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EXHIBIT 10.15
THIS LEASE, dated as of the 14th day of August, 1997, between NEWTOWN GROUP
PROPERTIES LIMITED PARTNERSHIP, a Connecticut limited partnership, hereinafter
referred to as the Landlord, and XXXXXX XXXXXXX LIVING OMNIMEDIA LLC, a Delaware
limited liability company, hereinafter referred to as the Tenant.
WITNESSETH: That the Landlord hereby demises and leases unto the Tenant, and the
Tenant hereby hires and takes from the Landlord, the demised premises described
below on the following terms and conditions.
1. Demised Premises:
The Landlord hereby demises and leases unto the Tenant, and the Tenant
hereby hires and takes from the Landlord, a portion of the building ("building")
situated on the land ("land") described in "Exhibit A" attached hereto and
located at 00 Xxxxxxx Xxxxxxxx, Xxxxxxx and Westport, Connecticut. Said portion
of said building is crosshatched on "Exhibit B" attached hereto and is referred
to hereinafter as "premises", "Premises", "demised premises" or "Demised
Premises". The said "Premises" represents the balance of the building, portions
of which have already been leased to the Tenant herein under Leases dated March
6, 1996 and amended May 14, 1996 and Lease dated August 1st, 1996. Landlord and
Tenant agree that it shall conclusively be deemed that there are 8,423 rentable
square feet attributable to the demised premises, irrespective of the results of
any calculation and/or measurement hereafter. In addition, Tenant and Tenant's
employees may use any of the parking spaces of the parking lots on the land; the
use of all such parking spaces shall be in common with others and on a
non-exclusive, first come/first served basis. Landlord represents to Tenant that
there shall be a total of at least ninety-nine (99) parking spaces on the land.
2. Term:
The initial term ("initial term") of this Lease shall a) commence
October 1, 1997 ("Commencement Date") and b) end June 30, 2001.
In the event, but only in the event, that a) Tenant complies
with all provisions of this entire Article as and when required, and b) at the
time of the expiration of the then current term, 1) Tenant, at all times prior
thereto, shall have fully and faithfully complied with and performed all terms
and/or provisions of this Lease, as and when required pursuant to this entire
Lease, and 2) this Lease shall then be in full force and effect, Tenant shall
have three (3) options to extend the term of this Lease for one additional term
("option term"), each such option term being for five (5) years and commencing
at midnight on the date on which the then current term terminates. Said option
as to the immediately following option term shall, at all times hereafter,
automatically, conclusively, absolutely and forever be deemed not to have been
exercised by Tenant, all unless Tenant shall notify Landlord by giving Landlord
written notice ("Notice to Landlord") received by Landlord at least nine (9)
months prior to expiration of the then current term (time being of the essence)
that Tenant elects to exercise said option. At such time Landlord and Tenant
shall execute a new Lease agreement embodying the terms and conditions set forth
herein for the period of the renewal terms and consolidating all three (3)
existing Lease agreements for the total building leased by the Landlord to the
Tenant into one (1) inclusive Lease. Such extension shall be on the same terms,
covenants and conditions as the initial term except for the amount of Base Rent
and further except that there shall be absolutely no option whatsoever to extend
the term of this Lease beyond the third such option term. The Base Rent due and
payable for each Lease Year of each such option term shall be the greater of 1)
the amount recalculated for each Lease Year of each such option term pursuant to
3.b) of this Lease or 2) the fair market rental for demised premises determined
by Landlord and Tenant at least ninety (90) days prior to inception of such
option term. In the event Landlord and Tenant do not agree as to said fair
market rental at least ninety (90) days prior to the inception of such option
term, said fair market rental shall be determined pursuant to the Article of
this Lease entitled "Disputes". In the event that, prior to inception of such
option term, said agreement is not reached and/or said determination is not made
as to the amount of fair market rental for such option term, Tenant shall pay
Landlord: 1) on the first day of each month of such option term, until said
agreement is reached or said determination is made, the amount of Base Rent due
pursuant to 1) of the fourth sentence of this paragraph, same to be applied to
the amount of Base
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Rent ultimately determined to be due for such option term, 2) immediately upon
the reaching of said agreement or making of said determination, the difference,
if any, between said Base Rent ultimately determined to be due for such option
term and the amount paid pursuant to 1) of this sentence, and 3) at all times
after the reaching of said agreement or making of said determination, on the
first day of each month of such option term the amount of Base Rent ultimately
determined to be due for such option term.
Notwithstanding any of the foregoing, in the event 1) the Landlord
delivers written notice to Tenant that Landlord or Popshots, Inc. elects to
utilize demised premises during the second and/or third of said option terms,
and 2) said notice is delivered to Tenant at least nine (9) months prior to the
inception of the first of said second and/or third option terms so elected to be
utilized, then in such event Tenant shall have no further rights thereafter
relative to such of said second and/or third option terms so elected to be
utilized.
"Lease Year" as used throughout this entire Lease shall mean each
twelve (12) month period, with the first Lease Year commencing on October 1,
1997.
3. Base Rent:
The Base Rent ("Base Rent" or "rent") for the term shall be the
following which shall be paid in advance on the Commencement Date and on the
same day of each calendar month (or closest day as to any month in which there
is no such same day) thereafter:
a) The first nine (9) months of the initial term (i.e. from and
including Commencement Date through and including October 1, 1997: eleven (11)
monthly payments, each in the monthly amount of $9,595.00, except that, provided
Tenant fully and faithfully complies with all provisions of this entire Lease as
and when required by this entire Lease.
b) Each Lease Year thereafter: twelve (12) monthly, i.e. July 1, 1998
and the next eleven monthly payments, each in the monthly amount of $15,150.00;
thereafter (i) the monthly amount of Base Rent which shall have been due for the
month immediately preceding the inception of the Lease Year for which the
computation is made (which for the sole purpose of computing Base Rent for the
second Lease Year shall be deemed to have been $15,150.00) multiplied by 1.02,
or (ii) $15,150.00 multiplied by a fraction the numerator of which shall be the
CPI for the month which is three (3) months immediately preceding the inception
of the Lease Year for which the computation is made and the denominator of which
shall be the CPI for October 1, 1997.
