EXHIBIT 10
AGREEMENT OF LEASE
BETWEEN
LIBERTY PROPERTY LIMITED PARTNERSHIP
("LANDLORD")
AND
ADVANTA SHARED SERVICES CORP.
("TENANT")
FOR
000 XXXXXXX XXXX
XXXXXXXXXXXX BUSINESS CAMPUS
XXXXXXX, XXXXXXXXXXXX 00000
LEASE AGREEMENT
(Multi-Tenant Office)
INDEX SECTION PAGE
----- ------- ----
1. Summary of Terms and Certain Definitions............................................... 1
2. Premises............................................................................... 2
3. Acceptance of Premises................................................................. 2
4. Use; Compliance........................................................................ 2
5. Term................................................................................... 2
6. Minimum Annual Rent.................................................................... 2
7. Operation of Property; Payment of Expenses............................................. 3
8. Signs.................................................................................. 5
9. Alterations and Fixtures............................................................... 5
10. Mechanics' Liens....................................................................... 5
11. Landlord's Right to Relocate Tenant; Right of Entry.................................... 5
12. Damage by Fire or Other Casualty....................................................... 6
13. Condemnation........................................................................... 6
14. Non-Abatement of Rent.................................................................. 6
15. Indemnification of Landlord............................................................ 6
16. Waiver of Claims....................................................................... 7
17. Quiet Enjoyment........................................................................ 7
18. Assignment and Subletting.............................................................. 7
19. Subordination; Mortgagee's Rights...................................................... 7
20. Recording; Tenant's Certificate........................................................ 8
21 Surrender; Abandoned Property.......................................................... 8
22. Curing Tenant's Defaults............................................................... 8
23. Defaults - Remedies.................................................................... 8
24. Representations of Tenant.............................................................. 10
25. Liability of Landlord.................................................................. 10
26. Interpretation; Definitions............................................................ 10
27. Notices................................................................................ 11
28. Security Deposit....................................................................... 11
29. PA Additional Remedies................................................................. R-1
30. Delivery of Possession; No Improvements by Landlord; Obligations Before
Commencement Date; Completion by Tenant................................................ R-1
31. Multiple Option to Extend Term......................................................... R-2
32. Guaranty............................................................................... R-4
33. Generator.............................................................................. R-5
34. Furniture.............................................................................. R-6
35. Parking................................................................................ R-6
36. Brokers................................................................................ R-6
37. Additional Provisions Relating to Premises............................................. R-6
38. Additional Provisions Relating to Use; Compliance...................................... R-6
39. Additional Provisions Relating to Operation of Property; Payment of Expenses........... R-7
40. Additional Provisions Relating to Signs................................................ R-13
41. Additional Provisions Relating to Alterations and Fixtures............................. R-13
42. Additional Provisions Relating to Mechanics' Liens..................................... R-14
43. Additional Provisions Relating Landlord's Right to Relocate Tenant; Right of Entry..... R-14
44. Additional Provisions Relating to Damage by Fire or Other Casualty..................... R-15
45. Additional Provisions Relating to Condemnation......................................... R-15
46. Additional Provisions Relating to Non-Abatement of Rent................................ R-16
47. Landlord's Indemnification of Tenant................................................... R-16
48. Additional Provisions Relating to Waiver of Claims..................................... R-16
49. Additional Provisions Relating to Assignment and Subletting............................ R-16
50. Additional Provisions Relating to Subordination; Mortgagee's Rights.................... R-17
51. Additional Provisions Relating to Recording; Tenant's Certificate...................... R-18
52. Additional Provisions Relating to Surrender; Abandoned Property........................ R-19
53. Additional Provisions Relating to Curing Tenant's Defaults............................. R-19
54. Additional Provisions Relating to Defaults - Remedies.................................. R-19
55. Landlord's Representation Regarding Authority.......................................... R-21
56. Additional Provisions Relating to Liability of Landlord................................ R-21
57. Additional Provisions Relating to Interpretation; Definitions.......................... R-21
58. Additional Provisions Relating to Notices.............................................. R-21
i
59. Additional Provisions Relating to Tenant Estoppel Certificate.......................... R-22
60. Additional Provisions Relating to Building Rules....................................... R-22
61. Representations and Warranties of Landlord............................................. R-22
ii
THIS LEASE AGREEMENT is made by and between LIBERTY PROPERTY LIMITED
PARTNERSHIP, a Pennsylvania limited partnership ("LANDLORD") with its address at
000 Xxxxxx Xxxx, Xxxxxxx, XX 00000, and ADVANTA SHARED SERVICES CORP., a
Delaware corporation ("TENANT") with an address at Welsh and XxXxxx Xxxxx,
Xxxxxx Xxxxx, XX 00000, and is dated as of the date on which this lease has been
fully executed by Landlord and Tenant.
1. SUMMARY OF TERMS AND CERTAIN DEFINITIONS.
(a) "PREMISES": Approximate rentable square feet: 110,000
(Section 2) Suite:
(b) "BUILDING": Approximate rentable square feet: 110,000
(Section 2) Address: 000 Xxxxxxx Xxxx, Xxxxxxx, XX 00000
(c) "TERM": Ninety (90) months plus any partial month from the
Commencement Date until the first day of the first full calendar month during
the Term.
(i) "POSSESSION DATE": The date of this Lease.
(ii) "COMMENCEMENT DATE": The earlier of (a) 90 days after
the Possession Date, or (b) the date Tenant occupies the Premises for the
conduct of its business.
(iii) "EXPIRATION DATE": See Section 5
(d) MINIMUM RENT (Section 6) & OPERATING EXPENSES (Section 7)
(i) "MINIMUM ANNUAL RENT":
MONTH OF TERM ANNUAL MONTHLY
------------- ------ -------
1-12 $ 970,904.66 $ 80,908.72
13-24 $1,642,622.00 $136,885.16
25-36 $1,744,301.90 $145,358.49
37-48 $1,782,389.30 $148,532.44
49-60 $1,820,476.70 $151,706.39
61-72 $1,858,564.10 $154,880.34
73-84 $1,896,651.50 $158,054.29
85-90 -- $160,168.36
(ii) ESTIMATED "ANNUAL OPERATING EXPENSES": $0.00 (zero
and 00/100 Dollars), payable in monthly installments of $0.00 (zero and 00/100
Dollars), subject to adjustment (Section 7(a))
(e) "PROPORTIONATE SHARE": 100% (Ratio of approximate rentable
square feet in the Premises to approximate rentable square feet in the
Building).
(f) "USE" (Section 4):General office purposes and uses incidental
or accessory thereto in the Office Portion
(as hereinafter defined) and general
warehouse purposes, general office purposes
and uses incidental or accessory thereto in
the Warehouse Portion (as hereinafter
defined).
(g) "SECURITY DEPOSIT" (Section 28):$0.00 (Zero and
00/100 Dollars).
(h) CONTENTS: This lease consists of the Index, pages 1
through 11 containing Sections 1 through 28 and the following, all of which are
attached hereto and made a part of this lease:
Rider with Sections 29 through 61.
Exhibits: "A" - Plan showing Premises
"B" - Commencement Certificate
"C" - Building Rules
"D" - Cleaning Schedule
"E" - Estoppel Certificate
"F" - Plans
"G" - Specifications
"H" - Guaranty
"I" - List of Furniture
"J" - Parking Area Expansion Plan
"K" - Monument Signage
"L" - Building Signage
"M" - Form of Landlord Subordination
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2. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord the Premises as shown on attached Exhibit "A" within the Building
(the Building and the lot on which it is located, the "PROPERTY"), together with
the non-exclusive right with Landlord and other occupants of the Building to use
all areas and facilities provided by Landlord for the use of all tenants in the
Property including any lobbies, hallways, driveways, sidewalks and parking,
loading and landscaped areas (the "COMMON AREAS").
3. ACCEPTANCE OF PREMISES. Tenant has examined and knows the condition of
the Property, the zoning, streets, sidewalks, parking areas, curbs and access
ways adjoining it, visible easements, any surface conditions and the present
uses, and Tenant accepts them in the condition in which they now are, without
relying on any representation, covenant or warranty by Landlord. Tenant and its
agents shall have the right, at Tenant's own risk, expense and responsibility,
at all reasonable times prior to the Commencement Date, to enter the Premises
for the purpose of taking measurements and installing its furnishings and
equipment; provided that the Premises are vacant and Tenant obtains Landlord's
prior written consent.
4. USE; COMPLIANCE.
(a) PERMITTED USE. Tenant shall occupy and use the Premises for and
only for the Use specified in Section 1(f) above and in such a manner as is
lawful, reputable and will not create any nuisance or otherwise interfere with
any other tenant's normal operations or the management of the Building. Without
limiting the foregoing, such Use shall exclude any use that would cause the
Premises or the Property to be deemed a "place of public accommodation" under
the Americans with Disabilities Act (the "ADA") as further described in the
Building Rules (defined below). All Common Areas shall be subject to Landlord's
exclusive control and management at all times. Tenant shall not use or permit
the use of any portion of the Common Areas for other than their intended use.
(b) COMPLIANCE. From and after the Commencement Date, Tenant shall
comply promptly, at its sole expense, (including making any alterations or
improvements) with all laws (including the ADA), ordinances, notices, orders,
rules, regulations and requirements regulating the Property during the Term
which impose any duty upon Landlord or Tenant with respect to Tenant's use,
occupancy or alteration of, or Tenant's installations in or upon, the Property
including the Premises, (as the same may be amended, the "LAWS AND
REQUIREMENTS") and the building rules attached as Exhibit "C", as amended by
Landlord from time to time, (the "BUILDING RULES"). Provided, however, that
Tenant shall not be required to comply with the Laws and Requirements with
respect to the footings, foundations, structural steel columns and girders
forming a part of the Property unless the need for such compliance arises out of
Tenant's use, occupancy or alteration of the Property, or by any act or omission
of Tenant or any employees, agents, contractors, licensees or invitees
("AGENTS") of Tenant. With respect to Tenant's obligations as to the Property,
other than the Premises, at Landlord's option and at Tenant's expense, Landlord
may comply with any repair, replacement or other construction requirements of
the Laws and Requirements and Tenant shall pay to Landlord all costs thereof as
additional rent.
(c) ENVIRONMENTAL. Tenant shall comply, at its sole expense, with all
Laws and Requirements as set forth above, all manufacturers' instructions and
all requirements of insurers relating to the treatment, production, storage,
handling, transfer, processing, transporting, use, disposal and release of
hazardous substances, hazardous mixtures, chemicals, pollutants, petroleum
products, toxic or radioactive matter (the "RESTRICTED ACTIVITIES"). Tenant
shall deliver to Landlord copies of all Material Safety Data Sheets or other
written information prepared by manufacturers, importers or suppliers of any
chemical and all notices, filings, permits and any other written communications
from or to Tenant and any entity regulating any Restricted Activities.
(d) NOTICE. If at any time during or after the Term, Tenant becomes
aware of any inquiry, investigation or proceeding regarding the Restricted
Activities or becomes aware of any claims, actions or investigations regarding
the ADA, Tenant shall give Landlord written notice, within 5 days after first
learning thereof, providing all available information and copies of any notices.
5. TERM. The Term of this lease shall commence on the Commencement Date
and shall end at 11:59 p.m. on the last day of the Term (the "EXPIRATION DATE"),
without the necessity for notice from either party, unless sooner terminated in
accordance with the terms hereof. At Landlord's request, Tenant shall confirm
the Commencement Date and Expiration Date by executing a lease commencement
certificate in the form attached as Exhibit "B".
6. MINIMUM ANNUAL RENT. Tenant agrees to pay to Landlord the Minimum
Annual Rent in equal monthly installments in the amount set forth in Section
1(d) (as increased at the beginning of each lease year as set forth in Section
1(d)), in advance, on the first day of each calendar month during the Term,
without notice, demand or setoff, at Landlord's address designated at the
beginning of this lease unless Landlord designates otherwise; provided that rent
for the first full month shall be paid at the signing of this lease. If the
Commencement Date falls on a day other than the first day of a calendar month,
the rent shall be apportioned pro rata on a per diem basis for the period from
the Commencement Date until the first day of the following calendar month and
shall be paid on or before the Commencement Date. As used in this lease, the
term "LEASE YEAR" means the period from the Commencement Date
2
through the succeeding 12 full calendar months (including for the first lease
year any partial month from the Commencement Date until the first day of the
first full calendar month) and each successive 12 month period thereafter during
the Term.
7. OPERATION OF PROPERTY; PAYMENT OF EXPENSES.
(a) PAYMENT OF OPERATING EXPENSES. Tenant shall pay to Landlord the
Annual Operating Expenses in equal monthly installments in the amount set forth
in Section 1(d) (prorated for any partial month), from the Commencement Date and
continuing throughout the Term on the first day of each calendar month during
the Term, as additional rent, without notice, demand or setoff, provided that
the monthly installment for the first full month shall be paid at the signing of
this lease. Landlord shall apply such payments to the annual operating costs to
Landlord of operating and maintaining the Property during each calendar year of
the Term, which costs may include by way of example rather than limitation:
insurance premiums, fees, impositions, costs for repairs, maintenance, service
contracts, management and administrative fees, governmental permits, overhead
expenses, costs of furnishing water, sewer, gas, fuel, electricity, other
utility services, janitorial service, trash removal, security services,
landscaping and grounds maintenance, and the costs of any other items
attributable to operating or maintaining any or all of the Property excluding
any costs which under generally accepted accounting principles are capital
expenditures; provided, however, that annual operating costs also shall include
the annual amortization (over an assumed useful life often years) of the costs
(including financing charges) of building improvements made by Landlord to the
Property that are required by any governmental authority or for the purpose of
reducing operating expenses or directly enhancing the safety of tenants in the
Building generally. The amount of the Annual Operating Expenses set forth in
Section 1(d) represents Landlord's estimate of Tenant's share of the estimated
operating costs during the first calendar year of the Term on an annualized
basis; from time to time Landlord may adjust such estimated amount if the
estimated operating costs increase. Tenant's obligation to pay the Annual
Operating Expenses pursuant to this Section 7 shall survive the expiration or
termination of this lease.
