OFFICE SPACE LEASE
for
000 XXXX XXXXXXXXXXXX XXXXXX,
XXXX XXXXXXXXXX XXXXXXXXXXXX
by and between
INDIANA AVENUE ASSOCIATES, L.P.
a Pennsylvania limited Partnership
(as Landlord)
and
NCO GROUP, INC.
a Pennsylvania corporation
(as Tenant)
Date: _______, 1997
THIS LEASE (the "Lease") is made as of March 18, 1997 between INDIANA
AVENUE ASSOCIATES, L.P., a Pennsylvania limited partnership (herein referred
to as "Landlord") whose address is 000 Xxxxx Xxxxx Xxxx, Xxxx xx Xxxxxxx,
Xxxxxxxxxxxx 00000 and NCO GROUP, INC., a Pennsylvania corporation (herein
referred to as "Tenant") whose address is 0000 Xxxxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxxxx, 00000.
PREAMBLE
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the
following terms whenever used in this Lease shall have only the meanings set
forth in this section, unless such meanings are expressly modified, limited or
expanded elsewhere herein.
1. ADDITIONAL RENT shall mean all sums in addition to Fixed Basic Rent payable
by Tenant to Landlord pursuant to the provisions of the Lease.
2. BROKER(S) shall mean Xxxxxx - Pitcairn, Inc..
3. BUILDING shall mean 000 Xxxx Xxxxxxxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx.
4. COMMENCEMENT DATE is July 1, 1997 provided Landlord shall deliver the
Premises with all Landlord Work substantially completed and in broom clean
condition, free of debris, furniture and equipment (unless specified by
Tenant) ready for the construction of Tenant Improvements on or before June
15, 1997. Tenant shall have the right from June 15, 1997 through July 1, 1997
to occupy the Premises for the construction of Tenant Improvements and the
installation of furniture, equipment and fixtures (the "Beneficial Use
Period"). There will be no Fixed Basic Rent or Additional Rent for the
Beneficial Use Period. Upon Tenant's occupancy of the Premises, Tenant shall
execute a Commencement Date Agreement substantially in the form attached
hereto as Exhibit E.
5 DEMISED PREMISES OR PREMISES shall be approximately 82,000 gross rentable
square feet as shown on Exhibit A hereto.
6 EXHIBITS shall be the following, attached to this Lease and incorporated
herein and made a part hereof:
Rider A Renewal Option
Rider B Lease Termination Fee and Commencement
Date Penalty
Exhibit A Location of Premises
Exhibit B Plans and Specifications for Landlord's Work
Exhibit B-1 List of Approved General Contractors
Exhibit C Rules and Regulations
Exhibit D Tenant Estoppel Certificate
Exhibit E Commencement Date Agreement
Exhibit F HVAC Service Contract Specifications
7. EXPIRATION DATE shall be the day before the twelfth (12th) calendar year
anniversary of the Commencement Date.
8. FIXED BASIC RENT shall mean except for the Fixed Basic Rent during the
Renewal Option periods set forth on Rider A: Twelve Million Six Hundred Sixty
Nine Thousand and 00/100 Dollars ($12,669,000.00), net of electric, calculated
and payable as follows:
Years 1 - 5 Years 6 - 12
----------- ------------
Per Rentable Square Foot $13.50 $14.50
Yearly Rate: $1,107,000.00 $1,189,000.00
Monthly Installment: $92,250.00 $99,083.33
9. ADDITIONAL RENT shall mean any and all sums other than Fixed Basic Rent
which may be due from time to time from Tenant to Landlord or to third parties
pursuant to the terms of the Lease.
10. OFFICE BUILDING AREA is as set forth on Exhibit A
11. PERMITTED USE shall be general office use and for no other purpose.
12. PROPORTIONATE SHARE shall mean one hundred percent (100%).
13. SECURITY DEPOSIT shall mean one (1) month Fixed Basic Rent in the amount
of Ninety Two Thousand Two Hundred Fifty and 00/100 Dollars ($92,250.00).
14. TERM shall mean twelve (12) years from the Commencement Date.
TABLE OF CONTENTS
Section Page
1. Definitions..........................................................1
2. Premises.............................................................1
3. Landlord's Work......................................................1
4. Term.................................................................1
5. Use of Premises......................................................2
6. Rent.................................................................2
7. Taxes................................................................3
8. Insurance............................................................4
9. Repairs and Maintenance..............................................5
10. Utilities and Services...............................................6
11. Governmental Regulations.............................................6
12. Signs................................................................7
13. Alterations, Additions and Fixtures..................................7
14. Mechanic's Liens.....................................................8
15. Landlord's Right of Entry............................................9
16. Damage by Fire or Other Casualty....................................10
17. Non-Abatement of Rent...............................................11
18. Indemnification.....................................................11
19. Condemnation........................................................12
20. Quiet Enjoyment.....................................................13
21. Rules and Regulations...............................................13
22. Assignment and Sublease.............................................14
23. Tenant's Expansion/Relocation.......................................17
24. Subordination.......................................................17
25. Non-Disturbance.....................................................17
26. Curing Tenant's Defaults............................................18
27. Surrender...........................................................18
28. Defaults-Remedies...................................................18
29. Condition of Premises...............................................21
30. Hazardous Substances................................................22
31. Recording...........................................................22
32. Broker's Commission.................................................23
33. Notices.............................................................23
34. Irrevocable Offer, No Option........................................24
35. Inability to Perform................................................24
36. Survival............................................................24
37. Corporate Tenants...................................................24
38. Waiver of Invalidity of Lease.......................................24
39. Security Deposit....................................................24
40. Tenant Estoppel Certificate.........................................25
41. Rights Reserved by Landlord.........................................25
42. Miscellaneous.......................................................27
43. Additional Definitions..............................................28
For and in consideration of the covenants herein contained, and upon
the terms and conditions herein set forth, Landlord and Tenant, intending to
be legally bound, agree as follows:
1. Definitions. The definitions set forth in the preceding Preamble
shall apply to the same capitalized terms appearing in this Lease Agreement.
Additional definitions are contained in Section 43 and throughout this Lease.
2. Premises. Landlord hereby demises and leases the Premises to
Tenant for Tenant's sole and exclusive use and Tenant hereby leases and takes
the Premises from Landlord for the Term (as defined in Section 4) and upon the
terms, covenants, conditions, and provisions set forth in this Lease
Agreement, including the Preamble (this "Lease").
3. Landlord's Work.
a) Landlords Work. Landlord, at Landlord's sole cost and expense,
shall cause to be completed upon the Premises and the Property, the work
(collectively, the "Landlord's Work"), all in a good and workmanlike manner
and in accordance with the Plans and Specifications attached hereto as Exhibit
B. The Landlord shall use a general contractor from a list of general
contractors which have been approved by Tenant as set forth on Exhibit B-1 to
perform the Landlord's Work. Landlord, as part of the Landlord's Work, shall
replace the existing roof of the Building and obtain a warranty for not less
than fifteen (15) years from the date of installation of same. In addition,
Landlord shall recoat and restripe the existing parking lot every seven (7)
years in such a manner as to provide no less than the number of parking spaces
existing as of the Commencement Date. Landlord shall obtain a warranty for not
less than one (1) year from its general contractor for the Landlord's Work as
well as a warranty for the HVAC system which is being replaced in accordance
with the Landlord's Work. Landlord shall assign, without recourse, any and all
of its rights under the warranty it obtains from its general contractor as
well as the roof and HVAC warranties to Tenant. Within ten (10) days of the
Commencement Date, Tenant shall deliver a complete and final punchlist to
Landlord which punchlist items shall be completed by Landlord within forty
five (45) days of receipt thereof. Except as expressly provided on Exhibit B
hereto, Landlord shall not be obligated to perform any alteration, improvement
or addition to the Premises or the Property and all such further alterations,
improvements or additions or to the Premises shall be made at Tenant's sole
cost and expense and made only in accordance with Section 13 hereof.
4. Term. The term of this Lease shall commence on the Commencement
Date. Following the Commencement Date, the term of this Lease, unless sooner
terminated as expressly provided in this Lease, shall continue until the date
of expiration of the term specified as the Term of Lease in the Preamble plus
the number of days which remain in the calendar month in which such term
expires (the "Term"). Notwithstanding the foregoing, Tenant shall have the one
time right to terminate this Lease as if such termination date were the date
of termination set forth in the Preamble subject to the following conditions:
(i) Landlord has received one hundred and twenty (120) months of Fixed Basic
Rent and Additional Rent; (ii) Tenant gives Landlord in writing at least six
(6) months prior notice of such termination; and (iii) Tenant reimburses
Landlord for all costs of (x) unamortized tenant improvements completed in
accordance with section 3 of this Lease; and (y) unamortized brokerage
commissions and bonuses paid by Landlord on account of this Lease.
5. Use of Premises. Tenant shall occupy the Premises throughout the
Term and shall use the same for, and only for, the Permitted Use specified in
the Preamble. The Building is designed to normal building standards for
floor-loading capacity. Tenant shall not use the Premises in such ways which,
in Landlord's judgment, exceed such load limits.
6. Rent. Unless otherwise specifically requested by Landlord at any
time, Fixed Basic Rent, Additional Rent and any other rent or other sums due
under this Lease (hereunder collectively referred to as "Rent") shall be paid
and delivered to Landlord, in the amounts, time and manner more particularly
provided in this Lease.
a. Fixed Basic Rent. Tenant shall pay, throughout the Term, Fixed
Basic Rent in the amount specified on the Preamble (or in the Renewal Option,
if applicable), without notice or demand and without setoff or deduction, in
equal monthly installments equal to one-twelfth of the Fixed Basic Rent
(specified as Monthly Installments in the Preamble or in the Renewal Option),
in advance, on the first day of each calendar month during the Term. If the
Commencement Date falls on a day other than the first day of a calendar month,
the Fixed Basic Rent shall be apportioned on a per diem basis for the period
between the Commencement Date and the first day of the first full calendar
month in the Term and such apportioned sum shall be paid on the Commencement
Date.
b. Additional Rent. Tenant shall pay to Landlord or Landlord's
designated property management affiliate throughout the Term as Additional
Rent a management fee of $10,000.00 per year, payable in equal and consecutive
monthly installments of $833.33, on the first day of each calendar month of
the Term. The scope of the management services to be provided by Landlord or
Landlord's designated property management affiliate shall be set forth in a
writing to be signed by Landlord and Tenant which shall be incorporated in and
become a part of this Lease. All operating expenses, utilities and taxes shall
be paid by Tenant directly to the vendor or service provider selected by
Tenant or the applicable taxing authority as more fully set forth in this
Lease.
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c. Independent Covenant; Survival. Tenant's covenant to pay the Rent
is independent of any other covenant, agreement, term or condition of this
Lease. Without limitation of any obligation of Tenant under this Lease which
shall survive the expiration of the Term, the obligation of Tenant to pay the
Rent shall survive the expiration of the Term.
7. Taxes.
a) Real Property Taxes. Tenant shall pay all Real Property Taxes
applicable to the Premises directly to the applicable taxing authority during
the term of this Lease. All such payments shall be made at least ten (10) days
prior to the delinquency date of such payment. Tenant shall promptly furnish
Landlord with satisfactory evidence that all Real Property Taxes have been
paid. If any Real Estate Taxes paid by Tenant shall cover any period of time
prior to or after the expiration of the term hereof, Tenant's share of such
Real Property taxes shall be equitably prorated to cover only the period of
time within the fiscal year applicable to such Real Property Taxes during
which this Lease shall be in effect, and Landlord shall reimburse Tenant to
the extent required within thirty (30) days of the expiration of the Term. If
Tenant shall fail to pay any Real Property Taxes, Landlord shall have the
right to pay the same, in which event Tenant shall repay such amount to
Landlord with Tenant's next rent installment together with interest at the
rate applicable hereunder for sums overdue after any applicable notice or
grace period. For purposes of this Lease, the term "Real Property Taxes" shall
include any form of real estate tax or assessment, general, special, ordinary
or extraordinary, and any license fee, commercial rental tax, improvement bond
or bonds, levy or tax (other than inheritance, personal income or estate
taxes) imposed on the Premises by any authority having the direct or indirect
power to tax, including any city, state or federal government, or any school,
agricultural, sanitary, fire, street, drainage or other improvement district
thereof, as against any legal or equitable interest of Landlord in the
Premises or in the real property of which the Premises are a part, as against
Landlord's right to rent or other income therefrom, and as against Landlord's
business of leasing the Premises. The term "Real Property Taxes" shall also
include any tax, fee, levy, assessment or charge (i) in substitution of,
partially or totally, any tax, fee, levy assessment or charge hereinabove
included within the definition of "Real Property Taxes", or (ii) the nature of
which was hereinbefore included within the definition of "Real Property
Taxes", or (iii) which is added to a tax or charge hereinbefore included
within the definition of "Real Property Taxes" by reason of such transfer,
(iv) which is imposed by reason of this transaction, any modifications or
changes hereto or any transfers hereof, or (v) any fee assessed or charged by
any third party in connection with any assessment appeal or Real Property
Taxes valuation adjustment which actually results in a reduction of the Real
Property Taxes.