"CPI" shall mean the CPI-U Indexes ("CPI-U Indexes") of Table
2. Consumer Price Index for All Urban Consumers (CPI-U) and Consumer Price Index
for Urban Wage Earners and Clerical Workers (CPI-W): Selected areas, all items
index (1982-84=100, unless otherwise noted), for Selected local areas,
N.Y.-Northern N.J.-Long Island, NY-NJ-CT, published by the Bureau of Labor
Statistics of the United States Department of Labor (or in the event, but only
in the event, that CPI-U Indexes shall cease to be so published, the CPI-W
Indexes of said Table, for N.Y.-Northern N.J.-Long Island, NY-NJ-CT, published
by said Bureau of said Department). In the event the CPI shall hereafter be a)
converted to a different standard reference Base or otherwise revised, or b)
cease to be published, the determination of the annual rent for each such Lease
Year of such option term shall be made with the use of such conversion factor,
formula, table or method for converting the CPI as may be published by the
Bureau of Labor Statistics, or, failing such latter publication, the use of such
conversion factor, formula, table or method as may be published by Prentice
Hall, Inc., or, failing such latter publication, then with the use of conversion
factor, formula, table or method as may be published or used by any other
nationally recognized publisher selected solely by Landlord or similar
statistical information selected solely by Landlord.
4. Payment of Base Rent etc.:
Said Base Rent (and all other sums due pursuant to this Lease) shall be
paid without abatement, setoff, deduction, demand, and/or any notice whatsoever,
monthly in advance, in installments as set forth above, (and/or as otherwise set
forth in this Lease) at X.X. Xxx 000, Xxxxxxxx, Xxxxxxxxxxx 00000 or as may be
otherwise directed by the Landlord in writing.
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5. Peaceful Possession:
The Landlord covenants that the Tenant, on paying said Base Rent and
all other sums due pursuant to this Lease and performing the covenants and
conditions in this Lease contained, shall and may peaceably and quietly have,
hold and enjoy the demised premises for the term aforesaid.
6. Purpose:
The Tenant shall use the demised premises only for offices, kitchen and
a television studio and for no other use whatsoever.
Within a reasonable time after its execution of this Lease, Tenant
shall deliver to Landlord all plans, calculations, approvals and all other
documents and items required for Landlord to obtain building permits relative to
alterations in accordance with plans and specifications to be previously
expressly approved in writing by Landlord of the demised premises. Within a
reasonable time after Landlord shall have received from Tenant all of said
plans, calculations, approvals and all other documents and items referred to in
the immediately preceding sentence, Landlord shall file with the Building
Department of the City of Norwalk an application and all other documents
required to obtain a building permit for Tenant to construct improvements on
demised premises all as Tenant and Landlord shall have previously and expressly
approved in writing. Nothing contained in this entire paragraph shall obligate
Landlord to construct any improvements whatsoever.
The Landlord and the Tenant shall fully cooperate with the other in all
reasonable ways relative to the second and third sentences of the immediately
preceding paragraph. The Landlord and Tenant shall pay its own legal fees and
other costs relative to Landlord's obtaining said building permits, except that
Landlord shall pay the fees required by the City of Norwalk to obtain said
building permits.
7. Re-entry, etc.:
The Tenant shall, without any previous demand therefor, pay to the
Landlord, or its agent, said Base Rent and all other sums due pursuant to this
Lease, and perform all terms of this Lease, at the times and in the manner
provided. In the event of the a) non-payment of said Base Rent, and/or any
installment thereof, and/or any other sums due pursuant to this Lease within
five (5) days after the dates when due, b) failure to perform all terms of this
Lease, at the times and in the manner provided, and if said failure shall not
have been cured within fifteen (15) days after notice to Tenant (said b)
collectively referred to hereafter as "failure regarding other terms") and/or c)
deserting and/or vacating of the demised premises, the Landlord or its agents
shall have the right to and may enter said demised premises as the agent of the
Tenant, without being liable therefor, and may relet the demised premises, and
receive said Base Rent therefor, and all other sums due pursuant to this Lease,
upon such terms as shall be satisfactory to the Landlord, and all rights of the
Tenant to repossess the demised premises under this Lease shall be forfeited.
Such re-entry by the Landlord shall not operate to release the Tenant from any
of said Base Rent and all other sums due pursuant to this Lease and/or from any
covenants to be performed hereunder during the full term of this Lease. For the
purpose of reletting, the Landlord shall be authorized to make such repairs or
alterations in or to the demised premises as may be necessary to place the same
in good order and condition. The Tenant shall be liable to the Landlord for the
cost of such repairs or alterations, provided such repairs or alterations are
reasonable, and all expenses of such reletting. If the sum realized or to be
realized from the reletting is insufficient to satisfy said Base Rent and all
other sums due pursuant to this Lease, the Tenant shall forthwith pay such
entire deficiency. The Tenant shall not be entitled to any surplus accruing as a
result of the reletting. Each party to this Lease shall pay, as additional rent,
all reasonable attorney's fees and other expenses incurred by the other party in
enforcing any of the obligations under this Lease provided said other party
shall prevail in said enforcement. Notwithstanding the provisions of the second
sentence of this paragraph, in the event, but only in the event, that any such
"failure regarding other terms" 1) can not be cured within fifteen (15) days
after notice to Tenant and 2) does not or will not result in any a) harm, damage
and/or liability to the land, building, demised premises, Landlord and/or Tenant
and/or any other party and/or property, b) default and/or breach of any other
lease, c) default and/or acceleration of any note, mortgage, assignment of
leases or other loan document relating to the land and/or building, c)
violation, cancellation
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and/or termination of, and/or increase in premiums relative to, any insurance
policy existing presently and/or hereafter and/or d) violation of,
non-compliance with and/or action pursuant to any governmental law, ordinance,
and/or regulation, then in the event of 1) and 2), but only in the event of 1)
and 2), Landlord shall not have any of the rights set forth in the second
sentence of this paragraph provided Tenant commences to cure said "failure
regarding other terms" within fifteen (15) days after notice to Tenant and
Tenant diligently pursues said cure at all times thereafter until said failure
regarding other terms has been fully cured.