(i) COMPUTATION OF TENANT'S SHARE OF ANNUAL OPERATING COSTS.
After the end of each calendar year of the Term, Landlord shall compute Tenant's
share of the annual operating costs described above incurred during such
calendar year by (A) calculating an appropriate adjustment, using generally
accepted accounting principles, to avoid allocating to Tenant or to any other
tenant (as the case may be) those specific costs which Tenant or any other
tenant has agreed to pay; (B) calculating an appropriate adjustment, using
generally accepted accounting principles, to avoid allocating to any vacant
space those specific costs which were not incurred for such space; and (C)
multiplying the adjusted annual operating costs by Tenant's Proportionate Share.
(ii) RECONCILIATION. By April 30th of each year (and as soon
as practical after the expiration or termination of this lease or at any time in
the event of a sale of the Property), Landlord shall provide Tenant with a
statement of the actual amount of such annual operating costs for the preceding
calendar year or part thereof. Landlord or Tenant shall pay to the other the
amount of any deficiency or overpayment then due from one to the other or, at
Landlord's option, Landlord may credit Tenant's account for any overpayment.
Tenant shall have the right to inspect the books and records used by Landlord in
calculating the annual operating costs within 60 days of receipt of the
statement during regular business hours after having given Landlord at least 48
hours prior written notice; provided, however, that Tenant shall make all
payments of additional rent without delay, and that Tenant's obligation to pay
such additional rent shall not be contingent on any such right.
(b) IMPOSITIONS. As used in this lease the term "impositions" refers to
all levies, taxes (including sales taxes and gross receipt taxes) and
assessments, which are applicable to the Term, and which are imposed by any
authority or under any law, ordinance or regulation thereof, or pursuant to any
recorded covenants or agreements, and the reasonable cost of contesting any of
the foregoing, upon or with respect to the Property or any part thereof, or any
improvements thereto. Tenant shall pay to Landlord with the monthly payment of
Minimum Annual Rent any imposition imposed directly upon this lease or the Rent
(defined in Section 7(g)) or amounts payable by any subtenants or other
occupants of the Premises, or against Landlord because of Landlord's estate or
interest herein,
(i) Nothing herein contained shall be interpreted as requiring
Tenant to pay any income, excess profits or corporate capital stock tax imposed
or assessed upon Landlord, unless such tax or any similar tax is levied or
assessed in lieu of all or any part of any imposition or an increase in any
imposition.
(ii) If it shall not be lawful for Tenant to reimburse
Landlord for any of the impositions, the Minimum Annual Rent shall be increased
by the amount of the portion of such imposition allocable to Tenant, unless
prohibited by law.
(c) INSURANCE.
(i) PROPERTY. Landlord shall keep in effect insurance against
loss or damage to the Building or the Property by fire and such other casualties
as may be included within fire, extended coverage and special form insurance
covering the full replacement
3
cost of the Building (but excluding coverage of Tenant's personal property in,
and any alterations by Tenant to, the Premises), and such other insurance as
Landlord may reasonably deem appropriate or as may be required from time-to-time
by any mortgagee.
(ii) LIABILITY. Tenant, at its own expense, shall keep in
effect comprehensive general public liability insurance with respect to the
Premises and the Property, including contractual liability insurance, with such
limits of liability for bodily injury (including death) and property damage as
reasonably may be required by Landlord from time-to-time, but not less than a
combined single limit of $1,000,000 per occurrence and a general aggregate limit
of not less than $2,000,000 (which aggregate limit shall apply separately to
each of Tenant's locations if more than the Premises); however, such limits
shall not limit the liability of Tenant hereunder. The policy of comprehensive
general public liability insurance also shall name Landlord and Landlord's agent
as insured parties with respect to the Premises, shall be written on an
"occurrence" basis and not on a "claims made" basis, shall provide that it is
primary with respect to any policies carried by Landlord and that any coverage
carried by Landlord shall be excess insurance, shall provide that it shall not
be cancelable or reduced without at least 30 days prior written notice to
Landlord and shall be issued in form satisfactory to Landlord. The insurer shall
be a responsible insurance carrier which is authorized to issue such insurance
and licensed to do business in the state in which the Property is located and
which has at all times during the Term a rating of no less than A VII in the
most current edition of Best's Insurance Reports. Tenant shall deliver to
Landlord on or before the Commencement Date, and subsequently renewals of, a
certificate of insurance evidencing such coverage and the waiver of subrogation
described below.
(iii) WAIVER OF SUBROGATION. Landlord and Tenant shall have
included in their respective property insurance policies waivers of their
respective insurers' right of subrogation against the other party. If such a
waiver should be unobtainable or unenforceable, then such policies of insurance
shall state expressly that such policies shall not be invalidated if, before a
casualty, the insured waives the right of recovery against any party responsible
for a casualty covered by the policy.
(iv) INCREASE OF PREMIUMS. Tenant agrees not to do anything or
fail to do anything which will increase the cost of Landlord's insurance or
which will prevent Landlord from procuring policies (including public liability)
from companies and in a form satisfactory to Landlord. If any breach of the
preceding sentence by Tenant causes the rate of fire or other insurance to be
increased, Tenant shall pay the amount of such increase as additional rent
promptly upon being billed.
(d) REPAIRS AND MAINTENANCE; COMMON AREAS; BUILDING MANAGEMENT.
(i) Tenant at its sole expense shall maintain the Premises in
a neat and orderly condition.
(ii) Landlord, shall make all necessary repairs to the
Premises, the Common Areas and any other improvements located on the Property,
provided that Landlord shall have no responsibility to make any repair until
Landlord receives written notice of the need for such repair. Landlord shall
operate and manage the Property and shall maintain all Common Areas and any
paved areas appurtenant to the Property in a clean and orderly condition.
Landlord reserves the right to make alterations to the Common Areas from time to
time.
(iii) Notwithstanding anything herein to the contrary, repairs
and replacements to the Property including the Premises made necessary by
Tenant's use, occupancy or alteration of, or Tenant's installation in or upon
the Property or by any act or omission of Tenant or its Agents shall be made at
the sole expense of Tenant to the extent not covered by any applicable insurance
proceeds paid to Landlord. Tenant shall not bear the expense of any repairs or
replacements to the Property arising out of or caused by any other tenant's use,
occupancy or alteration of, or any other tenant's installation in or upon, the
Property or by any act or omission of any other tenant or any other tenant's
Agents.
(e) UTILITIES.
(i) Landlord will furnish the Premises with electricity,
heating and air conditioning for the normal use and occupancy of the Premises as
general offices between 8:00 a.m. and 6:00 p.m., Monday through Friday (legal
holidays excepted). If Tenant shall require electricity or install electrical
equipment including but not limited to electrical heating, refrigeration
equipment, electronic data processing machines, or machines or equipment using
current in excess of 110 volts, which will in any way increase the amount of
electricity usually furnished for use as general office space, or if Tenant
shall attempt to use the Premises in such a manner that the services to be
furnished by Landlord would be required during periods other than or in addition
to business hours referred to above, Tenant will obtain Landlord's prior written
approval and will pay for the resulting additional direct expense, including the
expense resulting from the installation of such equipment and meters, as
additional rent promptly upon being billed. Landlord shall not be responsible or
liable for any interruption in utility service, nor shall such interruption
affect the continuation or validity of this lease.
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(ii) If at any time utility services supplied to the Premises
are separately metered, the cost of installing Tenant's meter and the cost of
such separately metered utility service shall be paid by Tenant promptly upon
being billed.
(f) JANITORIAL SERVICES. Landlord will provide Tenant with trash
removal and janitorial services pursuant to a cleaning schedule attached as
Exhibit "D".
(g) "RENT." The term "RENT" as used in this lease means the Minimum
Annual Rent, Annual Operating Expenses and any other additional rent or sums
payable by Tenant to Landlord pursuant to this lease, all of which shall be
deemed rent for purposes of Landlord's rights and remedies with respect thereto.
Tenant shall pay al] Rent to Landlord within 30 days after Tenant is billed,
unless otherwise provided in this lease, and interest shall accrue on all sums
due but unpaid.
8. SIGNS. Landlord, at Landlord's expense, will place Tenant's name and
suite number on the Building standard sign and on or beside the entrance door to
the Premises. Except for signs which are located wholly within the interior of
the Premises and not visible from the exterior of the Premises, no signs shall
be placed on the Property without the prior written consent of Landlord. All
signs installed by Tenant shall be maintained by Tenant in good condition and
Tenant shall remove all such signs at the termination of this lease and shall
repair any damage caused by such installation, existence or removal.
9. ALTERATIONS AND FIXTURES.
(a) Subject to Section 10, Tenant shall have the right to install its
trade fixtures in the Premises, provided that no such installation or removal
thereof shall affect any structural portion of the Property nor any utility
lines, communications lines, equipment or facilities in the Building serving any
tenant other than Tenant. At the expiration or termination of this lease and at
the option of Landlord or Tenant, Tenant shall remove such installation(s) and,
in the event of such removal, Tenant shall repair any damage caused by such
installation or removal; if Tenant, with Landlord's written consent, elects not
to remove such installation(s) at the expiration or termination of this lease,
all such installations shall remain on the Property and become the property of
Landlord without payment by Landlord.
(b) Except for non-structural changes which do not exceed $5000 in the
aggregate. Tenant shall not make or permit to be made any alterations to the
Premises without Landlord's prior written consent. Tenant shall pay the costs of
any required architectural/engineering reviews. In making any alterations, (i)
Tenant shall deliver to Landlord the plans, specifications and necessary
permits, together with certificates evidencing that Tenant's contractors and
subcontractors have adequate insurance coverage naming Landlord and Landlord's
agent as additional insureds, at least 10 days prior to commencement thereof,
(ii) such alterations shall not impair the structural strength of the Building
or any other improvements or reduce the value of the Property or affect any
utility lines, communications lines, equipment or facilities in the Building
serving any tenant other than Tenant, (iii) Tenant shall comply with Section 10
and (iv) the occupants of the Building and of any adjoining property shall not
be disturbed thereby. All alterations to the Premises by Tenant shall be the
property of Tenant until the expiration or termination of this lease; at that
time all such alterations shall remain on the Property and become the property
of Landlord without payment by Landlord unless Landlord gives written notice to
Tenant to remove the same, in which event Tenant will remove such alterations
and repair any resulting damage. At Tenant's request prior to Tenant making any
alterations, Landlord shall notify Tenant in writing, whether Tenant is required
to remove such alterations at the expiration or termination of this lease.
10. MECHANICS' LIENS. Tenant shall pay promptly any contractors and
materialmen who supply labor, work or materials to Tenant at the Property and
shall take all steps permitted by law in order to avoid the imposition of any
mechanic's lien upon all or any portion of the Property. Should any such lien or
notice of lien be filed for work performed for Tenant other than by Landlord,
Tenant shall bond against or discharge the same within 5 days after Tenant has
notice that the lien or claim is filed regardless of the validity of such lien
or claim. Nothing in this lease is intended to authorize Tenant to do or cause
any work to be done or 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.
Throughout this lease the term "MECHANIC'S LIEN" is used to include any lien,
encumbrance or charge levied or imposed upon all or any portion of, interest in
or income from the Property on account of any mechanic's, laborer's,
materialman's or construction lien or arising out of any debt or liability to or
any claim of any contractor, mechanic, supplier, materialman or laborer and
shall include any mechanic's notice of intention to file a lien 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 claiming to be entitled to any mechanic's lien.
11. LANDLORD'S RIGHT TO RELOCATE TENANT; RIGHT OF ENTRY.
(a) Landlord may cause Tenant to relocate from the Premises to a
comparable space ("RELOCATION SPACE") within the Building by giving written
notice to Tenant at least 60 days in advance, provided that Landlord shall pay
for all reasonable costs of
5
such relocation. Such a relocation shall not terminate, modify or otherwise
affect this lease except that "Premises" shall refer to the Relocation Space
rather than the old location identified in Section 1(a).
(b) Tenant shall permit Landlord and its Agents to enter the Premises
at all reasonable times following reasonable notice (except in the event of an
emergency), for the purpose of inspection, maintenance or making repairs,
alterations or additions as well as to exhibit the Premises for the purpose of
sale or mortgage and, during the last 12 months of the Term, to exhibit the
Premises to any prospective tenant. Landlord will make reasonable efforts not to
inconvenience Tenant in exercising the foregoing rights, but shall not be liable
for any loss of occupation or quiet enjoyment thereby occasioned.
12. DAMAGE BY FIRE OR OTHER CASUALTY.
(a) If the Premises or Building shall be damaged or destroyed by fire
or other casualty, Tenant promptly shall notify Landlord and Landlord, subject
to the conditions set forth in this Section 12, shall repair such damage and
restore the Premises to substantially the same condition in which they were
immediately prior to such damage or destruction, but not including the repair,
restoration or replacement of the fixtures or alterations installed by Tenant.
