LEASE
THIS LEASE, made and entered into this 14 day of July, 1986, between
DUBLIN INVESTMENT COMPANY, a Wisconsin general partnership, hereinafter called
"Lessor", and PAYCO AMERICAN CORPORATION, a Delaware corporation, hereinafter
called "Lessee".
WITNESSETH:
WHEREAS, the leasehold premises which are the subject of this Lease
consist of a two-story brick and glass commercial office building of
approximately forty-three thousand (43,000) square feet in size located at 0000
Xxxxxx Xxxx, Xxxxxx, Xxxx, with a surfaced parking lot sufficient for not less
than four hundred eighty-five (485) cars, the real estate being more
particularly described on Exhibit A attached hereto.
NOW, THEREFORE, in consideration of the premises and of the mutual
benefits to be derived therefrom, it is agreed as follows:
1. Lessor hereby leases, demises and rents unto Lessee, and Lessee
hereby leases, takes and hires of and from the Lessor, the demised premises,
above described, including all easements, rights of way and other rights
appurtenant thereto.
2. This Lease shall be for a term of twenty (20) years commencing on
the first day of June, 1987, and ending on midnight of the 31st day of May, in
the year 2007, unless sooner terminated as hereinafter set forth. If Lessee
shall be given physical occupancy of the premises, prior to the commencement of
the Lease, such occupancy shall not affect the term of the Lease, and
Lessee agrees to pay to Lessor the per diem rental charge for early occupancy
equal to l/365ths of the annual base rental. If the commencement date of the
Lease is deferred because of Lessor's inability to give occupancy to Lessee, the
term of the Lease shall commence on the first day of the month following the
date of initial occupancy by Lessee, and the termination date shall
correspondingly be extended.
3. Lessee shall have the option to terminate the Lease under the
following terms and conditions: After the first sixty (60) months of the Lease
term have expired, Lessee shall have the following calendar month (time being of
the essence) to make an election to terminate the Lease at the end of the
seventy-second (72nd) month. This election must be in writing, a copy of which
will be sent to Lessor's mortgagee. Lessee shall be required to pay a
cancellation penalty equal to one (1) full year's rent, based on all rental due
and owing under the terms of the Lease, for the twelve (12) month period prior
to the effective date of termination. The effective date of termination would be
at the end of the seventy-second (72nd) month. The payment of this penalty shall
not relieve Lessee of its obligation under the terms of the Lease to pay the
rent to the effective date of termination. The election must be personally
delivered to, or sent postage prepaid, to one of the managing partners of Lessor
at the address of the partnership where the rent is then being paid. The penalty
is payable in one lump sum in cash on the last day of the seventy-second (72nd)
month.
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4. (A) The Lessee shall pay a base annual rental of Four Hundred Fifty
Thousand Dollars ($450,000.00), payable in equal monthly installments of
Thirty-seven Thousand Five Hundred Dollars ($37,500.00) each, on the first day
of each and every month, in advance.
(B) At the end of the twelfth (12th) month of the term, the base
annual rental shall be adjusted in the amount of the increase in the Consumer
Price Index ("CPI") for United States, All Items and Major Group Figures for
Urban Wage Earners and Clerical Workers or Items (1967 = 100). The computation
shall be made by multiplying $450,000.00 by a fraction the numerator of which
shall be the index figure for the month prior to the month in which the
adjustment commences and the denominator of which shall be the index figure for
the month prior to the month in which the Lease commences. In the event that the
Bureau of Labor Statistics shall cease to publish the index, then a similar
index by any other branch or department of the United States shall be used. The
result of this computation shall then be divided by twelve (12) and commencing
the thirteenth (13th) month of the Lease, the adjusted base rental shall be
paid. Annually thereafter, at twelve (12) month intervals, the base annual
rental shall be adjusted in accordance with the adjustment in the CPI or other
comparable index. The maximum increase in rental for any twelve (12) month
period shall be five (5%) percent over the initial base annual rental. Increases
at the end of each twelve (12) months of the term thereafter, shall be limited
to the amount of the sum of the increase in the CPI
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during the twelve (12) month period preceding, plus the amount which the
increase in the CPI during any twelve (12) month term exceeded five (5%) percent
to the extent the excess has not previously been applied, but in no event, is
the increase at the end of any twelve (12) month period to exceed five (5%)
percent.