8. Sub-letting and Assignment:
The Tenant shall not sub-let the demised premises or any portion
thereof, nor assign or encumber this Lease or any portion thereof, without the
prior express written consent of the Landlord (which consent shall not be
unreasonably withheld and the decision relative to any such consent shall not be
delayed more than thirty (30) days from the date Landlord receives all items to
which Landlord is entitled pursuant to this entire paragraph). Said consent may
be withheld, in the sole reasonable discretion of the Landlord and/or any
present and/or future holder of any present and/or future mortgage on the land
and/or building, for reasons which shall include, but not be limited to, the
determination as to any proposed sublessee, assignee and/or encumbrance holder
(collectively, "transferee") whether alone and/or in comparison with Tenant,
relative to any business, financial, personal and/or other issue and/or
consideration, including, but not limited to, (i) previous business experience,
(ii) proposed business, (iii) previous, present and/or projected income, assets,
liabilities and net worth, (iv) financial history, (v) character and/or (vi)
other matters. In order to assist the determination of any request for such
consent, Tenant shall deliver to Landlord the following: a) simultaneously with
said request, written (i) description by transferee of the previous business
experience of, and business proposed by, transferee, (ii) references from two
other parties ("other parties") describing transferee's character, previous
business experience, financial history and present financial status, (iii)
consent of, and authorization from, transferee to a) Landlord for Landlord to
contact said other parties and/or any other company and/or agency which is
hereafter in the business of providing and/or reporting credit, financial and/or
other business documents and/or information (collectively, "credit companies")
and to obtain from said other parties and/or credit companies such further
documents and/or other information as to transferee as Landlord may thereafter
request from said other parties and/or credit companies, and b) said other
parties and/or credit companies for said other parties and/or credit companies
to provide Landlord with all of said further documents and/or other information,
and (iv) financial statements (including balance sheets and income statements)
and all tax returns of transferee and Tenant for the two immediately preceding
years, b) thereafter, any further documents and/or information Landlord may
reasonably request, and c) each time Tenant delivers any of foregoing to
Landlord, the consent of, and authorization from, Tenant, transferee, said other
parties and said credit companies to Landlord to provide all of foregoing to all
of said present and/or future holders of said present and/or future mortgages.
In addition to any and all other amounts due from Tenant to Landlord,
rights and/or remedies of Landlord and/or obligations and/or liabilities of
Tenant, all whether or not same accrue and/or are due prior to, upon and/or
after any such consent, subletting, assignment or encumbering, Tenant shall pay
Landlord the following within seven (7) days of Landlord's demand for same (said
seven (7) day period being on a time is of the essence basis wherever said seven
(7) day period is referred to in this entire Article): a) whether or not said
consent is given, all reasonable expenses incurred by Landlord relative to
and/or resulting from said request, determination, consent, subletting,
assignment, encumbering and/or any modification of this Lease, and/or review of
any of foregoing, including, but not limited to, attorneys' fees, accountants'
fees, consultants' fees, credit and/or financial report and/or search fees
and/or the like, but in no event more than Five Thousand and 00/100 ($5,000.00)
Dollars, and b) if said consent is given, the further sum of the difference, if
any, between Five Thousand and 00/100 ($5,000.00) Dollars and the amount paid by
Tenant to Landlord pursuant to a) of this sentence.
In the event said consent is given, the Tenant shall be and remain
jointly and severally liable with transferee for any and all obligations and
liabilities pursuant to this entire Lease, all whether or not same accrue and/or
are due prior to, upon and/or after, and notwithstanding, any such consent,
subletting, assignment and/or encumbering; none of said obligations and
liabilities shall be merged in any such consent, subletting, assignment or
encumbering but shall survive
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same. Within five (5) business days of Landlord's demand for same (said five (5)
business day period being on a time is of the essence basis wherever said five
(5) business day period is referred to in this entire Article), Tenant shall
deliver to Landlord Tenant's written confirmation ("confirmation") of all
contents of the immediately preceding sentence.
Any such consent, subletting, assignment and/or encumbering shall be
deemed to be expressly a) conditioned upon Landlord's receipt of (i) all amounts
referred to in the second paragraph of this Article 8. within the seven (7) day
period referred to in said second paragraph and (ii) the confirmation referred
to in the third paragraph of this Article 8. within the five (5) business day
period referred to in said third paragraph, and b) null, void and of no effect
whatsoever if Landlord does not receive all of said amounts and confirmation
within said seven (7) day period and five (5) business day period, respectively.
9. Condition of Premises, Repairs/Alterations and Improvements/Sanitation,
Inflammable Materials/Sidewalks:
The Tenant shall quit and surrender the demised premises at the end of
the demised term in as good condition as the reasonable use thereof will permit.
Tenant's obligations pursuant to the immediately preceding sentence shall
include, but not be limited to, Tenant's providing, and paying all costs of,
reasonable cleaning of, and waste removal from, demised premises. The Tenant
shall not make any alterations, additions, or improvements to the demised
premises without the Landlord's 1) prior express written initial consent of same
(except that Landlord hereby consents to all items referred to in "Exhibit C"
subject to Landlord's prior express written initial consent to plans and
specifications for same) and 2) final express written approval of all of same
as-built, which consent and approval, inter alia, need not violate any mortgage
now or hereafter affecting demised premises and shall require that Tenant
complies with all governmental regulations relative to all of foregoing. Tenant
shall pay, as and when due, all costs of all such alterations, additions and
improvements. The Tenant shall pay all costs of all repairs, replacements,
renovations, alterations, additions, improvements and/or maintenance required to
or for demised premises reasonably determined by Landlord to be required due to
the use of the demised premises by and/or on behalf of Tenant and/or its agents,
servants and/or invitees (except repairs which are so required to a) structural
elements and/or b) systems, of the demised premises and/or building; however,
Tenant shall pay all costs of all repairs which are so required to a) structural
elements and/or b) systems, of the demised premises and/or building, if said
repairs result from the act and/or failure to act of and/or on behalf of Tenant,
its agents, servants and/or invitees). The Tenant shall wash the inside and the
outside of all windows of demised premises at least once every three (3) months.
All erections, alterations, additions and improvements, whether temporary or
permanent in character, which may be made upon the demised premises either by
the Landlord or the Tenant, except furniture, studio equipment, or moveable
trade fixtures installed at the expense of the Tenant and which are removed by
Tenant at its cost and without damage to the land, building or premises, shall
be the property of the Landlord and shall remain upon and be surrendered with
the demised premises as a part thereof at the termination of this Lease, without
compensation to the Tenant. The Tenant has reviewed the demised premises and
accepts same in the "as is" condition. At least ten (10) days prior to
expiration or termination of this Lease, Tenant, at the option of the Landlord,
shall, at Tenant's sole cost, restore the Premises to the condition they were in
at the inception of the initial term prior to any erections, alterations,
additions and/or improvements (except those expressly agreed to by Landlord
without the condition of Tenant's restoration of the Premises).