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b. Personal Property Taxes. Tenant shall pay directly to the
applicable taxing authority prior to delinquency all taxes, if any, assessed
against and levied upon trade fixtures, furnishings, equipment and all other
personal property of Tenant contained in the Premises or elsewhere. When
possible, Tenant shall cause said trade fixtures, furnishings, equipment and
all other personal property to be assessed and billed separately from the real
property of Landlord. In the event any of Tenant's personal property shall be
assessed with Landlord's real property, Tenant shall pay to Landlord the taxes
attributable to Tenant's property within ten (10) days after receipt of a
written statement setting forth the taxes applicable to Tenant's property.
8. Insurance.
a) Liability. Tenant, at Tenant's sole cost and expense, shall
maintain and keep insurance in effect throughout the Term against liability
for bodily injury (including death) and property damage in or about the
Premises or the Property under a policy of comprehensive general public
liability insurance, with such limits as to each as may be reasonably required
by Landlord from time to time, but not less than $2,000,000.00 for each person
and $5,000,000.00 in the aggregate for bodily injury (including death) to more
than one (1) person and $2,000,000.00 for property damage. The policies of
comprehensive general public liability insurance shall name Landlord and
Tenant (and if requested, any mortgagee of Landlord) as the insured parties to
the extent of their respective interests. Each such policy shall provide that
it shall not be cancelable without at least thirty (30) days prior written
notice to Landlord and to any mortgagee named in an endorsement thereto and
shall be issued by an insurer and in a form satisfactory to Landlord. At least
ten (10) days prior to the Commencement Date, and thereafter upon Landlord's
request, a certificate of insurance shall be delivered to Landlord proving
compliance with the foregoing requirements. If Tenant shall fail, refuse or
neglect to obtain or to maintain any insurance that it is required to provide
or to furnish Landlord with satisfactory evidence of coverage on any such
policy upon demand, Landlord, after three (3) days prior written notice to
Tenant, shall have the right to purchase such insurance. All payments made by
Landlord for such insurance shall be recoverable by Landlord from Tenant,
together with interest thereon, as Additional Rent promptly upon demand.
Notwithstanding anything contained herein to the contrary, Tenant may
self-insure all of its personal property situated within the Premises against
property damage and destruction.
b) Waiver of Subrogation. The parties to this Lease each release the
other, to the extent of the releasing party's insurance coverage, from any and
all liability for any loss or damage covered by such insurance which may be
inflicted upon the property of such party even if such loss or damage shall be
brought about by the fault or negligence of the other party, its agents or
employees. If any policy does not permit such a release of liability and a
waiver of subrogation, and if the party to benefit therefrom requests that
such a waiver be obtained, the other party agrees to use its best efforts to
obtain an endorsement to its insurance policies permitting such waiver of
subrogation if it is available. If an additional premium is charged for such
waiver, the party benefiting therefrom agrees to pay the amount of such
additional premium promptly upon demand. In the event a party is unable to
obtain such a waiver, it shall immediately notify the other party of its
inability. In the absence of such notifications, each party shall be deemed to
have obtained such waiver of subrogation.
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c) Increase of Premiums. Tenant will not do anything or fail to do
anything or permit anything to be done which will cause the cost of Landlord's
insurance to increase or which will prevent Landlord from procuring insurance
(including but not limited to public liability insurance) from companies, and
in a form, satisfactory to Landlord. If any breach of this subsection (c) by
Tenant shall cause the rate of fire or other insurance to be increased, Tenant
shall pay the amount of such increase as Additional Rent promptly upon demand.
If Tenant does anything or fails to do anything or permits anything to be done
for which insurance cannot be obtained, Landlord may terminate this Lease upon
written notice to Tenant.
9. Repairs and Maintenance.
a) Tenant shall, throughout the Term and at Tenant's sole cost and
expense keep in good order, condition and repair the Premises and every part
thereof, structural and nonstructural (whether or not such portion of the
Premises requiring repair or the means of repairing the same are reasonably or
readily accessible to Tenant, and whether or not the need for such repairs
occurs as a result of Tenant's use, any prior use, the elements or the age of
such portion of the Premises) including, without limitation, all plumbing,
heating, air conditioning, ventilating, electrical, lighting facilities and
equipment within the Premises, fixtures, walls (interior and exterior),
foundations, ceilings, roofs, floors, windows, doors, plate glass and
skylights located within the Premises, and all landscaping, driveways, parking
lots, fences and signs located on the Premises and sidewalks and parkways
adjacent to the Premises. Tenant shall pay directly to a mutually acceptable
HVAC contractor for standard scheduled maintenance of the Building's HVAC
system(s). Tenant and Landlord shall jointly select a mutually acceptable and
qualified HVAC maintenance contractor by July 1, 1997 to perform the HVAC
maintenance services set forth on Exhibit F. Notwithstanding the foregoing,
Landlord shall be responsible, at its sole cost and expense, for all costs
incurred for repairs and replacements to decks, exterior walls, existing
windows (at the time of execution of this Lease) slabs, foundations, roof,
parking lot or other site infrastructure elements which are considered capital
improvements or replacements under Generally Accepted Accounting Principles.
b) Notwithstanding the foregoing, repairs and replacements to the
Premises and the Property arising out of or caused by Tenant's use, manner of
use or occupancy of the Premises, by Tenant's installation of alterations,
additions, improvements, trade fixtures or equipment in or upon the Premises
or by any act or omission of Tenant or any employee, agent, contractor or
invitee of Tenant shall be made at Tenant's sole cost and expense and Tenant
shall pay Landlord the actual cost of any such repair or replacement, as
Additional Rent, upon demand.
5
c) In the event that Tenant fails to perform or satisfy any
maintenance or repair obligation arising under this Section 9, Landlord, upon
five (5) days prior written notice, by United States mail return receipt
requested or by reputable national overnight delivery service, shall have the
right, but not the obligation to perform said services. Any monies reasonably
expended by Landlord in connection with performance of Tenant's obligations in
this Section 9 shall, upon notice (as provided herein) constitute Additional
Rent payable by Tenant to Landlord.
10. Utilities and Services.
a) Tenant shall pay for all electricity, water, gas, heat, light,
power, telephone and other utilities and services supplied to the Premises,
together with any taxes thereon and shall have all such utilities provided to
the Premises in the Tenant's name.
b) Landlord shall not be liable for any damages to Tenant resulting
from the quality, quantity, failure, unavailability or disruption of any
services beyond the reasonable control of Landlord unless directly caused by
the negligence of Landlord, its representatives or agents and the same shall
not constitute a termination of this Lease or an actual or constructive
eviction or entitle Tenant to an abatement of rent. In the event that (i)
twenty-five percent (25%) or more of the Premises becomes untenantable solely
as a result of the negligence of Landlord, its representatives or agents and
(ii) such condition (a "Basic Services Failure") continues for a period in
excess of three (3) consecutive days, Tenant shall receive a full abatement of
Rent due under this Lease Agreement for the Premises (or such portion of the
Premises rendered untenantable because of a Basic Services Failure) until such
service is restored.
11. Governmental Regulations.
a) Landlord and Tenant shall comply with all laws, ordinances,
notices, orders, rules, regulations and requirements of all federal, state and
municipal government or any department, commission, board of officer thereof,
or of the National Board of Fire Underwriters or any other body exercising
similar functions, relating to the Premises or to the use or manner of use of
the Property. Tenant shall not knowingly do or commit, or suffer to be done or
committed anywhere in the Building, any act or thing contrary to any of the
laws, ordinances, regulations and requirements referred to in this Section.
Tenant shall give Landlord prompt written notice of any accident in the
Premises and of any breakage, defect or failure in any of the systems or
equipment servicing the Premises or any portion of the Premises.
b) Tenant shall pay a pro rata share of capital improvements which
Landlord shall install or construct in compliance with governmental
requirements which take effect after the commencement of the Term hereof or as
energy saving devices. Tenant's pro rata share shall be determined based upon
the estimated life of the capital investment item, determined by Landlord in
accordance with generally accepted accounting principles, and shall include a
cost of capital funds adjustment equal to nine and three-quarters percent
(9.75%) per year on the unamortized portion of all such costs. Tenant shall
only have to pay for the portion of the useful life of the capital improvement
which falls within the Term. Tenant shall thus make payments in equal annual
installments for such capital improvements until the Term expires or until the
cost of the improvement has been fully paid for, whichever first occurs.
6
12. Signs. Except for signs which are located wholly within the
interior of the Premises and which are not visible from the exterior of the
Premises, Tenant shall not place, erect, maintain or paint any signs upon the
Premises or the Property unless the design of such signs comply with all Fort
Washington Township and other applicable governmental rules, regulations,
ordinances or other statutes. Tenant shall be solely responsible for all costs
and expenses associated with the erection of any signs upon the Premises and
shall be obligated to obtain and provide to Landlord any and all necessary
permits prior to the placement or erection of such signs.
13. Alterations, Additions and Fixtures.
a) Tenant shall have the right to install in the Premises any trade
fixtures; provided, however, that no such installation and no removal thereof
shall be permitted which affects any structural component of the Building or
Premises and that Tenant shall repair and restore any damage or injury to the
Premises or the Property caused by installation or removal.
b) Tenant shall not make or permit to be made any alterations,
improvements or additions to the Premises or Property without on each occasion
first presenting plans and specifications to Landlord and obtaining Landlord's
prior written consent, which shall not be unreasonably withheld or delayed and
shall be communicated to Tenant by Landlord within fifteen (15) business days
after Landlord's receipt of Tenant's proposed plans and specifications.
Notwithstanding the foregoing, Landlord's consent may be conditioned upon
compliance with reasonable requirements of Landlord including, without
limitation, the filing of mechanics' lien waivers by Tenant's contractors and
the submission of written evidence of adequate insurance coverage naming
Landlord as an additional insured thereunder. If Landlord consents to any
proposed alterations, improvements or additions or Tenant's contractor
performs any of the work identified in Section 3 of this Lease Agreement, then
Tenant shall make the proposed alterations, improvements and additions at
Tenant's sole cost and expense provided that: (i) Tenant supplies any
necessary permits; (ii) such alterations and improvements do not, in
Landlord's reasonable judgment, impair the structural strength of the Building
or any other improvements or reduce the value of the Property; (iii) Tenant
takes or causes to be taken all steps that are otherwise required by Section
14 of this Lease and that are required or permitted by law in order to avoid
the imposition of any mechanic's, laborer's or materialman's lien upon the
Premises or the Property; (iv) the alterations, improvements or additions
shall be installed in accordance with the approved plans and specifications
and completed according to a construction schedule submitted by Tenant and
approved by Landlord which approval shall not be unreasonably withheld; and
(v) Tenant provides insurance of the types and coverage amounts required by
Landlord. Any and all alterations, improvements and additions to the Premises
which are constructed, installed or otherwise made by Tenant shall be the
property of Tenant until the expiration or sooner termination of this Lease;
at that time all such alterations and additions shall remain on the Premises
and become the property of Landlord without payment by Landlord unless, upon
the termination of this Lease, Tenant elects, at its sole discretion to remove
the same in which event Tenant will remove such alterations, improvements and
additions, and repair and restore any damage to the Property caused by the
installation or removal. Notwithstanding the foregoing, Tenant shall not be
required to obtain the prior written consent of Landlord to perform
alterations to the interior of the Premises that are non-structural and normal
for office use if the total cost of such work is less than $25,000.00,
provided, however, Tenant shall provide prior written notice thereof to
Landlord. Notwithstanding anything to the contrary contained in this Lease,
Landlord may withhold its approval to any proposed alterations, additions or
improvements to the Premises in its reasonable discretion with respect to any
such alteration, addition or improvement which Landlord determines involves
any modification to the Building's exterior or its structural, electrical,
mechanical or plumbing systems, or any components thereof.