Landlord shall notify Tenant in writing, within 30 days after the date of the
casualty, if Landlord anticipates that the restoration will take more than 180
days from the date of the casualty to complete; in such event, either Landlord
or Tenant may terminate this lease effective as of the date of casualty by
giving written notice to the other within 10 days after Landlord's notice.
Further, if a casualty occurs during the last 12 months of the Term or any
extension thereof, Landlord may cancel this lease unless Tenant has the right to
extend the Term for at least 3 more years and does so within 30 days after the
date of the casualty.
(b) Landlord shall maintain a 12 month rental coverage endorsement or
other comparable form of coverage as part of its fire, extended coverage and
special form insurance. Tenant will receive an abatement of its Minimum Annual
Rent and Annual Operating Expenses to the extent the Premises are rendered
untenantable as determined by the carrier providing the rental coverage
endorsement.
13. CONDEMNATION.
(a) TERMINATION. If (i) all of the Premises are taken by a condemnation
or otherwise for any public or quasi-public use, (ii) any part of the Premises
is so taken and the remainder thereof is insufficient for the reasonable
operation of Tenant's business or (iii) any of the Property is so taken, and, in
Landlord's opinion, it would be impractical or the condemnation proceeds are
insufficient to restore the remainder of the Property, then this lease shall
terminate and all unaccrued obligations hereunder shall cease as of the day
before possession is taken by the condemnor.
(b) PARTIAL TAKING. If there is a condemnation and this lease has not
been terminated pursuant to this Section, (i) Landlord shall restore the
Building and the improvements which are a 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 the condemnor took possession
and (ii) the obligations of Landlord and Tenant shall be unaffected by such
condemnation except that there shall be an equitable abatement of the Minimum
Annual Rent according to the rental value of the Premises before and after the
date upon which the condemnor took possession and/or the date Landlord completes
such restoration.
(c) AWARD. In the event of a condemnation affecting Tenant, Tenant
shall have the right to make a claim against the condemnor for moving expenses
and business dislocation damages to the extent that such claim does not reduce
the sums otherwise payable by the condemnor to Landlord. Except as aforesaid and
except as set forth in (d) below, Tenant hereby assigns all claims against the
condemnor to Landlord.
(d) TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this lease or give Tenant any right to any rental abatement. Such a
temporary taking will be treated as if Tenant had sublet the Premises to the
condemnor and had assigned the proceeds of the subletting to Landlord to be
applied on account of Tenant's obligations hereunder. Any award for such a
temporary taking during the Term shall be applied first, to Landlord's costs of
collection and, second, on account of sums owing by Tenant hereunder, and if
such amounts applied on account of sums owing by Tenant hereunder should exceed
the entire amount owing by Tenant for the remainder of the Term, the excess will
be paid to Tenant.
14. NON-ABATEMENT OF RENT. Except as otherwise expressly provided as to
damage by fire or other casualty in Section 12(b) and as to condemnation in
Section 13(b), there shall be no abatement or reduction of the Rent for any
cause whatsoever, and this lease shall not terminate, and Tenant shall not be
entitled to surrender the Premises.
15. INDEMNIFICATION OF LANDLORD. Subject to Sections 7(c)(iii) and 16,
Tenant will protect, indemnify and hold harmless Landlord and its Agents from
and against any and all claims, actions, damages, liability and expense
(including fees of attorneys, investigators
6
and experts) in connection with loss of life, personal injury or damage to
property in or about the Premises or arising out of the occupancy or use of the
Premises by Tenant or its Agents or occasioned wholly or in part by any act or
omission of Tenant or its Agents, whether prior to, during or after the Term,
except to the extent such loss, injury or damage was caused by the negligence of
Landlord or its Agents. In case any action or proceeding is brought against
Landlord and/or its Agents by reason of the foregoing, Tenant, at its expense,
shall resist and defend such action or proceeding, or cause the same to be
resisted and defended by counsel (reasonably acceptable to Landlord and its
Agents) designated by the insurer whose policy covers such occurrence or by
counsel designated by Tenant and approved by Landlord and its Agents. Tenant's
obligations pursuant to this Section 15 shall survive the expiration or
termination of this lease.
16. WAIVER OF CLAIMS. Landlord and Tenant each hereby waives all claims for
recovery against the other for any loss or damage 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 or its Agents; provided, however,
that such waiver by Landlord shall not be effective with respect to any
liability of Tenant described in Sections 4(c) and 7(d)(iii).
17. QUIET ENJOYMENT. Landlord covenants that Tenant, upon performing all of
its covenants, agreements and conditions of this lease, shall have quiet and
peaceful possession of the Premises as against anyone claiming by or through
Landlord, subject, however, to the exceptions, reservations and conditions of
this lease.
18. ASSIGNMENT AND SUBLETTING.
(a) LIMITATION. Tenant shall not transfer this lease, voluntarily or by
operation of law, without the prior written consent of Landlord which shall not
be withheld unreasonably. However, Landlord's consent shall not be required in
the event of any transfer by Tenant to an affiliate of Tenant which is at least
as creditworthy as Tenant as of the date of this lease and provided Tenant
delivers to Landlord the instrument described in Section (c)(iii) below,
together with a certification of such creditworthiness by Tenant and such
affiliate. Any transfer not in conformity with this Section 18 shall be void at
the option of Landlord, and Landlord may exercise any or all of its rights under
Section 23. A consent to one transfer shall not be deemed to be a consent to any
subsequent transfer. "Transfer" shall include any sublease, assignment, license
or concession agreement, change in ownership or control of Tenant, mortgage or
hypothecation of this lease or Tenant's interest therein or in all or a portion
of the Premises.
(b) OFFER TO LANDLORD. Tenant acknowledges that the terms of this
lease, including the Minimum Annual Rent, have been based on the understanding
that Tenant physically shall occupy the Premises for the entire Term. Therefore,
upon Tenant's request to transfer all or a portion of the Premises, at the
option of Landlord, Tenant and Landlord shall execute an amendment to this lease
removing such space from the Premises, Tenant shall be relieved of any liability
with respect to such space and Landlord shall have the right to lease such space
to any party, including Tenant's proposed transferee.
(c) CONDITIONS. Notwithstanding the above, the following shall apply to
any transfer, with or without Landlord's consent:
(i) As of the date of any transfer, Tenant shall not be in
default under this lease nor shall any act or omission have occurred which would
constitute a default with the giving of notice and/or the passage of time.
(ii) No transfer shall relieve Tenant of its obligation to pay
the Rent and to perform all its other obligations hereunder. The acceptance of
Rent by Landlord from any person shall not be deemed to be a waiver by Landlord
of any provision of this lease or to be a consent to any transfer.
(iii) Each transfer shall be by a written instrument in form
and substance satisfactory to Landlord which shall (A) include an assumption of
liability by any transferee of all Tenant's obligations and the transferee's
ratification of and agreement to be bound by all the provisions of this lease,
(B) afford Landlord the right of direct action against the transferee pursuant
to the same remedies as are available to Landlord against Tenant and (C) be
executed by Tenant and the transferee.
(iv) Tenant shall pay, within 10 days of receipt of an invoice
which shall be no less than $250, Landlord's reasonable attorneys' fees and
costs in connection with the review, processing and documentation of any
transfer for which Landlord's consent is requested.
19. SUBORDINATION; MORTGAGEE'S RIGHTS.
(a) This lease shall be subordinate to any first mortgage or other
primary encumbrance now or hereafter affecting the Premises. Although the
subordination is self-operative, within 10 days after written request, Tenant
shall execute and deliver any further instruments confirming such subordination
of this lease and any further instruments of attornment that may be desired by
any such mortgagee or Landlord. However, any mortgagee may at any time
subordinate its mortgage to this lease, without Tenant's consent,
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by giving written notice to Tenant, and thereupon this lease shall be deemed
prior to such mortgage without regard to their respective dates of execution and
delivery, provided, however, that such subordination shall not affect any
mortgagee's right to condemnation awards, casualty insurance proceeds,
intervening liens or any right which shall arise between the recording of such
mortgage and the execution of this lease.
(b) It is understood and agreed that any mortgagee shall not be liable
to Tenant for any funds paid by Tenant to Landlord unless such funds actually
have been transferred to such mortgagee by Landlord.
(c) Notwithstanding the provisions of Sections 12 and 13 above,
Landlord's obligation to restore the Premises after a casualty or condemnation
shall be subject to the consent and prior rights of Landlord's first mortgagee.
20. RECORDING; TENANT'S CERTIFICATE. Tenant shall not record this lease or
a memorandum thereof without Landlord's prior written consent. Within 10 days
after Landlord's written request from time to time:
(a) Tenant shall execute, acknowledge and deliver to Landlord a written
statement certifying the Commencement Date and Expiration Date of this lease,
that this lease is in full force and effect and has not been modified and
otherwise as set forth in the form of estoppel certificate attached as Exhibit
"E" or with such modifications as may be necessary to reflect accurately the
stated facts and/or such other certifications as may be requested by a mortgagee
or purchaser. Tenant understands that its failure to execute such documents may
cause Landlord serious financial damage by causing the failure of a financing or
sale transaction.
(b) Tenant shall furnish to Landlord, Landlord's mortgagee, prospective
mortgagee or purchaser reasonably requested financial information.
21. SURRENDER; ABANDONED PROPERTY.
(a) Subject to the terms of Sections 9(b), 12(a) and 13(b), at the
expiration or termination of this lease, Tenant promptly shall yield up in the
same condition, order and repair in which they are required to be kept
throughout the Term, the Premises and all improvements thereto, and all fixtures
and equipment servicing the Building, ordinary wear and tear excepted.
(b) Upon or prior to the expiration or termination of this lease,
Tenant shall remove any personal property from the Property. Any personal
property remaining thereafter shall be deemed conclusively to have been
abandoned, and Landlord, at Tenant's expense, may remove, store, sell or
otherwise dispose of such property in such manner as Landlord may see fit and/or
Landlord may retain such property as its property. If any part thereof shall be
sold, then Landlord may receive and retain the proceeds of such sale and apply
the same, at its option, against the expenses of the sale, the cost of moving
and storage and any Rent due under this lease.
(c) If Tenant, or any person claiming through Tenant, shall continue to
occupy the Premises after the expiration or termination of this lease or any
renewal thereof, such occupancy shall be deemed to be under a month-to-month
tenancy under the same terms and conditions set forth in this lease, except that
the monthly installment of the Minimum Annual Rent during such continued
occupancy shall be double the amount applicable to the last month of the Term.
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 available to Landlord.
22. CURING TENANT'S DEFAULTS. If Tenant shall be in default in the
performance of any of its obligations hereunder, Landlord, without any
obligation to do so, in addition to any other rights it may have in law or
equity, may 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
incurring such costs, which sums and costs together with interest shall be
deemed additional rent.
23. DEFAULTS - REMEDIES.
(a) DEFAULTS. It shall be an event of default:
(i) If Tenant does not pay in full when due any and all Rent;
(ii) If Tenant fails to observe and perform or otherwise
breaches any other provision of this lease;
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(iii) If Tenant abandons the Premises, which shall be
conclusively presumed if the Premises remain unoccupied for more than 10
consecutive days, or removes or attempts to remove Tenant's goods or property
other than in the ordinary course of business; or
(iv) If Tenant becomes insolvent or bankrupt in any sense or
makes a general assignment for the benefit of creditors or offers a settlement
to 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 for any of Tenant's assets is commenced, or if any of the real or
personal property of Tenant shall be levied upon; provided, however, that any
proceeding brought by anyone other than Landlord or Tenant under any bankruptcy,
insolvency, receivership or similar law shall not constitute a default until
such proceeding has continued unstayed for more than 60 consecutive days.
(b) REMEDIES. Then, and in any such event, Landlord shall have the
following rights:
(i) To charge a late payment fee equal to the greater of $100
or 5% of any amount owed to Landlord pursuant to this lease which is not paid
within 5 days after the due date.
(ii) To enter and repossess the Premises, by breaking open
locked doors if necessary, and remove all persons and all or any property
therefrom, by action at law or otherwise, without being liable for prosecution
or damages therefor, and Landlord may, at Landlord's option, make alterations
and repairs in order to relet the Premises and relet all or any part(s) of the
Premises for Tenant's account. Tenant agrees to pay to Landlord on demand any
deficiency that may arise by reason of such reletting. In the event of reletting
without termination of this lease, Landlord may at any time thereafter elect to
terminate this lease for such previous breach.
(iii) To accelerate the whole or any part of the Rent for the
balance of the Term, and declare the same to be immediately due and payable.
(iv) To terminate this lease and the Term without any right on
the part of Tenant to save the forfeiture by payment of any sum due or by other
performance of any condition, term or covenant broken.
(c) GRACE PERIOD. Notwithstanding anything hereinabove stated, neither
party will exercise any available right because of any default of the other,
except those remedies contained in subsection (b)(i) of this Section, unless
such party shall have first given 10 days written notice thereof to the
defaulting party, and the defaulting party shall have failed to cure the default
within such period; provided, however, that:
(i) No such notice shall be required if Tenant fails to comply
with the provisions of Sections 10 or 20(a), in the case of emergency as set
forth in Section 22 or in the event of any default enumerated in subsections
(a)(iii) and (iv) of this Section.
(ii) Landlord shall not be required to give such 10 days
notice more than 2 times during any 12 month period.
(iii) If the default consists of something other than the
failure to pay money which cannot reasonably be cured within 10 days, neither
party will exercise any right if the defaulting party begins to cure the default
within the 10 days and continues actively and diligently in good faith to
completely cure said default.
(iv) Tenant agrees that any notice given by Landlord pursuant
to this Section which is served in compliance with Section 27 shall be adequate
notice for the purpose of Landlord's exercise of any available remedies.