(C) In the event that the interest rate required to be paid by Lessor
on its underlying first mortgage indebtedness covering the premises at any time
during the term of this Lease exceeds the agreed rate of 9 3/4 percent, the
annual base rental shall increase by the sum of Six Thousand Five Hundred
Dollars ($6,500.00) for each twenty-five (25) basis points of increase in the
interest rate over 9 3/4 percent. Such rental increase shall become effective
the month following the effective date of the mortgage rate adjustment. This
increased rental shall be payable in monthly installments. In the event that the
annual base rental is increased at any time during the term of this Lease,
should there subsequently be a decrease in the underlying mortgage interest
rate, the annual base rental shall correspondingly be decreased, however not to
an amount less than that specified as the base rental and any CPI adjustments as
set forth in paragraphs 4.(A) and (B) above. Written evidence of adjustments in
the Lessor's mortgage rate, together with the proposed base rental adjustment,
shall be furnished to Lessee within ten (10) days of any effective date of
interest rate adjustment by Lessor's mortgagee.
5. It is agreed that the leased premises shall be used by the Lessee
as a general office building and that Lessee shall
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with Lessor's prior written consent, and, if required, the consent of Lessor's
mortgagee, to have the right to sublease out portions of the building to
qualified, responsible tenants, requiring office space or at Lessee's option the
entire premises to Payco-General American Credits, Inc. In the event of such
sublease, Lessee's obligation to pay rent under the terms and conditions of this
Lease, shall not be relieved and Lessee shall remain liable under its full
obligation, pursuant to the terms of this Lease. Written consent to such
subleasing shall not be unreasonably withheld.
6. The Lessor shall have no obligation to make alterations,
improvements or repairs of any kind on or about the demised premises or the
building or buildings thereon, or of which they are a part, or the equipment,
fixtures, plumbing, appliances, or machinery in, upon or serving same, or the
streets, alleys, areas, area-ways or passages adjoining or appurtenant thereto.
Without limitation, Lessee covenants and agrees at its own expense throughout
the term:
(A) to maintain and keep every part of demised premises, including
fixtures and appurtenances situated thereon in good and substantial order and
repair; and
(B) to comply with all laws and orders of municipal, state and other
governmental authorities pertaining to the demised premises or the use of the
demised premises.
7. Lessee shall pay and discharge as and when the same become due and
prior to delinquency all taxes, assessments, levies and other charges, general
and special, which are or may
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be during the term hereof, levied, assessed, imposed or charged against the
demised premises and any personal property owned by the Lessor but used by the
Lessee in connection with its use of the demised premises and situated thereon,
provided, however, that the Lessee during the first calendar year of the
original term of this Lease and the last calendar year of the original term or
the final extension thereof shall be obligated to pay only a prorata portion of
said real estate taxes due and payable for such year based upon the part of the
year the Lessee occupies the demised premises, and shall only be obligated to
pay those installments of special assessments (using the longest amortization
term available) coming due during the term of this Lease.
The Lessee may in good faith contest any tax assessed which it is
obligated to pay under the terms of this Lease if it shall give the Lessor a
bond for such amount and guaranteed by such surety as may be satisfactory to the
Lessor. The Lessor shall give the Lessee copies of all notices of levy or change
or proposed change in tax rate or assessment within thirty (30) days after
receipt by Lessor. The Lessor at its option, may require Lessee to pay over to
Lessor an amount equal to one-twelfth (1/12th) of the estimated annual real
estate taxes which may be due and payable during any lease year. Lessor shall
adjust the amount of such payments upon the municipality rendering the real
estate tax xxxx, and in the event that Lessee has paid an insufficient amount to
cover the total amount due, then Lessee shall, upon demand, pay the additional
sum. In the event that
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Lessee has paid an amount in excess of the amount necessary to cover the
general real estate tax liability, then Lessee shall receive a credit against
the following year's estimated taxes for such overpayment.