7
14. Mechanic's Liens. Tenant shall promptly pay any contractors and
materialmen who supply labor, work or materials to Tenant at the Premises or
the Property so as to minimize the possibility of a lien attaching to the
Premises or the Property. Tenant shall take all steps permitted by law in
order to avoid the imposition of any mechanic's, laborer's or materialman's
lien upon the Premises or the Property. Should any such lien or notice of lien
be filed for work performed for Tenant other than by Landlord, Tenant shall
cause such lien or notice of lien to be discharged of record by payment,
deposit, bond or otherwise within thirty (30) days after the filing thereof or
after Tenant's receipt of notice thereof, whichever is later, regardless of
the validity of such lien or claim. If Tenant shall fail to cause such lien or
claim to be discharged and removed from record within such thirty (30) day
period, then, without obligation to investigate the validity thereof and in
addition to any other right or remedy Landlord may have, Landlord may, but
shall not be obligated to, contest the lien or claim or discharge it by
payment, deposit, bond or otherwise; and Landlord shall be entitled to compel
the prosecution of an action for the foreclosure of such lien by the lienor
and to pay the amount of the judgment in favor of the lienor with interest and
costs. Any amounts so paid by Landlord and all costs and expenses including,
without limitation, attorneys' fees incurred by Landlord in connection
therewith, together with interest at a rate of twelve percent (12%) per annum
from the respective dates of Landlord's making such payment or incurring such
cost or expense, which shall constitute Additional Rent payable hereunder
promptly upon demand therefor. Nothing in this Lease is intended to authorize
Tenant to do or cause any work or labor to be done or any materials to be
supplied for the account of Landlord, all of the same to be solely for
Tenant's account and at Tenant's risk and expense. Further, notwithstanding
anything to the contrary contained in this Lease, nothing contained in or
contemplated by this Lease shall be deemed or construed in any way to
constitute the consent or request by Landlord for the performance of any work
or services or the furnishing of any materials for which any lien could be
filed against the Premises or the Building or the Property or any part of any
thereof, nor as giving Tenant any right, power or authority to contract or
permit the performance of any work or services or the furnishing of any
materials for which any lien could be filed against the Premises, the
Building, the Property or any part of any thereof. Throughout this Lease the
term "mechanic's lien" is used to include any lien, encumbrance or charge
levied or imposed upon the Premises or the Property or any interest therein or
income therefrom on account of any mechanic's, laborer's or materialman's lien
or arising out of any debt or liability to or any claim or demand of any
contractor, mechanic, supplier, materialman or laborer and shall include
without limitation any mechanic's notice of intention given to Landlord or
Tenant, any stop order given to Landlord or Tenant, any notice of refusal to
pay naming Landlord or Tenant and any injunctive or equitable action brought
by any person entitled to any mechanic's lien.
8
15. Landlord's Right of Entry.
a) Tenant shall permit Landlord and the authorized representatives of
Landlord and of any mortgagee or any prospective mortgagee to enter the
Premises at all reasonable times, with forty eight(48) hour prior notice
(except in the case of emergency) to Tenant, for the purpose of (i) inspecting
the Premises or (ii) making any necessary repairs to the Premises or to the
Building and performing any work therein. During the progress of any work on
the Premises or the Building, Landlord will attempt not to inconvenience
Tenant, but shall not be liable for inconvenience, annoyance, disturbance,
loss of business or other damage to Tenant by reason of making any repair or
by bringing or storing materials, supplies, tools and equipment in the
Premises during the performance of any work, and the obligations of Tenant
under this Lease shall not be thereby affected in any manner whatsoever.
b) Landlord shall have the right at all reasonable times to, with
prior notice to Tenant, enter and to exhibit the Premises for the purpose of
inspection or showing the Premises in connection with a sale or mortgage and,
during the last twelve (12) months of the Term, to enter upon and to exhibit
the Premises to any prospective tenant.
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16. Damage by Fire or Other Casualty.
a) If the Premises or Building is damaged or destroyed by fire or
other casualty, Tenant shall promptly notify Landlord whereupon Landlord
shall, subject to the consent of Landlord's present or future mortgagee and to
the conditions set forth in this Section 16, repair, rebuild or replace such
damage and restore the Premises to substantially the same condition as the
Premises were in immediately prior to such damage or destruction; provided,
however, that Landlord shall only be obligated to restore such damage or
destruction to the extent of the proceeds of fire and other extended coverage
insurance policies. Notwithstanding the foregoing, if the Premises is
destroyed or damaged to the extent that in Landlord's sole judgment the
Premises cannot be repaired or restored within one hundred eighty (180) days
after such casualty, Landlord may, subject to the rights of Landlord's
mortgagee, terminate this Lease by written notice to the Tenant within sixty
(60) days after the date of such casualty.
b) The repair, rebuilding or replacement work shall be commenced
promptly and completed with due diligence, taking into account the time
required by Landlord to effect a settlement with, and procure insurance
proceeds from, the insurer, and for delays beyond Landlord's reasonable
control.
c) The net amount of any insurance proceeds recovered by reason of
the damage or destruction of the Building (meaning the gross insurance
proceeds excluding proceeds received pursuant to a rental coverage endorsement
and the cost of adjusting the insurance claim and collecting the insurance
proceeds) shall be applied towards the cost of restoration. Notwithstanding
anything to the contrary in this Lease Agreement, if in Landlord's sole
opinion the net insurance proceeds will not be adequate to complete such
restoration, Landlord shall have the right to terminate this Lease and all the
unaccrued obligations of the parties hereto by sending a written notice of
such termination to Tenant specifying a termination date no less then ten (10)
days after its transmission; provided, however, that Tenant may require
Landlord, except during the last two (2) years of the Term, to withdraw the
notice of termination by agreeing to pay the cost of restoration in excess of
the net insurance proceeds and by giving Landlord adequate security for such
payment prior to the termination date specified in Landlord's notice of
termination. If the net insurance proceeds are more than adequate, the amount
by which the net insurance proceeds exceed the cost of restoration will be
retained by Landlord or applied to repayment of any mortgage secured by the
Premises.
d) Landlord's obligation or election to restore the Premises under
this Section shall be subject to the terms of any present or future mortgage
affecting the Premises and to the mortgagee's consent if required in the
mortgage and shall not, in any event, include the repair, restoration or
replacement of the fixtures, improvements, alterations, furniture or any other
property owned, installed, made by, or in the possession of Tenant.
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e) Landlord shall maintain sufficient amounts of insurance against
loss or damage to the Building by fire and such other casualties as may be
included within fire and extended coverage insurance or all-risk insurance,
together with a rental coverage endorsement or other comparable form of
coverage. If Tenant is dispossessed of the Premises due to fire or other
casualty, Tenant will receive an abatement of its Fixed Basic Rent and
Additional Rent and any other rent or payment which may be due hereunder
during the period Tenant is dispossessed.
17. Non-Abatement of Rent. Except as otherwise expressly provided in
subsection 16(e) and as to condemnation in subsections 19(a) and (b) there
shall be no abatement or reduction of the Fixed Basic Rent, Additional Rent or
other sums payable hereunder for any cause whatsoever and this Lease shall not
terminate, nor shall Tenant be entitled to surrender the Premises, in the
event of fire, casualty or condemnation or any default by Landlord under this
Lease.
18. Indemnification
a) Unless such loss, costs or damages were caused by negligence of
Landlord, its employees, agents or contractors, Tenant hereby agrees to
indemnify, defend and hold the Landlord and its employees, agents and
contractors harmless from any loss, costs and damages (including reasonable
attorney's fees and costs) suffered by Landlord, its agents, employees or
contractors, as a result of any claim by a third party, its agents, employees
or contractors. Tenant shall have the right to designate counsel acceptable to
Landlord, such approval not be unreasonably withheld, to assume the defense of
any such third party claim on behalf of itself and Landlord. Tenant shall not
have the right to settle any claim without the consent of Landlord which shall
not be unreasonably withheld. This indemnity shall survive the expiration of
termination of this Lease.
b) If Landlord brings any action under this Lease Agreement, Tenant
agrees in each case to pay Landlord's reasonable attorney's fees and other
costs and expenses incurred by Landlord in connection therewith; provided,
however, the Landlord prevails in such action.
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c) Unless such loss, costs or damages were caused by negligence of
Tenant, its employees, agents or contractors, Landlord hereby agrees to
indemnify, defend and hold the Tenant and its employees, agents and
contractors harmless from any loss, costs and damages (including reasonable
attorney's fees and costs) suffered by Tenant, its agents, employees or
contractors, as a result of any claim by a third party, its agents, employees
or contractors arising from the operation of the Building and Property by
Landlord or its agents, servants, employees or business invitees. Landlord
shall have the right to designate counsel acceptable to Tenant, such approval
not to be unreasonably withheld, to assume the defense of any such third party
claim on behalf of itself and Tenant. Landlord shall not have the right to
settle any claim without the consent of Tenant which shall not be unreasonably
withheld. This indemnity shall survive the expiration or termination of this
Lease.
d) If Tenant brings any action under this Lease Agreement, Landlord
agrees in each case to pay Tenant's reasonable attorney's fees and other costs
and expenses incurred by Tenant in connection therewith; provided, however,
the Tenant prevails in such action.
19. Condemnation.
a) Termination. If (i) all of the Premises are covered by a
condemnation; or (ii) any of the Premises is covered by a condemnation and the
remaining part is insufficient for the reasonable operation therein of
Tenant's business; or (iii) subject to the provisions of subsection 19(b)(i)
hereof, any of the Property is covered by a condemnation and the condemnation
proceeds are insufficient to restore the remainder of the Property; then, in
any such event, this Lease shall terminate and all obligations hereunder shall
cease as of the date upon which possession is taken by the condemnor. Upon
such termination the Fixed Basic Rent and all Additional Rent herein reserved
shall be apportioned and paid in full by Tenant to Landlord to that date and
all such rent prepaid for periods beyond that date shall forthwith be repaid
by Landlord to Tenant.
b) Partial Condemnation.
i) If there is a partial condemnation and Landlord decides to
terminate pursuant to subsection 19(a)(iii) hereof then Tenant may require
Landlord, except during the last two (2) years of the Term, to withdraw its
notice of termination by: [A] giving Landlord written notice thereof within
ten (10) days from transmission of Landlord's notice to Tenant of Landlord's
intention to terminate, [B] agreeing to pay the cost of restoration in excess
of the condemnation proceeds reduced by those sums expended by Landlord in
collecting the condemnation proceeds, and [C] giving Landlord adequate
security for such payment within such ten (10) day period.
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ii) If there is a partial condemnation and this Lease has not been
terminated pursuant to subsection (a) hereof, Landlord shall restore the
Building and the improvements which are part of the Premises to a condition
and size as nearly comparable as reasonably possible to the condition and size
thereof immediately prior to the date upon which possession shall have been
taken by the condemnor; provided, however, that Landlord shall only be
obligated to restore such damage from condemnation to the extent possible with
the award damage. If the condemnation proceeds are more than adequate to cover
the cost of restoration and the Landlord's expenses in collecting the
condemnation proceeds, any excess proceeds shall be retained by Landlord or
applied to repayment of any mortgage secured by the Premises.
iii) If there is a partial condemnation and this Lease has not been
terminated by the date upon which the condemnor obtains possession, the
obligations of Landlord and Tenant under this Lease shall be unaffected by
such condemnation except that there shall be an equitable abatement for the
balance of the Term of the Fixed Basic Rent according to the value of the
Premises before and after the date upon which the condemnor takes possession.
