor
sublet or permit the PREMISES to be used by others, without the prior written
consent of the LANDLORD, which consent shall not be unreasonably withheld.
29.02 Notwithstanding LANDLORD's consent to any such assignment or
subletting, TENANT and said assignee or sublessee shall remain jointly and
severally liable for the performance of all Covenants of this LEASE.
29.03 If TENANT requests LANDLORD to consent to an assignment of LEASE or
to approve a sublease, TENANT shall: (1) furnish LANDLORD with a copy of the
proposed sublease or assignment, which shall contain a provision whereby the
assignee or subtenant agrees to assume and be bound by all the Covenants of
this LEASE; and (2) pay to LANDLORD upon demand therefor, any reasonable legal
or other expenses which LANDLORD incurs in order to protect its interest before
approving or disapproving such request.
30. LIENS
TENANT shall not encumber or subject the interest of LANDLORD in the
PREMISES to any mechanics' or materialmen's or other liens of any nature
whatsoever. If any mechanics' or materialmen's lien is filed against the
PREMISES for work claimed to have been done for, or materials claimed to have
been furnished to, TENANT, TENANT shall discharge the lien, by bonding or
otherwise, within fifteen (15) days after it is filed, and if TENANT fails to
discharge the lien within that period, LANDLORD may do so at TENANT's expense.
31. NOTICES
31.01 Any notice required or provided for in this LEASE shall be in
writing and may be given by hand delivery or by certified or registered mail,
postage prepaid, return receipt requested, addressed to LANDLORD or to TENANT
at the address shown below.
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LANDLORD TENANT
-------- ------
NANCO I, LLC Diamond Sports Group
000 Xxxxxx Xxxx 000 X. Xxxxxxxxxx-Xxxxxx Xxxxx Xx.
Xxxxxxxxx, XX 00000 Xxxxxx Xxxxx, XX 00000
31.02 The address of LANDLORD and TENANT may be changed from time to
time by either party serving written notice upon the other in the above
described manner.
32. MEMORANDUM OF LEASE
Upon request by either LANDLORD or TENANT, the parties hereto shall
execute a short form lease (Memorandum of Lease) in recordable form, setting
forth such Covenants hereof (other than the amount of Base Monthly Rent and
other sums due) as either party may wish to incorporate.
33. GOVERNING LAW
This LEASE and the rights of the parties hereunder shall be construed
and enforced in accordance with the laws of the State of North Carolina.
34. SUCCESSORS
This LEASE shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, successors, and permitted
assigns, except as otherwise provided for in this LEASE.
35. LEASE REVIEW
Submission of this LEASE to TENANT for a review does not constitute a
reservation of or option for the PREMISES, and this LEASE shall become
effective as a contract only upon execution and delivery by LANDLORD and TENANT.
36. SEVERABILITY
It is understood that if any of the Covenants contained herein are
ruled to be invalid or unenforceable by a court of competent jurisdiction, the
remaining Covenants shall not be affected and shall remain binding on the
parties hereto.
37. CAPTIONS
The headings and captions contained in this LEASE are for convenience
only and shall not be considered in interpreting the Covenants contained herein.
38. AUTHORIZED LEASE EXECUTION
Each individual executing this LEASE as a director, officer, partner,
or agent of a corporation or partnership represents and warrants that he is
duly authorized to execute and deliver this LEASE on behalf of such corporation
or partnership.
39. ENTIRE AGREEMENT
This LEASE constitutes the entire agreement, intent and understanding
between the parties hereto and shall not be altered or modified except in
writing signed by the parties hereto. Each party agrees that it has not relied
upon or regarded as binding any prior agreements, negotiations, representations,
or understandings, whether oral or written, except as expressly set forth
herein.
40. TRANSFER OF LANDLORD'S INTEREST
In the event of the sale, assignment or transfer by LANDLORD of its
interest in the PREMISES or in this LEASE (other than a collateral assignment
to secure a debt of LANDLORD) to a successor in interest who expressly assumes
the obligations of LANDLORD under this LEASE, LANDLORD shall thereupon be
released and discharged from all of its Covenants and obligations under this
LEASE, except those obligations that have accrued prior to such sale,
assignment or transfer; and TENANT agrees to look solely to the successor in
interest of LANDLORD for the performance of those Covenants accruing after such
sale, assignment or transfer. LANDLORD's assignment of this LEASE, or of any or
all of its rights in this
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LEASE, shall not affect TENANT's obligations hereunder, and TENANT shall attorn
and look to the assignee as Landlord, provided TENANT has first received
written notice of the assignment of LANDLORD's interest.
41. LIMITATION OF LANDLORD'S LIABILITY
TENANT agrees that it will look solely to the estate of LANDLORD in
the land and buildings comprising the PREMISES and the rent, issues and profits
arising therefrom for the collection of any judgment (or any other judicial
process requiring the payment of money by LANDLORD) in the event of any default
or breach by LANDLORD with respect to any of the Covenants of this LEASE to be
observed and/or performed by LANDLORD, and no other property or assets of
LANDLORD shall be subject to levy, execution or other procedures for the
satisfaction of TENANT's remedies.
42. FORCE MAJEURE
Neither party shall be liable for breach of contract by reason of any
failure or delay in the performance of any Covenant to be performed by it under
this LEASE if the failure or delay is caused by act of God, war, federal or
state legislation, regulations or orders, fire or other casualty, strikes,
accidents, inability to obtain materials, or from any other cause beyond that
party's reasonable control. The foregoing provisions shall not apply to any
delay or failure by TENANT to pay Base Monthly Rent or any other amounts payable
under this LEASE.
IN TESTIMONY WHEREOF, LANDLORD and TENANT have executed this LEASE under seal
as of the day and year stated above.
LANDLORD:
ATTEST: NANCO I, LLC
By: /s/ XXXXX X. XXXXX
--------------------- --------------------------
Secretary Xxxxx X. Xxxxx
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
This ____ day of _______, 1996, personally came before me __________________
who, being by me duly sworn, says that he is the President of NANCO I, LLC a
North Carolina corporation, and that the seal affixed to the foregoing
instrument in writing is the corporate seal of the company, and that said
writing was signed and sealed by him, in behalf of said corporation, by its
authority duly given. And the said President acknowledged the said writing to
be the act and deed of said corporation.
-------------------------------------------
Notary Public
My commission expires:
---------------------
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CORPORATE SEAL) TENANT:
ATTEST: Diamond Sports Group
/s/ XXXX XXXXXXX BY: /s/ XXXXXX X. XXXXXXXXX
--------------------------------- ---------------------------------
Secretary Vice-President (Corporately &
Individually)
STATE OF
------------------------------
COUNTY OF
-----------------------------
This __________day of ______________, 1996, personally came before me
________________________ who, being by me duly sworn, says that he is the
__________________ President of ___________________ a ___________________
corporation, and that the seal affixed to the foregoing instrument in writing
is the corporate seal of the company, and that said writing was signed and
sealed by him, in behalf of said corporation, by its authority duly given.
And the said __________________________ President acknowledged the said writing
to be the act and deed of said corporation.
-----------------------------
Notary Public
My commission expires:
-----------------------------