10. Liens:
In the event that any lien is filed against the demised premises as a
result of any act and/or omission by and/or on behalf of Tenant and/or Tenant's
agents, servants, employees, contractors and/or invitees, after thirty (30)
days' notice to the Tenant (unless any present or future mortgagee of the
demised premises shall require a shorter notice period or no notice period, in
which event said shorter notice period or no notice period shall apply) the
Tenant shall have said lien released and discharged at Tenant's sole cost, and
if said lien is not so released and discharged within said period, the Landlord,
at its option, may terminate this Lease and/or pay said lien, without inquiring
into the validity thereof, and the Tenant shall forthwith reimburse the
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Landlord the total expense incurred by the Landlord in releasing and/or
discharging said lien, as additional rent hereunder.
11. Liability of Landlord:
The Landlord shall not be responsible for the loss of or damage to
property or injury to persons occurring at the demised premises, by reason of
any existing or future condition, defect, matter or thing at the demised
premises or the property of which the demised premises are a part, or for the
acts, omissions or negligence of other persons or entities at the demised
premises. The Tenant agrees to, shall, and does hereby, indemnify and save the
Landlord harmless from all claims and liability for losses of or damage to
property, or injuries to persons occurring at the demised premises.
12. Services, Utilities and Other Expenses:
Utilities furnished to the demised premises for the benefit of the
Tenant shall be provided by Landlord. In addition to all Base Rent and all other
sums due pursuant to this Lease, utilities, services and other costs shall be
paid for as set forth in "Schedule 1" attached hereto. The Landlord shall not be
liable for any interruption or delay in any of the above services for any reason
whatsoever.
13. Right to Inspect and Exhibit:
The Landlord, or its agents shall have the right to enter the demised
premises at reasonable hours provided reasonable advance notice is given to the
Tenant, to examine the same, or to run telephone or other wires, or to make such
repairs, additions or alterations as it shall reasonably deem necessary for the
safety, preservation or restoration of the building and improvements, or for the
safety or convenience of the occupants or users thereof, or to exhibit the same
to prospective purchasers, lenders and/or agents, and put upon the premises a
suitable sign. In the event Tenant shall not have validly exercised all of the
options herein provided, for six (6) months prior to the expiration of the
initial term and all option terms immediately preceding any option terms not so
validly exercised, the Landlord, or its agents, may similarly exhibit the
premises to prospective tenants and/or agents, and may place the usual "To Let"
signs thereon.
14. Damage by Fire, Explosion, The Elements or Otherwise:
In the event of the 1) total destruction of the demised premises or the
building by fire, explosion, the elements or otherwise during the term hereby
created, or previous thereto, or 2) such partial destruction thereof as to
render the demised premises a) wholly untenantable and unfit for occupancy, or
b) not repairable within one hundred eighty (180) days from the happening of
such injury, then and in such case, all sums due relative to any period
thereafter shall equitably xxxxx, and, at the option of Tenant or Landlord, the
term hereby created shall cease and become null and void from the date of such
damage or destruction and the Tenant shall immediately surrender said demised
premises and all the Tenant's interest therein to the Landlord, and shall pay
Base Rent and all other sums due pursuant to this Lease as may have been so
equitably abated, only to the time of such surrender, in which event the
Landlord may re-enter and re-possess the demised premises thus discharged from
the Lease and may remove all parties therefrom. Should the demised premises be
partially destroyed and rendered partially untenantable and unfit for occupancy,
but yet be repairable within ninety days from the happening of said injury, the
Landlord shall and may enter and repair the same, shall commence repairs as soon
as practical and proceed diligently to complete said repairs, and the Base Rent
and all other sums due pursuant to this Lease shall be equitably abated from the
date of said injury until said repairs are completed, and shall recommence in
full immediately after said repairs shall be completed. Should the demised
premises not be rendered untenantable and unfit for occupancy, then the Landlord
shall and may enter demised premises and repair the same with reasonable
promptness and in that case the Base Rent and all other sums due pursuant to
this Lease accrued and accruing shall not cease or be reduced. The Tenant shall
immediately notify the Landlord in case of fire or other damage in the demised
premises of which Tenant has notice.
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15. Observation of Laws, Ordinances, Rules and Regulations:
Subject to the provisions expressly appearing in parenthesis in the
fifth sentence of Article 9. of this Lease, the Tenant shall observe and comply
with all laws, ordinances, rules and regulations of the Federal, State, County
and Municipal authorities applicable to the business to be conducted by the
Tenant in the demised premises. The Tenant agrees not to do or permit anything
to be done in the demised premises, or keep anything therein, which will
increase the rate of fire insurance premiums on the improvements or any part
thereof, or on property kept therein, or which will obstruct or interfere with
the rights of other tenants, or conflict with the regulations of the Fire
Department or with any insurance policy upon the building, the land on which the
building is located and/or any other improvements on said land. In the event of
any increase in insurance premiums resulting from the Tenant's occupancy of the
demised premises, or from any act or omission on the part of the Tenant, the
Tenant agrees to pay said increase in insurance premiums on the improvements or
contents thereof as additional rent. Landlord represents to Tenant that the
current insurance rating and annual premiums relative to the building and
present fire and extended coverage insurance policies are Protection Class 04
651 21 Office: NOC and $1,852.00, respectively.
16. Signs:
No sign, advertisement, or notice (collectively, "sign") shall be
affixed to or placed upon any part of the demised premises by the Tenant, except
in such manner, and of such size, design and color as shall be expressly
approved in advance in writing by the Landlord (said approval not to be
unreasonably withheld). Landlord shall attend to the obtaining and placing of
all signs approved by Landlord, and Tenant shall forthwith pay Landlord for all
of same.
17. Subordination to Mortgages and Deeds of Trust, etc.:
This Lease is subject and subordinate, and is hereby subjected and
subordinated, to all present and/or future mortgages, deeds of trust and other
encumbrances affecting the demised premises, land or building. The Tenant,
forthwith upon demand of Landlord, shall execute and deliver to Landlord, at no
expense to Landlord, all instruments which may reasonably be deemed necessary or
desirable by the Landlord to further effect, and/or to confirm, the subjection
and subordination of this Lease to any such present and/or future mortgage, deed
of trust or encumbrance. The Tenant further, forthwith upon demand of Landlord,
shall execute and deliver to Landlord, at no expense to Landlord, all estoppel
certificates and ratification and attornment agreements as requested by Landlord
relative to any proposed refinancing and/or sale of the land and/or building.