In the event that the parties are unable to agree upon the amount of such
abatement, either party may submit the issue to arbitration.
c) Award. In the event of a condemnation affecting Tenant, Tenant
shall have the right to make a claim against the condemnor for removal
expenses and moving expenses, loss of business and any other claims Tenant may
have; provided and to the extent, however, that such claims or payments do not
reduce the sums otherwise payable by the condemnor to Landlord. Except as
aforesaid, Tenant hereby waives all claims against Landlord and against the
condemnor, and Tenant hereby assigns to Landlord all claims against the
condemnor including, without limitation, all claims for leasehold damages and
diminution in value of Tenant's leasehold interest.
d) Temporary Taking. If the condemnor should take only the right to
possession for a fixed period of time or for the duration of an emergency or
other temporary condition then, notwithstanding anything hereinabove provided,
this Lease shall continue in full force and effect without any abatement of
rent, but the amounts payable by the condemnor with respect to any period of
time prior to the expiration or sooner termination of this Lease shall be paid
by the condemnor to Landlord and the condemnor shall be considered a subtenant
of Tenant. Landlord shall apply the amount received from the condemnor
applicable to the rent due hereunder, net of costs, to Landlord for the
collection thereof, or as much thereof as may be necessary for the purpose,
toward the amount due from Tenant as rent for that period.
20. Quiet Enjoyment. Tenant, upon paying the Fixed Basic Rent,
Additional Rent and other charges herein required and observing and keeping
all covenants, agreements and conditions of this Lease, shall quietly have and
enjoy the Premises during the Term without hindrance or molestation by anyone
claiming by or through Landlord, subject, however, to the exceptions,
reservations and conditions of this Lease.
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21. Rules and Regulations. The Landlord hereby reserves the right to
prescribe, from time to time, at its sole discretion, reasonable rules and
regulations (herein called the "Rules and Regulations") attached hereto as
Exhibit C governing the use and enjoyment of the Premises. The Rules and
Regulations shall not materially interfere with the Tenant's use and enjoyment
of the Premises in accordance with the provisions of this Lease for the
Permitted Use and shall not increase or modify Tenant's obligations under this
Lease. In the event of a conflict between the Lease Agreement and such rules
and regulations, the Lease Agreement shall control. The Tenant shall comply at
all times with the Rules and Regulations and shall cause its agents,
employees, invitees, visitors, and guests to do so.
22. Assignment and Sublease. Tenant may assign or sublease the within
Lease to any party subject to the following:
a) In the event Tenant desires to assign this Lease or sublease all
of the Premises to any other party, Tenant shall provide written notice of the
terms and conditions of such assignment or sublease to Landlord prior to the
effective date of any such sublease or assignment, and, prior to such
effective date, the Landlord shall have the option, exercisable by written
notice to Tenant within ten (10) business days of Landlord's receipt of
written notice from Tenant, to: recapture the Premises to be sublet or all of
the Premises (in the case of an assignment)("Recapture Space") for Landlord's
own use, whereupon Tenant shall be fully released from any and all obligations
hereunder with respect to the Recapture Space.
b) In the event that the Landlord elects not to recapture the Lease
as hereinabove provided, the Tenant may nevertheless assign this Lease or
sublet the whole or any portion of the Premises, subject to the Landlord's
prior written consent which shall not be unreasonably withheld on the basis of
the following terms and conditions:
i) The Tenant shall provide to the Landlord the name and
address of the assignee or subtenant.
ii) The assignee or subtenant shall assume, by written
instrument, all of the obligations of this Lease, and a copy of such
assumption agreement shall be furnished to the Landlord within ten (10) days
of its execution. Any sublease shall expressly acknowledge that said
subtenant's rights against Landlord shall be no greater than those of Tenant.
iii) The Tenant and each assignee shall be and remain liable
for the observance of all the covenants and provisions of this Lease,
including, but not limited to, the payment of Fixed Basic Rent and Additional
Rent reserved herein, through the entire Term of this Lease, as the same may
be renewed, extended or otherwise modified provided, however, that Tenant
shall not be obligated for the payment of Rent or any other obligation herein
during any Renewal Option of this Lease without Tenant's prior written
consent. Notwithstanding anything to the contrary herein contained, Landlord,
in its sole and absolute discretion shall be permitted to withhold its consent
to the assignment or sublet of the whole or any portion of the Premises which
includes any Renewal Option of this Lease without Tenant's prior written
agreement to be bound for the full payment of Rent reserved herein for the
Renewal Option.
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iv) The Tenant and any assignee shall promptly pay to
Landlord fifty percent (50%) of the net profit received from such subleasing
or assignment. Net profit will be calculated after deducting the Tenant's
direct costs of implementing the sublease.
v) In any event, the acceptance by the Landlord of any rent
from the assignee or from any of the subtenants or the failure of the Landlord
to insist upon a strict performance of any of the terms, conditions and
covenants herein shall not release the Tenant herein, nor any assignee
assuming this Lease, from any and all of the obligations herein during and for
the entire Term of this Lease.
vi) Landlord shall require a Five Hundred Dollar ($500.00)
payment to cover its handling charges for each request for consent to any
sublet or assignment prior to its consideration of the same. Tenant
acknowledges that its sole remedy with respect to any assertion that
Landlord's failure to consent to any sublet or assignment is unreasonable
shall be the remedy of specific performance and Tenant shall have no other
claim or cause of action against Landlord as a result of Landlord's actions in
refusing to consent thereto.
c) If Tenant is a corporation other than a corporation whose stock is
listed and traded on a nationally recognized stock exchange, the provisions of
subsection (a) hereof shall apply to a transfer (however accomplished, whether
in a single transaction or in a series of related or unrelated transactions)
of stock (or any other mechanism such as, by way of example, the issuance of
additional stock, a stock voting agreement or change in class(es) of stock)
which results in a change of control of Tenant as if such transfer of stock
(or other mechanism) which results in a change of control of Tenant were an
assignment of this Lease, and if Tenant is a partnership or joint venture,
said provisions shall apply with respect to a transfer (by one or more
transfers) of an interest in the distributions of profits and losses of such
partnership or joint venture (or other mechanism, such as, by way of example,
the creation of additional general partnership or limited partnership
interests) which results in a change of control of such a partnership or joint
venture, as if such transfer of an interest in the distributions of profits
and losses of such partnership or joint venture which results in a change of
control of such partnership or joint venture were an assignment of this Lease;
but said provisions shall not apply to transactions with a corporation into or
with which Tenant is merged or consolidated or to which all or substantially
all of Tenant's assets are transferred or to any corporation which controls or
is controlled by Tenant or is under common control with Tenant, provided that
in the event of such merger, consolidation or transfer of all or substantially
all of Tenant's assets (i) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (1) the net worth of Tenant immediately prior to such merger,
consolidation or transfer, or (2) the net worth of Tenant herein named on the
date of this Lease, and (ii) proof satisfactory to Landlord of such net worth
shall have been delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction.
15
d) In the event that any or all of Tenant's interest in the Premises
and/or this Lease is transferred by operation of law to any trustee, receiver,
or other representative or agent of Tenant, or to Tenant as a debtor in
possession, and subsequently any or all of Tenant's interest in the Premises
and/or this Lease is offered or to be offered by Tenant or any trustee,
receiver, or other representative or agent of Tenant as to its estate or
property (such person, firm or entity being hereinafter referred to as the
"Grantor", for assignment, conveyance, lease, or other disposition to a
person, firm or entity other than Landlord (each such transaction being
hereinafter referred to as a "Disposition"), it is agreed that Landlord has
and shall have a right of first refusal to purchase, take, or otherwise
acquire, the same upon the same terms and conditions as the Grantor thereof
shall accept upon such Disposition to such other person, firm, or entity; and
as to each such Disposition the Grantor shall give written notice to Landlord
in reasonable detail of all of the terms and conditions of such Disposition
within twenty (20) days next following its determination to accept the same
but prior to accepting the same, and Grantor shall not make the Disposition
until and unless Landlord has failed or refused to accept such right of first
refusal as to the Disposition, as set forth herein. Landlord shall have sixty
(60) days next following its receipt of the written notice as to such
Disposition in which to exercise the option to acquire Tenant's interest by
such Disposition, and the exercise of the option by Landlord shall be effected
by notice to that effect sent to the Grantor; but nothing herein shall require
Landlord to accept a particular Disposition or any Disposition, nor does the
rejection of any one such offer of first refusal constitute a waiver or
release of the obligation of the Grantor to submit other offers hereunder to
Landlord. In the event Landlord accept such offer of first refusal, the
transaction shall be consummated pursuant to the terms and conditions of the
Disposition described in the notice to Landlord. In the event Landlord rejects
such offer of first refusal, Grantor may consummate the Disposition with such
other person, firm, or entity; but any decrease in price of more than two
percent (2%) of the price sought from Landlord or any change in the terms of
payment for such Disposition shall constitute a new transaction requiring a
further option of first refusal to be given to Landlord hereunder.
e) Without limiting any of the provisions of this Section 22, if
pursuant to the United States Bankruptcy Code (herein referred to as the
"Code"), or any similar law hereafter enacted having the same general purpose,
Tenant is permitted to assign this Lease notwithstanding the restrictions
contained in this Lease, adequate assurance of future performance by an
assignee expressly permitted under such Code shall be deemed to mean the
deposit of cash security in an amount equal to the sum of one year's Fixed
Basic Rent plus an amount equal to the Additional Rent for the calendar year
preceding the year in which such assignment is intended to become effective,
which deposit shall be held by Landlord for the balance of the Term, without
interest, as security for the full performance of all of Tenant's obligations
under this Lease, to be held and applied in the manner specified for any
security deposit required hereunder.
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f) Except as specifically set forth above, no portion of the Premises
or of Tenant's interest in this Lease may be acquired by any other person or
entity, whether by assignment, mortgage, sublease, transfer, operation of law
or act of the Tenant, nor shall Tenant pledge its interest in this Lease or in
any security deposit required hereunder.
23. Tenant's Relocation. [Intentionally deleted]
24. Subordination. This Lease and Tenant's rights hereunder shall be
subject and subordinate at all times in lien and priority to any first
mortgage or other primary encumbrance now or hereafter placed upon or
affecting the Property or the Premises, and to any second mortgage or
encumbrance with the consent of the first mortgagee, and to all renewals,
modifications, consolidations and extensions thereof, without the necessity of
any further instrument or act on the part of Tenant. Tenant shall execute and
deliver upon demand any further instrument or instruments confirming the
subordination of this Lease to the lien of any such first mortgage or to the
lien of any other mortgage, if requested to do so by Landlord with the consent
of the first mortgagee, and any further instrument or instruments of
attornment that may be desired by any such mortgagee or Landlord, provided,
however, that any holder of such lien or mortgage agrees not to disturb the
use and occupancy of the Premises in accordance with the terms of this Lease
Agreement upon any foreclosure. Notwithstanding the foregoing, any mortgagee
may at any time subordinate its mortgage to this Lease, without Tenant's
consent, by giving notice in writing to Tenant and thereupon this Lease shall
be deemed prior to such mortgage without regard to their respective dates of
execution and delivery. In that event such mortgagee shall have the same
rights with respect to this Lease as though this Lease had been executed prior
to the execution and delivery of the mortgage and had been assigned to such
mortgagee. Landlord agrees that it will use best efforts to obtain and deliver
to Tenant then holder(s) of any mortgage or other security interest affecting
the Premises of Building. In the event Landlord fails to deliver such
instrument, Tenant shall have the right to terminate this Lease Agreement by
delivery of written notice thereof to Landlord.
