Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 180 1.08M
Business-Combination Transaction
2: EX-3.1 Certificate of Formation 1 15K
3: EX-3.2 Limited Liability Company Agreemen 35 137K
4: EX-3.3 Articles of Incorporation 2 18K
5: EX-3.4 Acme Intermediate Finance, Inc. By-Laws 14 56K
6: EX-4.1 Indenture 148 473K
7: EX-4.2 Indenture 135 432K
9: EX-5.1-INT Exhibit 5.1-Int - Opinion Re: Legality 3 23K
8: EX-5.1-INT Intermediate Opinion 3 24K
10: EX-10.1 Stock Purchase Agreement 46 204K
19: EX-10.10 Management Agreement 14 53K
20: EX-10.11 Exhibit 10.11 - Amendment (Channel 32) 2 20K
21: EX-10.12 Exhibit 10.12 - Noncompetition Agreement for Kwbp 5 28K
22: EX-10.13 Exhibit 10.13 - Management Agreement for Station 16 50K
23: EX-10.14 Management Agreement 14 47K
24: EX-10.15 Exhibit 10.15-Wint Escrow 9 43K
25: EX-10.18 Exhibit 10.18 - Affiliation Agreement for Kwbp 21 67K
26: EX-10.19 Exhibit 10.19 - Commitment Letter From Wb 1 18K
11: EX-10.2 Exhibit 10.2 - Escrow Agreement for Kplr 14 61K
27: EX-10.20 Exhibit 10.20 - Employment Agreement With Gealy 6 33K
28: EX-10.21 Exhibit 10.21 - Employment Agreement With Allen 6 32K
29: EX-10.22 Exhibit 10.22 - Consulting Agreement With Kellner 6 30K
30: EX-10.23 Exhibit 10.23 - Commercial Building Lease for Kwbp 15 68K
31: EX-10.24 Exhibit 10.24 - Lease Agreement for Kwbp Tower 16 65K
32: EX-10.25 Exhibit 10.25 - Lease Agreement for Wbxx 22 74K
33: EX-10.26 Exhibit 10.26 - Tower Lease for Wbxx 13 38K
34: EX-10.27 Exhibit 10.27 - First Modification to Agreement 4 24K
12: EX-10.3 Exhibit 10.3 - Time Brokerage Agreement 19 69K
35: EX-10.30 Exhibit 10.30 - Studio Lease for Kplr 4 27K
36: EX-10.31 Exhibit 10.31 - Tower Lease for Kplr 26 51K
37: EX-10.32 Exhibit 10.32 - Amendment to Tower Leases for Kplr 3 22K
38: EX-10.33 Exhibit 10.33 - Koplar/Roberts - Agreement 15 69K
39: EX-10.35-INT Exhibit 10.35 - Registration Rights Agreement 34 119K
40: EX-10.36-INT Exhibit 10.36 - Membership Unitholders Agreement 31 108K
41: EX-10.37 Purchase Agreement for Intermediate 41 152K
42: EX-10.38-INT Exhibit 10.38 - Securities Pledge Agreement 21 73K
13: EX-10.4 Membership Contribution Agreement 28 102K
14: EX-10.5 Exhibit 10.5 - Asset Purchase Agreement 25 87K
15: EX-10.6 Exhibit 10.6 - Purchase Agreement for Wbxx 63 133K
16: EX-10.7 Exhibit 10.7-Asset Purchase Agreement for Kwbp 38 163K
17: EX-10.8 Exhibit 10.8 - Amendment 3 20K
18: EX-10.9 Exhibit 10.9 - Amendment (Acme) 3 18K
43: EX-21.1-INT Exhibit 21.1 - Subsidiaries 1 15K
44: EX-23.2 Consent of Experts and Counsel 1 15K
45: EX-23.3 Consents of Experts 1 15K
46: EX-23.4 Consent of Experts and Counsel 1 15K
47: EX-24.1-INT Power of Attorney - Allen 1 16K
48: EX-24.2-INT Power of Attorney - Gealy 1 16K
49: EX-24.3-INT Power of Attorney - Kellner 1 16K
50: EX-25.1-INT Exhibit 25.1-Int - Statement of Eligibility 30 106K
51: EX-27.1 Financial Data Schedule 1 19K
52: EX-99.1-INT Exhibit 99.1-Int - Letter of Transmittal 20 68K
53: EX-99.2-INT Exhibit 99.2-Int - Notice of Guaranteed Delivery 5 26K
54: EX-99.3-INT Exhibit 99.3-Int - Letter to Brokers 2 19K
55: EX-99.4-INT Exhibit 99.4-Int - Letter to Clients 2 18K
56: EX-99.5-INT Exhibit 99.5-Int - Instruction to Holder 2 19K
57: EX-99.6-INT Exhibit 99.6-Int - Guidelines for Certification 7 27K
58: EX-99.7 Consent as Member-Koplar 1 16K
59: EX-99.8 Consent as Member-Roberts 1 16K
EX-10.23 — Exhibit 10.23 – Commercial Building Lease for Kwbp
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COMMERCIAL BUILDING LEASE
This lease (the "Lease"), dated June 17, 1997, by and between Peregrine
Communications, Ltd. an Oregon corporation ("Landlord") and ACME Television
Holdings of Oregon, L.L.C. an Oregon limited liability company ("Tenant"), is
entered into pursuant to the provisions of the Asset Purchase Agreement as
amended, ("Purchase Agreement") dated January 31, 1997 by and between Channel 32
Incorporated, a direct subsidiary of Landlord, Tenant, and Tenant's affiliate
ACME Television Licenses of Oregon, L.L.C.
