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EXHIBIT 10.83
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EXHIBIT 10.83
FACILITY
LEASE AGREEMENT
THIS LEASE is made and entered into as of this 15th day of May, 1994, by
and between Xxxxxx Communications of Tampa-66, Inc., a Florida corporation
(hereinafter referred to as "Lessee"), and The Christian Network, Inc., a
Florida non-profit Corporation (hereinafter referred to as "Lessor").
STATEMENT OF FACTS
A. Lessor operates a television production and distribution facility in
Florida ("Television Production").
B. Lessee will be providing programming for Television Station WTBG-TV,
Bradenton, Florida (the "Station").
C. In order to permit Lessee's provision of programming to the Station, the
Lessor has agreed to lease the premises described in Exhibit A to Lessee (the
"Leased Premises").
X. Xxxxxx and Lessee desire to set forth the terms and conditions
associated with this Lease.
NOW, THEREFORE, in consideration of the terms and conditions set forth in
this Lease, and other good and valuable consideration the receipt of which is
hereby acknowledged, the parties agree as follows:
1. TERM.
(a) Initial and Renewal Terms. Lessor leases to Lessee, and Lessee leases
from Lessor, subject to the terms of this Lease, the Leased Premises for an
Initial Term commencing at 12:00 A.M. on August 1, 1994 (the "Commencement
Date") and expiring at 12:00 Midnight on the date five (5) years following the
first day of the calendar month next following the Commencement Date (the
"Initial Term"), unless this Lease is sooner terminated as hereinafter provided.
This Lease may be renewed by Lessee for an additional term of 5 years (a
"Renewal Term") upon no less than 30-days notice to Lessor prior to the
expiration of the Initial Term or the Renewal Term. The Initial Term and the
Renewal Term shall be subject to all of the terms and conditions set forth in
this Lease.
(b) Holding Over. If Lessee or anyone claiming under Lessee shall remain
in possession of the Leased Premises or any part thereof after the expiration of
the Initial Term or any Renewal Term without any agreement in writing between
the Lessor and Lessee with respect thereto, prior to acceptance of rent by
Lessor, the person remaining in possession shall be
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deemed a tenant at sufferance, and, after acceptance of rent by Lessor, the
party remaining in possession shall be deemed a tenant from month to month,
subject to the provisions of this Lease. The rental during any such period
shall equal to one hundred fifty percent (150%) of the rental in effect
immediately preceding such expiration.
2. RENT AND TAXES.
(a) Rent for Initial Term and Any Renewal Term. Lessee convents and agrees
to pay Lessor for the Leased premises during the Initial Term of this Lease and
the Renewal Term hereunder the amounts set forth (the "Rent") in Exhibit B. The
Rent paid by Lessee shall be subject to Florida sales tax which tax will be
collected by Lessor from Lessee.
(b) Additional Rent. Lessee shall pay as additional rent all taxes,
assessments, and other governmental charges, all utility charges, all premiums
on insurance policies required by the terms hereof, and all other expenses and
charges which, during the term hereof, shall arise, be levied, assessed, charged
or imposed upon or with respect to, or be incurred in connection with, the
ownership, possession, use, occupation, operation, maintenance, repair or
alteration of the Leased Premises, it being the purpose and intent of the Lessor
and the Lessee that the rent shall be absolutely net to the Lessor so that this
Lease shall yield, net to Lessor, the rent specified in each year during the
term hereof and all renewal terms, if any. The Lessee agrees to indemnify and
save the Lessor harmless from and against all damages, liability, costs and
expenses which may be incurred or sustained by Lessor by reason of the
nonpayment of the additional rent by Lessee.
(b) Payment. All monthly payments of rent or other sums due Lessor
hereunder shall be sent to or made at the offices of Lessor designated in
Section 17 hereof, or such other place as may be designated by Lessor from time
to time.
3. USE OF ASSETS.
(a) Lessee shall have the right to use the Leased Premises only for the
purpose of television broadcasting relating to the Station and Television
Production and associated activities and for the operation of transmit and
receive towers, satellite uplinks and receivers and associated equipment related
to Lessee's operations.