25. Non-Disturbance. Landlord shall deliver to Tenant upon execution
of the Lease a non-disturbance and attornment agreement from all present
mortgagees or prime ground lease lessors. Thus subordination of the Lease to
future mortgagees shall be conditioned upon each future mortgagee delivering a
non-disturbance and attornment agreement to Tenant. Each non-disturbance and
attornment agreement shall assure to Tenant its continued occupancy of the
Premise upon all of the terms and conditions of the Lease, shall specifically
recognize the Tenant's right to cure defaults by Landlord in properly
operating, maintaining and making necessary or required repairs, replacements
or additions, and its right to deduct the cost plus interest from Fixed Rent
and Additional Rent or to terminate the Lease upon such default by Landlord;
and shall specifically provide that any successor Landlord by reason of
foreclosure or deed in lieu of foreclosure or other sale or transfer shall be
responsible for any continuing defaults of Landlord under the Lease, including
the completion of the Premises Improvements.
26. Curing Tenant's Defaults. If Tenant defaults in the performance
of any of its obligations hereunder, Landlord may, without any obligation to
do so and in addition to any other rights it may have in law or equity, elect
to cure such default on behalf of Tenant after written notice (except in the
case of emergency) to Tenant. Tenant shall reimburse Landlord upon demand for
any sums paid or costs incurred by Landlord in curing such default, including
interest thereon from the respective dates of Landlord's making the payments
and incurring such costs, which sums and costs together with interest thereon
shall be deemed Additional Rent payable within ten (10) days of demand.
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27. Surrender.
a) At the expiration or earlier termination of the Term Tenant shall
promptly yield up the Premises and all improvements, alterations and additions
thereto, and all fixtures and equipment servicing the Premises in a condition
which is clean of garbage and debris and broom clean and in the same
condition, order and repair in which they are required to be kept throughout
the Term, ordinary wear and tear excepted.
b) If Tenant, or any person claiming through Tenant, continues to
occupy the Premises after the expiration or earlier termination of the Term or
any renewal thereof without prior written consent of Landlord, the tenancy
under this Lease shall become a month-to-month tenancy , terminable by
Landlord or Tenant on thirty (30) days prior written notice, under the same
terms and conditions set forth in this Lease; except, however, that the Fixed
Basic Rent during such continued occupancy shall be 150% of the amount set
forth in subsection 6(a) and Tenant shall indemnify Landlord for any loss or
damage incurred by reason of Tenant's failure to surrender the Premises.
Anything to the contrary notwithstanding, any holding over by Tenant without
Landlord's prior written consent shall constitute a default hereunder and
shall be subject to all the remedies set forth in subsection 28(b) hereof.
28. Defaults-Remedies.
a) Defaults. It shall be an event of default under this Lease if any
one or more of the following events occurs:
i) Tenant fails to pay in full, within ten (10) days after
written notice by Landlord , any and all installments of Fixed Basic Rent or
Additional Rent or any other charges or payments due and payable under this
Lease whether or not herein included as rent.
ii) Tenant violates or fails to perform or otherwise
breaches any agreement, term, covenant or condition contained in this Lease.
iii) Tenant becomes insolvent or bankrupt in any sense or
makes an assignment for the benefit of creditors or if a petition in
bankruptcy or for reorganization or for an arrangement with creditors under
any federal or state law is filed by or against Tenant, or a xxxx in equity or
other proceeding for the appointment of a receiver or similar official for any
of Tenant's assets is commenced, or if any of the real or personal property of
Tenant shall be levied upon by any sheriff, marshal or constable; provided,
however, that any proceeding brought by anyone other than the parties to this
Lease under any bankruptcy, reorganization arrangement, insolvency,
readjustment, receivership or similar law shall not constitute an event of
default until such proceeding, decree, judgment or order has continued
unstayed for more than sixty (60) consecutive days.
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iv) Tenant abandons or vacates the Premises without notice
without having first paid to Landlord in full all Fixed Basic Rent, Additional
Rent and other charges that have become due as well as all which will become
due thereafter through the end of the Term.
b) Remedies. Upon the occurrence of an event of default under this
Lease, Landlord shall have all of the following rights:
i) Landlord may charge a late payment charge of five (5%)
percent of any amount owed to Landlord pursuant to this Lease which is not
paid within five (5) days of the due date which is set forth in the Lease or,
if a due date is not specified in this Lease, within thirty (30) days of the
mailing of a xxxx therefor by Landlord. If Landlord incurs a late charge in
connection with any payment which Tenant has failed to make within the times
required in this Lease, Tenant shall pay Landlord, in addition to such payment
due, the full amount of such late charge incurred by Landlord. Nothing in this
Lease shall be construed as waiving any rights of Landlord arising out of any
default of Tenant, by reason of Landlord's imposing or accepting any such late
charge(s) and/or interest; the right to collect such late charge(s) and/or
interest is separate and apart from any rights relating to remedies of
Landlord after default by Tenant including, without limitation, the rights and
remedies of Landlord provided herein.
ii) Landlord may accelerate the whole or any part of the
Fixed Basic Rent and all Additional Rent for the entire unexpired balance of
the Term of this Lease, as well as all other charges, payments, costs and
expenses herein agreed to be paid by Tenant, and any Fixed Basic Rent or other
charges, payments, costs and expenses so accelerated shall, in addition to any
and all installments of rent already due and payable and in arrears and any
other charge or payment herein reserved, included or agreed to be treated or
collected as rent and any other charge, expense or cost herein agreed to be
paid by Tenant which may be due and payable and in arrears, be deemed due and
payable as if, by the terms and provisions of this Lease, such accelerated
rent and other charges, payments, costs and expenses were on that date payable
in advance.
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iii) Landlord may re-enter the Premises and, at the option
of Landlord, remove all persons and all or any property therefrom, either by
summary dispossess proceedings or by any suitable action or proceeding at law
or by force or otherwise, without being liable for prosecution or damages
therefor, and Landlord may repossess and enjoy the Premises. Upon recovering
possession of the Premises by reason of or based upon or arising out of a
default on the part of Tenant, Landlord may, at Landlord's option, either
terminate this Lease or make such alterations and repairs as may be necessary
in order to relet the Premises and shall use its reasonable efforts to relet
the Premises or any part or parts thereof, either in Landlord's name or
otherwise, for a term or terms which may, at Landlord's option, be less than
or exceed the period which would otherwise have constituted the balance of the
Term of this Lease and at such rent or rents and upon such other terms and
conditions as in Landlord's sole discretion may seem advisable and to such
person or persons as may in Landlord's discretion seem best; upon each such
reletting all rents received by Landlord from such reletting shall be applied
as follows: first, to the payment of any costs and expenses of such reletting,
including all costs of alterations and repairs; second, to the payment of any
indebtedness other than Fixed Basic Rent, Additional Rent or other charges due
hereunder from Tenant to Landlord; third, to the payment of Fixed Basic Rent,
Additional Rent and other charges due and unpaid hereunder; and the residue,
if any, shall be held by Landlord and applied in payment of future rent as it
may become due and payable hereunder. If rentals received from reletting
during any month are less than that to be paid during that month by Tenant,
Tenant shall pay any such deficiency to Landlord. Such deficiency shall be
calculated and paid monthly. No such re-entry or taking possession of the
Premises or the making of alterations or improvements thereto or the reletting
thereof shall be construed as an election on the part of Landlord to terminate
this Lease unless written notice of termination is given to Tenant. Landlord
shall in no event be liable in any way whatsoever for failure to relet the
Premises or, in the event that the Premises or any part or parts thereof are
relet, for failure to collect the rent thereof under such reletting.
Notwithstanding any such reletting without termination, Landlord may at any
time thereafter elect to terminate this Lease for such previous breach.
20
iv) Landlord may terminate this Lease and the Term without
any right on the part of Tenant to waive the forfeiture by payment of any sum
due or by other performance of any condition, term or covenant broken. Upon
such termination, Landlord shall be entitled to recover, in addition to any
and all sums and damages for violation of Tenant's obligations hereunder in
existence at the time of such termination, damages for Tenant's default in an
amount equal to the amount of the Fixed Basic Rent and Additional Rent
reserved for the balance of the Term, as well as all other charges, payments,
costs and expenses herein agreed to be paid by Tenant tall of which amount
shall be immediately due and payable from Tenant to Landlord upon demand
therefor.
v) WHEN THIS LEASE AND THE TERM OR ANY EXTENSION OR RENEWAL
THEREOF SHALL HAVE BEEN TERMINATED ON ACCOUNT OF ANY DEFAULT BY TENANT, OR
WHEN THE TERM HAS EXPIRED, AND AFTER TEN (10) DAYS PRIOR WRITTEN NOTICE FROM
LANDLORD TO TENANT OF ITS INTENTION TO DO SO, IT SHALL BE LAWFUL FOR ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR AS ATTORNEY FOR TENANT AS WELL AS
FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT, AND TO FILE AN AGREEMENT
FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION FOR JUDGMENT IN
EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT
FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE PREMISES, FOR WHICH THIS
LEASE SHALL BE A SUFFICIENT WARRANT; WHEREUPON, IF LANDLORD SO DESIRES, AN
APPROPRIATE WRIT OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR
PROCEEDING WHATSOEVER, AND PROVIDED THAT IS FOR ANY REASON AFTER SUCH ACTION
SHALL HAVE BEEN COMMENCED IT SHALL BE DETERMINED AND POSSESSION OF THE
PREMISES REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR
THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE
TERMINATION OF THIS LEASE OR TENANT'S RIGHT OF POSSESSION AS HEREINBEFORE SET
FORTH, TO BRING ONE OR MORE FURTHER ACTIONS IN EJECTMENT AS HEREINBEFORE SET
FORTH TO CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF THE PREMISES.
c) Waiver of Jury Trial. IT IS MUTUALLY AGREED BY AND BETWEEN
LANDLORD AND TENANT THAT (A) THEY HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTER-CLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OF OCCUPANCY
OF THE PREMISES OR CLAIM OF INJURY OR DAMAGE, AND (B) IN ANY ACTION AGAINST
LANDLORD BY TENANT, THE LEGAL FEES OF THE PREVAILING PARTY WILL BE PAID BY THE
OTHER PARTY TO THE ACTION.
d) Non-Waiver. No waiver by Landlord of any breach by Tenant of any
of Tenant's obligations, agreements or covenants herein shall be a waiver of
any subsequent breach or of any other obligation, agreement or covenant, nor
shall any forbearance by Landlord to seek a remedy for any event of default by
Tenant be a waiver by Landlord of any rights and remedies with respect to such
or any subsequent event of default.
e) Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to Landlord is intended to be exclusive of any
other right or remedy provided herein or by law, but each shall be cumulative
and in addition to every other right or remedy given herein or now or
hereafter existing at law or in equity or by statute.
29. Condition of Premises. Tenant represents that the Property and
the Premises, the zoning thereof, the street or streets, sidewalks, parking
areas, curbs and access ways adjoining them, any surface conditions thereof,
and the present uses and non-uses thereof, have been examined by Tenant and
Tenant accepts them in the condition or state in which they now are, or any of
them now is, without relying on any representation, covenant or warranty,
express or implied, in fact or in law, by Landlord and without recourse to
Landlord, the nature, condition or usability thereof or the use or uses to
which the Premises and the Property or any part thereof may be put under
present zoning ordinances or otherwise, except as to work to be performed by
Landlord pursuant to Section 3 and except as to latent defects in such work.
Tenant's occupancy of the Premises shall, unless otherwise agreed to in
writing by the Landlord and Tenant, constitute acceptance of the work
performed by Landlord pursuant to Section 3.