1 BASIC PROVISIONS. The following basic provisions apply to, and shall be
construed in conjunction with, this Lease.
1.1 LANDLORD. Peregrine Communications, Ltd. is the "Landlord" with a
mailing address of 9725 SW Beaverton-Hillsdale Hwy., Suite 350,
Beaverton, Oregon 97005-3366. Landlord is an Oregon corporation.
1.2 TENANT. ACME Television Holdings of Oregon, L.L.C. is the "Tenant."
Tenant is an Oregon limited liability company, with a mailing address
of 10255 SW Arctic Dr., Beaverton, Oregon 97005.
1.3 PREMISES AND PROPERTY. "Premises" is the certain commercial office space
located at 10255 SW Arctic Drive, Beaverton, Oregon, consisting of
interior office and related space and the Tower located therein, all as
more fully described on the attached Schedule 1.3 ("Premises"). (As used
herein, "Property" shall refer to the real property lot upon which the
Premises are located)
1.4 PERMITTED USE. The permitted use under this Lease is for television
studio, including, without limitation, video production, broadcasting
facilities, sales and management offices and all related activities
("Permitted Use").
1.5 TERM AND COMMENCEMENT DATE. The Term of this Lease shall commence on
June 17, 1997 ("Commencement Date") and shall end at midnight of June
, 2006, unless terminated earlier as provided in Section 9 ("Term"), or
extended pursuant to the Option to Renew Rider, or by purchase of the
Premises and Property by Tenant.
1.6 BASE RENT. Tenant shall pay to Landlord the monthly Base Rent of
$12,500.00 ("Base Rent"). The Base Rent shall be adjusted as
provided in this Lease.
1.7 UTILITIES AND SERVICES. All utilities and Janitorial Services necessary
to or desired by Tenant shall be paid by Tenant. Tenant shall be
responsible for routine repairs and maintenance, Security Services,
Janitorial Services, Communications Services and all other such regular
services necessary or desired for operation of the Premises or Property.
Tenant shall pay for the utility or service cost directly to the
relevant supplier. If additional or expanded utilities or services are
required beyond the utilities or services existing as of the
Commencement Date, then Tenant shall provide and pay for the additional
or expanded utilities or services.
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2. RIDERS. This Lease includes and incorporates the following riders:
x Schedule 1.3 (Premises).
x Option to Renew.
3. GRANT OF THE PREMISES AND POSSESSION.
3.1 GRANT OF PREMISES. Landlord leases to Tenant and Tenant leases from
Landlord the Premises and the Property subject to the terms and
conditions of this Lease.
3.2 POSSESSION. Landlord shall deliver possession of the Premises to Tenant
on the Commencement Date. During the Term, Landlord covenants on behalf
of itself, its successors, assigns and persons rightfully claiming by or
through Landlord to not disturb the quiet enjoyment, possession, or
Permitted Use of the Premises and Property by Tenant, subject to the
rights of Landlord set forth in this Lease.
4. RENT.
4.1 DEFINITION OF RENT. The term "rent" includes the Base Rent, any
adjustments to the Base Rent, additional rent, and any other amount
payable by Tenant to Landlord under this Lease.
4.2 TIME OF PAYMENT. Except as expressly provided otherwise, each monthly
rent payment due from Tenant to Landlord shall be due on or before the
first (1st) calendar day of each month of the Term, with the first
monthly rent payment due on the execution of this Lease. The date on
which a monthly rent payment is due is the "Due Date."
4.3 FORM AND PLACE OF PAYMENT. Tenant shall pay rent in the form of a check
made payable to Landlord. The check shall be received by Landlord at
Landlord's address set forth in Section 1.1 on or before the Due Date.
4.4 APPLICATION OF PAYMENTS. Payments made by Tenant to Landlord shall first
be applied to late fees, if any, then to additional rent, if any, then
to any other amounts due from Tenant to Landlord, if any, and last to
the Base Rent, as adjusted.
4.5 PRORATION OF RENT. If the Term begins on other than the first calendar
day of a month, or ends on other than the last calendar day of a month,
the Base Rent amount that is due is the monthly Base Rent (as adjusted)
divided by the number of calendar days in that month.
4.6 RENT ADJUSTMENT. The Base Rent shall be adjusted on June 17, 2001 and
on June 17 every third year thereafter for the term of this Lease and
any renewal term hereunder. The Base Rent, as adjusted, shall be equal
to the greater of (i) the Base Rent in the preceding period, or (ii) the
Base Rent plus the C.P.I. Adjustment. For purposes of this Section,
"C.P.I." refers to the Consumer Price Index for all Urban Consumers,
U.S. City Average, All Items, compiled by the Bureau of Labor
Statistics, United States Department of Labor, using the index for
December, 1967 as a base of 100. In the event the C.P.I. is replaced or
revised, a comparable or replacement index shall be based upon or
adjusted to a December 1967 base of 100. The "C.P.I. Adjustment"
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is computed by dividing the C.P.I. for the calendar month immediately
preceding the adjustment by the C.P.I. for the month immediately
preceding the Commencement Date or the last adjustment under this Lease,
as the case may be, and multiplying the quotient by the initial Base
Rent. The minimum adjustment for any period shall be a one percent (1%)
increase and the maximum adjustment for any period shall be a seven and
one half percent (7.5%) increase.