(b) Lessee accepts the Leased Premises in their present condition ("as is")
and agrees that it will take good care of the Leased Premises, subject to
reasonable wear and tear, and that Lessee will return the Leased Premises to
Lessor in the same condition as said Leased Premises were in at the time control
was turned over to Lessee, subject to reasonable wear and tear, and damage done
by Lessor, if any. Furthermore, at Lessor's option, Lessee at its sole cost and
expense shall remove or change all alterations made pursuant to Section 5(a)
hereof
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so as to return said Leased Premises to Lessor in said same condition,
subject to this subsection 3(b). Lessee agrees that it will comply with all
laws, ordinances, orders, rules, regulations or requirements of all governmental
authorities which are applicable to its use of the Leased Premises.
(c) Lessee shall have a right of access to the Studio Building (i) as may
be necessary or appropriate to operate the Station and (ii) at all reasonable
times for inspection, repair, maintenance and replacement of its equipment,
provided, however, that such access and activities shall not interfere with the
use of the Leased Premises by Lessor or any other tenant of Lessor, or interrupt
or otherwise adversely affect the continued broadcast operation or equipment of
any other tenant of Lessor. Lessor shall have a right of access to the Leased
Premises at all reasonable times, for examination, inspection, emergency repair
or replacement of Lessee's equipment, provided, however, that (except as may be
provided elsewhere in this Lease) Lessor shall take reasonable efforts to see
that such access and activity by Lessor does not interfere with the use of the
Leased Premises by Lessee or any other tenant, or interrupt or otherwise
adversely affect the continued broadcast operation of the Station.
(d) Lessee, at its own cost and expense, shall obtain and maintain in
effect any and all permits, licenses and approvals that are or may be required
with respect to Lessee's broadcast operation or equipment by each governmental
authority having jurisdiction over such operation or equipment.
(e) Lessor acknowledges Lessee's ownership of the equipment located on the
Leased Premises and further acknowledges that Lessor has no interest, secured or
otherwise, in such equipment, regardless of whether or not Lessee is in default
under this Agreement.
4. UTILITIES Lessee shall be responsible for the furnishing of heat,
water, electricity or other utilities (the "Utilities") to the Leased Premises
for the benefit of Lessor.
5. ALTERATIONS
(a) Lessee, at its own expense and subject to the provisions of Subsection
5(b) hereof, may make such alterations, additions, changes and improvements
(herein called "Alterations") to the Leased Premises as Lessee may deem
necessary or desirable, subject to Lessor's approval, which approval shall not
be unreasonably withheld; provided that said Alternations shall not lessen the
value of the Leased Premises.
(b) Before Lessee may make any Alterations to the Leased Premises in
accordance with the rights granted by Subsection 5(a) hereof, Lessee shall
submit to Lessor written specifications for such Alternations that are proposed
for Lessor's approval. Lessor, within thirty (30) days after receipt by it of
the written specifications, shall notify Lessee whether it approves such
Alterations. If Lessor fails to notify Lessee in writing within
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such thirty (30) day period that it disapproves of such Alterations, Lessee may
proceed to cause the Alterations to be made.
6. MAINTENANCE AND REPAIRS.
(a) Repairs to the Leased Premises are to be made at the sole cost of
Lessee. In the event that Lessee reasonably determines that a repair or
replacement is needed and Lessor after written notice does not make said repair
or replacement within a reasonable period of time, Lessee shall notify Lessor in
writing that it considers said repair or replacement necessary and that it is
contemplating making said repair. Lessee may then, at its option, make such
repair or replacement at its own expense. It is agreed that nothing in the
foregoing shall relieve Lessor from full performance of its obligations and that
the remedy referred to above is in addition to any other remedy available to
Lessee.