8. Lessee covenants and agrees at its own expense throughout the term
to provide and maintain policies of insurance upon the premises in the amounts
and with companies acceptable to Lessor, licensed to transact business in the
State of Ohio, and, in connection with casualty insurance, with mortgagee
clauses in favor of and with losses payable to Lessor and its mortgagee, as
follows:
(A) Fire and extended coverage insurance upon all improvements upon
the premises in the amount of the full insurable value thereof, with full
replacement cost endorsement;
(B) General comprehensive public liability insurance in such amounts
as Lessor may from time to time determine as appropriate, but in no event less
than $3,000,000/3,000,000/500,000;
(C) Workmen's compensation insurance, if Lessor has any employees on
or about the premises;
(D) Such other insurance and coverage as Lessor may require or as may
be customarily carried by persons owning and operating properties of the same
type and usage as the leasehold premises .
9. Upon the termination of this agreement, the Lessee may remove any
trade fixtures and equipment owned by it or placed upon the premises by it,
other than fixtures installed to replace
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those presently in the premises, provided, however, that the Lessee leaves the
premises in the same condition or repair and tenantability as they were at the
time of the making of this agreement prior to the addition of such trade
fixtures.
10. The Lessee shall pay for all utilities, including gas,
electricity, sewer and water, as well as any other services used therein during
the term of this Lease.
11. Lessee agrees to save the Lessor harmless and indemnified from al1
loss, damage, liability or expense incurred or claimed by reason of Lessee's
neglect or use of the premises, or by reason of any injury or property damage to
any person or property on the premises described herein, except such as is
caused by the negligence of the Lessor, and Lessee further agrees to pay all
legal expenses, including a reasonable attorney's fee, incurred by the Lessor by
reason of the commencement of legal proceedings to enforce any of the provisions
of this Lease and resulting in a decree or award in favor of the Lessor.
The Lessor shall not be liable, and the Lessee hereby waives all
claims against the Lessor, for any injury, loss or damage, by theft or
otherwise, or damage either to person or property, sustained by the Lessee or
other persons, whether due to the building or any part or appurtenances thereof
becoming out of repair, or arising from bursting of pipes or resulting from
steam, electricity, gas, odors, water, rain or snow which may leak or come from
any part of the building or adjoining premises, or due to the happening of any
accident in or about the building, or to pipes or appurtenances, or plumbing
works therein, or from
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any other cause whatsoever, unless caused by the negligence of the Lessor.
12. In case the demised premises are damaged by fire or other
casualty, the Lessor covenants and agrees, subject to the right of cancellation
hereinafter set forth, promptly to repair or restore the same and obtain
certificates approving all such repairs from all public authorities having
jurisdiction, subject to reasonable delays in collection of insurance funds or
due to restrictions on or inability to obtain labor or materials, or due to
other causes or conditions beyond the control of the Lessor. Prompt repair or
restoration shall be deemed to allow a reasonable time for the parties to make a
survey and determination of the extent of the damage and the probable cost of
necessary repairs and restoration and to prepare suitable plans and
specifications for and to repair or restore the demised premises in accordance
with such determination.