4.7 REAL AND PERSONAL PROPERTY TAXES. Tenant shall be liable for and shall
pay before the same shall be past due all taxes levied against its trade
fixtures and equipment and other personal property placed upon, or owned
by Tenant in, on or about the Premises or Property, plus those levied
against the personal property, if any, being leased to Tenant under this
Lease, and all taxes levied against the value of the real property and
improvements of the Premises and Property.
5. OPERATION OF PREMISES AND PROPERTY.
5.1 TENANT'S USE OF PREMISES. The Premises shall be occupied and used only
for the Permitted Use and for no other purpose, and Tenant shall operate
the entire Premises during the Term and any renewal.
5.2 JANITORIAL AND UTILITY SERVICES. The term "Janitorial Services" is
defined to include the following for the Premises and Property: (i)
sweep, vacuum, or mop all floors as appropriate: (ii) collect and empty
into appropriate containers all trash and garbage; (iii) clean all
offices, rest rooms, and other rooms; (iv) supply all soap, towels,
tissues and other supplies for the rest rooms; (v) maintain all light
bulbs and tubes in operating condition; (vi) clean all interior and
exterior glass surfaces as needed; (vii) clean all unsightly or abnormal
stains, dirt or other problems as needed; (viii) clean all walking areas
to a condition of "broom clean;" and (ix) periodically replace filters
for the heating and air conditioning systems as needed.
5.3 COMMUNICATION SERVICES. Tenant shall maintain, at Tenant's expense, all
necessary or desired communication, telephone, data, audio-visual,
video, cable, computer and electronic services and equipment
("Communication Services") for the Premises. Landlord is not obligated
to supply or maintain any Communication Services to or on the Premises.
Tenant may install Communication Services lines and cables at the
locations and using the methods as Landlord and Tenant shall agree.
5.4 SECURITY SERVICES. Tenant may provide and maintain such Security
Services for the Premises and/or the Property that are appropriate for
Tenant's use. The term "Security Services" includes, but is not limited
to, any watchperson, locks, lights, fences, alarms, doors, or other
services, devices, procedures, barriers or otherwise for the purpose of
protecting, safeguarding, defending, or policing persons or property
from any theft, vandalism or other loss or damage. Tenant may use or
install fences, locks, alarms, doors or other devices to provide
Security Services, and the installation of any Security Services shall
be (i) consistent with the overall design and use of the Premises and
Property, and (ii) subject to the terms of this Lease regarding
"alterations, improvements and additions". Landlord shall provide no
Security Services for the Premises.
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5.5 SIGNS. The design, installation, removal, compliance with applicable
laws and all other matters related to signage shall be at Tenant's
expense and Tenant's sole discretion, subject to Section 5.9 hereof.
5.6 ROUTINE REPAIRS AND MAINTENANCE. Tenant shall make all repairs and
replacements necessary to maintain the Premises and Property in the
condition not less than the condition of the Premises existing as of the
Commencement Date, normal wear and tear excepted.
5.7 STRUCTURAL AND SYSTEMS MAINTENANCE. Tenant shall be responsible for all
structural and system maintenance including, but not limited to,
maintaining in good working order the roof, paved parking areas, and the
heating, ventilating, air conditioning, plumbing, and electrical
systems, and light ballasts. Landlord represents and warrants that, as
of the Commencement Date, to the best of Landlord's knowledge, all such
structural and mechanical components and systems are in good working
order and free of material defects. In the event that this
representation and warranty is untrue as of the Commencement Date, the
Landlord will repair or replace the structural or mechanical component
or system that is not in good working order or has a material defect at
the Commencement Date.
5.8 TENANT'S LIABILITY FOR REPAIRS AND MAINTENANCE. Notwithstanding any
other provision of this Lease, Tenant shall be liable for and shall
promptly repair all damage to the Premises or Property caused by Tenant
or Tenant's partners, officers, directors, employees, invitees, guests,
customers, clients or licensees, regardless whether the damage is caused
by the negligence of the Tenant. All repairs made by Tenant shall be at
least equal to the original work in class and quality. If Tenant fails
to repair, (i) Landlord or its agents, may, but is not required to,
enter the Premises at any reasonable time to make repairs, and (ii)
Tenant shall pay to Landlord the reasonable cost of such maintenance or
repairs as additional rent due with the next monthly rent payment after
receiving an invoice or invoices for such repairs.
5.9 ALTERATIONS, IMPROVEMENTS AND ADDITIONS. Tenant shall not make any
alteration, improvement or addition to the Premises without the prior
written consent of Landlord, which consent shall not be unreasonably
withheld. Landlord specifically consents to Tenant's installation or
erection at the Premises or Property of additional engineering equipment
such as satellite receiving antennas, studio transmitter links,
microwave antennas or similar devices, necessary or useful to the
operation of Tenant's television station, consistent with industry
standards as to design, installation and local zoning and building
codes. Tenant shall advise Landlord of such installations before they
are performed. All alterations, improvements, and additions (i) shall be
performed at the sole cost and expense of Tenant in compliance with all
laws and regulations of any federal, state, or local governmental body,
and (ii) shall become and remain the property of Landlord except that
any video production or broadcast related equipment installed by Tenant
shall remain the property of Tenant unless abandoned at the end of the
term of this Lease. In contracting for any alterations, improvements or
additions, Tenant shall not act as the agent of Landlord. Tenant shall
be responsible for compliance with the requirements of the Americans
with Disabilities Act to the extent that any repair, alteration,
improvement or addition requires such compliance.