(b) If the Leased Premises shall be partially damaged by fire or other
cause without the fault or neglect of Lessee or its employees, agents, visitors
or licensees, the Lessor shall proceed forthwith to replace or to repair the
Leased Premises with reasonable diligence at the expense of Lessor; provided, if
the Leased Premises are to be replaced or repaired and are untenantable in whole
or in part following such damage, the rent payable hereunder during the period
in which they are unusable shall be adjusted equitably; provided further,
however, if the Leased Premises are substantially damaged or rendered
substantially unusable by fire or other cause, including, but not limited to,
condemnation, and Lessor shall decide not to replace the same, then, within
ninety (90) days after such fire, casualty or condemnation, Lessor may give
Lessee notice in writing of the decision not to replace, whereupon the Term of
this Lease shall terminate, Lessee shall surrender the Leased Premises to
Lessor, and rent shall be abated for the unexpired portion of this Lease,
effective as of the date of said written notice from Lessor, and Lessor shall
have no further obligation or liability to Lessee. It is agreed that nothing in
this Subsection 6(b) shall require Lessor to replace or to repair any or all
Alterations.
7. INDEMNITY AND INDEMNITY INSURANCE.
(a) Lessee shall indemnify and hold harmless Lessor from any and all
claims, expenses or liabilities, including reasonable attorneys' fees and court
costs, for injuries to or death of persons, or damage to property arising out of
or in connection with Lessee's use of the Leased Premises. Lessee further agrees
to defend on behalf of Lessor all legal actions, if any, arising out of any such
claim for such damages. Lessor shall not be liable for loss or damage sustained
by Lessee by reason of business interruption resulting from any or all acts or
omissions of Lessor or violations by Lessor of any or all terms, covenants or
conditions of this Lease.
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(b) Lessee agrees that it will, at its expense, obtain and maintain during
the Term of this Lease public liability insurance against claims of injury to or
death of persons, or damage to property arising out of or in connection with
Lessee's use of the Leased Premises, naming Lessee and Lessor as insured
persons. Such public liability insurance shall be with an insurer that Lessor
finds reasonably satisfactory and shall have limits of not less than One Million
Dollars ($1,000,000) with respect to claims of injury to or death of any number
of persons in any one occurrence and not less than Two Hundred Thousand Dollars
($200,000) for property damage in any one occurrence. Lessee agrees to name
Lessor as a co-insured party on any and all such public liability insurance
policies. Satisfactory evidence of such coverage shall be submitted by Lessee to
Lessor.
8. ASSIGNMENT.
(a) Lessee's Right to Assign. Neither this Lease nor any of the rights,
interests or obligations of Lessee hereunder shall be assigned, encumbered,
hypothecated, subleased or otherwise transferred without the prior written
consent of Lessor, which consent shall not be unreasonably withheld. Upon any
approved assignment, all references in this Lease to "Lessee" shall be deemed to
be references to Lessee's assignee.
(b) Lessor's Right to Assign. Neither this Lease nor any of the rights,
interests or obligations of Lessor hereunder shall be assigned, encumbered,
hypothecated, subleased or otherwise transferred without the prior written
consent of Lessee which consent shall not be unreasonably withheld. Upon any
such assignment, all references in this Lease to "Lessor" shall be deemed to
be references to Lessor's assignee.
(c) This Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
9. CONDEMNATION.
(a) If during the Term of this Lease the Leased Premises or any substantial
portion thereof shall be appropriated by any corporation or authority having the
right of eminent domain, or if access to the Leased Premises is restricted by
action of any such corporation or authority and reasonably comparable access is
not made available to the Leased Premises, this Lease and all obligations of
Lessor and Lessee hereunder shall cease and terminate as of the date the
appropriating corporation or authority takes possession thereof or materially
restricts access to the Leased Premises. All obligations of Lessee to pay any
rents or other charges whatsoever under the terms of this Lease shall be
apportioned as of such date in the same manner as if the Lease had expired on
such date according to its terms.
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(b) Whenever used herein, the terms "appropriated" or "appropriation" shall
include any voluntary transfer of the Leased Premises or any part thereof to any
corporation or authority having the right of eminent domain as a result of a
settlement of a threatened or pending appropriation action.
