Connecticut-Westport-19 Newtown Turnpike Lease - Newtown Group Properties LP and Martha Stewart Living Omnimedia LLC
THIS LEASE, dated as of the 1st day of August, 1996, between NEWTOWN GROUP
PROPERTIES LIMITED PARTNERSHIP, a Connecticut limited partnership, hereinafter
referred to as the Landlord, and MARTHA STEWART 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 19 Newtown Turnpike, Norwalk 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". Landlord and Tenant agree that it shall conclusively be deemed that
there are 5,628 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 shall use no more than fifteen (15)
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
August 1, 1996 ("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. 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 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.
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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 July 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 eleven (11) months of the initial term (i.e. from and
including Commencement Date through and including June 30, 1997: eleven (11)
monthly payments, each in the monthly amount of $5,393.50, except that, provided
Tenant fully and faithfully complies with all provisions of this entire Lease as
and when required by this entire Lease, there shall be no such monthly payments
for the months commencing August 1, September 1, October 1 and November 1, 1996.
b) Each Lease Year thereafter: twelve (12) monthly payments, each in
the monthly amount of the greater of (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
$8,911.00) multiplied by 1.02, or (ii) $8,911.00 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 April 1, 1996.
"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 Rents (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 P.O. Box 707, Westport, Connecticut 06881
or as may be otherwise directed by the Landlord in writing.
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.
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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 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
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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 received 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 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.
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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 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,
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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. Flight 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 abate, 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.
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
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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 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
-7-
<PAGE> 8
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) David Steward at Time
Publishing Ventures Inc., 20 West 43rd Street, New York, New York 10036 and
Larry H. Schatz, Esq., at c/o Grubman, Indursky, Schindler & Goldstein, P.C.,
Carnegie Hall Tower, 152 West 57th Street, New York, New York 10019-3301, if to
Tenant, and b) Peter vanWitt, P.O. Box 707, Westport, Connecticut 06881 and
Henry A. Perles, Esq., at c/o Kleban & Samor, P.C., 2425 Post Road, Southport,
Connecticut 06490, 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 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, 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.
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<PAGE> 9
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 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 $17,000.00 as security
for the full and faithful performance by the Tenant of all the terms, covenants
and conditions of this Lease upon
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<PAGE> 10
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 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.
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<PAGE> 11
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
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.
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<PAGE> 12
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: 13-3891274.
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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<PAGE> 13
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
/s/ By /s/ Peter Van Witt
-------------------------------- -----------------------------
Peter Van Witt,
Its President,
/s/ Hereunto Duly Authorized
--------------------------------
MARTHA STEWART LIVING
OMNIMEDIA LLC
/s/ By /s/
-------------------------------- -----------------------------
Its CEO,
/s/ Hereunto Duly Authorized
--------------------------------
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<PAGE> 14
STATE OF NEW YORK )
) ss: New York City March 10, 1997
COUNTY OF NEW YORK )
Personally appeared Peter Van Witt, 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.
_________________________________________
Notary Public
My Commission Expires:
STATE OF NEW YORK )
) ss: New York City February 11, 1997
COUNTY OF NEW YORK )
Personally appeared SHARON PATRICK, CEO hereunto duly authorized of
MARTHA STEWART LIVING OMNIMEDIA LLC, signer and sealer of the foregoing
instrument, who acknowledged the same to be his/her free act and deed as such
CEO hereunto duly authorized, and the free act and deed of said MARTHA STEWART
LIVING OMNIMEDIA LLC, before me.
_________________________________________
Notary Public
My Commission Expires:
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<PAGE> 15
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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<PAGE> 16
"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) Maintenance and Landscaping ($3,000.00)
4) Management Fees ($15,000.00);
5) Snow Removal ($3,000.00);
6) Waste Removal ($2,200.00); and
7) Fire Alarm and Security System in common areas ($1,200.00).
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 21.02% (except as to heating oil for which Tenant's pro rata
share shall mean 25.47% of all heating oil consumed from the 2,000 gallon tank
on the northerly side of the building or any substitute therefor).
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<PAGE> 17
3. In no event shall any of the provisions of this entire Schedule 1
result in a negative calculation.