5.10 HAZARDOUS MATERIAL USE. Tenant shall not cause or permit any Hazardous
Material to be brought upon, kept, disposed on, in or at, released or
threatened to release or used in or about the Premises or Property by
Tenant, its agents, employees, contractors, customers, clients,
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guests or invitees. Tenant shall comply with all applicable laws and
regulations regulating the use, reporting, storage, and disposal of
Hazardous Material.
5.11 HAZARDOUS MATERIAL DEFINITION. As used in the Lease, the term "Hazardous
Material" means any hazardous or toxic substance, material or waste
which is or becomes regulated by any federal, state or local
governmental authority or political subdivision. The term "Hazardous
Material" includes, without limitation, any material or substance that
is (i) defined as a "hazardous substance" under applicable law, (ii)
petroleum, (iii) asbestos, (iv) polychlorinated biphenyl ("PCB"), (v)
designated as a "hazardous substance" pursuant to Section 31 1 of the
Federal Water Pollution Control Act (33 U.S.C. ss. 1 321), (vi) defined
as a "hazardous waste" pursuant to Section 1004 of the Solid Waste
Disposal Act (42 U.S.C. ss.6903), (vii) defined as a "hazardous
substance" pursuant to Section 1 01 of the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. ss.9601), (viii)
defined as a "regulated substance" pursuant to Section 9001 of the Solid
Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C.
ss.6991 , (ix) considered a "hazardous chemical substance and mixture"
pursuant to Section 6 of the Toxic Substance Control Act (1 5 U.S.C. ss.
2605), or (x) defined as a "pesticide" pursuant to Section 2 of the
Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. ss. 1 36).
5.13 COVENANT AGAINST LIENS. Except as to real property trust deeds,
mortgages and security interests of Landlord entered in the ordinary
course, Landlord and Tenant each agrees not to suffer or permit any lien
(including, but not limited to, tax liens and liens of mechanics or
materialmen) to be placed against the Premises or Property. If a lien is
placed against the Premises or Property that is directly or indirectly
related to an act or failure to act of a party, that party agrees to
notify the other party and pay off and remove such lien within thirty
(30) days of receipt of notice of the lien, regardless whether such
party contests the validity of the lien. Neither has authority or power
to cause or permit any lien or other encumbrance created by act of the
party, operation of laws, or otherwise to attach to or be placed upon
the other parties title or interest in the Premises, or the Property or
any personal property located therein.
5.14 DESIGNATION OF REPRESENTATIVES. Each party shall designate, in writing,
one representative to coordinate and implement the party's obligations
and to accept responsibility for the party's compliance with this Lease.
The representative shall have full authority to represent the party. If
the representative is changed, then the party changing its
representative shall notify the other party in writing within seven (7)
days.
5.15 RIGHTS RESERVED TO LANDLORD. Landlord shall have the following rights,
but not obligations, exercisable without notice and without liability to
Tenant for damage or injury to property, person, or business: (i) to
show the Premises or Property to prospective tenants at reasonable hours
during the last six (6) months of the Term if the Term has not been
extended, and, if the Premises are vacated prior to the end of the Term,
to prepare the Premises or Property for occupancy by a tenant; (ii)
subject to the provisions of this Lease, to have and retain paramount
title to the Premises or Property free and clear of any act or inaction
of Tenant that my restrict or encumber the Premises or Property;
and (iii) to encumber, sell, assign, or otherwise transfer Landlord's
interest in the Premises or Property subject to the provisions of
Section 11.1 hereof.
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6. CHANGES IN THE PARTIES.
6.1 RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall be
construed as creating the relationship of principal or agent,
partnership or joint venture. Neither the method of computation of rent
nor any other provision of this Lease, nor any act of the parties, shall
be deemed to create any relationship other than that of landlord and
tenant.
6.2 SUCCESSORS AND ASSIGNS. This Lease shall benefit and bind the
successors and permitted assigns of Landlord and Tenant.
6.3 ASSIGNMENT AND SUBLETTING. Tenant may not, without the prior written
consent of Landlord, (i) assign this Lease or any interest in this
Lease, (ii) permit or suffer any assignment of this Lease by operation
of law, (iii) sublet all or any portion of the Premises, or (iv) permit
the use of the Premises by any party other than Tenant and its partners,
officers and employees. Landlord's consent to any proposed assignment or
subletting shall not be unreasonably withheld. Landlord may reasonably
withhold consent to any subletting or assignment unless (i) the credit
history, financial strength, and business reputation of the subtenant or
assignee is reasonably acceptable to Landlord and Landlord's lender,
(ii) Tenant pays the reasonable costs (including attorney fees) incurred
by Landlord in investigating the subletting or assignment, and (iii) the
subtenant's proposed use of the Premises is consistent with the current
uses of the Premises and Property. No assignment or subletting shall
release Tenant from any of the obligations set forth in this Lease.
6.4 LANDLORD'S TRANSFER. Landlord may sell, assign or otherwise transfer the
Premises and Property subject to the provisions of Section 11.1 hereof.