(d) NON-WAIVER; NON-EXCLUSIVE. No waiver by Landlord of any breach by
Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by
Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach. Efforts
by Landlord to mitigate the damages caused by Tenant's default shall not
constitute a waiver of Landlord's right to recover damages hereunder. 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. No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the total amount due Landlord
under this lease shall be deemed to be other than on account, nor shall any
endorsement or statement on any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of Rent due, or Landlord's right to
pursue any other available remedy.
9
(e) COSTS AND ATTORNEYS' FEES. If either party commences an action
against the other party arising out of or in connection with this lease, the
prevailing party shall be entitled to have and recover from the losing party
attorneys' fees, costs of suit, investigation expenses and discovery costs,
including costs of appeal.
24. REPRESENTATIONS OF TENANT. Tenant represents to Landlord and agrees
that:
(a) The word "TENANT" as used herein includes the Tenant named above as
well as its successors and assigns, each of which shall be under the same
obligations and liabilities 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 of the persons named above as Tenant shall be
bound jointly 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 Tenant has complied with
the terms of Section 18 and 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
thereof.
(b) If Tenant is a corporation, partnership or any other form of
business association or entity, Tenant is duly formed and in good standing, and
has full corporate or partnership power and authority, as the case may be, to
enter into this lease and has taken all corporate or partnership action, as the
case may be, necessary to carry out the transaction contemplated herein, so that
when executed, this lease constitutes a valid and binding obligation enforceable
in accordance with its terms. Tenant shall provide Landlord with corporate
resolutions or other proof in a form acceptable to Landlord, authorizing the
execution of this lease at the time of such execution.
25. LIABILITY OF LANDLORD. The word "LANDLORD" as used herein includes the
Landlord named above as well as its successors and assigns, each of which shall
have the same rights, remedies, powers, authorities and privileges as it would
have had it originally signed this lease as Landlord. Any such person or entity,
whether or not named herein, shall have no liability hereunder after it ceases
to hold title to the Premises except for obligations already accrued (and, as to
any unapplied portion of Tenant's Security Deposit, Landlord shall be relieved
of all liability therefor upon transfer of such portion to its successor in
interest) and Tenant shall look solely to Landlord's successor in interest for
the performance of the covenants and obligations of the Landlord hereunder which
thereafter shall accrue. Neither Landlord nor any principal of Landlord nor any
owner of the Property, 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 Property for the satisfaction of Tenant's claims.
Notwithstanding the foregoing, no mortgagee or ground lessor succeeding to the
interest of Landlord hereunder (either in terms of ownership or possessory
rights) shall be (a) liable for any previous act or omission of a prior
landlord, (b) subject to any rental offsets or defenses against a prior landlord
or (c) bound by any amendment of this lease made without its written consent, or
by payment by Tenant of Minimum Annual Rent in advance in excess of one monthly
installment.
26. INTERPRETATION; DEFINITIONS.
(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. This lease shall not be
modified in any manner except by an instrument in writing executed by the
parties. The masculine (or neuter) pronoun and the singular number shall include
the masculine, feminine and neuter genders and the singular and plural number.
The word "INCLUDING" followed by any specific item(s) is deemed to refer to
examples rather than to be words of limitation. Both parties having participated
fully and equally in the negotiation and preparation of this lease, this lease
shall not be more strictly construed, nor any ambiguities in this lease
resolved, against either Landlord or Tenant.
(c) COVENANTS. Each covenant, agreement, obligation, term, condition or
other provision herein contained shall be deemed and construed as a separate and
independent covenant of the party bound by, undertaking or making the same, not
dependent on any other provision of this lease unless otherwise expressly
provided. All of the terms and conditions set forth in this lease shall apply
through out the Term unless otherwise expressly set forth herein.
(d) INTEREST. Wherever interest is required to be paid hereunder, such
interest shall be at the highest rate permitted under law but not in excess of
15% per annum.
10
(e) SEVERABILITY; GOVERNING LAW. If any provisions of this lease shall
be declared unenforceable in any respect, such unenforceability shall not affect
any other provision of this lease, and each such provision shall be deemed to be
modified, if possible, in such a manner as to render it enforceable and to
preserve to the extent possible the intent of the parties as set forth herein.
This lease shall be construed and enforced in accordance with the laws of the
state in which the Property is located.
(f) "MORTGAGE" AND "MORTGAGEE." The word "mortgage" 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" as used herein includes the holder of
any mortgage, including any ground lessor if Landlord's interest is or becomes a
leasehold estate. Wherever any right is given to a mortgage, that right may be
exercised on behalf of such mortgagee by any representative or servicing agent
of such mortgagee.
(g) "PERSON." The word "person" is used herein to include a natural
person, a partnership, a corporation, an association and any other form of
business association or entity.
27. NOTICES. Any notice or other communications under this lease shall be
in writing and addressed to Landlord or Tenant at their respective addresses
specified at the beginning of this lease, except that after the Commencement
Date Tenant's address shall be at the Premises, (or to such other address as
either may designate by notice to the other) with a copy to any mortgagee or
other party designated by Landlord. Each notice or other communication shall be
deemed given if sent by prepaid overnight delivery service or by certified mail,
return receipt requested, postage prepaid or in any other manner, with delivery
in any case evidenced by a receipt, and shall be deemed received on the day of
actual receipt by the intended recipient or on the business day delivery is
refused. The giving of notice by Landlord's attorneys, representatives and
agents under this Section shall be deemed to be the acts of Landlord; however,
the foregoing provisions governing the date on which a notice deemed to have
been received shall mean and refer to the date on which a party to this lease,
and not its counsel or other recipient to which a copy of the notice may be
sent, is deemed to have received the notice.
28. SECURITY DEPOSIT. At the time of signing this lease, Tenant shall
deposit with Landlord the Security Deposit to be retained by Landlord as cash
security for the faithful performance and observance by Tenant of the provisions
of this lease. Tenant shall not be entitled to any interest whatever on the
Security Deposit. Landlord shall have the right to commingle the Security
Deposit with its other funds. Landlord may use the whole or any part of the
Security Deposit for the payment of any amount as to which Tenant is in default
hereunder or to compensate Landlord for any loss or damage it may suffer by
reason of Tenant's default under this lease. If Landlord uses all or any portion
of the Security Deposit as herein provided, within 10 days after written demand
therefor, Tenant shall pay Landlord cash in amount equal to that portion of the
Security Deposit used by Landlord. If Tenant shall comply fully and faithfully
with all the provisions of this lease, the Security Deposit shall be returned to
Tenant after the Expiration Date and surrender of the Premises to Landlord.
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, Landlord and Tenant have executed this lease.
LANDLORD:
LIBERTY PROPERTY LIMITED PARTNERSHIP
Date Signed: By: Liberty Property Trust Sole General Partner
February 27, 2003 By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxxxxx
Senior Vice President and Regional Director
TENANT:
Date Signed: ADVANTA SHARED SERVICES CORP.
February 26, 2003 By: /s/ XXXXXX X. XXXX
--------------------------------------------
Name: XXXXXX X. XXXX
Title: Vice President, Corporate Administration
Attest: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx [Corporate Seal]
Title: Asst. Secretary
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RIDER
29. PA Additional Remedies.
(a) When this lease and the Term or any extension thereof shall
have been terminated on account of any default by Tenant, which remains uncured
after the expiration of any applicable notice and/or cure period, or when the
Term or any extension thereof shall have expired, Tenant hereby authorizes any
attorney of any court of record of the Commonwealth of Pennsylvania to appear
for Tenant and for anyone claiming by, through or under Tenant and to confess
judgment against all such parties, and in favor of Landlord, in ejectment and
for the recovery of possession of the Premises, for which this lease or a true
and correct copy hereof shall be good and sufficient warrant. AFTER THE ENTRY OF
ANY SUCH JUDGMENT A WRIT OF POSSESSION MAY BE ISSUED THEREON WITHOUT FURTHER
NOTICE TO TENANT AND WITHOUT A HEARING. If 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(s) or upon the termination of this lease
or Tenant's right of possession as herein set forth, to again confess judgment
as herein provided, for which this lease or a true and correct copy hereof shall
be good and sufficient warrant.
(b) The warrant to confess judgment set forth above shall continue
in full force and effect and be unaffected by amendments to this lease or other
agreements between Landlord and Tenant even if any such amendments or other
agreements increase Tenant's obligations or expand the size of the Premises.
Tenant waives any procedural errors in connection with the entry of any such
judgment or in the issuance of any one or more writs of possession or execution
or garnishment thereon.
(c) EXCEPT AS OTHERWISE SET FORTH IN THIS LEASE, TENANT KNOWINGLY
AND EXPRESSLY WAIVES ANY RIGHT, INCLUDING, WITHOUT LIMITATION, UNDER ANY
APPLICABLE STATUTE, WHICH TENANT MAY HAVE TO RECEIVE A NOTICE TO QUIT PRIOR TO
LANDLORD COMMENCING AN ACTION FOR REPOSSESSION OF THE PREMISES.
ADVANTA SHARED SERVICES CORP.
By:/s/ Xxxxxx X. Xxxx
------------------
Name: Xxxxxx X. Xxxx
Title: Vice President, Corporate Administration
30. Delivery of Possession; No Improvements by Landlord; Obligations Before
Commencement Date; Completion by Tenant.
(a) The Premises shall be delivered by Landlord to Tenant on the
Possession Date and accepted by Tenant broom clean in "as is" "where is"
condition (including the existing furniture therein) and Landlord shall have no
obligations whatsoever to improve the Premises for Tenant's use or occupancy.
R-1
(b) Prior to the Commencement Date, Tenant shall abide by the
terms and conditions of this lease as if the Term of this lease had already
commenced, except that Tenant shall have no obligation to pay the Minimum Annual
Rent or any portion thereof until the Commencement Date.
(c) The Premises shall be completed by Tenant and its
contractor(s), at Tenant's sole expense, in accordance with plans to be prepared
by Tenant, approved by Landlord and attached hereto as Exhibit "F" (the "Plans")
and specifications to be prepared by Tenant, approved by Landlord and attached
hereto as Exhibit "G" (the "Specifications"). Landlord shall respond to a
written request for approval of the Plans and Specifications within 10 days
after receipt thereof and if Landlord fails to timely respond thereto, such
approval be deemed granted if Landlord fails to respond to a second written
request therefor pursuant to the procedure set forth in Section 41(e) below
within three (3) business days after Landlord's receipt of such second written
request. In connection with the alterations Tenant intends to make to the
Premises in accordance with the Plans and Specifications (the "Tenant
Improvements"), Tenant shall comply with Sections 9 and 10 of this lease and the
following conditions:
(i) Prior to commencement of construction of the Tenant
Improvements, Tenant shall deliver to Landlord a certificate of insurance for
Tenant's general contractor evidencing adequate insurance coverage and naming
Landlord and Landlord's agent as additional insureds.
(ii) Prior to commencement of construction, Tenant shall
deliver to Landlord a true and correct copy of a Waiver of Liens filed by
Tenant's general contractor with the Prothonotary of Xxxxxxxxxx County.
(iii) In addition to the right of Landlord and its Agents
to inspect the Premises set forth in Section 11 of this lease, Landlord and its
Agents shall have the right to conduct a walk-through inspection of the Premises
as completed by Tenant.
(iv) The warranties from Tenant's contractor(s) shall be
for the benefit of Landlord as well as Tenant and Tenant shall deliver such
warranties to Landlord upon receipt.
(v) All construction shall be done in a good and
workmanlike manner and shall comply at the time of completion with all Laws and
Requirements. Tenant shall deliver to Landlord copies of all certificates of
occupancy, permits and licenses required to be issued by any authority in
connection with Tenant's construction.
(d) Within 30 days after the later of (i) the Commencement Date,
or (ii) receipt by Landlord of bona fide invoices therefor, Landlord shall
reimburse Tenant for the lesser of (A) all documented out-of-pocket costs
incurred by Tenant in connection with the design and construction of the Tenant
Improvements, or (B) $1,183,882.00.
31. Multiple Option to Extend Term
(a) Provided that Landlord has not given Tenant notice of default
more than two (2) times in the immediately preceding twelve (12) month period,
that there then exists no event of default by Tenant under the lease nor any
event that with the giving of notice and/or the passage
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of time would constitute a default, and that Tenant or Tenant's affiliates or
outsource contractors in the ordinary course of Tenant's business are the
primary occupants of the Premises, Tenant shall have the right and option to
extend the Term of the lease for three (3) additional periods of twenty-four
(24) months each, exercisable by giving Landlord prior written notice, at least
nine (9) months in advance of the Expiration Date or the first or second
extended Expiration Date, as the case may be, of Tenant's election to extend the
Term; it being agreed that time is of the essence and that this option is
personal to Tenant and any assignee for whom Landlord's consent is not required
under Section 18(a) and is non-transferable to any other assignee or sublessee
(regardless of whether any such assignment or sublease was made with or without
Landlord's consent) or other party.
(b) Such extension(s) shall be under the same terms and conditions
as provided in the lease except as follows:
(i) the first additional period shall begin on the
initial Expiration Date and thereafter the Expiration Date shall be deemed to be
the date which is twenty-four (24) months after the initial Expiration Date;
(ii) the second additional period shall begin on the
Expiration Date of the first additional period and thereafter the Expiration
Date shall be deemed to be the date which is twenty-four (24) months after the
Expiration Date of the first additional period;
(iii) the third additional period shall begin on the
Expiration Date of the second additional period and thereafter the Expiration
Date shall be deemed to be the date which is twenty-four (24) months after the
Expiration Date of the second additional period;
(iv) there shall be no further options to extend;
(v) The Minimum Annual Rent for each year of each
additional term shall be equal to the greater of (i) the Minimum Annual Rent
payable under the lease in the lease year immediately preceding the additional
period, or (ii) 90% of the fair market rental value of the Premises and annual
increases in fair market rental value (collectively, the "FMR") applicable at
the time Tenant exercises such option (but in no event prior to nine (9) months
before the additional period commences).