21
30. Hazardous Substances.
a) Landlord and Tenant shall not cause or allow the generation,
treatment, storage or disposal of Hazardous Substances on or near the Premises
or Property. "Hazardous Substances" shall mean any substance the presence of
which requires investigation or remediation under any statute, regulation,
ordinance, order, action, policy or common law; or which is or becomes defined
as a hazardous pollutant, substance or waste under any statute, regulation,
ordinance, order, action or any amendments thereto; or which is toxic,
corrosive, explosive, flammable, or threatening to human health and the
environment and is or becomes regulated by any governmental authority; or the
presence of which on the Premises causes or threatens to cause a nuisance upon
the Premises or to adjacent properties.
b) Landlord and Tenant agree to indemnify, defend and hold harmless
the other, its employees, agents, successors, and assigns, from and against
any and all damage, claim, liability, or loss, including reasonable attorneys'
and other fees, arising out of or in any way connected to the generation,
treatment, storage or disposal of Hazardous Substances by Landlord or Tenant,
its employees, agents, contractors, or invitees, on or near the Premises or
Property. Such duty of indemnification shall include, but not be limited to
damage, liability, or loss pursuant to all Federal, state and local
environmental laws, rules and ordinances, strict liability and common law.
c) Landlord and Tenant agree to notify each other immediately of any
disposal of Hazardous Substances in the Premises or Property, of any discovery
of Hazardous Substances in the Premises, or of any notice by a governmental
authority or private party alleging or suggesting that a disposal of Hazardous
Substances on or near the Premises or Property may have occurred. Furthermore,
Landlord and Tenant agree to provide the other with full and complete access
to any documents or information in its possession or control relevant to the
question of the generation, treatment, storage, or disposal of Hazardous
Substances on or near the Premises.
d) Landlord represents and warrants that, to the best of its
knowledge, there are no Hazardous Substances in, under or about the Building.
31. Recording. Neither this Lease nor a memorandum of this Lease
shall be recorded in any public records without the written consent of both
Landlord and Tenant.
22
32. Brokers' Commission. Tenant represents and warrants to Landlord
that the Brokers (as defined in the Preamble) are the sole brokers with whom
Tenant has negotiated in bringing about this Lease and Tenant agrees to
indemnify and hold Landlord and its mortgagee(s) harmless from any and all
claims of other brokers and expenses in connection therewith arising out of or
in connection with the negotiation of or the entering into this Lease by
Landlord and Tenant. In the event that no broker was involved as aforesaid,
then Tenant represents and warrants to the Landlord that no broker brought
about this transaction, and Tenant agrees to indemnify and hold Landlord
harmless from any and all claims of any broker arising out of or in connection
with the negotiations of, or entering into of, this Lease by Tenant and
Landlord.
33. Notices. All notices, demands, requests, consents, certificates,
and waivers required or permitted hereunder from either party to the other
shall be in writing and sent by United States certified mail, return receipt
requested, postage prepaid, or by recognized overnight courier, addressed as
follows:
If to Tenant:
NCO Group, Inc.
0000 Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxxxx, 00000
Attn: Xxxxxxx X. Xxxxxxx,
President and Chief Executive Officer
with a copy to:
Xxxxxx Xxxxxx, Esquire
Xxxxxxx & Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
If to Landlord:
Xx. Xxxxxxx Xxxxx
Indiana Avenue Associates, L.P.
c/o X'Xxxxx Properties
000 X. Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
with a copy to:
Xxxxx X. Xxxxx, Esquire
Xxxxxxx Xxxxxx Gold and Xxxxx
0000 Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Either party may at any time, in the manner set forth for giving notices to
the other, specify a different address to which notices to it shall thereafter
be sent.
23
34. Irrevocable Offer: No Option. Although Tenant's execution of this
Lease shall be deemed an offer irrevocable by Tenant, the submission of this
Lease by Landlord to Tenant for examination shall not constitute a reservation
of or option for the Premises. This Lease shall become effective only upon
execution thereof by both parties and delivery thereof to Tenant.
35. Inability to Perform. If Landlord is delayed or prevented from
performing any of its obligations under this Lease by reason of strike, labor
troubles, or any cause whatsoever beyond Landlord's control, the period of
such delay or such prevention shall be deemed added to the time herein
provided for the performance of any such obligation by Landlord.
36. Survival. Notwithstanding anything to the contrary contained in
this Lease, the expiration of the Term of this Lease, whether by lapse of time
or otherwise, shall not relieve Tenant from its obligations accruing prior to
the expiration of the Term.
37. Corporate Tenants. If Tenant is a corporation, the person(s)
executing this Lease on behalf of Tenant hereby covenant(s) and warrant(s)
that: Tenant is a duly formed corporation qualified to do business in the
state in which the Property is located; Tenant will remain qualified to do
business in said state throughout the Term and any renewals thereof; and such
persons are duly authorized by such corporation to execute and deliver this
Lease on behalf of the corporation.
38. Waiver of Invalidity of Lease. Each party agrees that it will not
raise or assert as a defense to any obligation under the Lease or this or make
any claim that the Lease is invalid or unenforceable due to any failure of
this document to comply with ministerial requirements including, without
limitation, requirements for corporate seals, attestations, witnesses,
notarizations or other similar requirements and each party hereby waives the
right to assert any such defenses or make any claim of invalidity or
unenforceability due to any of the foregoing.
39. Security Deposit. As additional security for the full and prompt
performance by Tenant of the terms and covenants of this Lease, Tenant has
deposited with Landlord the Security Deposit, as set forth in the Preamble.
The Security Deposit shall not constitute rent for any month (unless so
applied by Landlord on account of Tenant's default hereunder). Tenant shall,
upon demand, restore any portion of the Security Deposit which may be applied
by Landlord to cure any default by Tenant hereunder. To the extent that
Landlord has not applied the Security Deposit or any portion thereof on
account of a default, the Security Deposit, or such remaining portion of the
Security Deposit, shall be returned to Tenant, without interest, promptly
following the termination of this Lease. Notwithstanding the foregoing, in the
event that Tenant has timely paid every installment of Rent due to the
Landlord hereunder, then Landlord shall return to Tenant the Security Deposit
without interest to Tenant on the sixth (6th) year anniversary of the
Commencement Date.
24
40. Tenant Estoppel Certificate.
a) Tenant shall from time to time, within five (5) days after
Landlord's request or that of any mortgagee of Landlord, execute, acknowledge
and deliver to Landlord a written instrument in recordable form, substantially
in the form attached hereto as Exhibit D (a "Tenant Estoppel Certificate"),
certifying (i) that this Lease is in full force and effect and has not been
modified, supplemented or amended (or, if there have been modifications,
supplements or amendments, that it is in full force and effect as modified,
supplemented or amended, and stating such modifications, supplements and
amendments); (ii) the dates to which Fixed Basic Rent and Additional Rent and
any other charges arising hereunder have been paid; (iii) the amount of any
prepaid rents or credits due Tenant, if any; (iv) if applicable, that Tenant
has accepted possession and has entered into occupancy of the Premises, and
certifying the Commencement Date and the Termination Date; (v) whether or not,
to the best of the Tenant's knowledge, all conditions under the Lease to be
performed by Landlord prior thereto have been satisfied and whether or not
Landlord is then in default in the performance of any covenant, agreement or
condition contained in this Lease and specifying each, if any, unsatisfied
condition and each, if any, default of which Tenant may have knowledge; and
(vi) any other fact or condition reasonably requested. Any certification
delivered pursuant to the provisions of this Article shall be intended to be
relied upon by Landlord and any mortgagee or prospective mortgagee or
purchaser of the Property or of any interest therein.
b) The failure of Tenant to execute, acknowledge and deliver to
Landlord a written Tenant Estoppel Certificate in accordance with the
provisions of this Section 39 within said ten (5) day period shall constitute
an acknowledgment by Tenant, which may be relied upon by any mortgagee or
prospective mortgagee or any purchaser of the Property or of any interest
therein, that this Lease has not been modified, supplemented or amended except
as set forth in landlord's request, and is in full force and effect (or in
full force and effect as so modified, supplemented or amended), that the Base
Rent, Additional Rent and any other charges arising hereunder have not been
paid beyond the respective due dates immediately preceding the date of such
request, that Tenant has no right of set-off or other defense to this Lease
and of the truth of such other facts and conditions as shall have been
requested to be certified, and shall constitute, as to any person entitled to
rely as aforesaid, a waiver of any defaults which may exist prior to the date
of such request. Notwithstanding the foregoing, Tenant's failure to furnish a
Tenant Estoppel Certificate within said five (5) day period shall constitute a
default under this Lease.
41. Rights Reserved by Landlord. Landlord waives no rights, except
those that may be specifically waived herein, and explicitly retains all other
rights including, without limitation, the following rights, each of which
Landlord may exercise without notice to Tenant and without liability to Tenant
for damage or injury to property, person or business on account of the
exercise thereof, and the exercise of any such rights shall not be deemed to
constitute an eviction or disturbance of Tenant's use or possession of the
Premises and shall not give rise to any claim for set-off or abatement of Rent
or any other claim:
25
a) To install, affix and maintain any and all signs on the exterior
and on the interior of the Building at any time during the last six (6) months
of the Term.
b) To decorate or to make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the Building, or
any part thereof, and for such purposes to enter upon the Premises and during
the continuance of any of such work, to temporarily close doors, entry ways,
public space and corridors in the Building and to interrupt or temporarily
suspend services or use of facilities, all without affecting any of Tenant's
obligations hereunder, so long as the Premises are reasonably accessible and
usable.
c) To furnish door keys for the entry door(s) in the Premises on the
Commencement Date and to retain at all times, and to use in appropriate
instances, keys to all doors within and into the Premises. Tenant agrees to
purchase only from Landlord additional duplicate keys as required, to change
no locks, and not to affix locks on doors without the prior written consent of
the Landlord. Upon the expiration of the Term or Tenant's right to possession,
Tenant shall return all keys to Landlord and shall disclose to Landlord the
combination of any safes, cabinets or vaults left in the Premises.
d) To designate and approve all window coverings used in the
Building.
e) To approve the weight, size and location of safes, vaults and
other heavy equipment and articles in and about the Premises and the Building
so as not to exceed the legal load per square foot designated by the
structural engineers for the Building, and to require all such items and
furniture and similar items to be moved into or out of the Building and
Premises only at such times and in such manner as Landlord shall direct in
writing. Tenant shall not install or operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use, as limited
by the Permitted Use, of the Premises without the prior written consent of
Landlord. The movement of Tenant's property into or out of the Building or the
Premises and within the Building are entirely at the risk and responsibility
of Tenant, and Landlord reserves the right to require written authorization
from Tenant, in form and content satisfactory to Landlord, before allowing any
property to be moved into or out of the Building or Premises.
f) To enter the Premises in accordance with Section 15, and in the
last year of the Term, to show the Premises to prospective tenants at
reasonable times and, if vacated or abandoned, to show the Premises at any
time and to prepare the Premises for re-occupancy.
26
g) To erect, use and maintain pipes, ducts, wiring and conduits, and
appurtenances thereto, in and through the Premises.
h) To enter the Premises at any reasonable time to inspect the
Premises and to make repairs or alterations as Landlord deems necessary, with
due diligence and minimum disturbance.
42. Miscellaneous.
a) Captions. The captions in this Lease are for convenience only and
are not a part of this Lease and do not in any way define, limit, describe or
amplify the terms and provisions of this Lease or the scope or intent thereof.
b) Entire Agreement. This Lease represents the entire agreement
between the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the Premises or the
Property. No rights, easements or licenses are acquired in the Property or any
land adjacent to the Property by Tenant by implication or otherwise except as
expressly set forth in the provisions of this Lease.
c) Modification. This Lease shall not be modified in any manner
except by an instrument in writing executed by the parties. Notwithstanding
the foregoing, Landlord shall have the right at anytime, and form time to
time, during the Term, to unilaterally amend the provisions of this Lease if
Landlord is advised by its counsel that all or any portion of the monies paid
by Tenant to Landlord hereunder are, or may be deemed to be, unrelated
business income within the meaning of the United States Internal Revenue Code
or regulations issued thereunder; and Tenant agrees that it will execute all
documents or instruments necessary to effect such amendment or amendments,
provided that no such amendment shall result in Tenant having to pay in the
aggregate a larger sum of money on account of its occupancy of the Premises
under the terms of this Lease as so amended, and provided further that no such
amendment or amendments shall result in Tenant receiving under this Lease less
services than it is entitled to receive, nor services of a less quality. In
addition, Tenant agrees to make such changes to this Lease as are required by
any mortgagee, provided such changes do not substantially affect Tenant's
rights and obligation hereunder.
d) Interpretation. The masculine (or neuter) pronoun, singular
number, shall include the masculine, feminine and neuter genders and the
singular and plural number.
e) Exhibits. Each writing or plan referred to herein as being
attached as an Exhibit or otherwise designated herein as an Exhibit hereto is
hereby made a part hereof.