If Landlord should sell or transfer its interest in the Premises or
Property, then effective with the date of the sale or transfer, Landlord
shall be released and discharged from any and all further obligations
and responsibilities under this Lease (except those already accrued)
upon written assumption by the buyer or transferee of Landlord's
obligations and liabilities under this Lease.
6.5 ATTORNMENT. Tenant shall attorn to, and recognize as successor Landlord
under this Lease, any person that purchases or obtains title to the
Premises pursuant to (i) foreclosure proceedings, (ii) exercise of the
power of sale under a deed of trust, or (iii) a deed in lieu of
foreclosure or similar transfer.
6.6 SUBORDINATION. Tenant agrees that this Lease is and shall remain
subordinate to any existing or subsequent mortgage or deed of trust
covering the fee title to the Premises, together with any renewals,
modifications or extensions of existing or subsequent mortgages or deeds
of trust. Upon Landlord's request, Tenant shall execute the instruments
that are reasonably required to subordinate this Lease to mortgages or
deeds of trust made by Landlord.
6.7 ESTOPPEL CERTIFICATE. From time to time, but no more than twice in any
calendar year, upon not less than five (5) days prior written request by
Landlord, Tenant will deliver to Landlord a certificate in writing
stating (i) that this Lease is unmodified and in full force and effect
(or that the Lease as modified is in full force and effect, describing
the modifications), (ii) that the rents and other charges have been paid
to date without any prepayments or defaults (or if any prepayments or
defaults, the nature of the prepayments or defaults), and (iii) that
Landlord is not in default under any provision under this Lease (or, if
in default, the nature of the default).
The certificate may be relied upon by a mortgagee, an assignee of a
mortgage, or a purchaser of Landlord's interest in the Premises. If
Tenant shall fail to respond within five days of receipt by Tenant of
Landlord's written request, Tenant shall be deemed to have given
the certificate without modification.
7. LOSS OF PREMISES OR PROPERTY.
7.1 INSURANCE. Tenant shall purchase and obtain the following insurance
policies (or if so notified by Landlord such additional insurance
coverage as is reasonably required by Landlord's lender or lenders): (i)
the policies set forth in the attached Additional Terms Rider, if any;
(ii) a policy of comprehensive general liability insurance utilizing an
Insurance Services Office standard form with broad form general
liability endorsement, or equivalent, in an amount of not less than $
1,000,000.00 per occurrence of bodily injury and property damage
combined. The policy shall insure Tenant with Landlord as an additional
insured and shall also insure against liability arising out of the use,
occupancy or maintenance of the Premises and Property; and (iii) a
policy of fire and extended coverage insurance in an amount equal to but
not less than the full insurable value (from time to time) of all of
Tenant's personal property, fixtures, equipment and tenant improvements
and protecting Tenant against loss on account of damage to or
destruction of the Premises or Property by fire or other casualty
covered by a so-called "extended coverage" endorsement or a "special
forms" policy, including, without limitation, vandalism and malicious
mischief endorsements. If Tenant does not maintain the required
insurance, then Tenant is in default, is deemed to self-insure and bears
all risk of loss or damage caused by Tenant, Tenant's agents, employees
and invitees. The policy shall be with an insurer with a Best's rating
of B + or higher. Compliance with this Section shall not limit the
liability of Tenant under this Lease. Tenant shall deliver to Landlord
copies of the required insurance policies within thirty (30) days after
the Commencement Date. No policy shall be canceled or modified except
after thirty (30) days prior written notice to Landlord. Tenant shall,
at least seven (7) days prior to the expiration of the policies, upon
request, furnish Landlord with copies of the renewal policies. Each
party may, but is not obligated to, obtain insurance for its own
benefit. Except as provided in the Lease, each party (i) is not
obligated to obtain, (ii) is not obligated to be named in, (iii) shall
have no right to any proceeds of, and (iv) waives all claims on
insurance purchased by or for the benefit of the other party.
7.2 WAIVER OF SUBROGATION. To the extent permitted by their respective
insurers, Landlord and Tenant (and each person claiming an interest in
the Premises or Property through Tenant) release and waive their entire
right of recovery against the other for direct, incidental or
consequential or other loss or damage arising out of, or incident to,
the perils covered by insurance carried by each party, whether due to
the negligence of Landlord or Tenant. If necessary, all insurance
policies shall be endorsed to evidence this waiver.
7.3 EFFECT OF ONE PARTY'S ACTIONS ON OTHER PARTY'S INSURANCE. Neither party
shall do or permit to be done anything which shall invalidate any
insurance carried by the other party. Tenant shall pay the entire
increase in the insurance premium if the increase is specified by
Landlord's insurer as caused by the actions or omissions of Tenant.
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7.4 FIRE AND CASUALTY.
7.4.1 TERMINATION OR REPAIR. If all or any portion of the Premises or
Property are damaged or destroyed by fire or other casualty,
Landlord shall deliver to Tenant written notice within thirty (30)
days of the damage or destruction stating whether the Premises and
Property can be restored within one hundred eighty (180) days of
the damage or destruction. Landlord shall have no obligation to
expend more in repairing, restoring or rebuilding than the
proceeds of insurance available for the purposes. If, in
Landlord's reasonable judgment, the insurance settlement, permit
and construction work for repairing and rebuilding the damaged or
destroyed portion of the Premises or Property can be completed
within the period with the available insurance proceeds, Landlord
shall promptly proceed to repair or rebuild the damaged or
destroyed portion of the Premises or Property. If, in Landlord's
reasonable judgment, the insurance settlement, permit and
construction work for repairing and rebuilding the damaged or
destroyed portion of the Premises or Property cannot be completed
within the period with the available insurance proceeds, either
Landlord or Tenant may terminate this Lease upon thirty (30) days
written notice to the other party.