(vi) Unless Landlord accepts as Tenant's Minimum Annual
Rent obligation for each year of the additional period an amount equal to the
Minimum Annual Rent payable under the lease in the lease year immediately prior
to the commencement of such additional period (the "Prior Rent Alternative"),
within fifteen (15) days after Landlord receives notice of Tenant's exercise of
this option to extend the Term, but in no event prior to nine (9) months before
the commencement of each additional period, Landlord will give notice to Tenant
(the "Rent Notice") of Landlord's opinion of the FMR and comparing the FMR to
the Minimum Annual Rent payable under the lease in the immediately preceding
lease year and specifically advising Tenant that if Tenant does not object
thereto in writing within thirty (30) days thereafter, the FMR shall be deemed
accepted as the Minimum Annual Rent due for each lease year of the additional
period. If Tenant does not respond to the Rent Notice within thirty (30) days
after receiving it, Landlord's opinion of the FMR shall be deemed accepted as
the Minimum Annual
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Rent due for each lease year of the additional period. If, during such thirty
(30) day period, Tenant gives Landlord notice that Tenant contests Landlord's
determination of FMR (an "Objection Notice"), which notice must contain therein
Tenant's opinion of the FMR, the parties will attempt to arrive at a mutually
agreeable Minimum Annual Rent for each lease year of the additional period,
which, in no event, shall be less than the Prior Rent Alternative. If the
parties come to an agreement, they will execute an amendment to the lease
establishing the Minimum Annual Rent for each lease year of the additional
period. If the parties fail to come to an agreement, the Minimum Annual Rent for
each lease year of the additional period shall be determined as set forth in
subsection (vii) below.
(vii) For purposes of this Section 31, if Landlord does not
accept the Prior Rent Alternative as the Minimum Annual Rent for the additional
period and if Landlord and Tenant cannot agree as to the Minimum Annual Rent for
each lease year of the additional period within thirty (30) days after
Landlord's receipt of the Objection Notice, the FMR shall be determined by
appraisal. Within ten (10) days after the expiration of such thirty (30) day
period, Landlord and Tenant shall give written notice to the other setting forth
the name and address of an appraiser designated by the party giving notice. All
appraisers selected shall be members of the American Institute of Real Estate
Appraisers and shall have had at least ten (10) years continuous experience in
the business of appraising office buildings in the greater Philadelphia,
Pennsylvania area. If either party shall fail to give notice of such designation
within the time period provided, then the party who has designated its appraiser
(the "Designating Party") shall notify the other party (the "Non-Designating
Party") in writing that the Non-Designating Party has an additional ten (10)
days to give notice of its designation, otherwise the appraiser, if any,
designated by the Designating Party shall conclusively determine the FMR. If two
appraisers have been designated, such appraisers shall attempt to agree upon the
FMR. If the two appraisers do not agree on the FMR within twenty (20) days of
their designation, the two appraisers shall designate a third appraiser. If the
two appraisers shall fail to agree upon the identity of a third appraiser within
five (5) business days following the end of such twenty (20) day period, then
either Landlord or Tenant may apply to the American Arbitration Association, or
any successor thereto having jurisdiction, for the settlement of the dispute as
to the designation of the third appraiser and the American Arbitration
Association shall designate a third appraiser in accordance with the Real Estate
Valuation Arbitration Rules of the American Arbitration Association. The three
appraisers shall conduct such hearings as they may deem appropriate, shall make
their determination of the FMR in writing and shall give notice to Landlord and
Tenant of such determination within twenty (20) days after the appointment of
the third appraiser. If the three appraisers cannot agree upon the FMR, each
appraiser shall submit in writing to Landlord and Tenant the FMR as determined
by such appraiser. The FMR for the purposes of this paragraph shall be equal to
the arithmetic average of the two closest FMR submitted by the appraisers. Each
party shall pay its own fees and expenses in connection with any appraiser
selected by such party under this paragraph, and the parties shall share equally
all other expenses and fees of the arbitration, including the fees and expenses
charged by the third appraiser. The FMR determined in accordance with the
provisions of this Section shall be final and binding upon Landlord and Tenant.
32. Guaranty. To induce Landlord to execute this lease, Advanta Corp., a
Delaware corporation ("Guarantor"), shall deliver to Landlord, in the form
attached hereto as Exhibit "H", its guaranty of Tenant's obligations under this
lease (the "Guaranty"). If Guarantor fails to
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deliver such guaranty to Landlord, simultaneously with delivery of this lease to
Landlord as executed by Tenant, Landlord shall have no obligation to enter into
this lease and Tenant shall have no rights or interests in the Premises or under
this lease. It shall be an event of default under this lease if any of the
events enumerated in Section 23(a)(iv) of this lease shall happen to Guarantor
or any other guarantor of Tenant's obligations under this lease.
33. Generator. Tenant shall have the right to install, maintain and repair
a generator (the "Generator") on the Property at the location shown as
"Generator Location" on Exhibit "A" attached hereto under and subject to the
following conditions:
(a) Tenant shall comply with all Laws and Requirements and shall
obtain, and deliver to Landlord written evidence of, any approval(s) required
thereunder and copies of all permits and approvals therefor.
(b) Tenant shall obtain Landlord's prior approval of the
specifications for the Generator, such approval not to be unreasonably withheld,
conditioned or delayed. Tenant shall enclose the Generator and concrete pad on
which it will be located with screening reasonably satisfactory to Landlord and
otherwise in a manner reasonably satisfactory to Landlord. Tenant shall pay all
costs incurred by Landlord in connection with the Generator, including without
limitation, all architectural, engineering, contractors' and legal fees, such
fees not to exceed $1,000 unless due to unusual circumstances.
(c) Tenant shall comply with the provisions of Sections 9(b)(i)
through (iv) of the Lease.
(d) At least 3 business days prior to installation or removal,
Tenant shall notify Landlord of the date and time of the installation or
removal. Tenant shall install or remove the Generator only if Landlord has had
the opportunity to be present with Tenant at the installation or removal as set
forth in the preceding sentence.
(e) Tenant shall maintain the Generator in a safe, good and
orderly condition. The installation, maintenance, repair and removal of the
Generator shall be performed at Tenant's sole expense in a manner which will not
impair the integrity of, damage or adversely affect the warranty applicable to,
any portion of the Property.
(f) No later than the expiration or sooner termination of the
Term, at Tenant's sole expense, Tenant shall remove the Generator and repair any
resulting damage, including without limitation, damage to landscaping or paving.
Tenant shall comply with all Laws and Requirements in connection with the
removal of the Generator and shall deliver to Landlord copies of all required
permits and approvals in connection with such removal.
(g) Tenant's indemnification of Landlord pursuant to Section 15 of
the Lease also applies to the Generator and Tenant's use of any portion of the
Property therefor. Without limiting the foregoing, Tenant solely shall be
responsible for any damages or injury to persons or property, including the
Property, caused by or in any way relating to the Generator, except to the
extent such damages or injury are caused by the negligence of Landlord or its
Agents.
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34. Furniture. Landlord represents and warrants to Tenant that Landlord is
the owner of the furniture listed on Exhibit "I" attached hereto (the
"Furniture") which is located in the Premises, free and clear of any claim
thereto by VerticalNet, Inc., the prior tenant of the Premises ("Prior Tenant").
The lease of the Premises includes the right of Tenant to use the Furniture. The
Furniture will be accepted by Tenant in its "as is" "where is" condition and
without representation or warranty, express or implied, as to its condition,
merchantability or fitness for a particular purpose. Tenant shall comply with
all Laws and Requirements in connection with the installation and use of the
Furniture in the Premises. During the Term, Tenant shall maintain the Furniture
in its present condition, reasonable wear and tear excepted, and upon the
expiration or earlier termination of this lease shall surrender the Furniture to
Landlord in such condition, subject to Tenant's right (a) to move and
reconfigure the Furniture within the Premises, (b) to dispose of broken
Furniture, and (c) to cause Landlord, upon 30 days' prior written notice to
Landlord, to remove some or all of the Furniture from the Premises.
35. Parking. Tenant shall have the exclusive right to use all of the
parking spaces on the Property. There are presently approximately 534 parking
spaces on the Property. Subject to Tenant's compliance with all Laws and
Requirements, Tenant shall have the right, at its sole cost and expense, to
expand the parking lot(s) appurtenant to the Property in accordance with the
Parking Area Expansion Plan attached hereto as Exhibit "J".
36. Brokers. The parties agree that they have dealt with no brokers in
connection with this lease, except for Trinity Capital Advisors, LLC, whose
commission shall be paid by Landlord pursuant to separate agreement. Each party
agrees to indemnify and hold the other harmless from any and all claims for
commissions or fees in connection with the Premises and this lease from any
other real estate brokers or agents with whom they may have dealt.
37. Additional Provisions Relating to Premises. The Premises consists of
approximately 12,935 rentable square feet of office space on the first floor of
the Building and approximately 71,628 rentable square feet of office space on
the second floor of the Building (collectively, the "Office Portion") and
approximately 25,437 rentable square feet of warehouse space on the second floor
of the Premises (the "Warehouse Portion").
38. Additional Provisions Relating to Use; Compliance.
(a) The first sentence of subsection 4(a) is deleted and the
following is substituted therefor:
"Landlord represents to Tenant that the Property is zoned BC
(Business Campus District). Tenant has been given the opportunity to examine the
Zoning Code of Horsham Township and has satisfied itself that the Zoning Code
will permit use of the Property for the Use. Tenant shall occupy and use the
Office Portion for and only for general office purposes and uses incidental or
accessory thereto and the Warehouse Portion for and only for general office or
warehouse purposes and uses incidental or accessory thereto and in such a manner
as is lawful and will not create any nuisance or otherwise interfere with the
exercise of Landlord's rights or the performance of Landlord's obligations under
this lease."
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(b) It is agreed that Tenant's compliance obligations under
subsection 4(b) shall not include any duty imposed upon Landlord or Tenant by
Laws and Requirements which is mandated for office buildings, generally, and the
need for which does not arise out of Tenant's particular manner of use of the
Property or Tenant's alteration of or installations in or upon the Property.
Landlord represents that, to the best of its knowledge, the Property complies
with all ADA requirements existing on the date of this lease, except any such
requirements applicable to Tenant's particular use or manner of use of the
Premises. If the Property does not so comply, such compliance shall be at
Landlord's sole cost and expense.
(c) It is agreed that Tenant's responsibilities pursuant to
subsection 4(c) shall be limited to Restricted Activities performed by or on
behalf of Tenant. Tenant shall indemnify, defend and hold harmless Landlord, its
directors, officers, partners and employees, from and against all claims,
damages or losses (including, without limitation, cleanup costs, penalties,
fines and reasonable counsel, engineering and other professional or expert fees
and costs) arising from Restricted Activities by Tenant or its Agents. Landlord
shall indemnify, defend and hold harmless Tenant, its directors, officers,
partners and employees, from and against all claims, damages or losses
(including, without limitation, cleanup costs, penalties, fines and reasonable
counsel, engineering and other professional or expert fees and costs) arising
from any Restricted Activities which occurred on the Premises prior to the date
of this lease and any Restricted Activities by Landlord or its Agents.
(d) On the third (3rd) line of subsection 4(d), delete "5 days
after first learning thereof" and substitute therefor "5 business days after an
officer of Tenant first learns thereof".
39. Additional Provisions Relating to Operation of Property; Payment of
Expenses.
(a) Section 7(a)(ii) is deleted in its entirety and the following
is substituted therefor:
"(ii) Notwithstanding anything to the contrary herein
contained, Tenant's Proportionate Share of operating expenses for calendar year
2003 (the "Base Year") is included in Tenant's Minimum Annual Rent and there
shall be no reconciliation of operating expenses for calendar year 2003, except
for snow removal expenses incurred by Landlord on and after the Commencement
Date in excess of $0.10 per rentable square foot. For every calendar year
thereafter, Tenant shall pay to Landlord the amount by which (A) Tenant's
Proportionate Share of (1) operating expenses for such year plus (2) snow
removal expenses in excess of $0.20 per rentable square foot, exceeds Tenant's
Proportionate Share of operating expenses for the Base Year on an annualized
basis (the "Base Year Operating Expenses"). By April 30, 2004, Landlord shall
provide Tenant with a statement of Base Year Operating Expenses. Commencing on
the first day after the Base Year, Landlord may require Tenant to pay estimated
Annual Operating Expenses pursuant to Section 1(d)(ii) and thereafter adjust
from time to time the amount thereof if the estimated Annual Operating Expenses
increase above Base Year Operating Expenses and Landlord may also invoice Tenant
separately from time to time for Tenant's Proportionate Share of any
extraordinary or unanticipated operating expenses, rather than waiting until the
year-end reconciliation. By April 30, 2005 and by April 30 of each year
thereafter (and as soon as practical after the expiration or termination of this
lease or, at Landlord's option, after a sale of the Property), Landlord shall
provide Tenant with a statement of the operating expenses for the preceding
calendar year or part thereof, the Base Year
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Operating Expenses and the estimated Annual Operating Expenses paid by Tenant
hereunder for such calendar year. Within 30 days after delivery of the statement
to Tenant, Landlord or Tenant shall pay to the other the amount of any
overpayment or deficiency due from one to the other or, at Landlord's option,
Landlord may credit Tenant's account for any overpayment. Tenant shall have the
right to inspect the books and records used by Landlord in calculating the
annual operating costs within 1 year of receipt of the statement during regular
business hours after having given Landlord at least 48 hours prior written
notice; provided, however, that Tenant shall make all payments of additional
rent without delay, and that Tenant's obligation to pay such additional rent
shall not be contingent on any such right. Tenant shall have the right to make
any payment required pursuant to this subsection 7(a)(ii) "under protest" and,
if Tenant makes payment of such sums under protest, such payment shall not be
regarded as a voluntary payment, and there shall survive the right on the part
of Tenant to institute suit for the recovery of such sum. Notwithstanding the
foregoing to the contrary, if such suit is not commenced within six (6) months
after the payment under protest has been made, the cause of action shall be
deemed wholly lost. If Tenant commences such suit within the required time
period, and it shall be adjudged that there was no legal obligation on the part
of Tenant to pay such sum or any part thereof, Tenant shall be entitled to
recover such sum or so much thereof as it was not legally required to pay under
the provisions of this Lease."