27
f) Captions and Headings. The captions and headings of sections,
subsections and the table of contents herein are for convenience only and are
not intended to indicate all of the subject matter in the text and they shall
not be deemed to limit, construe, affect or alter the meaning of any
provisions of this Lease and are not to be used in interpreting this Lease or
for any other purpose in the event of any controversy.
g) Interest. Wherever interest is required to be paid hereunder, such
interest shall be at the highest rate permitted by law but not in excess of
eight percent (8%).
h) Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
i) Joint and Several Liability. [Intentionally deleted]
j) No Representations by Landlord. Landlord and Landlord's agents
have made no representations, agreements, conditions, warranties,
understandings or promises, either oral or written, with respect to this
Lease, the Premises and/or the Building.
k) Relationship of Parties. This Lease shall not create any
relationship between the parties other than that of Landlord and Tenant.
l) Choice of Law. The terms of this Lease shall be construed under
the laws of the Commonwealth of Pennsylvania, and that exclusive jurisdiction
and venue shall be in the Court of Common Pleas of the County in which the
Property is located.
43. Additional Definitions.
a) "Date of this Lease" or "date of this Lease" shall mean the date
of acceptance of this Lease by the Landlord, following execution and delivery
thereof to Landlord by Tenant and that date shall be inserted in the space
provided in the Preamble.
b) "Landlord" as used herein includes the Landlord named above as
well as its successors and assigns, each of whom shall have the same rights,
remedies, powers, authorities and privileges as he would have had he
originally signed this lease as Landlord. Any such person, whether or not
named herein, shall have no liability hereunder after ceasing to hold title to
the Premises. Neither Landlord nor any principal of Landlord nor any owner of
the Building or the Lot, whether disclosed or undisclosed, shall have any
personal liability with respect to any of the provisions of this Lease or the
Premises, and if Landlord is in breach or default with respect to Landlord's
obligations under this Lease or otherwise, Tenant shall look solely to the
equity of Landlord in the Premises for the satisfaction of Tenant's remedies.
28
c) "Tenant" as used herein includes the Tenant named above as well as
its heirs, successors and assigns, each of which shall be under the same
obligations, liabilities and disabilities and each of which shall have the
same rights, privileges and powers as it would have possessed had it
originally signed this Lease as Tenant. Each and every person named above as
Tenant shall be bound formally and severally by the terms, covenants and
agreements contained herein. However, no such rights, privileges or powers
shall inure to the benefit of any assignee of Tenant, immediate or remote,
unless the assignment to such assignee is permitted or has been approved in
writing by Landlord. Any notice required or permitted by the terms of this
Lease may be given by or to any one of the persons named above as Tenant, and
shall have the same force and effect as if given by or to all of them.
d) "Mortgage" and "Mortgagee" as used herein includes any lien or
encumbrance on the Premises or the Property or on any part of or interest in
or appurtenance to any of the foregoing, including without limitation any
ground rent or ground lease if Landlord's interest is or becomes a leasehold
estate. The word "mortgagee" is used herein to include the holder of any
mortgage, including any ground Landlord if Landlord's interest is or becomes a
leasehold estate. Wherever any right is given to a mortgagee, that right may
be exercised on behalf of such mortgagee by any representative or servicing
agent of such mortgagee.
e) "Person" as used herein includes a natural person, a partnership,
a corporation, an association, and any other form of business association or
entity.
f) "Property" as used herein shall mean the Building and the lot,
tract or parcel of land on which the Building is situated.
g) "Rent" or "rent" as used herein shall mean all Fixed Basic Rent
and Additional Rent reserved under this Lease.
29
IN WITNESS WHEREOF, and in consideration of the mutual entry into
this Lease and for other good and valuable consideration, and intending to be
legally bound, each party hereto has caused this agreement to be duly executed
under seal.
Landlord:
Date Signed: 0/0/00 XXXXXXX XXXXXX ASSOCIATES, L.P.
-----------------------
a Pennsylvania limited partnership
By: INDIANA AVENUE ASSOCIATES
ACQUISITION CORPORATION, a
Pennsylvania corporation,
its General Partner
By:
-------------------------
Xxxxxxx Xxxxx President
Tenant:
Date Signed:
-----------------------
NCO GROUP, INC.,
a Pennsylvania corporation
By:
-------------------------
XXXXXXX X. XXXXXXX,
President and Chief Executive
Officer
RIDER A
RENEWAL OPTION: Tenant is hereby granted an option to renew this Lease upon
the following terms and conditions:
At the time of the exercise of the option to renew and at the time of the said
renewal, the Tenant shall not be in default in accordance with the terms and
provisions of this Lease, and shall be in possession of the Premises pursuant
to this Lease.
Notice of the exercise of the option shall be sent to the Landlord in writing
at least twelve (12) months but not more than fifteen (15) months before the
expiration of the term of this Lease.
The renewal term shall be for a period of three (3) years, to commence at the
expiration of the Term of this Lease, and all of the terms and conditions of
this Lease, other than the Fixed Basic Rent, shall apply during any such
renewal term.
The Fixed Basic Rent to be paid during the renewal term shall be: Three
Million Eight Hundred Thirteen Thousand and 00/100 Dollars ($3,813,000.00),
net of electric, calculated and payable as follows:
Years 1 - 5
-----------
er Rentable Square Foot $15.50
Yearly Rate: $1,271,000.00
Monthly Installment: $ 105,916.67
RIDER B
LEASE TERMINATION FEE AND COMMENCEMENT DATE PENALTY
(a) In the event that Landlord or its nominee fails to make closing
under agreements of sale by and between Landlord or its nominee and 1710-20
Sentry East Associates, L.P., 1730 Sentry East Associates, L.P. and 1740
Sentry East Associates, L.P. (collectively referred to as "Sentry") for
certain buildings identified as Units 1710 1720, 1730 and 1740 at Sentry Park
East ("Sentry Park Premises") on or before July 1, 1997 (or such later date as
Landlord or its nominee and Sentry shall agree) and Sentry has not otherwise
executed agreements of sale with other purchasers for the Sentry Park Premises
providing for the sale of the Sentry Park Premises on or before July 1, 1997,
then Landlord, its successors and assigns agree to pay to Sentry a lease
termination fee of One Hundred and Sixty Thousand Dollars ($160,000) on or
before July 31, 1997.
(b) In the event that Landlord fails to deliver the Premises with all
Landlord's Work substantially completed and in broom clean condition, free of
debris, furniture and equipment on or before July 1, 1997, then Tenant shall
have the right to occupy the Sentry Park Premises and Landlord shall be
obligated to pay to Sentry fixed basic rent in an amount not to exceed a total
of Forty Thousand Dollars ($40,000) per month on a pro rated basis through the
earlier of (i) the date of occupancy by Tenant of the Premises or (ii)
September 1, 1997.
EXHIBIT A
LOCATION OF PREMISES
All of that building and real property known as 000 Xxxx Xxxxxxxxxxxx Xxxxxx,
Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx
EXHIBIT B
PLANS AND SPECIFICATIONS FOR LANDLORD'S WORK
EXHIBIT B-1
APPROVED CONTRACTORS
EXHIBIT C
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrance, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the Building
shall not be obstructed or encumbered by Tenant or used by Tenant for any
purpose other than ingress and egress. If the Premises are situated on the
ground floor with direct access to the street, then Landlord shall, at
Landlord's expense, keep the sidewalks and curbs directly in front of the
Premises clean and free from ice, snow and refuse.
2. WINDOWS: Windows in the Premises shall not be covered or obstructed by
Tenant. No bottles, parcels or other articles shall be placed on the window
xxxxx, in the halls, or in any other part of the Building other than the
Premises. No article shall be thrown out of the doors or windows of the
Premises.
3. PROJECTIONS FROM BUILDING: No awnings, air-conditioning units, or other
fixtures shall be attached to the outside walls or the window xxxxx of the
Building or otherwise affixed so as to project from the Building, without
prior written consent of Landlord.
4. SIGNS: No sign or lettering shall be affixed by Tenant to any part of the
outside of the Premises, or any part of the inside of the Premises so as to be
clearly visible from the outside of the Premises, without the prior written
consent of Landlord. However, Tenant shall have the right to place its name on
any door leading into the Premises the size, color and style thereof to be
subject to the Landlord's approval. Tenant shall not have the right to have
additional names placed on the Building directory without Landlord's prior
written consent.
5. FLOOR COVERING: Tenant shall not lay linoleum or other similar floor
covering so that the same shall come in direct contact with the floor of the
Premises. If linoleum or other similar floor covering is desired to be used,
an interlining of builder's deadening felt shall first be fixed to the floor
by a paste or other material that may easily be removed with water, the use of
cement or other similar adhesive material being expressly prohibited.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING: Tenant shall not make, or permit
to be made, any unseemly or disturbing noises or odors and shall not interfere
with other tenants or those having business with them. Tenant will keep all
mechanical apparatus in the Premises free of vibration and noise which may be
transmitted beyond the limits of the Premises.
7. LOCK KEYS: If Tenant shall add any additional locks or bolts of any kind on
any of the doors or windows, then Tenant shall immediately deliver any
necessary keys and/or combinations required to unlock same to Landlord. Tenant
shall, on the termination of Tenant's tenancy, deliver to Landlord all keys to
any space within the Building either furnished to or otherwise procured by
Tenant, and in the event of the loss of any keys furnished, Tenant shall pay
to Landlord the cost thereof. Tenant, before closing and leaving the Premises,
shall ensure that all windows are closed and entrance doors locked. Nothing in
this Paragraph 7 shall be deemed to prohibit Tenant from installing a burglar
alarm within the Premises, provided: (1) Tenant obtains Landlord's consent
which will not be unreasonably withheld or delayed; (2) Tenant supplies
Landlord with copies of the plans and specifications of the system; (3) such
installation shall not damage the Building; and (4) all costs of installation
shall be borne solely by Tenant.
8. CONTRACTORS: No contract of any kind with any supplier of towels, water,
toilet articles, waxing, rug shampooing, venetian blind washing, furniture
polishing, lamp servicing, cleaning of electrical fixtures, removal of waste
paper, rubbish, garbage, or other like service shall be entered into by
Tenant, nor shall any machine of any kind be installed in the Building or the
Office Building Area without the prior written consent of the Landlord which
shall not be unreasonably withheld. Tenant shall not employ any persons other
than Landlord's janitors for the purpose of cleaning the Premises without
prior written consent of Landlord which shall not be unreasonably withheld.
Landlord shall not be responsible to Tenant for any loss of property from the
Premises however occurring, or for any damage to the effects of Tenant by such
janitors or any of its employees, or by any other person or any other cause.
9. PROHIBITED ON PREMISES: Tenant shall not conduct, or permit any other
person to conduct, any auction upon the Premises, manufacture or store goods,
wares or merchandise upon the Premises without the prior written approval of
Landlord, except the storage of usual supplies and inventory to be used by
Tenant in the conduct of his business, permit the Premises to be used for
gambling, make any unusual noises in the Building, permit to be played musical
instrument on the Premises, permit any radio to be played, or television,
recorded or wired music in such loud manner as to disturb or annoy other
tenants, or permit any unusual odors to be produced on the Premises. Tenant
shall not permit any portion of the Premises to be occupied as an office for a
public stenographer or typewriter, or for the storage, manufacture, or sale of
intoxicating beverages, narcotics, tobacco in any form or as a xxxxxx or
manicure shop. Canvassing, soliciting and peddling in the Building and the
Office Building Area are prohibited and Tenant shall cooperate to prevent the
same. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the Premises.
10. PLUMBING, ELECTRIC AND TELEPHONE WORK: Plumbing facilities shall not be
used for any purpose other than those for which they were constructed; and no
sweepings, rubbish, ashes, newspaper or other substances of any kind shall be
thrown into them. Waste and excessive or unusual amounts of electricity or
water is prohibited. When electric wiring of any kind is introduced, it must
be connected as directed by Landlord, and no stringing or cutting of wires
will be allowed, except by prior written consent of Landlord, and shall be
done by contractors approved by Landlord. The number and locations of
telephones, telegraph instruments, electrical appliances, call boxes, etc.
shall be subject to Landlord's approval.