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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<PAGE> 18
"Exhibit A"
ALL that certain parcel or tract of land, with the buildings thereon, situated
partly in the Town of Norwalk and partly in the Town of Westport, in the County
of Fairfield and State of Connecticut, containing in area 6.84 acres, and
bounded:
NORTHERLY: 229.67 feet by land now or formerly of L.W. Lissberger;
EASTERLY: 1104.89 feet by land now or formerly of Frederick and Minni
M. Berman;
SOUTHERLY: 24.70 feet by Newtown Avenue;
AGAIN SOUTHERLY: 277.55 feet by land now or formerly of L.W. Lissberger;
WESTERLY: 320.64 feet by land now or formerly of L.W. Lissberger; and
AGAIN WESTERLY: 795.36 feet by land now or formerly of L.W. Lissberger;
Said premises are shown on "Map Showing Property to be Conveyed to the Liberty
Research Laboratories, Inc. by L. Walter Lissberger, Westport, Conn., Scale 1" x
50 ft., 1927, The Samuel W. Hoyt, Jr., Co., Inc., Engineers & Surveyors, S.
Norwalk, Conn.", which map is on file in the Office of the Town Clerk of said
Norwalk and Westport. Reference to said map is hereby made and had for a more
particular description and location of said premises.
<PAGE> 19
"Exhibit B"
[Blueprint of 19 Newtown Turnpike, Westport, CT]
<PAGE> 20
"Exhibit C"
None
<PAGE> 21
"Exhibit D"
Commercial Mortgage Loan - CT
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
DATE: January ____, 1996
MORTGAGEE: FIRST UNION BANK OF CONNECTICUT
5 Research Drive, Shelton, Connecticut 06484
Attention: Commercial Real Estate Department Head
MORTGAGOR:
TENANT: ______________________________________________________
Mailing Address:______________________________________
______________________________________________________
MORTGAGED PREMISES: Street Address:
Municipality of: Darien
County of: Fairfield, State of Connecticut
Tax Map Designation: Lot No. 14, 15 and 16 Map No. 38
DATE OF LEASE: ______________________________________________________
Notice of which is recorded on the Land Records of
the Town of Darien, Connecticut, at Volume
______________, Page ___________.
BACKGROUND
A. As security for a loan made by Mortgagee to Mortgagor, Mortgagor has
given to Mortgagee an Open-End Mortgage and Security Agreement dated January
____, 1996, which is about to be recorded in the land records for the Town of
Darien, Connecticut (said Open-End Mortgage and Security Agreement, together
with any and all increases, renewals, modifications, extensions, substitutions,
replacements and/or consolidations thereof, the "Mortgage"), and constitutes a
first lien against the land and improvements now or hereafter erected thereon
identified above as the Mortgaged Premises and more particularly described on
Schedule "A" attached hereto (the "Mortgaged Premises").
B. Tenant has entered into the Lease identified above and covering all
or a portion of the Mortgaged Premises (the "Leased Premises").
C. As a condition of making the loan, Mortgagee has required that the
Lease be subordinated to the Mortgage and that Tenant agree to attorn to the
purchaser of the Mortgaged Premises at foreclosure of the Mortgage in the event
of such foreclosure, or to Mortgagee prior to foreclosure in the event Mortgagee
elects to collect the rents and other sums due and becoming due under the Lease,
and Tenant is willing to so attorn if Mortgagee will recognize Tenant's rights
under the Lease to the extent hereinafter provided.
1
<PAGE> 22
AGREEMENT
NOW, THEREFORE, the parties hereto, in consideration of the
mutual covenants herein contained, and intending to be legally bound hereby,
agree as follows:
1. SUBORDINATION OF LEASE.
The Lease is and shall be subject and subordinate to
the provisions and lien of the Mortgage and to all renewals, modifications,
consolidations, replacements and extensions thereof, to the full extent of the
principal amount and other sums secured thereby and interest thereon, as if the
Lease had been executed and delivered after the execution, delivery and
recording of the Mortgage.
2. ATTORNMENT.
Tenant agrees that it will attorn to and recognize:
(i) Mortgagee, whether as mortgagee in possession or otherwise; (ii) any
purchaser at a foreclosure sale under the Mortgage; (iii) any transferee who
acquires possession of or title to the Mortgaged Premises, whether by deed in
lieu of foreclosure or other means; and (iv) the successors and assigns of such
purchasers and/or transferees (each of the foregoing parties, a "Successor"), as
its landlord for the unexpired balance (and any extensions, if exercised) of the
term of the Lease upon the same terms and conditions as set forth in the Lease.
Such attornment shall be effective and self-operative without the execution of
any further instruments by any party hereto; provided, however, that Tenant
will, upon request by Mortgagee or any Successor, execute a written agreement
attorning to Mortgagee or such Successor, affirming Tenant's obligations under
the Lease, and agreeing to pay all rent and other sums due or to become due to
Mortgagee or such Successor.