In the event the damage to the demised premises is of such nature and
extent as to require expenditures for repairing and restoration in excess of
25%, but less than 50% of the replacement value of the improvements upon the
demised premises as later determined for fire insurance purposes, Lessor shall
have one hundred twenty (120) days from the date the damage occurs or if 50% of
such replacement value, then Lessor shall have two hundred ten (210) days from
the date the damage occurs to repair and restore the demised premises to a
condition substantially equal to or better in every respect than their condition
prior to such damage. Lessor shall submit to Lessee
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full information obtained by it as to the cost of repairing and restoring the
demised premises. If all repairs and restoration are not substantially completed
within the time limits herein stated, then Lessee may at its option terminate
this Lease on written notice given thirty (30) days after expiration of the
applicable time limit. Expenditures for repairing and restoration shall include
the cost of decorating and refurbishing, but shall exclude damage to personal
property owned by Lessee.
If the demised premises are untenantable for Lessee's purposes in
whole or in part due to damage by fire or other casualty, or the repair of such
damage, Lessee's obligation to pay rent and taxes shall be abated
proportionately from the date of such damage until the demised premises are
repaired or restored, and any unearned rent paid by Lessee shall be refunded or
credited upon rent subsequently payable by Lessee if this Lease continues in
effect.
13. In the event that the building or the demised premises shall be
taken or condemned by any competent authority for any public use or purpose, or
in the event that prior to such taking or condemnation, Lessor deems it
expedient to sell the premises to such public authority, the term of this Lease
shall end upon the first to occur of sale of the premises or the date when the
possession of the portion so taken shall be required for such use or purpose,
and the Lessee shall have no claim against the Lessor and shall not be entitled
to any portion of the amount which may be awarded as damages or paid as a result
of such
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condemnation proceedings. In the event of termination of this Lease as herein
provided, the rental shall be apportioned to the date of such termination.
14. The Lessee shall not assign this Lease without the consent in
writing of Lessor. Such consent shall not be unreasonably withheld. It is
understood and agreed, however, that if the Lessee shall be declared bankrupt,
shall have a receiver appointed of its property, which receiver shall not be
discharged in thirty (30) days, or shall Lessee make an assignment for the
benefit of creditors, or its rights hereunder shall be taken under execution, it
shall be construed as an assignment of this Lease within the meaning hereof and
Lessor shall have the right to terminate this Lease upon the happening of the
foregoing event. In the event, however, that Lessee is the subject or involved
in a merger or consolidation, this Lease will not be construed as being assigned
in the event that the resulting corporation of such merger or consolidation has
total assets and a net worth after such consolidation merger equal to or greater
than that of the Lessee immediately prior to such consolidation or merger.
Notwithstanding the foregoing, such act shall require the consent of Lessor and
Lessor's mortgagee, which consent shall not be unreasonably withheld.
15. The Lessee covenants and agrees to pay and discharge all
reasonable costs, attorneys' fees and expenses that shall be paid and incurred
by the said Lessor in enforcing the covenants and agreements of this Lease on
account of Lessee's default hereunder.
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16. The Lessor may at all reasonable times enter said premises to
inspect the same, but agrees to maintain confidentiality; and not to use or
divulge any proprietary information of Lessee disclosed during such inspection.
17. In case the Lessee shall vacate or abandon said premises, or
shall default in any of its covenants herein, and said default shall not be
cured within ten (10) days after notice thereof in writing from the Lessor, the
Lessor is hereby authorized to re-enter said premises, to eject the Lessee, and
take full possession of said premises, to terminate this Lease at its option and
to release and let said premises on such terms as to Lessor shall seem best, to
remove from said premises all personal property of the Lessee, and to store the
same to the account and at the expense and risk of the Lessee, and to sell said
property or any part thereof, and out of the proceeds to pay all expenses of so
removing, storing and selling the same, and all sums which shall then be in
arrears or past due for rent; and that no such act or acts of the Lessor shall
be construed as cancellation of this Lease or waiver of the right of the Lessor
to collect rent hereunder for the remainder of said term, except said exercise
of its option to terminate the same; and that in case the Lessor shall determine
that any action or proceeding at law or otherwise is necessary to enforce the
terms and conditions hereof, the Lessee agrees that a reasonable attorney's fee
and the necessary costs and disbursements thereof may be allowed and taxed
against it.