(b) Notwithstanding any provision of subsection 7(a) to the
contrary, it is agreed that the following categories of expense shall not be
included in Annual Operating Expenses:
(i) Depreciation and amortization of the Building and the
Property;
(ii) Salaries and benefits of officers of Landlord or of
any affiliates of Landlord, or of any management personnel above the level of
Senior Property Manager, except for "Tenant Services";
(iii) Debt service payments on any indebtedness applicable
to the Building or the Property, including any mortgage debt or ground rents
payable under any ground lease;
(iv) Fines and penalties incurred by Landlord, except to
the extent caused by Tenant;
(v) Tort claims and expenses of the investigation and
defense thereof;
(vi) Amounts in excess of fair market rates in respect of
any transaction with, or provision of any item or service by, Landlord or any
affiliate of Landlord;
(vii) Management fees in excess of five percent (5%) of the
sum of Minimum Annual Rent and Additional Rent;
(viii) Costs associated with withdrawal from a
"multi-employer plan";
(ix) Any improvements required under the lease to the
extent to be performed hereunder at Landlord's cost;
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(x) The cost of acquisition of the Property or
construction or renovation of the Building;
(xi) Costs associated with the refinancing of any of
Landlord's debt;
(xii) Reserves for future expenditures or liabilities which
would be incurred subsequent to the then current lease years;
(xiii) Any bad debt loss, rent loss, or reserves for bad
debt or rent loss;
(xiv) Except as otherwise expressly provided in this lease,
any and all legal and other fees, audit fees, inspection fees, appraisal fees,
leasing commissions, advertising expenses, promotional costs, and other costs
incurred in connection with the acquisition, development, leasing, and ownership
of the Property;
(xv) Except to the extent that such fall within the scope
of subsection 7(d)(iii) and except for the payment of Landlord's commercially
reasonable deductible (currently $50,000), the costs of repairing or restoring
any portion of the Building and the Property damaged or destroyed by any
casualty or peril, whether insured or uninsured, and costs of restoration
following a taking by condemnation or eminent domain;
(xvi) Costs associated with the clean up, remediation, and
removal of any hazardous wastes or substances and all other costs of causing the
Property to comply with applicable Laws and Requirements except as otherwise
expressly set forth in this lease;
(xvii) The additional premium charged for rent insurance for
coverage in excess of twelve (12) months, unless such longer coverage period is
then considered reasonable by industry standards;
(xviii) Administrative and overhead expenses (other than as
part of "Tenant Services"); and
(xix) Costs associated with causing the Property to comply
with applicable laws, codes, regulations or ordinances, to the extent the
Property was not in compliance (or if not in compliance properly "grandfathered"
such that no alteration, modification, addition, improvement, replacement or
other action was required or would thereafter be required in order to effect
compliance) as of the date of this lease.
Furthermore, the provisions of subsection 7(a)
notwithstanding, annual operating costs shall not include the annual
amortization (or any other measure of cost) of building improvements made by the
Landlord for the purpose of reducing operating expenses except to the extent
such improvements actually reduce operating expenses.
Anything in this Article 7 contained to the contrary
notwithstanding, any and all expenditures incurred by Landlord and passed
through to Tenant shall be incurred in a commercially reasonable manner
consistent with the operation, maintenance and management of other first class
office properties in the suburban Philadelphia office market.
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(c) In computing Tenant's obligations on account of Annual
Operating Expenses, Tenant shall be entitled to a credit for the following:
(i) Net recoveries by Landlord from any third party as a
result of any act, omission, default, or negligence of such third parties, or as
a result of a breach or default by such parties under the provisions of
applicable agreements which have caused Landlord to incur such costs and
expenses; but only to the extent that such recoveries are of money which has
been charged to Tenant as part of Annual Operating Expenses;
(ii) Recoveries by Landlord from insurance policies, to
the extent that the proceeds thereof reimburse Landlord for costs and expenses
which were, in fact, included in Tenant's Annual Operating Expenses.
(d) The following additional clause is added at the end of
subsection 7(b)(i): "and, in each such instance, only to the extent that the
same would be payable if the Property were the only property owned by Landlord."
(e) Impositions. The following provisions are hereby inserted at
the end of subsection 7(b):
For the purposes of this subsection 7(b), Tenant's
Proportionate Share of a municipal assessment (but not a real estate tax) shall
only include those installments thereof becoming due during the Term. If any
assessments may be paid in installments over a period of years, such assessments
shall, for the purposes of subsection 7(b), be deemed to be payable over the
longest number of years permitted by the assessing authority, and only the
installments coming due during the Term, together with any interest or carrying
charges due, will be included within the Impositions payable by Tenant. With
regard to real estate taxes, Landlord agrees to take advantage of opportunities
to pay such taxes during the discount period.
Any provision of this subsection 7(b) to the contrary
notwithstanding, Tenant's obligation hereunder shall not include any franchise,
estate, succession, or inheritance taxes, nor any penalties imposed for late
payment of any real estate tax, assessment or other Imposition (except for
penalties on taxes which Landlord has not paid as a result of a bona fide
contest or for which it has not received payment from Tenant) and shall in no
event include any real estate tax or assessment attributable solely to a period
occurring prior to the Commencement Date.
Provided Tenant then leases more than 75% of the Building and
provided Tenant is not then in default under this Lease beyond applicable notice
and/or cure periods, Tenant shall have the right to require Landlord, at
Tenant's sole cost and expense, to contest or appeal the real estate taxes and
tax assessments relating to the Property. In lieu thereof, Landlord may
authorize Tenant to prosecute such appeal or contest, provided that Tenant shall
provide to Landlord for its reasonable review and approval prior to filing any
applications, affidavits and like supporting documentation required in
connection with such effort, Landlord shall have reasonably approved such
contest or appeal and Tenant shall consult with Landlord as requested in
connection with such process, and if undertaken, such contest or appeal shall be
prosecuted with diligence and in good faith and at Tenant's sole cost and
expense. Landlord shall reasonably cooperate with Tenant (including signing
applications, affidavits and the like, if so requested) subject to and in
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accordance with the conditions set forth in this paragraph. Tenant acknowledges
and agrees that Landlord's "reasonable review and approval", as such term is
used herein, shall mean and refer to Landlord's good faith consideration of the
reasonableness of Tenant's proposed contest or appeal, and the accuracy of
information set forth in such documentation as shall have been prepared by
Tenant and submitted to Landlord for its review.
In no event shall impositions include fees, charges or
assessments in connection with the initial construction or development of the
Property or Landlord's redevelopment thereof, including, without limitation,
development fees, tap-in fees or other initial assessments or payments due and
payable to the local municipality or to a governmental or quasi-governmental
agency or authority in connection with the initial planning, approval or
development of the Property. The foregoing notwithstanding, Tenant acknowledges
and agrees that the Impositions for which Tenant is responsible hereunder shall
include real estate taxes which shall be levied based upon Xxxxxxxxxx County's
assessment of the Property as improved with the Buildings and other improvements
contemplated in this Lease.
Upon Tenant's request, Landlord shall provide to Tenant copies
of real estate tax bills and any correspondence received by Landlord regarding
real estate taxes and assessments with respect to the Property.
(f) In subsection 7(c)(ii), in the sixth and seventh lines
thereof, the phrase "as insured parties" is replaced with the phrase "as
additional insureds." In the seventh line thereof, after the word "Premises,"
add "only, as expressly distinguished, for purposes hereof, from the balance of
the Property."
In subsection 7(c)(ii), the following amendments are hereby
made to the requirements regarding Tenant's liability insurance:
In the ninth line of the printed form paragraph 7(c)(ii), at
the end of the printed line, after the word "issued in form," add "reasonably".
Notwithstanding anything to the contrary contained in Section
7(c)(ii), so long as (i) Advanta Shared Services Corp. or an affiliate of
Advanta Shared Services Corp. or Advanta Corp. is the tenant under this lease
and (ii) Advanta Corp. is the Guarantor, (A) Tenant may self-insure its
obligations hereunder, provided that the net worth of Tenant or Guarantor is not
less than $100,000,000, and (B) any insurance required to be carried by Tenant
pursuant to Section 7(c)(ii) may be carried under a blanket policy of insurance
covering other locations of Advanta Corp. or its affiliates, provided, however,
such blanket policy shall provide that an amount not less than the aggregate
amount of insurance required to be carried by Tenant pursuant to Section
7(c)(ii) shall apply separately to the Property notwithstanding the aggregate
limit of the blanket policy.
Landlord, as an operating expense, shall keep in effect
comprehensive general public liability insurance with respect to the Property,
including contractual liability insurance, which insurance shall provide
combined single limit per occurrence coverage of not less than Two Million
Dollars ($2,000,000) for property damage and bodily injury or death to one or
more persons, with endorsements for contractual liability. The insurer shall be
a responsible insurance
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carrier which is authorized to issue such insurance and licensed to do business
in the Commonwealth of Pennsylvania, and which has, at all times during the
Term, a rating of not less than A VII in the most current edition of Best's
Insurance Reports. Landlord shall deliver to Tenant on or before the
Commencement Date and subsequently upon request by Tenant from time to time, but
not more often than once every twelve (12) months, current certificates of
insurance evidencing the aforesaid comprehensive general public liability
insurance coverage, the property and casualty insurance coverage required of
Landlord under Section 7(c) of the Lease, and the waiver of subrogation or other
policy provision required by subsection 7(c)(iii).
In the event that Landlord shall request that Tenant increase
its limits of insurance as provided in Paragraph 7(c)(ii) of the Lease, Tenant
agrees to do so provided that the increased limits requested by Landlord are
consistent with limits of insurance then being required of tenants of other
first class office properties in the suburban Philadelphia office market, and
further, that Landlord shall likewise increase the limits of insurance it is
then carrying to such levels as are then being required of Tenant by Landlord.
(g) In subsection 7(d)(ii), it is agreed that the written notice
required may be given by telefacsimile transmission addressed to Landlord's
property manager. Also with regard to such subsection, it is agreed that
Landlord will at all times maintain the Common Areas (including parking areas)
of the Property consistent with the standards generally observed at other first
class office buildings in the suburban Philadelphia office market. Also with
regard to such subsection, it is agreed that Landlord will make no alterations
to the Common Areas (except in the event of an emergency or if required by Laws
and Requirements) which will result in material interference with Tenant's
ability to use the Premises for the normal operation of its business,
twenty-four (24) hours per day, seven (7) days per week, three hundred
sixty-five (365) days per year.
(h) With regard to subsection 7(d)(iii), it is agreed that the
phrase "Tenant's use, occupancy" shall be limited to the use or occupancy of the
Office Portion for other than normal business office use and the Warehouse
Portion for normal warehouse use, and is not intended to create additional
responsibility on the part of Tenant for repairs or replacements that would have
been necessary solely as a result of Tenant's use of the Office Portion for
normal business office purposes and the Warehouse Portion for normal warehouse
purposes.
(i) Notwithstanding the provisions of subsection 7(e)(i) to the
contrary, it is agreed that Tenant may use the Premises and the Property
twenty-four (24) hours per day, seven (7) days per week, three hundred
sixty-five (365) days per year.
(j) Subsection 7(e)(ii) is hereby deleted in its entirety and
replaced with the following:
"(ii) Electric service to the Property (including the
Premises and the Common Areas) is separately metered and shall be paid by Tenant
directly to the utility company providing such service commencing on the
Commencement Date and continuing throughout the Term. Water and sewer service to
the Property shall be an operating expense of the Property as to which Tenant
shall pay Tenant's Proportionate Share. If, as a result of any cause within
Landlord's reasonable control (except for damage by fire or other casualty,
which is dealt with
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elsewhere in this Lease), utility service to the Premises is interrupted
resulting in a portion of the Premises being rendered untenantable (such
untenantability to be determined without consideration of the operation of
Tenant's generator) for a period of in excess of three (3) consecutive business
days, commencing on the fourth consecutive day of such untenantability, Tenant's
obligations to pay Rent shall xxxxx in proportion to that portion of the
Premises so rendered untenantable. Such abatement shall continue until the day
on which Landlord has cured the untenantability."