7.4.2 ABATEMENT OR APPORTIONMENT OF RENT. If the Lease is not
terminated, and if the damage or destruction to the Premises or
Property is not caused by the act or failure to act of Tenant, its
partners, officers, employees, agents, guests, customers, clients
or invitees, then a just portion of the rent shall abate as of the
date of the damage or destruction until the Premises and Property
are repaired or rebuilt. If the Lease is terminated, the rent
shall be apportioned as of the date of the damage or destruction.
7.4.3 ALTERATIONS, IMPROVEMENTS AND ADDITIONS. With respect to any
damage or destruction of alterations, improvements or additions
made to the Premises by Tenant, (i) this Section 7.4 shall be
inapplicable, (ii) no abatement of rent shall occur, and (iii)
Landlord shall not be obligated to repair or rebuild the Tenant's
alterations, improvements, or additions.
7.5 CONDEMNATION. If all of the Premises are taken or condemned by any
authority for any use or purposes, this Lease shall terminate upon, and
the rent shall be apportioned as of, the date when actual possession of
the Premises is required for the condemned use or purpose. If less than
all of the Premises are taken or condemned by any authority for any use
of purpose, then (i) Landlord or Tenant may terminate this Lease upon
thirty (30) days written notice of termination, or (ii) in the event the
parties elect to continue the Lease, a just portion of the rent will
abate as of the date when actual possession of condemned portion of the
Premises is required for the condemned use or purpose. Landlord reserves
all rights to damages to the Premises for any taking or condemnation of
all or any portion of the Premises. Tenant assigns to Landlord any right
Tenant may have to any award or damages. Tenant shall have the right to
claim and recover from the condemning authority compensation for any
loss for moving expenses and for interruption of or damage to Tenant's
business only if such award or damages are awarded separately and not as
part of the award or damages recoverable by Landlord.
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8. DEFAULT BY TENANT OR LANDLORD.
8.1 DEFAULT BY TENANT. Tenant shall be in default under this Lease if any of
the following occur: (i) Tenant fails to pay within ten (10) days after
the date when due any monthly rent or other payment required to be paid
by Tenant under this Lease; (ii) Tenant fails to perform or observe any
other material covenant, agreement or condition which Tenant is required
to perform or observe and the failure shall not be cured within thirty
(30) days after delivery of written notice to Tenant of the failure;
(iii) Tenant is named as a debtor in any voluntary or involuntary
bankruptcy proceeding not dismissed within ninety (90) days; (iv)
substantially all of Tenant's assets are placed in receivership or are
subjected to attachment or other judiciary seizure; (v) Tenant makes or
suffers a general assignment for the benefit of creditors; or (vi)
Tenant vacates or abandons the Premises.
8.2 REMEDIES OF LANDLORD. In the event of Tenant's default as set forth
in Section 8.1, Landlord shall have the remedies set forth in this
Lease. Landlord's remedies are cumulative and not alternative
remedies.
8.2.1 LEGAL AND EQUITABLE REMEDIES. Landlord shall have all remedies
available at law or in equity.
8.2.2 TERMINATION OF LEASE. Landlord may terminate the Lease. Following
termination of the Lease and for purposes of reletting the
Premises, Landlord may make any necessary or convenient
decorations, repairs, changes, alterations or additions to the
Premises in connection with any reletting of the Premises.
8.2.3 ADVANCE. In the event of Tenant's breach, Landlord may remedy the
breach for the account and at the expense of Tenant. If Landlord
at any time, by reason of the breach, is compelled to pay, or
elects to pay, any money or do any act which will require the
payment of any money, or is compelled to incur any expense,
including reasonable attorneys' fees, in instituting or
prosecuting any action or proceeding to enforce Landlord's rights
under this Lease, the money so paid by Landlord, with interest
from the date of payment at the rate set forth in Section 11.2,
shall be additional rent and shall be due from Tenant to Landlord
as set forth in Section 4.
8.3 DEFAULT BY LANDLORD. Landlord shall be in default under this Lease if
Landlord fails to perform or observe any material covenant, agreement or
condition which Landlord is required to perform or observe and the
failure shall not be cured within thirty (30) days after delivery of
written notice to Landlord by Tenant of the failure.
8.4 REMEDIES OF TENANT. In the event of Landlord's material default as set
forth in Section 8.3, Tenant shall have all rights provided at law or in
equity.
9. TERMINATION OF LEASE.
9.1 EVENTS OF TERMINATION. This Lease shall terminate upon the occurrence of
one or more of the following events: (i) by mutual written agreement of
Landlord and Tenant; (ii) by Landlord pursuant to this Lease; (iii) by
Tenant pursuant to this Lease; (iv) upon lapse of the Term or renewal
term; or (v) by reason of Sections 7.4 or 7.5 relating to destruction or
condemnation of the Premises.
9
9.2 SURRENDER, OF POSSESSION. Upon termination of this Lease, Tenant will
immediately surrender possession of the Premises to Landlord. If
possession is not immediately surrendered, Landlord may re-enter and
repossess the Premises and remove all persons or property using such
force as may be necessary without being deemed guilty of, or liable for,
any trespass, forcible entry, detainer, breach of the peace, or damage
to persons or property.