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18. That no sign, advertisement or notice will be placed or painted on
any part of the outside or inside of said building or leased premises, except in
such manner, style and places as approved in writing by the Lessor and the
Village of Dublin, Ohio, which approval shall not be unreasonably withheld, and
the Lessor reserves the right to remove all others at the expense of Lessee.
19. At all times during the term of this Lease, the Lessee shall and
may peaceably and quietly hold and enjoy the demised premises free from
molestation, invasion or disturbance.
20. That Lessor shall have the right to enter the leased premises
during twelve (12) months prior to the termination of this Lease, to show the
same to prospective tenants, and to place on doors and windows the usual notice
that the premises are for rent, upon giving reasonable prior notice to Lessee.
21. This Lease shall be subject and subordinate at all times to the
lien of any mortgages or ground rents now or hereafter placed on the demised
premises without the necessity of any further instrument or act on the part of
Lessee to effect such subordination, provided that the holder of any such
mortgage shall on behalf of itself, its successors and assigns, agree that
Lessee shall have the quiet enjoyment of the demised premises for the term of
this Lease in accordance with every provision hereof, so long as Lessee shall
fully and faithfully perform all of the terms, covenants and conditions of this
Lease on its part to be performed, irrespective of Lessor's default. Lessee
covenants and agrees to execute and deliver upon demand such further
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instrument or instruments evidencing such subordination of this Lease upon the
foregoing terms as shall be desired by any mortgagee or proposed mortgagee or by
any person entitled thereto.
22. Except as other provisions may herein specifically be made, in the
event that either Lessee or Lessor as the obligated party, after ten (10) days'
written notice from the other party, fails or refuses to make any of the
payments when due as required of such obligor by this Lease (other than the
payment of the rent reserved hereunder), or to do or cause to be done promptly
any and all of the acts and things in this Lease provided to be done by such
obligor, then the other party shall have the right, (but shall be under no
obligation to the obligor to do so), to advance any and all sums of money or do
or cause to be done any and all acts and things necessary or proper to be done
or performed by the obligor, and in such event, the obligor covenants and agrees
forthwith upon demand to repay to such other party any and all sums so advanced
or expended to do or cause to be done any and all such acts and things.
In the event that the obligor fails within ten (10) days after written
demand by the other party to repay (or, if applicable, to allow a deduction from
rental) any sum advanced by the other party pursuant to the foregoing
provisions, there shall be added to the sum to be repaid interest thereon from
the date of demand to the date of repayment at the rate of ten (10%) percent per
annum.
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The Lessee may, (but shall not be obligated to), from time to time,
make such payments on account of mortgages or deeds or trust or other
encumbrances on or liens against the Lessor's estate as may be necessary in the
Lessee's judgment for the protection of the Lessee's estate. The Lessee in
making any such payments shall be subrogated as against the Lessor to the rights
of the parties to whom such payments are made, and if the Lessor shall after
notice fail to repay any amount so paid, the Lessee shall also have the right to
deduct the amount so paid, with legal interest thereon, from the rental
thereafter accruing, until fully reimbursed.
23. All notices, consents, demands and requests which may be or are
required to be given by either party to the other, shall be in writing, and
shall be sent by United States registered or certified mail, with return receipt
requested, addressed as follows:
TO LESSOR: DUBLIN INVESTMENT COMPANY
000 X. Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
PAYCO AMERICAN CORPORATION
000 X. Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
The date shown on the return receipt as of the date of which said registered or
certified mail is received by the addressee shall be conclusively deemed to be
the date on which a notice, consent, demand or request is given or made. The
above address or a party may be changed at any time, or from time to time by
notice given by said party to the other party in the manner hereinabove
provided.
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24. Simultaneously with or subsequent to the execution hereof, the
parties hereto shall, at the option of either party, execute a short form lease
for recording purposes, and, in such event, the terms thereof shall constitute a
part of this Lease as fully as though recited at length herein.