Within fifteen (15) days after Tenant's execution and delivery to Landlord of
this Lease and the security deposit required hereunder, Landlord shall deliver
to Tenant a Subordination, Non-Disturbance and Attornment Agreement in
substantially the same form and content as "Exhibit D" attached hereto executed
by the present mortgagee of the land. Landlord shall use its best efforts to
deliver to Tenant an agreement in substantially the same form and content as
said "Exhibit D" executed by all future mortgagees of the land.
18. Non-Payment and/or Failure to Comply with Covenants, Forfeiture of
Lease, Non-Waiver of Breach, Attorneys' Fees etc.:
In case Tenant a) does not pay any sum due pursuant to this Lease as
and when due, including, but not limited to, Base Rent and/or net costs, within
five (5) business days after the dates when due, and/or b) fails to fully comply
with any of the other covenants, agreements and conditions of this Lease as and
when due, and, as to b) fails to discontinue such failure to comply referred to
in b) within 15 business days after notice thereof given to the Tenant (said b)
collectively referred to hereafter as "failure regarding other terms"), this
Lease shall thenceforth, at the option of the Landlord, become null and void. In
such case, all Base Rent and all other sums due pursuant to this Lease
theretofore, and/or which would have become due thereafter (discounted to the
then present value, using a discount rate of 8% per annum), shall forthwith
become due and payable, and the Tenant shall be liable for all loss or damage
resulting from such violation as aforesaid. No waiver by the Landlord of any
violation or breach of condition by the Tenant shall constitute or be construed
as a waiver of any other violation or breach of condition, nor shall lapse of
time after breach of condition by the Tenant before the Landlord shall exercise
its option under this paragraph operate to defeat the right of the Landlord to
declare this Lease
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null and void and to re-enter upon the demised premises after the said breach or
violation. In any of said events Tenant shall pay Landlord all costs reasonably
incurred by Landlord as a result of said nonpayment and/or failure to comply,
including, but not limited to, all reasonable attorneys' fees, experts' fees and
court costs. Notwithstanding the provisions of the first sentence of this
paragraph, in the event, but only in the event, that any such "failure regarding
other terms" 1) can not be cured within fifteen (15) days after notice to Tenant
and 2) does not or will not result in any a) harm, damage and/or liability to
the land, building, demised premises, Landlord and/or Tenant and/or any other
party and/or property, b) default and/or breach of any other lease, c) default
and/or acceleration of any note, mortgage, assignment of leases or other loan
document relating to the land and/or building, c) violation, cancellation and/or
termination of, and/or increase in premiums relative to, any insurance policy
existing presently and/or hereafter and/or d) violation of, non-compliance with
and/or action pursuant to any governmental law, ordinance, and/or regulation,
then in the event of 1) and 2), but only in the event of 1) and 2), Landlord
shall not have any of the rights set forth in the first sentence of this
paragraph provided Tenant commences to cure said "failure regarding other terms"
within fifteen (15) days after notice to Tenant and Tenant diligently pursues
said cure at all times thereafter until said failure regarding other terms has
been fully cured.
In addition to all of, and not in lieu of any of, Landlord's other
rights and/or remedies and/or Tenants' other obligations, forthwith upon any
failure of Tenant to fully and faithfully comply with all provisions of this
entire Lease, including, but not limited to, paying all Base Rent, additional
rent, rent, net costs, and all other sums due pursuant to this entire Lease,
Tenant shall pay Landlord five (5%) percent of all amounts Tenant fails to pay
as and when required by this Lease, for each month said failure of Tenant to so
fully and faithfully comply with all provisions of this entire Lease continues.
Said five (5%) percent shall conclusively a) represent the estimate of the
Landlord and Tenant of one (1) of Landlord's costs relative to said failure of
Tenant, and b) not be deemed to constitute a penalty.
Landlord shall have the obligation to use reasonable efforts to
mitigate its damages.
19. Notices:
All notices and demands, legal or otherwise, incidental to this Lease,
or the occupation of the demised premises, shall be in writing. If either party
or its agent desires to give or serve upon the other party any notice or demand,
it shall be sufficient to send a copy thereof by Certified Mail, Return Receipt
Requested, addressed to said other party at the address set forth in the
immediately following sentence with a copy to a) Xxxxx Xxxxxxx at Time
Publishing Ventures Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
Xxxxx X. Xxxxxx, Esq., at x/x Xxxxxxx, Xxxxxxxx, & Xxxxxxxxx, P.C., Carnegie
Hall Tower, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, if to Tenant,
and b) Xxxxx vanWitt, X.X. Xxx 000, Xxxxxxxx, Xxxxxxxxxxx 00000 and Xxxxx X.
Xxxxxx, Esq., at c/x Xxxxxx & Samor, P.C., 0000 Xxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, if to Landlord. Notices from the Landlord to the Tenant shall
be to the demised premises and from the Tenant to the Landlord shall be to the
place hereinbefore designated for the payment of rent. Landlord or Tenant may
from time to time designate in writing a change of the place to which notice
shall be given to said designating party.
20. Bankruptcy, Insolvency, Assignment for Benefit of Creditors:
It is further agreed that if at any time during the term of this Lease
the Tenant shall make any assignment for the benefit of creditors, or be decreed
insolvent or bankrupt according to law, or if a receiver shall be appointed for
the Tenant, then the Landlord may, at its option, terminate this Lease, exercise
of such option to be evidenced by notice to that effect served upon the
assignee, receiver, trustee or other person in charge of the liquidation of the
property of the Tenant or the Tenant's estate, but such termination shall not
release or discharge any payment of Base Rent and/or any other sums due
theretofore and/or thereafter pursuant to this Lease, or any liability by reason
of any agreement or covenant herein contained on the part of the Tenant.