(c) In the event of the appropriation of the whole or any part of the
Leased Premises, the amount received as compensation for the appropriation
(including in the case of an appropriation of part of the Leased Premises, any
amount allowed as damages to the remainder) shall be paid in full to Lessor,
subject, however, to any right of Lessee to receive any additional or specific
award from the appropriating corporation or authority to which it might be
entitled.
(d) In any appropriation of the Leased Premises, Lessee shall have the
right to prove in the proceeding and to receive any award which may be for
damages to or condemnation of Lessee's movable trade fixtures, equipment,
furniture and furnishings and for moving and relocation expenses.
10. INTERFERENCE AND RF RADIATION.
(a) General. Lessee will conduct its activities in accordance with
applicable requirements of the FCC and sound electronic and engineering practice
and will cooperate with Lessor and other tenants and potential tenants so as to
anticipate and prevent interference to the broadcast operations or equipment of
Lessor or any other tenant. If any engineering statement presented to or by the
Lessor confirms that Lessee's broadcast operation, transmission or other
activities on or around any portion of the Leased Premises are causing, or are
reasonably expected to cause, interference to the broadcast operation,
transmission or other activities of Lessor or any other tenant, Lessee shall, at
its sole expense, promptly correct or modify the conditions causing such
interference.
(b) Interference to Lessee. Upon determination that any other tenant is
causing interference to Lessee's broadcast operation, transmission or other
activities in or around any portion of the Leased Premises, Lessor will use its
reasonable best efforts to modify or correct promptly, or cause such other
tenant to modify or correct promptly, the condition causing such interference.
(c) Interference Defined. As used in this Lease, interference to a
broadcast operation, transmission or other similar activity shall mean a
condition or anticipated condition which constitutes or would constitute
interference within the meaning of the provisions of the recommended practices
of the Electronics Industries Association and the rules and regulations of the
FCC then in effect.
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(d) Dispute as to Interference. Any dispute as to whether interference is
being cause or expected to be cause, or as to who is causing such interference,
which remains unresolved for longer than seven (7) calendar days, shall be
submitted to a consulting electronic engineer who is not retained or otherwise
employed by Lessor, Lessee or any other tenant whose antenna is located on the
Tower, and the determination of such consulting electronic engineer shall be
final and binding on all parties. The consulting engineer shall be jointly
selected by Lessor and Lessee.
(e) RF Radiation. Lessee shall, at Lessee's expense, take all actions
required to ensure that Lessee's broadcast operation does not expose workers or
the general public to levels of radio frequency radiation in excess of the
"Radio Frequency Protection Guides" recommended in the American National
Standard Safety Levels with Respect to Human Exposure to Radio Frequency
Electromagnetic Fields, 300 kHz to 000 XXx (XXXX X00.0-0000) issued by the
American National Standards Institute.
11. FORCE MAJEURE. Neither Lessor nor Lessee shall be required to perform
any term, condition or covenant in this Lease so long as such performance is
delayed or prevented by force majeure, which shall mean Acts of God, strikes,
lockouts, material or labor restrictions by any governmental authority, civil
riots, floods, and any other cause not reasonably within the control of Lessor
or Lessee and which by the exercise of due diligence Lessor or Lessee is unable,
wholly or in part, to prevent or to overcome; provided, however, force majeure
shall not excuse Lessee from its obligation to pay rent or other sums hereunder
and Lessee shall be required to pay any and all rent and such other sums as
provided by this Lease.
12. MECHANICS' LIENS. Lessee shall not suffer or permit any mechanics'
liens to be filed against the Leased Premises by reason of work, labor or
materials supplied or claimed to have been supplied to Lessee that are not
removed or for which adequate bond has not been provided within thirty (30) days
of such filing. Furthermore, if any such lien at any time shall be filed against
the Leased Premises, Lessee shall proceed with due diligence to cause the same
to be discharged of record by payment, deposit, bond, order of court or
otherwise.
13. LESSOR'S LIEN. Lessor shall have a first lien upon every right and
interest of Lessee to and in the Leased Premises for the payment of rent and all
other sums payable by Lessee hereunder and as security for the performance and
observance of the agreements, conditions, and obligations of this Lease by and
between Lessor and Lessee, dated the date hereof, which agreements, conditions,
and obligations are to be performed and observed by Lessee.