25. This Lease and all the covenants, terms, provisions and conditions
herein contained shall inure to the benefit, and be binding upon the Lessor and
Lessee, their respective successors and assigns.
26. Lessor agrees that should it at any time offer the property for
sale and receive an acceptable offer to purchase the premises, it will notify
Lessee in writing, attaching an exact copy of the offer. Lessee shall then have
thirty (30) from receipt of such offer to make a similar offer as to price,
terms and conditions with respect to the purchase of the premises. If Lessee
does not make such an offer within thirty (30) days, or prior thereto indicate
its intention not to make such an offer, then Lessor shall be free to sell the
premises to such third-party bona fide purchaser on the same terms and
conditions as submitted by the original offer. If there are any changes or
modifications to the original offer, Lessee must be informed of such changes and
be given ten (10) days to make a similar offer based on such changes or
modifications. This right of first refusal shall exist only during the period in
which this Lease is in effect.
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IN WITNESS WHEREOF, the Lessor and Lessee have caused this Lease
Agreement to be executed by the persons duly authorized on the day and year
first above written.
DUBLIN INVESTMENT COMPANY
A Wisconsin General Partnership
Lessor
By: /s/Xxxx X. Xxxxxx
----------------------
Authorized Partner
By: /s/Xxxxxxx Xxxxx
----------------------
Authorized Partner
PAYCO AMERICAN CORPORATION
Lessee
By: /s/Xxxxxx Punches
-----------------------
President
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ADDENDUM TO LEASE
THIS ADDENDUM is made to a Lease entered into on the 14 day of July, 1986,
between DUBLIN INVESTMENT COMPANY, a Wisconsin partnership, referred to as
"Lessor," and PAYCO AMERICAN CORPORATION, a Delaware corporation, referred to as
"Lessee."
WITNESSETH:
WHEREAS, the purpose of this Addendum to Lease is to establish terms
relating to the cost of leasehold improvements required by Payco American
Corporation beyond normal building standards. The specific leasehold
improvements are outlined in exhibits from The Daimler Group to the Dublin
Investment Company. The leasehold improvements relate to a forty-three thousand
(43,000) square foot building located in the Village of Dublin, County of
Franklin, State of Ohio, and
WHEREAS, at the time of entering into the Lease modified by this Addendum
the cost and extent of such leasehold improvements was unknown. Payco requests
have now been made known and the cost of land for additional parking, site
lighting, landscaping, cost for additional HVAC for computer facilities,
premiums for vinyl wallcoverings throughout the building, special electrical and
CRT computer wiring, extra plumbing because of dense occupancy, far exceed
normal building standards .
NOW, THEREFORE, in consideration of these additional leasehold improvements
and of the mutual benefits to be derived therefrom, it is agreed that Payco
American Corporation shall pay to the
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Dublin Investment Company, or its designee, a sum of four hundred nine thousand
dollars ($409,000) for such leasehold improvements as outlined above, after
Payco has reviewed such leasehold improvements and prior to the time that Payco
moves into the new facility.
IN WITNESS THEREOF, the Lessor and Lessee have caused this Addendum to
Lease to be executed this 14 day of May, 1987.
/s/Xxxx X. Xxxxxx
---------------------------
Xxxx X. Xxxxxx
Managing Partner
PAYCO AMERICAN CORPORATION
Lessee
By /s/Xxxxxx Punches
-------------------------
President
[letterhead of The Daimler Group]
July 10, 1966
To: Dublin Investment Company
Re: Leasehold Improvements above building standard
o Extra size of site to include ground parking, $490,000
landscaping, site lighting, etc.
3.5 acres at $140,000/acre
o Additional HVAC for computer facilities as $ 10,000
well as to compensate for large
quantity of employees.
o Premium for vinyl wallcovering throughout. $ 25,000
o CRT, computer wiring and special electrical $ 13,000
o Extra plumbing because of occupancy. $ 10,000
o Patio furniture $ 5,000
--------
Total $553,000
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