21. Holding Over by Tenant:
In the event that the Tenant shall remain in the demised premises after
the expiration of the term of this Lease without Landlord's and Tenant's having
executed a new written lease,
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such holding over shall not constitute a renewal or extension of this Lease. The
Landlord may, at its option, elect to treat the Tenant as one who has not
removed at the end of his term, and thereupon be entitled to all the remedies
against the Tenant provided by law in that situation, or the Landlord may elect,
at its option, to construe such holding over as a tenancy from month to month,
subject to all the terms and conditions of this Lease, except as to duration
thereof, and in that event the Tenant shall pay monthly rent in advance at the
rate of 200% of the Base Rent due for the last month of the demised term plus
all other sums due pursuant to this Lease.
22. Eminent Domain, Condemnation:
If the property or any part thereof wherein the demised premises are
located shall be taken by public or quasi-public authority under any power of
eminent domain or condemnation, this Lease at the option of the Landlord shall
forthwith terminate and the Tenant shall have no claim or interest in or to any
award of damages for such taking.
Notwithstanding the foregoing, Tenant shall have the right separately
to pursue against the condemning authority an award in respect of the loss, if
any, to leasehold improvements paid for by Tenant without any credit or
allowance from Landlord and in respect to the loss of Tenant's leasehold
interest.
23. Disputes:
Any dispute arising under this Lease shall be settled by arbitration.
The Landlord and Tenant shall each choose an arbitrator, and the two arbitrators
thus chosen shall select a third arbitrator. The findings and award of the three
arbitrators thus chosen shall be final and binding on the parties hereto.
For disputes hereunder that are not resolved by the parties
within ten (10) days after either party gives notice to the other of its desire
to arbitrate the dispute, the dispute shall be settled by binding arbitration by
the American Arbitration Association in accordance with its then-prevailing
rules at the office of the American Arbitration Association nearest the demised
premises. Judgment upon the arbitration award may be entered in any court having
jurisdiction. The arbitrators shall have no power to change the lease
provisions. The arbitration panel shall consist of three arbitrators, each of
whom must be a commercial real estate broker then actively engaged in the
practice of commercial real estate brokerage in Fairfield County for at least
the immediately preceding five (5) years. Both parties shall continue performing
their lease obligations pending the award in the arbitration proceeding.
24. Delivery of Lease:
No rights shall be conferred upon the Landlord and/or Tenant until this
Lease has been signed by the Landlord and Tenant, and an executed copy of this
Lease has been delivered to the Landlord and Tenant.
25. Lease Provisions Not Exclusive:
The foregoing rights and remedies are not intended to be exclusive but
as additional to all rights and remedies the Landlord would otherwise have by
law.
26. Lease Binding on Heirs, Successors, Etc.:
All of the terms, covenants and conditions of this Lease shall inure to
the benefit of and be binding upon the respective successors and assigns of the
parties hereto.
This Lease and all obligations of Tenant to pay Base Rent and all other
sums due pursuant to this Lease and perform all of the other covenants and
agreements hereunder on part of Tenant to be performed shall not be modified,
reduced, altered and/or affected in any manner and/or to any extent whatsoever,
if Landlord is unable to supply or is delayed in supplying any service expressly
or impliedly to be supplied or is unable to make or is delayed in making any
repairs, additions, alterations or decorations or is unable to supply or is
delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of governmental preemption in connection with
the National Emergency declared by the President
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of the United States or in connection with any rule, order or regulation of any
department or subdivision thereof of any governmental agency, or by reason of
the conditions of supply and demand, or by reason of strike, or by reason of any
other cause beyond Landlord's control.
27. Security:
The Tenant has this day deposited with Landlord $30,000.00 as security
for the full and faithful performance by the Tenant of all the terms, covenants
and conditions of this Lease upon the Tenant's part to be performed, which said
sum shall be returned to the Tenant, with interest at the passbook rate paid
from time to time by banks reasonably chosen by Landlord (although Landlord
shall have no obligation to deposit any or all of said security) after the time
fixed as the expiration of the term herein, provided Tenant has vacated demised
premises, removed all personalty therefrom and has fully and faithfully carried
out all of said terms, covenants and conditions on Tenant's part to be
performed. In the event of a bona fide sale, the Landlord shall have the right
to transfer the security to the vendee for the benefit of the Tenant and the
Landlord shall be considered released by the Tenant from all liability for the
return of such security; and the Tenant agrees to look to the vendee solely for
the return of the said security, and it is agreed that this shall apply to every
transfer or assignment made of the security to a vendee. The security deposited
under this lease shall not be mortgaged, assigned or encumbered by the Tenant
without the written consent of the Landlord. In the event any or all of said
security is utilized by Landlord, the entire amount so utilized shall be
replenished by Tenant's depositing with Landlord a further sum in the amount so
utilized forthwith upon Landlord's notification to Tenant of said utilization.
28. Confidentiality:
All terms of this entire Lease ("terms") shall be held by Landlord and
Tenant in strict and absolute confidence and not revealed to any other party
whatsoever except for the sole purpose of enabling 1) Landlord or Tenant to
obtain financing and/or appropriately communicate with its attorneys and/or
accountants and/or with companies owning and/or owned by Landlord or Tenant
and/or 2) Landlord to sell the land and/or building. Notwithstanding anything
contained in this entire Lease, and in addition to all of its other rights and
remedies, Landlord and Tenant shall be entitled to any or all of the following
in the event the other party does not fully and faithfully comply with all
provisions of this paragraph and/or it appears that Tenant will not so fully and
faithfully comply: a) injunctive relief for the reason that a monetary award
would not constitute an adequate remedy for any such failure to so fully and
faithfully comply, and/or b) an increase in the Base Rent for the entire initial
term from its inception and option term from its inception, so that the annual
Base Rent during the entire initial term from its inception and option term from
its inception shall be the amount computed and re-computed from time to time by
Landlord as a) the highest per square foot rent to which Landlord is entitled
presently and/or hereafter, pursuant to any other lease which is or may be in
effect presently and/or hereafter and relates to any other portion of the
building, b) multiplied by the rentable square footage of the demised premises.
All provisions of this entire paragraph shall survive the termination of this
Lease, and shall not be merged in same.
29. Brokerage:
Tenant and Landlord warrant and represent they have not dealt with any
realtor, broker and/or agent, in connection with this Lease, including, but not
limited to, the negotiation, entering into, execution and/or delivery of this
Lease. Tenant and Landlord shall pay, and shall, and do hereby, hold harmless
and indemnify the other from and against, any and all costs, expenses, damages
and/or liabilities (including, but not limited to, all compensation,
commissions, fees, costs of suit, witnesses' fees, experts' fees and/or
attorneys' fees) with respect to the indemnitor's dealing with any broker in
connection with this Lease, including, but not limited to, the negotiation,
entering into, execution and/or delivery of this Lease.