14. QUIET ENJOYMENT. Lessor covenants that, upon payment by Lessee of all
rents and the performance by Lessee of all obligations pursuant to this Lease,
Lessee shall and may peaceably and quietly have and enjoy the Leased Premises
for and during the Term of
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this Lease, pursuant to the terms hereof, free from any hindrance from any
person or persons whomsoever claiming by, through or under Lessor.
15. DEFAULT. If the Lessee defaults in fulfilling any of its material
covenants or obligations hereunder, or if the Lessee does not fully make all
payments of rent when due under this Lease, Lessor at its option may terminate
and end this Lease and all rights of the Lessee hereunder, and remove the
Assets provided that Lessee has been given written notice by Lessor and that
Lessee has not made full payment of the rent and cured all other such defaults,
if any, within fifteen (15) days following such notice. Furthermore, if Lessee
fails to make a payment of rent hereunder when due, Lessee shall be liable for
and pay to Lessor a late payment charge at the rate of eighteen percent (18%)
per annum, computed from the date said payment was due until the date said
payment is actually made. In the event of a default hereunder, other than the
nonpayment of rent or other monetary obligation, the Lessor shall have the
right to terminate this Lease if Lessee does not cure such default within
thirty (30) days of written notice from Lessor. In the event of said defaults,
in addition to said termination rights, Lessor shall have all other rights and
remedies to which it may be entitled. A waiver by the Lessor of any breach of
this Lease or any terms, conditions or promises herein contained must be in
writing to be effective and shall not be or construed to be a waiver of any
subsequent breach of the same or any other term, condition or promise herein
and the payment by the Lessee and acceptance by the Lessor of rent hereunder
shall not be construed to be a waiver of any breach of terms or conditions
herein except as to the particular installment of rent so paid and accepted.
16. SURRENDER OF LEASED PREMISES. Lessee, upon the expiration of the
Term of this Lease or the earlier termination of this Lease, shall surrender to
Lessor the Leased Premises in accordance with the terms and conditions provided
for in Subsection 3(b) hereof.
17. NOTICES. All notices, demands and requests required or permitted
to be given under the provisions of this Agreement shall be (i) in writing,
(ii) sent by telecopy (with receipt personally confirmed by telephone),
delivered by personal delivery, or sent by commercial delivery service or
certified mail, return receipt requested, (iii) deemed to have been given on
the date telecopied with receipt confirmed, the date of personal delivery, or
the date set forth in the records of the delivery service or on the return
receipt, and (iv) addressed as follows:
If to Lessor: Xxxxx X. Xxxx
The Christian Network, Inc.
00000 00xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: 813/530-0671
Telephone: 813/000-0000
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If to Lessee: Xxxxxx X. Xxxxxx
Xxxxxx Communications of Tampa-66, Inc.
00000 X.X. Xxxxxxx 00 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: 813/532-0208
Telephone: 813/000-0000
or to any such other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
18.
18. PROPERTY INSURANCE.
(a) Lessee shall, at its expense, obtain and maintain during the Term of
this Lease, "All Risk", hazard insurance on the Leased Premises. Such insurance
shall cover at least all risks customarily insured against in the broadcasting
industry, subject to standard deductibles.
(b) Lessee hereby releases Lessor from and holds Lessor harmless against
any and all claims that Lessee may hereafter have for loss, theft,
disappearance, damage or destruction of the Leased Premises, regardless of the
cause thereof. Notwithstanding the generality of the foregoing, this release
shall not apply to any grossly negligent, willful or wanton act of the Lessor,
its employees, agents or representatives. In the event that insurance on the
Leased Premises was in force at the time of such loss, theft, disappearance,
damage or destruction, lessee agrees to take all necessary action to make this
release effective and binding upon its insurance carriers so that such carriers
specifically waive all right of subrogation, if any, that such carriers might
otherwise have against Lessor and its employees, agent or contractors.