9.3 CONDITION OF PREMISES UPON TERMINATION OR ABANDONMENT. Tenant, upon
termination or abandonment of this Lease or termination of Tenant's
right of possession, agrees as follows:
9.3.1 REMOVAL OF PROPERTY. Except as permitted herein, Tenant shall not
remove any alterations, improvements or additions made to the
Premises by Tenant or others without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Tenant
shall immediately remove, in a good and workmanlike manner, (i) all
personal property of Tenant, and (ii) the alterations, improvements
and additions made to the Premises by Tenant as Landlord may request
in writing to be removed. All damage occasioned by the removal shall
be promptly repaired by Tenant in a good and workmanlike manner. If
Tenant fails to remove any property, Landlord may (i) accept the
title to the property without credit or compensation to Tenant, or
(ii) remove and store the property, at Tenant's expense, in any
reasonable manner that Landlord may choose.
9.3.2 RESTORATION OF PREMISES. Tenant shall restore the Premises to the
condition existing on the Commencement Date, with the exception of
(i) ordinary wear and tear, and (ii) alterations, improvements and
additions which Landlord has not directed to Tenant in writing to
remove. If Tenant fails to properly restore the Premises, Landlord,
at Tenant's expense, may restore the Premises in any reasonable
manner that Landlord may choose.
9.4 HOLDING OVER. If Tenant fails to deliver actual possession of the
Premises to Landlord upon termination of this Lease, Landlord shall have
all remedies available at law or in equity to a lessor of real property
in the State of Oregon Landlord may recover damages from Tenant in an
amount equal to (a) 150% the monthly rental payment applicable
immediately prior to termination for each full or partial month that
Tenant fails to deliver actual possession of the Premises to Landlord,
and (b) all damages sustained by Landlord by reason of Tenant's failure
to deliver actual possession of the Premises to Landlord.
10. CLAIMS AND DISPUTES.
10.1 RIGHTS AND REMEDIES CUMULATIVE. Except as expressly provided in this
Lease, each party's rights and remedies described in this Lease are
cumulative and not alternative remedies.
10.2 NONWAIVER OF REMEDIES. A waiver of any condition stated in this Lease
shall not be implied by any neglect of a party to enforce any remedy
available by reason of the failure to observe or perform the condition.
A waiver by a party shall not affect any condition other than the one
specified in the waiver and a waiver shall waive a specified condition
only for the time and in the manner specifically stated in the waiver.
The acceptance by Landlord of rent or other money from Tenant after
termination of the Lease, after termination of Tenant's right of
possession, after the occurrence of a default, or after institution of
any remedy by Landlord shall not alter, diminish, affect or waive the
Lease termination, termination of possession, default or remedy.
10
10.3 INDEMNIFICATION. To the extent caused by an act or failure to act of
Tenant or Tenant's partners, officers, directors, employees, invitees,
guests, customers, clients or licensees, and regardless whether the act
or failure to act is negligent, Tenant shall defend, indemnify and hold
harmless Landlord, and its partners, officers, directors, agents and
employees from any liabilities, damages and expenses (including attorney
fees) arising out of or relating to (i) the Premises or Property, or
(ii) Tenant's use or occupancy of the Premises.
10.4 HAZARDOUS MATERIAL INDEMNIFICATION. Tenant shall indemnify, defend and
hold Landlord harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses (including, without
limitation, diminution in value of the Premises or Property, damages for
the loss or restriction on use of rentable or useable space or any
amenity of the Premises or Property, damages arising from any adverse
impact on marketing of space, and sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees) which arise during or
after the Term as a result of Tenant's breach of the obligations stated
in this Section regarding Hazardous Material. This indemnification of
Landlord by Tenant includes, without limitation, costs incurred in
connection with any investigation of site conditions or any cleanup,
remedial, removal, or restoration work required by any federal, state,
or local governmental agency or political subdivision because of
Hazardous Material present in the soil or ground water on or under the
Premises or Property. Without limiting the preceding, if the presence of
any Hazardous Material on the Premises or Property caused or permitted
by Tenant results in any contamination of the Premises or Property,
Tenant shall promptly take all actions at Tenant's sole expense as are
necessary to return the Premises or Property to the condition existing
prior to the introduction of any Hazardous Material to the Premises or
Property.
10.5 EFFECT OF LANDLORD INSURANCE ON TENANT OBLIGATIONS. From time to time
and without obligation to do so, Landlord may purchase insurance against
damage or liability arising out of or related to the Premises or
Property. The purchase or failure to purchase insurance shall not
release or waive the obligations of Tenant set forth in this Lease.
Tenant waives all claims on insurance purchased by Landlord.
10.6 DISPUTES. This Lease shall be governed by Oregon law. The Oregon courts
of Washington County have exclusive jurisdiction and venue. If a party
is in default under this Agreement, then the defaulting party shall pay
to the other party as additional rent reasonable attorney fees and costs
(i) incurred by the other party after default and referral to an
attorney and (ii) incurred by the prevailing party in any litigation or
arbitration. The invalidity of any portion of this Lease shall not
affect the validity of any other portion of this Lease.