(k) With respect to subsection 7(f), it is agreed and understood
that as part of Annual Operating Expenses Landlord shall only be required to
provide trash removal and janitorial services to the Office Portion; provided,
however, if the trash from the Office Portion is stored in the Warehouse
Portion, Landlord shall remove the Office Portion trash from the Warehouse
Portion as part of the services provided for in Exhibit "D". To the extent that
Tenant desires Landlord to provide such services to the Warehouse Portion or to
the extent Tenant desires a higher level of services than provided for in
Exhibit "D", Tenant may provide for same at Tenant's sole expense or may request
Landlord to provide same as part of Annual Operating Expenses in which event
Annual Operating Expenses will be increased accordingly; provided, however, if
Landlord is required to provide such services in the Base Year, the Minimum
Annual Rent payable hereunder in each lease year shall be increased by the
agreed-upon cost of such services during the Base Year.
40. Additional Provisions Relating to Signs. Landlord, at Landlord's
expense, will place Tenant's name and logo on the existing monument sign on
Xxxxxxx Road as shown on Exhibit "K" attached hereto. Landlord will permit
Tenant to install, at Tenant's sole cost and expense, an identification sign
(including Tenant's name and logo) on the two story section of the Building in
the form shown and described on Exhibit "L" attached hereto, provided Tenant
obtains all required approvals under the Laws and Requirements. In addition to
Tenant's obligations set forth in Section 8 as to removal of signs and the
repair of any damage caused by the installation, existence or removal thereof,
Tenant shall restore the wall to which such exterior sign is affixed to
substantially the condition existing prior to the installation of such sign
which may include repairing of the wall to create uniformity of color.
41. Additional Provisions Relating to Alterations and Fixtures.
(a) With respect to subsection 9(a), Tenant shall have the right,
without Landlord's consent, to finance and to secure trade fixtures,
furnishings, equipment, machinery, signs and other personal property (excluding
physical alterations and leasehold improvements to the Building). If Tenant
shall acquire trade fixtures, equipment, machinery or other goods and effects
subject to a purchase money security interest, or shall lease any of the same,
or if any institutional lender provides Tenant with financing, the proceeds of
which are intended to enable Tenant to use and occupy the Premises or to operate
Tenant's business thereon, and such financing is secured in whole or in part by
a lien on or security interest in such goods, equipment, machinery or fixtures,
Landlord shall, upon request from Tenant, execute a subordination of any right
it may have to distrain upon or secure a lien against such goods, equipment,
machinery or fixtures for Tenant's failure to pay minimum rent or any additional
rent or any other event of default under the terms, covenants, conditions and
provisions of this lease, in substantially the form attached hereto as Exhibit
"M".
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(b) In the first sentence of subsection 9(b), the amount
"$5,000.00 in the aggregate" is hereby replaced with the amount "$50,000.00 per
lease year."
(c) In subsection 9(b), in the second sentence thereof, the word
"reasonable" is inserted before the word "costs."
(d) In subsection 9(b), Tenant shall not be required to have plans
prepared by an architect or engineer in connection with any proposed alterations
or improvements for which professionally prepared plans are not required in
order to obtain the necessary governmental permits and/or approvals. In such
cases, Landlord will accept accurately prepared plans prepared by Tenant's
personnel or contractors.
(e) In subsection 9(b), with regard to alterations to the Premises
which require Landlord's approval, Landlord agrees that it will not unreasonably
withhold, delay or condition its approval, provided such alterations will not,
in Landlord's reasonable opinion, adversely impact the structure of the Building
or the operating systems of the Building. Otherwise, Landlord may withhold its
approval in its complete discretion.
In the event Landlord fails to respond to a written request
for approval within 10 business days after receipt thereof, Tenant shall send
Landlord a second written request therefor which shall state that if no
objection is made by Landlord within 5 business days after receipt thereof, such
request shall be deemed approved by Landlord. If Landlord fails to respond
within such 5 business day period, Landlord shall be deemed to have approved
such request.
(f) With regard to subsection 9(b), it is agreed that Tenant shall
not be required to obtain Landlord's approval with regard to the painting or
wallpapering of interior wall surfaces within the Premises, provided that Tenant
notifies Landlord in writing prior to performing any such work and any such
painting or wallpapering can be covered with one (1) coat of primer and one (1)
coat of white paint, without additional sealing or painting.
42. Additional Provisions Relating to Mechanics' Liens.
In Section 10, in the fourth line thereof, the phrase "within
5 days after Tenant has notice" is hereby replaced with the phrase "within 30
days after Tenant has received written notice."
43. Additional Provisions Relating Landlord's Right to Relocate Tenant;
Right of Entry.
(a) Subsection 11(a) is deleted in its entirety.
(b) With regard to subsection 11(b), in the third line thereof,
the time period of 12 months" is hereby changed to "9 months".
(c) With regard to subsection 11(b), it is agreed that Landlord's
right to exhibit the Premises for the purpose of sale or mortgage or for the
purpose of leasing to a prospective tenant shall be restricted to normal
business hours; and, with respect to any entry by Landlord (except in the case
of an emergency), Tenant shall have the right to have its personnel accompany
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Landlord and any prospective mortgagee, purchaser, or tenant while on the
Premises for such purpose.
44. Additional Provisions Relating to Damage by Fire or Other Casualty.
(a) In subsection 12(a), in the second line thereof, after the
phrase "shall repair such damage and restore the Premises," the following phrase
is hereby inserted: "at its own cost and expense (except for payment as an
operating expense of Tenant's proportionate share of Landlord's commercially
reasonable deductible [currently $50,000] and such other amounts if the
provisions of subsection 7(d)(iii) are applicable)".
(b) The last sentence of subsection 12(a) is deleted and replaced
with the following:
If a casualty occurs during the last 12 months of the Term, as
the same may have been extended, Landlord will give notice to Tenant if, in
Landlord's reasonable opinion, the restoration of the damage will not be
substantially completed prior to that period of time which is 1/2 of the time
interval elapsing between the date of the casualty and the end of the Term. If
Landlord gives such notice to Tenant, and, within 10 days thereafter, Landlord
does not receive notice from Tenant that Tenant releases Landlord from any
obligation to restore the damage, Landlord may cancel this Lease unless Tenant
has the right to extend the Term for at least 3 more years and does so within 30
days after the date of the casualty.
(c) Notwithstanding any provision of subsection 12(a) to the
contrary, if the Premises are damaged or destroyed by fire or other casualty and
the restoration of such damage has not been substantially completed on or before
365 days after it has occurred, Tenant shall have the right to terminate this
Lease effective 60 days after giving written notice of such termination to
Landlord; provided that if Landlord substantially completes the restoration
within such 60 day period, Tenant's notice of termination shall be null and
void.
(d) In subsection 12(b), the last sentence is hereby deleted and
the following sentence is substituted therefor:
"Tenant will receive an abatement of its minimum annual rent
and operating expenses to the extent and for so long as the Premises are
rendered untenantable, in whole or in part, for the normal conduct of Tenant's
business and to the extent not, in fact, used for the conduct of Tenant's
business."
45. Additional Provisions Relating to Condemnation.
(a) In subsection 13(a)(ii), after the phrase "the reasonable
operation of Tenant's business," the following phrase is hereby inserted: "in
Tenant's reasonable opinion."
(b) In subsection 13(a)(iii), on the fourth (4th) line after
"Property", add "or in the event access to the Property is taken, or in the
event a material portion of the parking area of the Property is taken and the
remainder thereof is insufficient for the reasonable operation of Tenant's
business".
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(c) In the event of a partial taking, if Landlord's work of
restoring of the Premises results in a portion of the Premises being rendered
untenantable, Tenant's obligations to pay Rent shall xxxxx in proportion to that
portion of the Premises which is so rendered untenantable. The amount of such
abatement shall be adjusted to reflect that portion of the Premises rendered so
untenantable from time-to-time.
(d) With regard to subsection 13(c), in addition to having the
right to make a claim against a condemnor for moving expenses and business
dislocation damages, Tenant shall have the right to make a claim against a
condemnor for any alterations to the Premises made by Tenant at Tenant's
expense, to the extent that Tenant loses the value of such alterations for the
balance of the Term.
46. Additional Provisions Relating to Non-Abatement of Rent. In Section 14,
in the first line thereof, after the phrase "expressly provided," the following
phrase is hereby inserted: "as to interruption of utility services by Landlord
in subsection 7(e)(ii).......".
47. Landlord's Indemnification of Tenant. Subject to Sections 7(c)(iii) and
16, Landlord will protect, indemnify, and hold harmless Tenant and its Agents
from and against any and all claims, actions, damages, liability, and expense
(including fees of attorneys, investigators, and experts) in connection with
loss of life, personal injury, or damage to property caused to any person in or
about the Property (other than the Premises) occasioned wholly or in part by the
negligence of Landlord or its Agents, except to the extent such loss, injury, or
damage was caused by the negligence of Tenant or its Agents. In case any action
or proceeding is brought against Tenant and/or its Agents by reason of the
foregoing, Landlord, at its expense, shall resist and defend such action or
proceeding, or cause the same to be resisted and defended by counsel (reasonably
acceptable to Tenant and its Agents) designated by the insurer whose policy
covers such occurrence or by counsel designated by Landlord and approved by
Tenant and its Agents. Landlord's obligations pursuant to this Section shall
survive the expiration or termination of this Lease. Nothing contained in this
Section 47 shall be construed to be in derogation of Tenant's obligation to
maintain the liability insurance policy specified in subsection 7(c)(ii); nor in
derogation of any rights which Landlord and Landlord's agent may have under such
liability insurance policy.
48. Additional Provisions Relating to Waiver of Claims. In Section 16, add
to the end of the Section "and such waiver by Tenant shall not be effective with
respect to any liability of Landlord described in Section 38(c) of this Rider".
49. Additional Provisions Relating to Assignment and Subletting.
(a) Notwithstanding any provision of Section 18 or this Rider
Section 49 to the contrary:
(i) Landlord's consent shall not be required with regard
to an assignment of Tenant's rights under this lease to an assignee which is
reputable and which will utilize the Premises only for permitted uses provided
herein, provided that Tenant remains liable for its obligations under this lease
after such assignment, and, both immediately before and
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immediately after the assignment, either Tenant or its assignee is as
creditworthy as Tenant was on the date of this lease;
(ii) none of (A) a change in the ownership of the stock of
Tenant, (B) the sale of all or substantially all of Tenant's assets; (C) a
merger, consolidation or other business combination of, with or involving
Tenant, or (D) any other corporate reorganization of Tenant (items (A) - (D)
within this Subsection 49(a) being hereinafter referred to as "Corporate
Transactions"; the purchaser of all or substantially all of Tenant's assets, or
the surviving entity following any one or more of the remaining Corporate
Transactions described herein, as assignee of this lease, being herein sometimes
referred to as a "Corporate Assignee") shall require Landlord's prior approval,
as long as Tenant's or the Corporate Assignee's creditworthiness after the
Corporate Transaction equals or exceeds Tenant's creditworthiness as of the date
of this lease and Tenant remains liable for its obligations under this lease
after such assignment; and
(iii) Landlord's consent shall not be required with regard
to an assignment of this lease or a sublease of the Premises to any entity
controlled by, controlling or under common control with Tenant or Guarantor,
provided that Tenant remains liable for its obligations under this lease and
Guarantor remains liable for its obligations under the Guaranty after such
assignment or sublease.
(iv) With respect to any assignment as to which Landlord's
consent is not required hereunder, upon Tenant's request, Landlord shall agree
in writing to recognize the assignee as the Tenant under this lease; provided
however, that (A) Tenant acknowledges in writing that it remains liable for its
obligations under this lease after such assignment, and (B) Guarantor
acknowledges in writing that it remains liable for its obligations under the
Guaranty after such assignment.
(b) Nothing in this Lease shall limit or prohibit the initial
public offering or subsequent trading of Tenant's or Guarantor's stock on a
recognized securities exchange, or any change in stock ownership or control
resulting therefrom.
(c) Subsection 18(c)(i) is hereby amended to read in its entirety
as follows:
(i) As a condition of the effectiveness of any Transfer,
Tenant shall not be in default under this lease, or if in default, Tenant shall
have cured such default, and no other default shall exist.
(d) In subsection 18(c)(iii), in the first line thereof, after the
phrase "form and substance," the word "reasonably" is inserted, and in the
second line thereof, after the phrase "all Tenant's obligations," the following
phrase is hereby inserted: "thereafter accruing."
(e) In subsection 18(c)(iv), in the first line thereof, the word
"for" is inserted before the phrase "Landlord's reasonable attorneys' fees."
50. Additional Provisions Relating to Subordination; Mortgagee's Rights.
The first two sentences of subsection 19(a) are hereby deleted and the following
are substituted therefor:
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" Landlord represents and warrants to Tenant that the Premises
is not subject to any mortgage or ground lease as of the date of this lease.
This lease shall be subordinate to any first mortgage or other primary
encumbrance hereafter affecting the Premises, subject to the express condition
that so long as no Event of Default shall exist and remain uncured, Tenant's
rights under this lease, including, but without limitation, Tenant's right of
possession of the Premises, shall not be disturbed by the holder of such
mortgage or by any purchaser upon foreclosure thereof. Although the
subordination and non-disturbance is self-operative, within 10 days after
written request, Tenant shall execute and deliver any further instruments
confirming such subordination and non-disturbance and any further instruments of
attornment in commercially reasonable form that may be desired by any such
mortgagee or Landlord pursuant to a Non-Disturbance Agreement from such
mortgagee or encumbrance holder in a commercially reasonably form. Upon request
of Tenant, Landlord shall use reasonable efforts to obtain a non-disturbance
agreement from the holder of any first mortgage or ground lease affecting the
Premises."