19. TAXES. During the term hereof, Lessee agrees to pay all personal
property taxes assessed against the Leased Premises within thirty (30) days of
its receipt of a true and correct statement.
20. CAPTIONS. The captions or headings of sections in this Lease are
inserted for convenience only and shall not be considered in construing the
provisions hereof.
21. COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES. This Lease shall
inure to the benefit of and be binding upon the successors and assigns of
Lessor and Lessee.
22. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. Any and all
representations, warranties and covenants contained in this Lease
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shall survive the execution of the Lease and shall continue in full force and
effect during the Term hereof.
23. COUNTERPARTS. More than one counterpart of this Lease may be
executed by the parties hereto and each duly executed counterpart shall be
deemed an original.
24. ATTORNEYS FEES. In the event an action is brought to enforce or
construe any of the terms or conditions of this Lease, the prevailing party
shall be entitled to reasonable attorney's fees and costs.
25. MISCELLANEOUS.
(a) This Lease shall be governed by the laws of the State of Florida and
may be modified or amended only by a writing, signed by the party against whom
the amendment or modification is sought to be enforced.
(b) Failure of either party to exercise its rights hereunder shall not
operate as a waiver of the future exercise of such right.
26. ENTIRE AGREEMENT. This Lease, including the exhibits hereto, sets
forth the entire understanding of the parties hereto at the time of execution
and delivery hereof with respect to the subject matter hereof.
27. WAIVER OF JURY TRIAL. To the extent they may lawfully do so, the
parties hereto irrevocably waive all rights to a trial by jury in any
proceeding hereinafter instituted by or against either party in respect of this
Lease.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first set forth above.
Lessee: XXXXXX COMMUNICATIONS OF TAMPA-66,INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
Lessee: THE CHRISTIAN NETWORK, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: Chairman
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EXHIBIT A
LEASED PREMISES
(1) Studio Building. The right to occupy 25,000 of the 28,000 square feet
on the Premises (see attached legal description);
(2) STL Antenna. The right to install and utilize associated auxiliary
equipment, earth stations, Studio Transmitter Link Towers, transmission lines,
Studio Transmitter Links, etc.
(3) Access. The right, in common with others, to use the roadways and
parking spaces on the Leased Premises for ingress and egress to and from the
Studio Building.
All of the space, premises and rights granted under this Exhibit A are
hereinafter referred to as the "Leased Premises".
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EXHIBIT B
(1) Concurrent with the execution of this Lease, Lessee shall pay as Rent
for each day of the period beginning on the Commencement Date and ending on the
last day of the month in which the Commencement Date falls the sum of Four
Hundred Three Dollars ($403).
(2) Lessee covenants and agrees to pay Lessor annual Rent in the amount of
One Hundred Fifty Thousand Dollars ($150,000) (the "Base Rent") for the period
beginning with the month first following the Commencement Date and continuing
for twelve months thereafter, which amount shall be payable in twelve (12) equal
monthly installments.
(3) Upon each successive annual anniversary date of the Commencement Date
for both the Initial Term and any Renewal Term, the Base Rent to be paid by
Lessee to Lessor for the following twelve-month period shall be increased by an
amount determined by multiplying the Base Rent by the percentage increase, if
any, in the U.S. Department of Labor, Bureau of Labor Statistics, Revised
All-Cities Consumer Price Index for the Cleveland, Ohio metropolitan area (the
"CPI") published immediately prior to each successive anniversary date over the
CPI published immediately prior to the Commencement Date. In no event shall the
annual Rent to be paid by Lessee during the Initial Term or any Renewal Term be
less than the Base Rent.
If the CPI ceases to exist or is substantially changed, Lessor shall
substitute a similar index. Except as otherwise specifically provided herein,
installments of Rent during the Initial Term and any Renewal Term shall be paid
in advance in United States Dollars (without prior notice or invoice by Lessor)
on or before the first of the month and any amounts which are payable when
invoiced hereunder shall be due within twenty (20) days after Lessee's receipt
of such invoice.