11. MOVEMENT OF FURNITURE, FREIGHT OR BULKY MATTER: The carrying in or out of
freight, furniture or bulky matter of any description must take place during
such hours as Landlord may from time to time reasonably determine and only
after advance notice to the superintendent of the Building. The persons
employed by Tenant for such work must be reasonably acceptable to the
Landlord. Tenant may, subject to these provisions, move freight, furniture,
bulky matter, and other material into or out of the Premises on Saturdays
between the hours of 9:00 a.m. and 1:00 p.m., provided Tenant pays additional
costs, if any, incurred by Landlord for elevator operators or security guards,
and for any other expenses occasioned by such activity of Tenant. If, at least
three (3) days prior to such activity, Landlord requests that Tenant deposit
with Landlord, as security of Tenant's obligations to pay such additional
costs, a sum of which Landlord reasonably estimates to be the amount of such
additional cost, the Tenant shall deposit such sum with Landlord as security
of such cost. There shall not be used in the Building or Premises, either by
Tenant or by others in the delivery or receipt of merchandise, any hand trucks
except those equipped with rubber tires and side guards, and no hand trucks
will be allowed in the elevators without the consent of the superintendent of
the Building.
12. SAFES AND OTHER HEAVY EQUIPMENT: Landlord reserves the right to prescribe
the weight and position of all safes and other heavy equipment so as to
distribute properly the weight thereof and to prevent any unsafe condition
from arising.
13. ADVERTISING: Landlord shall have the right to prohibit any advertising by
Tenant which in Landlord's reasonable opinion tends to impair the reputation
of the Building or its desirability as a building for offices, and upon
written notice from Landlord, Tenant shall refrain from or discontinue such
advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS: Landlord shall not
be responsible to Tenant for non-observance or violation of any of these rules
and regulations by any other tenant.
15. PARKING: Tenant and its employees shall park their cars only in those
portions of the parking area designated by Landlord.
16. RESERVATION OF RIGHTS: Landlord hereby reserves to itself any and all
rights not granted to Tenant hereunder, including, but not limited to, the
following rights which are reserved to Landlord for its purposes in operating
the Building:
a. the exclusive right to the use of the name of the Building for all
purposes, except that Tenant may use the name as its business address and for
no other purposes; and
b. the right to change the name or address of the Building, without
incurring any liability to Tenant for doing so; and
c. the right to install and maintain a sign on the exterior of the
Building; and
d. the exclusive right to use or dispose of the use of the roof of
the Building; and
e. the right to limit the space on the directory of the Building to
be allotted to Tenant; and
f. the right to grant to anyone the right to conduct any particular
business or undertaking in the Building.
17. HEALTH AND SAFETY: The Tenant shall be responsible for initiating,
maintaining and supervising all health and safety precautions and/or programs
required by Law in connection with the Tenant's use and occupancy of the
Premises.
18. HAZARDOUS MATERIALS: The Tenant shall not store, introduce or otherwise
permit any material known to be hazardous within the Premises. Any material
within the Premises which is determined to be hazardous shall be removed and
properly disposed of by the Tenant at the Tenant's sole expense.
-- END --
EXHIBIT D
TENANT ESTOPPEL CERTIFICATE
TO: ______________________ ("_______") pursuant to that certain _________
Agreement (the "Agreement") dated _________, 199_, by and between _________
and ____________________________________________ ("Lessor").
1. The undersigned ("Lessee") is the lessee under that certain Lease
dated __________, 19__, by and between _____________________________________,
as lessor, and ____________________________________, as lessee (the "Lease"),
covering a portion of those certain premises commonly known and designated as
_____________________________________________, Pennsylvania, consisting of
approximately ________ square feet (the "Premises"). A true, complete and
correct copy of the Lease is attached hereto as Exhibit "A".
2. The Lease has not been modified, changed, altered or amended in any respect
(except as indicated following this sentence) and is the only lease or
agreement between the undersigned and the Lessor affecting the Premises. If
none, state "none".
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3. The undersigned has made no agreements with Lessor or its agents
or employees, which are not described in the Lease concerning free rent,
partial rent, rebate of rental payments or any other type of rental concession
with respect to the Lease (except as indicated following this sentence). If
none, state "none".
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4. The undersigned accepted possession of the Premises on _________,
19__, currently occupies the Premises and has been open for business since
__________, 19__. The current term of the Lease began on __________, 19__. The
current term of the Lease will expire on __________, 19__, and Lessee has no
present right to cancel or terminate the Lease under the terms thereof, or
otherwise. No rent payable pursuant to the Lease has been prepaid for more
than two (2) months, and no monies otherwise payable to Lessor under the Lease
have been paid in advance of the due date therefor as set forth in the Lease.
The fixed minimum rent currently being paid under the Lease is $__________ per
month. Future changes to the fixed minimum rental are as set forth in the
Lease. The undersigned also pays amounts for percentage rent, insurance and
property tax escalations based upon the square footage of the Premises subject
to the Lease, as set forth in the Lease, which amounts have been paid to and
including _________, 199_.
5. The Lease is fully valid and enforceable and is currently in full
force and effect. Neither Lessor or Lessee is in default thereunder, and all
conditions and obligations on the part of Lessor to be fulfilled under the
terms of the Lease have been satisfied or fully performed including, without
limitation, all required tenant improvements, allowances, alterations,
installations and construction, and payment therefor has been made in full.
Lessee has no offset, claim, defense or counterclaim against any rent or other
sum payable by Lessee under the Lease or against any other obligation of
Lessee under the Lease. No condition exists which with the giving of notice or
the passage of time, or both, would constitute a default under the Lease.
6. Lessee has not suffered any assignment of the Lease or sublet the
Premises or any portion thereof, and no person or entity, other than Lessee,
has any possessory interest in the Premises or right to occupy the Premises or
any portion thereof, except as permitted under the Lease.
7. Lessee claims no right, title or interest in or to the Premises or
right to possession of the Premises, except as lessee under the terms of the
Lease. The Lease does not contain and the undersigned does not have any
outstanding options or rights of first refusal to purchase the Premises or any
portion thereof or the real property of which the Premises are a part, except
as otherwise set forth below. If none, state "none".
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8. No actions, whether voluntary or otherwise, are pending against
the undersigned under the bankruptcy laws of the United States or any state
thereof, and Lessee knows of no fact or pending or threatened claim or
litigation that might result in the insolvency or bankruptcy of Lessee.
9. Lessee is a [corporation][limited partnership][general
partnership] duly organized and validly existing and in good standing under
the laws of the State of _________ [and qualified to do business in the State
where the Premises is located]. [__________, a __________, owns and holds all
of the issued and outstanding stock in and of Lessee, and is a separate and
distinct entity from Lessee].
10. Lessee's occupancy of the Premises complies fully with all local,
state and federal laws, ordinances, codes, rules, regulations and orders
including, without limitation, those concerning hazardous wastes, hazardous
materials, asbestos, oil and underground storage tanks. In addition, no such
hazardous wastes, hazardous materials, asbestos, oil or underground storage
tanks have been or are incorporated in, stored on or under, released from,
treated on, transported to or from or disposed of, on or from the Premises or
any portion thereof.
11. All inspections, licenses, permits, consents, permissions,
approvals and certificates required, whether by law, regulation or insurance
standards, to be made or issued with respect to the conduct of Lessee's
business, the Premises and the use and occupancy of the Premises by Lessee
have been made by or issued by all necessary private parties, the appropriate
governmental or quasi-governmental authorities or other authorities having
jurisdiction over the Premises and/or Lessee's business, are in full force and
effect, and Lessee has not received notification from any such authority that
Lessee or the Premises is in material noncompliance with such laws,
regulations or standards, that the Premises is being used, operated or
occupied unlawfully or that Lessee has failed to obtain such inspections,
permits, consents, permissions, approvals, licenses or certificates, as the
case may be. Lessee has not received notice of any violation or failure to
conform with any such law, ordinance, regulation, standard, license, permit,
consent, permission, approval or certificate.
12. All insurance policies required to be maintained by Lessee under
the Lease have been maintained, are in full force and effect and all premiums
with respect thereto have been paid in full.
13. Upon receipt of notice of the closing of the purchase and sale of
the Premises as set forth in the Agreement, Lessee shall recognize _____ as
lessor under the Lease, and all payments of rent and other sums due to Lessor
under the Lease and all communications permitted or required under the Lease
shall be directed to _____ c/o
_______________________________________________________________________, and
all communications permitted or required under the Lease shall be directed to
Lessee at the address for Lessee set forth in the Lease (except as otherwise
indicated following this sentence), unless and until otherwise specified in
written notice by the party to whom notice is to be given at such address.
If none, state "none".
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11. This certification is made to induce _____ to enter into the
Agreement, knowing that _____ is relying upon the truth of this Tenant
Estoppel Certificate in entering into the Agreement, and that the acquisition
of the Premises by _____ pursuant to the Agreement shall be deemed good and
valuable consideration to Lessee for the foregoing representations made by
Lessee.
Dated this ____ day of _________, 199_.
LESSEE:
------------------------------,
a
------------------------------
BY:
----------------------------
Name:
----------------------------
Title:
----------------------------
EXHIBIT E
COMMENCEMENT DATE AGREEMENT
THIS AGREEMENT made the _________ day of ________, 199__ is by and
between ________________ (hereinafter "Landlord") whose address is
_________________________________ and _________________________ (hereinafter
"Tenant") whose address is ________________________________________________.
STATEMENT OF FACTS
A. Landlord and Tenant entered into a Lease dated ____________, 199__
(hereinafter "Lease") setting forth the terms of occupancy by Tenant of
approximately ________ rentable square feet on the _____ (___) floor
(hereinafter "Premises") at _____________________________ (hereinafter
"Building"); and
B. The Term of the Lease is for ____________ (__) months with the
Commencement Date of the initial Term being defined in the Preamble to the
Lease as being subject to change under Section 4 thereof; and
C. It has been determined in accordance with the provisions of
Section 4 of the Lease that ___________, 199__ is the Commencement Date of the
Term of the Lease.
STATEMENT OF TERMS
NOW, THEREFORE, in consideration of the Premises and the covenants
hereinafter set forth, it is agreed:
1. The Commencement Date of the Term of the Lease is ___________ ,
199__ and the Expiration Date thereof is _____________ , 199__ and the Lease
Preamble Articles 6 and 9 shall be deemed modified accordingly.
2. Article 10 of the Preamble shall be deemed modified as follows:
This Agreement is executed by the parties hereto for the purpose of
providing a record of the Commencement and Expiration Dates of the Lease,
adjust the Term of the Lease and Fixed Basic Rent amount accordingly.
3. Except as modified herein, the Lease covering the Premises shall
remain in full force and effect as if the same were set forth in full herein
and Landlord and Tenant hereby ratify and confirm all the terms and conditions
thereof.
4. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective legal representatives, successors and
permitted assigns.
5. Each party agrees that it will not raise or assert as a defense to
any obligation under the Lease or this Agreement or make any claim that the
Lease or this Agreement is invalid or unenforceable due to any failure of this
document to comply with ministerial requirements including, but not limited
to, requirements for corporate seals, attestations, witnesses, notarizations,
or other similar requirements, and each party hereby waives the right to
assert any such defense or make any claim of invalidity or unenforceability
due to any of the foregoing.
IN WITNESS THEREOF, Landlord and Tenant have hereunto set their hands
and seals the date and year first above written and acknowledge one to the
other they possess the requisite authority to enter into this transaction and
to sign this Agreement.
LANDLORD:
----------------------------------
BY:
------------------------------
Name:
------------------------------
Title:
------------------------------
Attest:
------------------------------
TENANT:
----------------------------------
BY:
------------------------------
Name:
------------------------------
Title:
------------------------------
Attest:
------------------------------