3. NON-DISTURBANCE.
So long as Tenant complies with Tenant's obligations
under this Agreement and is not in default under any of the terms, convenants or
conditions of the Lease, Mortgagee will not disturb Tenant's use, possession and
enjoyment of the Leased Premises nor will the leasehold estate of Tenant be
affected or Tenant's rights under the Lease be impaired (except to the extent
that Tenant's right to setoff any sums owed or to receive any obligations to be
performed by Mortgagor shall not be enforceable thereafter against Mortgagee or
any Successor), in any foreclosure action, sale under a power of sale, transfer
in lieu of the foregoing, or the exercise of any other remedy pursuant to the
Mortgage.
4. ASSIGNMENT OF LEASES.
Tenant acknowledges notice of and consents to that
certain Assignment of Leases and Rents from Mortgagor to Mortgagee dated January
___, 1996 (the "Assignment"). Tenant agrees that if Mortgagee, pursuant to the
Assignment, and whether or not it becomes a mortgagee in possession, shall give
notice to Tenant that Mortgagee has elected to require Tenant to pay to
Mortgagee the rent and other charges payable by Tenant under the Lease. Tenant
shall, until Mortgagee shall have cancelled such election, be similarly bound to
Mortgagee and shall similarly attorn to Mortgagee and shall thereafter pay to
Mortgagee all rent and other sums payable under the Lease. Any such payment
shall be made notwithstanding any right of setoff, defense or counterclaim which
Tenant may have against Mortgagor, or any right to terminate the Lease.
5. LIMITATION OF LIABILITY.
5.1. In the event that Mortgagee succeeds to the
interest of Mortgagor under the Lease, or title to the Mortgaged Premises, then
Mortgagee and any Successor shall assume and be bound by the obligations of
Landlord under the Lease which accrue from and after such party's succession to
Mortgagor's interest in the Leased Premises, but Mortgagee and such Successor
shall not be: (i) liable for any act or omission of any prior landlord
(including Mortgagor); (ii) liable for the intention, application or return of
any security deposit to the extent not paid over to Mortgagee; (iii) subject to
any offsets or defenses which Tenant might have
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against any prior landlord (including Mortgagor); (iv) bound by any rent or
additional rent which Tenant might have paid for more than the current month to
any prior landlord ((including Mortgagor); (v) bound by any amendment or
modification of the Lease made without Mortgagee's or such Successor's prior
written consent; or (vi) obligated to cure any defaults of any prior landlord
under the Lease which occurred prior to the date on which Mortgagee or such
Successor succeeded to Mortgagor's interest under the Lease. Nothing in this
section shall be deemed to waive any of Tenant's rights and remedies against any
prior landlord.
5.2. Tenant agrees that any person or entity which at
any time hereafter becomes the landlord under the Lease, including without
limitation, Mortgagee or any Successor, shall be liable only for the performance
of the obligations of the landlord under the Lease which arise during the period
of its or their ownership of the Leased Premises and shall not be liable for any
obligations of the landlord under the Lease which arise prior to or subsequent
to such ownership. Tenant further agrees that any such liability shall be
limited to the interest of Mortgagee or such Successor in the Mortgaged
Premises, and Tenant shall not be able to enforce any such liability against any
other assets of Mortgagee or such Successor.
6. RIGHT TO CURE DEFAULTS.
Tenant agrees to give notice to Mortgagee of any
default by Mortgagor under the Lease, specifying the nature of such default, and
thereupon Mortgagee shall have the right (but not the obligation) to cure such
default, and Tenant shall not terminate the Lease or abate the rent payable
thereunder by reason of such default unless and until it has afforded Mortgagee
thirty (30) days after Mortgagee's receipt of such notice to cure such default
and a reasonable period of time in addition thereto (i) if the circumstances are
such that said default cannot reasonably be cured within said thirty (30) day
period and Mortgagee has commenced and is diligently pursuing such cure, or (ii)
during and after any litigation action including a foreclosure, bankruptcy,
possessory action or a combination thereof. It is specifically agreed that
Tenant shall not require Mortgagee to cure any default which is not susceptible
of cure by Mortgagee.
7. TENANT'S AGREEMENTS.
Tenant hereby covenants and agrees that: (i) Tenant
shall not pay any rent or additional rent under the Lease more than one month in
advance; (ii) Tenant shall have no right to appear in any foreclosure action
under the Mortgage; (iii) Tenant shall not amend, modify, cancel or terminate
the Lease without Mortgagee's prior written consent, and any attempted
amendment, modification, cancellation or termination of the Lease without such
consent shall be of no force or effect as to Mortgagee; (iv) Tenant shall not
voluntarily subordinate the Lease to any lien or encumbrance (other than the
Mortgage) without Mortgagee's prior written consent; (v) Tenant shall not assign
the Lease or sublet all or any portion of the Leased Premises (except as
permitted by the terms of the Lease) without Mortgagee's prior written consent;
(vi) this Agreement satisfies any requirement in the Lease relating to the
granting of a non-disturbance agreement; and (vii) Tenant shall deliver to
Mortgagee, from time to time and within ten (10) days from the date of request,
a written statement in form and substance satisfactory to Mortgagee certifying
to certain matters relating to the Lease.