30. Sale or Assignment by Landlord, Etc.:
Without any further act, agreement, consent and/or the like whatsoever
of the Landlord, Tenant, any other person, entity and/or party and/or their
respective heirs, successors and/or assigns: a) The Landlord shall have the
right to sell, assign and/or transfer all or any part of the
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land, building, other buildings, Demised Premises, this Lease and/or any
benefits pursuant to this Lease, and b) forthwith upon any such sale,
assignment, and/or transfer, absolutely and forever, the seller, assignor and/or
transferor pursuant to such sale, assignment and/or transfer shall be entirely
relieved of all of Landlord's obligations under this Lease which are required to
be performed and/or complied with after such sale, assignment and/or transfer,
provided a) the purchaser, assignee and/or transferee pursuant to such sale,
assignment and/or transfer shall have assumed and agreed to be obligated and
responsible for all of said obligations and/or b) any such sale, assignment
and/or transfer shall be subject to all provisions of this Lease.
The term "Landlord" as used in this Lease shall mean the Landlord
and/or the owner for the time being of the Demised Premises.
31. Landlord's Rights to Perform Tenant's Covenants:
If Tenant shall at any time fail to perform, and/or cause to be
performed, any obligation of Tenant pursuant to the provisions of this Lease,
then, after the expiration of any notice and cure period expressly provided in
this Lease, Landlord shall have the right, but not the obligation, after ten
(10) days' notice to Tenant (but without notice in the event of an emergency)
and without waiving, and/or releasing Tenant from, any obligation of Tenant in
this Lease contained, to perform same, in such manner and to such extent as
Landlord shall, in its sole reasonable discretion decide, and in exercising any
such rights, pay and incur necessary and incidental costs and expenses,
including, but not limited to, reasonable attorneys' fees. Forthwith upon
Landlord's demand therefor, Tenant shall reimburse Landlord for all sums paid by
Landlord pursuant to this entire Lease, including, but not limited to, this
Article, with interest at the rate of 8% per annum, and Landlord shall have the
same rights and remedies in the event of the nonpayment thereof by Tenant as in
the case of default by Tenant in the payment of the rent.
32. No Representations by Landlord:
Neither Landlord nor anyone on behalf of Landlord has made any
representations, promises and/or the like with respect to the Demised Premises,
building, land and/or other buildings (including, but not limited to, any
representations, promises and/or the like relative to condition, square footage
and/or permitted zoning uses of Demised Premises, building, land and/or other
buildings) on which Tenant has relied, except as expressly herein set forth.
Landlord hereby represents the following to Tenant:
1. During the spring of 1995, Landlord removed the following from
the land:
(a) Two (2) underground fuel storage tanks and the
contents thereof (which contents were believed by
Landlord to be fuel);
(b) Two (2) underground waste storage tanks and the
contents thereof (which contents were believed by
Landlord to include cleaning solvents); and
(c) Approximately two hundred (200) tons of soil;
2. During January of 1996, Landlord removed from the land the
contents of one (1) tank referred to in 32.2. of the Lease
dated as of March 6, 1996 between Landlord and Tenant and
which tank previously was believed by Landlord to be a septic
tank and which contents were believed by Landlord to include
cleaning solvents. During December of 1996, Landlord removed
from the land said tank. The septic tank servicing the
building is, to the best of Landlord's knowledge, sufficient
to service the building;
3. All removal to date referred to in 1. and 2., above, has been,
to the best of Landlord's knowledge, as requested by the
Department of Environmental Protection of the State of
Connecticut;
4. To the best of Landlord's knowledge, there presently exist
none of the following on the land and/or in the building: a)
hazardous materials in violation of environmental laws or b)
other violations of environmental laws; and
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5. Landlord shall, and does hereby, indemnify and hold harmless
Tenant of and from all costs resulting from Landlord's acts
and/or failures to act relative to violations of environmental
laws, unless said violations were caused by the act, failure
to act and/or use of the land and/or building by and/or on
behalf of Tenant and/or its agents, servants and/or invitees.
33. Right of Mortgagee To Cure Defaults of Landlord:
Tenant shall give to Landlord's mortgagee whose name and address have
been supplied to Tenant a copy of any notice of default served upon and/or sent
to Landlord. If Landlord shall have failed to cure such default within the time
provided for in this Lease then Landlord's mortgagee shall have a) an additional
period, of the greater of the cure period provided in any applicable mortgage or
thirty (30) days, within which to cure such default, or b) if such default
cannot be cured within said period, then such additional time as may be
necessary if within said period the Landlord's mortgagee has commenced and is
diligently pursuing the curing of such default. This Lease shall not be
terminated if said default is cured within said period, or if such cure is being
so diligently pursued, as the case may be. Tenant shall accept performance by
any such Landlord's mortgagee.
34. Entire Agreement, Etc.:
It is expressly understood and agreed by and between the parties hereto
that this Lease sets forth all the covenants, promises, agreements, conditions
and/or understandings, either oral and/or written, between them with respect to
the land, building and/or demised premises and/or this Lease, and there are no
others except as are expressly herein set forth. It is further understood and
agreed that no subsequent alteration, amendment, change and/or addition to this
Lease shall by binding upon Landlord or Tenant unless reduced to writing and
signed by them.
The article and/or paragraph headings contained in this Lease are for
convenience only and shall not be considered in the construction and/or
interpretation of any provision of this Lease.
35. Invalidity of Particular Provisions:
If any term or provision of this Lease or the application thereof to
any person or circumstance shall to any extent be invalid, non-binding and/or
unenforceable, the remainder of this Lease, or the application of such term
and/or provision to persons and/or circumstances other than those as to which it
is invalid, non-binding and/or unenforceable, shall not be affected thereby, and
each term of this Lease shall be valid, binding and enforceable and be enforced
to the fullest extent permitted by law.
36. Social Security Numbers, etc.:
Tenant represents that the following is the tax identification number
of Tenant: 00-0000000.
37. No Smoking in Building:
None of Tenant's employees, customers, contractors, agents, servants,
or invitees shall smoke in any portion of the building, including, but not
limited to, any portion of the demised premises.