11. OPTION TO PURCHASE.
11.1 OPTION. At any time, if this Lease is then in good standing and Tenant
is not in default hereunder, Tenant shall have the option to purchase
the Property for the total sum of $1,500,000. Tenant shall exercise the
option by providing not less than thirty (30) days written notice of
intent to exercise to Landlord. Upon exercise, Tenant shall pay the
purchase price in cash. In the event Landlord desires to sell the
Premises and Property to a third party, Tenant shall have twenty (20)
days after receipt of notice from Landlord that Landlord has received
and
11
intends to accept a bona fide offer to purchase the premises in which
to elect to purchase the Premises and Property. This right shall
expire in the event of sale of the Premises and Property to a third
party after the required notice to Tenant and Tenant's failure to
exercise the right.
12. TOWER LEASES
12.1 LEASE INCOME. A microwave tower ("Tower") has been constructed as an
integral part of the Premises. As of the commencement Date, two leases
with telecommunications companies exist on the Premises leasing space
on the Tower for cellular telephone equipment ("Existing Leases"). All
income from the Existing Leases will be paid to and be the property of
Landlord. In the event that any future leases of space on the Tower are
entered into during the term of this Lease (including any renewals
thereof), the Landlord and Tenant shall equally share the income
therefrom for the remaining term of the Lease (including any renewals
thereof). Upon termination of this Lease for any reason, all income
from any lease of space on the Tower shall be payable to the then owner
of the Premises.
13. GENERAL PROVISIONS.
13.1 NOTICES. All notices under this Lease shall be in writing and shall be
deemed to be delivered on the date of delivery if delivered in person
or by fax, or on the date of receipt if delivered by U.S. Mail or
express courier. Proof of delivery shall be by affidavit of personal
delivery, machine generated confirmation of fax transmission or return
receipt issued by U.S. Postal Service or express courier. Notices
shall be addressed to the address set forth in Section 1 (or at the
other addresses one party may give to another party by written
notice).
13.2 INTEREST ON PAST DUE AMOUNTS. All past due rent or other payments
under this Lease not received within ten days after the due date shall
bear interest at the rate of one and one half percent (11/2 %) per
month (annual percentage rate of 18%) compounded monthly, or the
highest rate permitted by law, whichever is less. Interest shall be
calculated from the due date until paid.
13.3 BROKERS. Tenant warrants that Tenant has no arrangement with any
realtor, broker or agent in connection with the negotiations of this
Lease except as Tenant notifies Landlord prior to the execution of
this Lease. Tenant agrees to defend, indemnify and hold Landlord
harmless from any cost, expense or liability for any compensation,
commission or charges claimed by any realtor, broker or agent with
respect to this Lease except as Landlord agrees in writing before the
execution of this Lease.
13.4 NON-RECORDING. This Lease or any memorandum of this Lease shall not be
recorded unless the parties consent.
13.5 TIME IS OF THE ESSENCE. Time is of the essence with respect to the
obligations to be performed under this Lease.
12
SIGNATURES.
LANDLORD TENANT
PEREGRINE COMMUNICATIONS, LTD. ACME TELEVISION HOLDINGS OF
OREGON, L.L.C.
By: /s/ Daniel J. Alderman By: /s/ Douglas E. Gealy
----------------------------- ---------------------------
Daniel J. Alderman, E.V.P. Douglas Gealy, President
Date: 6/25/97 Date: 7/1/97
------- ------
OPTION TO RENEW
1. OPTION TO RENEW.
Tenant is granted the option to renew the Term of this Lease for one or
more successive periods as set forth below:
Renewal Period(s)
Period No. 1 May 30, 2006 to May 29, 2011
Period No. 2 May 30, 2011 to May 29, 2016
Period No. 3. May 30, 2021 to May 29 2026
Period No 4. May 30, 2026 to May 29, 2031
2. EXERCISE OF OPTION.
2.1 Option Period. Tenant shall have the right to exercise the Option(s)
granted by this Option to renew Rider during the period commencing with the
Commencement Date and ending six months prior to the expiration of the term
immediately preceding the relevant renewal period ("Option Period").
2.2 Delivery of Notice. The option may be exercised and is effective only
if (i) Tenant gives written notice of the exercise of the Option within the
Option Period, (ii) Landlord receives the written notice within the Option
Period, and (iii) at Landlord's option, Tenant is not in default under the terms
of this Lease on the date of the exercise of the Option or on the date of the
commencement of the renewal period.
3 TERMS AND CONDITIONS ON RENEWAL.
The terms and conditions set forth in this Lease shall constitute the
lease terms and conditions during the renewal term, except that (i) no
additional renewals beyond the renewal terms set forth above shall be permitted,
and (ii) the monthly Base Rent shall be adjusted as set forth in the Rent
Adjustment Rider.
INITIALED BY TENANT /s/DG INITIALED BY LANDLORD /s/DJA
----- ------
Schedule 1.3 - Description of Premises has been intentionally omitted by
the Registrants.
A copy of this omitted Schedule 1.3 will be provided to the Securities and
Exchange Commission upon request.
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 5/29/31 | | 14 | | | | | None on these Dates |
| | 5/30/26 | | 14 |
| | 5/30/21 | | 14 |
| | 5/29/16 | | 14 |
| | 5/30/11 | | 14 |
| | 5/29/11 | | 14 |
| | 5/30/06 | | 14 |
| | 6/17/01 | | 2 |
| | 11/19/97 |
| Filed on: | | 11/14/97 |
| | 6/17/97 | | 1 |
| | 1/31/97 | | 1 |
| List all Filings |
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