8. MISCELLANEOUS.
8.1. Binding Effect. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, successors and assigns. Nothing contained in
this Agreement shall in any way affect or impair the lien created by the
Mortgage, except as specifically set forth herein.
8.2. Modifications. This Agreement may not be
supplemented, amended or modified without the prior written consent of
Mortgagee.
8.3. Notices. All notices and communications under
this Agreement shall be in writing and shall be given by either (a) hand
delivery, (b) first class mail (postage prepaid), or (c) reliable overnight
commercial courier (charges prepaid) to the addresses listed in this Agreement.
Notice shall be deemed to have been given and received: (i) if by hand delivery,
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upon delivery; (ii) if by mail, three (3) calendar days after the date first
deposited in the United States mail; and (iii) if by overnight courier, on the
date scheduled for delivery. A party may change its address by giving written
notice to the other party as specified herein.
8.4. Governing Law. This Agreement shall be governed
by and construed in accordance with the substantive laws of the State of
Connecticut without reference to conflict of laws principles.
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound, have duly executed and delivered this Subordination,
Non-Disturbance and Attornment Agreement as of the day and year first above
written.
TENANT:
WITNESSES:
________________________________ ___________________________________________
Name: Name: (Individual)
________________________________
Name:
WITNESSES: ___________________________________________
(Corporation or Partnership)
________________________________ By: _______________________________________
Name: Name:
Title: Title:
________________________________
Name:
Title:
WITNESSES: MORTGAGEE:
FIRST UNION BANK OF CONNECTICUT
________________________________ By: _______________________________________
Name: Name:
Title: Title:
________________________________
Name:
Title:
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SCHEDULE A
DESCRIPTION OF MORTGAGED PREMISES
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INDIVIDUAL ACKNOWLEDGEMENT
STATE OF CONNECTICUT, COUNTY OF _____________________, SS.:
On this the ________ day of January, 1996 before me, __________________
___________________________ _______________________________________, the
undersigned officer, personally appeared ___________________, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the written
instrument and acknowledged that he/she executed the same for the purposes
therein contained, and as his/her free act and deed.
In witness whereof I hereunto set my hand.
__________________________________________
Commissioner of the Superior Court
Notary Public
My Commission Expires:
CORPORATE ACKNOWLEDGEMENT
STATE OF CONNECTICUT, COUNTY OF _____________________, SS.:
On this the ________ day of January, 1996 before me, ___________________________
_______________________________________, the undersigned officer, personally
appeared _______________________________________, who acknowledged him/herself
to be the _____________________________of _____________________________________,
a corporation, and that he/she as such ___________________________, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by him/herself as such
___________________________and as his/her and its free act and deed.
In witness whereof I hereunto set my hand.
__________________________________________
Commissioner of the Superior Court
Notary Public
My Commission Expires:
PARTNERSHIP ACKNOWLEDGEMENT
STATE OF CONNECTICUT, COUNTY OF _____________________, SS.:
On this the ________ day of January, 1996 before me, ___________________________
_______________________________________, the undersigned officer, personally
appeared _______________________________________, who acknowledged him/herself
to be the Partner of __________________________________________, a partnership,
and that he/she, as such Partner, executed the foregoing instrument for the
purposes therein contained and as his/her free act and deed and the free act and
deed of the partnership.
In witness whereof I hereunto set my hand.
__________________________________________
Commissioner of the Superior Court
Notary Public
My Commission Expires:
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MORTGAGEE ACKNOWLEDGEMENT
STATE OF CONNECTICUT, COUNTY OF FAIRFIELD, SS.:
On this the ________ day of January, 1996 before me, __________________
___________________________ _______________________________________, the
undersigned officer, personally appeared
_______________________________________, who acknowledged him/herself to be the
_______________________________of FIRST UNION BANK OF CONNECTICUT, a Connecticut
banking corporation, and that he/she as such ___________________________, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by him/herself as such
_____________________and as his/her and its free act and deed.
In witness whereof I hereunto set my hand.
__________________________________________
Commissioner of the Superior Court
Notary Public
My Commission Expires:
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SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
_________________________________________________
-to-
FIRST UNION BANK OF CONNECTICUT
Dated:
RECORD AND RETURN TO:
FIRST UNION BANK OF CONNECTICUT
5 Research Drive
Shelton, Connecticut 06484
ATTN: Commercial Real Estate Department Head
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