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IN WITNESS WHEREOF, the said Parties have hereunto set their hands and
seals the day and year first above written.
Witness: NEWTOWN GROUP PROPERTIES
LIMITED PARTNERSHIP
By Saugatuck Group Property
Management, Inc.,
Its General Partner,
Hereunto Duly Authorized
_______________________________ By _________________________________________
Xxxxx Xxx Xxxx,
Its President,
Hereunto Duly Authorized
_______________________________
XXXXXX XXXXXXX LIVING
OMNIMEDIA LLC
_______________________________ By _________________________________________
,
Its ___________________________,
Hereunto Duly Authorized
_______________________________
STATE OF CONNECTICUT)
) ss: _______________, 0000
XXXXXX XX XXXXXXXXX )
Personally appeared Xxxxx Xxx Xxxx, President hereunto duly authorized
of Saugatuck Group Property Management, Inc., general partner hereunto duly
authorized of NEWTOWN GROUP PROPERTIES LIMITED PARTNERSHIP, signer and sealer of
the foregoing instrument, who acknowledged the same to be his free act and deed
as such President hereunto duly authorized, the free act and deed of said
Saugatuck Group Property Management, Inc. as such general partner
hereunto duly authorized, and the free act and deed of said NEWTOWN GROUP
PROPERTIES LIMITED PARTNERSHIP, before me.
______________________________________________
Commissioner of the Superior Court
Notary Public
My Commission Expires:
STATE OF NEW YORK )
) ss: New York City ________________, 0000
XXXXXX XX XXX XXXX)
Personally appeared ________________________________, _________________
hereunto duly authorized of XXXXXX XXXXXXX LIVING
OMNIMEDIA LLC, signer and sealer of the foregoing instrument, who acknowledged
the same to be his/her free act and deed as such __________ hereunto duly
authorized, and the free act and deed of said XXXXXX XXXXXXX LIVING OMNIMEDIA
LLC, before me.
______________________________________________
Notary Public
My Commission Expires:
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Attachments to Lease
"Exhibit A" - Description of "land".
"Exhibit B" - Outline of "premises".
"Exhibit C" - Items consented to by Landlord subject to Landlord's a) prior
express written initial consent to plans and specifications for
same and b) final express written approval of all of same
as-built.
"Exhibit D" - Subordination, Non-Disturbance and Attornment Agreement.
"Schedule 1" - Net Costs.
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"Schedule 1"
1. Tenant shall further pay all of the following ("net costs") to the
extent same relate to any period commencing on or after Commencement Date: a)
all charges for all utilities used and/or consumed at demised premises, b) all
charges for removal from land of waste and/or other items relating to demised
premises which are in excess of standard office waste, c) all real estate and/or
personal property taxes and/or other governmental assessments resulting from any
alterations, additions, improvements, erections, repairs, replacements,
renovations and/or maintenance made, and/or labor, services, materials and/or
other items provided, to the demised premises, d) Tenant's pro rata share of all
charges for electricity, heating oil, water and sewer relative to the land
and/or building (excluding therefrom all those payable by Tenant and/or other
tenants of the building), plus e) Tenant's pro rata share of all increases over
and above the amounts in parentheses hereafter relative to all of the following
items relative to the land and/or the building:
1) Real Estate Taxes, excluding the real estate taxes referred to
in c), above ($48,266.00);
2) Insurance ($4,500.00);
3) Management Fees ($15,000.00);
All expenses related to grounds maintenance, landscaping, snow and
waste removal shall be borne directly by the Tenant as the Tenant for the entire
building of which the Premises forms a part. Said net costs shall be paid by
Tenant to Landlord without any abatement, deduction and/or set-off for any
reason whatsoever.
Tenant shall pay to Landlord, in advance, on Commencement Date, and on
the same day of each month thereafter as Base Rent shall be due pursuant to
Article 3. of this Lease, one-twelfth (1/12), of the product of the annual
amount estimated by Landlord, in all reasonable probability, as the amounts
which shall be net costs payable by Tenant and attributable to the 11 months
immediately following Commencement Date and each 12 months thereafter (said 11
or 12 month period, collectively, "applicable period"), or for the applicable
period if said estimate is received by Tenant after the applicable period has
commenced, which estimated annual amount shall be shown on a notice hereinafter
called "Current Notice". All payments made by Tenant to Landlord pursuant to
said Current Notice shall be credited to the payments ultimately determined to
be due for the applicable period. In the event said applicable period has
commenced prior to delivery of any such Current Notice, Tenant shall pay to
Landlord, in addition, within thirty (30) days of delivery of such Current
Notice, for each month in said applicable period that commenced prior to
Tenant's receipt of such Current Notice, an amount equal to one-twelfth (1/12)
of the annual amount shown on such Current Notice multiplied by the number of
months of said applicable period that have theretofore commenced.
As soon as practical after the end of each applicable period, Landlord
shall prepare and deliver to Tenant a Notice of net costs for the immediately
preceding applicable period, which Notice is hereinafter called "Past Notice",
advising Tenant of a) the amounts, due from Tenant to Landlord as net costs for
the immediately preceding applicable period, less b) the amounts paid pursuant
to the immediately preceding paragraph. Within thirty (30) days of the delivery
of such Past Notice, Tenant shall pay Landlord the amount shown thereon, if any,
as due, or Landlord shall credit Tenant the amount shown thereon, if any, as an
over payment, all as the case may be.
The amount of charges for utilities used and/or consumed at demised
premises shall be the amount (i) indicated by any separate meter for demised
premises for such periods as utility charges for demised premises are indicated
by a separate meter for demised premises, and/or (ii) reasonably estimated by
Landlord for all other periods.
2. As used throughout this entire Lease, the term "Tenant's pro rata
share" shall mean 18.52% as same applies to real estate taxes (except as to
heating oil for which Tenant's pro rata share shall mean 100% of all heating oil
consumed from the 500 gallon tank on the southerly side of the building or any
substitute therefor).
3. In no event shall any of the provisions of this entire Schedule 1
result in a negative calculation.
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4. All sums due and payable by Tenant pursuant to this Schedule 1 shall
be due and payable to Landlord and/or any provider, as Landlord shall direct,
within ten (10) days of Landlord's demand therefor.
5. Tenant shall have the right to reasonably audit all of said net
costs, but said right and audit shall not entitle Tenant to delay making the
payments referred to above to the extent referred to above.
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