51. Additional Provisions Relating to Recording; Tenant's Certificate.
(a) Within ten (10) business days after Landlord's receipt of a
written request therefor from Tenant, but in no event more frequently than two
(2) times in any lease year, Landlord agrees to execute and deliver to Tenant a
written statement certifying, to the best of Landlord's knowledge, whether
Tenant is or is not in default of any of its obligations under the lease.
Landlord's certificate shall also confirm whether any late charges, interest or
other unpaid sums have accrued to Tenant's account which remain unpaid up to the
date of such certificate, and any such late charges, interest or other unpaid
sums not so accrued and reported shall for all purposes be deemed waived by
Landlord. Landlord shall not be deemed to be in default of its obligation to
furnish such certificate within the aforesaid time period, unless Tenant has
given Landlord a notice of noncompliance after such time period has expired and
Landlord shall have failed to furnish such certificate on or before two (2)
business days after Landlord's receipt of such notice of noncompliance.
(b) In the second sentence of subsection 20(a), the phrase "10
days" is hereby deleted, and the phrase "10 business days" is inserted in lieu
thereof. The last sentence of subsection 20(a) is deleted in its entirety.
(c) With regard to subsection 20(b), it is agreed that such
financial information to be furnished by Tenant shall (in the absence of a
further agreement by Tenant) be limited to a verbal report from Tenant's Chief
Financial Officer regarding EBITA (earnings before interest, taxes, depreciation
and amortization), as well as an audited consolidated balance sheet of Tenant
and Guarantor (or, if Tenant and Guarantor do not file consolidated reports, an
audited, if available, or unaudited balance sheet of Tenant and Guarantor), each
as of the end of Tenant's last fiscal year; except that, at any time that the
shares of Tenant or Guarantor are listed on a nationally recognized stock
exchange, such financial information shall consist, as the case may be, of
Tenant's or Guarantor's most recent annual and quarterly reports as filed with
the Securities and Exchange Commission. Landlord agrees that any financial
information furnished by Tenant to Landlord which is not filed with a
governmental agency shall be held as confidential and shall not be exhibited to
anyone other than Landlord's mortgagee, prospective mortgagee, or prospective
purchaser. If Landlord shares such information with any of the foregoing
parties,
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Landlord shall in any event first advise such parties in writing of the
confidentiality of such information.
52. Additional Provisions Relating to Surrender; Abandoned Property.
(a) The following language is hereby added at the end of
subsection 21(a): "and also excepting damage by fire or other casualty and any
repairs and replacements required to be performed by Landlord under the terms of
this Lease."
(b) In subsection 21(c), in the first line thereof, prior to the
phrase "shall continue to occupy," the following phrase is hereby inserted:
"without the prior written consent of Landlord."
(c) In subsection 21(c), in the fourth line thereof, the word
"double" is replaced with the phrase "one hundred seventy-five percent (175%)
of'."
53. Additional Provisions Relating to Curing Tenant's Defaults.
(a) In Section 22, the paragraph caption "Curing Tenant's
Defaults" is hereby deleted, and the caption "Curing Defaults" is hereby
inserted in lieu thereof
(b) In the third line of Section 22, after the word "after,"
insert "thirty (30) days prior written." In the case of an emergency, Landlord
shall first attempt to contact Tenant by telephone before exercising self-help
remedies.
(c) In the second sentence of Section 22, after the word "any" in
the third line of the paragraph, insert "reasonable,".
(d) The following additional paragraph is hereby added to Section
22:
"Without limitation of Tenant's rights and remedies under this
lease, in the case of an emergency, then Tenant, without any obligation so to
do, may elect to exercise the remedy of self-help to address and remedy such
condition. Landlord shall reimburse Tenant upon demand for any reasonable sums
paid or costs incurred by Tenant in remedying such condition, including interest
thereon from the respective dates of Tenant's incurring such costs, which sums
and costs together with interest shall be due and payable by Landlord to Tenant
within ten (10) days next following invoicing therefor by Tenant. In the case of
an emergency, Tenant shall first attempt to contact by telephone Landlord's
property manager before exercising self-help remedies."
54. Additional Provisions Relating to Defaults - Remedies.
(a) Subsection 23(a)(iii) is hereby restated in its entirety as
follows:
"(iii) If Tenant abandons the Premises or if Tenant vacates
the Premises without having given Landlord at least thirty (30) days' prior
notice and without having made adequate provisions for maintenance and security
of the Premises; or".
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(b) In subsection 23(b)(ii), in the first line thereof, the phrase
"by breaking open locked doors if necessary" is replaced by the phrase "pursuant
to lawful process."
(c) In subsection 23(c), the parties agree that Tenant shall be
entitled to 30 days written notice of defaults consisting of something other
than the failure to pay money.
(d) In subsection 23(c)(i), the parties agree that Tenant shall be
entitled to written notice and a grace period of two (2) business days from
receipt within which to cure any purported default under Section 20(a).
(e) Subsection 23(c)(ii) shall be limited to defaults consisting
of the failure of Tenant to pay money due to Landlord.
(f) In the subsection 23(c)(iii), the term "10 days" is hereby
deleted in the first and second lines, and the term "30 days" is inserted in
lieu thereof in each instance. At the end of Section 23(c)(iii), change the
period to a comma and insert "within an additional period of time not to exceed
90 days."
(g) Subsection 23(c)(iv) is deleted and the following is
substituted therefor: "Any notice given by either party pursuant to this Section
which is served in compliance with Section 27 shall be adequate notice for the
purpose of such party's exercise of any available remedies under the terms of
this lease."
(h) The first three (3) sentences of subsection 23(d) are hereby
restated in their entirety as follows:
"No waiver by either party of a breach by the other shall be a
waiver of any subsequent breach, nor shall any forbearance by a party to seek a
remedy for any breach by the other party be a waiver by such forbearing party of
any rights and remedies with respect to such or any subsequent breach. Efforts
by a party to mitigate the damages caused by the other party's default shall not
constitute a waiver of the mitigating party's right to recover damages
hereunder. No right or remedy herein conferred upon or reserved to either party
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."
(i) If Landlord accelerates Tenant's obligations under this lease
pursuant to the provisions of subsection 23(b)(iii), payment from Tenant to
Landlord of the accelerated obligations which would not have been due at the
time of payment, but for Tenant's default and the resulting acceleration, shall
be discounted to present values as of the date of such payment using the prime
rate of interest (the "Prime Rate") as published in The Wall Street Journal (or
any successor publication thereto) on the day before the date that payment is
made, or, if The Wall Street Journal (or any successor publication thereto) is
not published on the last mentioned date, using the prime rate of interest as
published in the immediately preceding edition of The Wall Street Journal (or
any successor publication thereto). Payments by Tenant shall first be applied to
Landlord's reasonable out-of-pocket costs directly associated with Tenant's
default and Landlord's acceleration; next to late charges previously accrued and
unpaid; next to interest accrued; next to Tenant's obligation that would have
been due from Tenant as of the date of
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payment had acceleration not occurred; and last to Tenant's obligations which
would not have been due at the date of payment, but for the acceleration. The
definition of "Term" as used in this Section 23(b)(iii) shall mean and include
only the then current term hereof during which the default occurs, unless prior
to such default occurring, Tenant shall have caused the Term hereof to be
extended in accordance with the provisions of this Lease.
(j) If Tenant defaults under the terms of this lease resulting in
Landlord recovering possession of the Premises, then Landlord agrees to use
reasonable efforts to relet the Premises in mitigation of Landlord's damages.
Landlord shall have no obligation to relet the Premises or any portion thereof
in preference to other space available for lease in the Building or in any other
building owned by Landlord or its affiliates.
55. Landlord's Representation Regarding Authority. Landlord is a duly
formed Pennsylvania limited partnership in good standing, and has full
partnership power and authority to enter into this lease and has taken all
partnership action necessary to carry out the transaction contemplated herein,
so that when executed, this lease constitutes a valid and binding obligation in
accordance with its terms.
56. Additional Provisions Relating to Liability of Landlord.
(a) The first sentence of Section 25 is hereby restated in its
entirety as follows:
"The word "Landlord" as used herein includes the Landlord
named above as well as its successors and assigns, each of which shall be under
the same obligations and liabilities accruing after it acquires its interest in
the Property and each of which shall have the same rights, remedies, powers,
authorities, and privileges as it would have had if it originally signed this
Lease as Landlord."
(b) The following language is added at the end of the second
sentence of Section 25:
"(provided, except in the event of a successor in interest to
Landlord which acquired its interest by reason of an execution sale or a deed in
lieu of foreclosure, Landlord's successor in interest, in writing, expressly
assumes this Lease and agrees to perform all obligations thereafter accruing
hereunder".
(c) The last clause of the third sentence is hereby amended to
read "....Tenant shall look solely to the equity of Landlord in the Property and
the rents, issues, profits and sales proceeds therefrom for the satisfaction of
Tenant's claims".
57. Additional Provisions Relating to Interpretation; Definitions. In
subsection 26(d), on the second (2nd) line, change 15%" to "12%".
58. Additional Provisions Relating to Notices.
(a) The following language is hereby deleted from the first
sentence of Section 27: "except that after the Commencement Date Tenant's
address shall be at the Premises,".
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(b) The following language is hereby added at the end of the first
sentence of Section 27: "in writing upon not less than thirty (30) days'
notice."
(c) The last sentence of Section 27 is hereby restated in its
entirety as follows:
The giving of notice by either party's attorneys,
representatives, and agents under this Section shall be deemed to be the acts of
such party; however, the foregoing provisions governing the date on which a
notice is deemed to have been received shall mean and refer to the date on which
a party to this lease, and not its counsel or other recipient to which a copy of
the notice may be sent, is deemed to have received the notice.
59. Additional Provisions Relating to Tenant Estoppel Certificate.
(a) In the first numbered paragraph of the Tenant Estoppel
Certificate, the phrase "to Tenant's knowledge" is inserted before the phrase
"the Lease is in full force and effect."
(b) In the third numbered paragraph of the Tenant Estoppel
Certificate, the following phrase is added at the end of the sentence: "to
Tenant's knowledge."
(c) In the sixth numbered paragraph of the Tenant Estoppel
Certificate, in the penultimate line thereof, the phrase "to Tenant's knowledge"
is inserted before the phrase "at the present time."
(d) In the eighth numbered paragraph of the Tenant Estoppel
Certificate, the phrase "to Tenant's knowledge" is inserted before the word
"involuntary."
60. Additional Provisions Relating to Building Rules.
(a) In the event of any inconsistency between the Building Rules
and the Lease (including the Rider to the Lease), the Lease shall prevail.
(b) Notwithstanding any provision of Building Rule 6 to the
contrary, it is agreed that Tenant shall have no obligation to spackle nail
holes in walls or to repair a hole in the back of a door which resulted from the
installation of a coat hook.
(c) Notwithstanding the prohibition contained in Building Rule 7,
it is agreed that Tenant may change locks on doors, provided that, at all times,
Landlord is supplied with the means of access to all portions of the Premises.
(d) The provisions of Building Rule 20 notwithstanding, Landlord
agrees to use reasonable efforts to enforce the Building Rules in a reasonable,
uniform and nondiscriminatory matter.
61. Representations and Warranties of Landlord. Landlord represents and
warrants to Tenant as follows:
(a) Landlord is the owner of the Property in fee simple and there
are no outstanding leases with respect to the Property.
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(b) There are no covenants, easements or restrictions recorded
against the Property which require approval by any third party as a condition to
the installation of the Generator pursuant to Section 33 of this lease or the
signs pursuant to Sections 8 and 40 of this lease.
(c) There are currently no assessments payable for public
improvements to the Property and Landlord has received no written notice that
any such public improvements have been proposed by any governmental authority
having jurisdiction over the Property.
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CORPORATE GUARANTY
THIS GUARANTY is made this 26th day of February, 2003, by ADVANTA
CORP., a Delaware corporation, having a principal address at Welsh and XxXxxx
Xxxxx, Xxxxxx Xxxxx, XX 00000.
BACKGROUND:
A. LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited
partnership ("Landlord") with offices at 000 Xxxxxx Xxxx, Xxxxxxx, XX 00000, is
about to enter into a certain lease (the "Lease") with ADVANTA SHARED SERVICES
CORP., a Delaware corporation ("Tenant"), for space in Landlord's building
located at 000 Xxxxxxx Xxxx, Xxxxxxx, XX (the "Premises").
B. Guarantor is the sole shareholder of Tenant and therefore
benefits directly from the Lease.
C. Landlord has agreed to grant, execute and deliver the Lease to
Tenant in consideration, among other things, of the covenants and obligations
made and assumed by Guarantor as herein set forth.
AGREEMENT:
In order to induce Landlord to execute the Lease and in further
consideration of the sum of Ten Dollars ($10.00) and other good and valuable
consideration paid by Landlord to Guarantor, intending to be legally bound
hereby, Guarantor irrevocably and unconditionally agrees as follows:
1. Guarantor hereby guarantees, upon receipt of written demand
from Landlord, the full and prompt payment of all rent and additional rent and
any and all other sums payable by Tenant under the Lease, and the due and
punctual performance of all of Tenant's other obligations thereunder.
2. Guarantor hereby guarantees, upon receipt of written demand
from Landlord, the due and punctual payment in full of (a) any and all loss,
damages or expenses payable by Tenant pursuant to the Lease, incurred by
Landlord and arising out of any default by Tenant in performing any of its
obligations under the Lease, including but not limited to, all attorneys' fees
which Landlord incurs as the result of the default of Tenant, and (b) all costs
and expenses, including attorney's fees, incurred by Landlord in the enforcement
of this Guaranty.
3. Landlord may, in its sole discretion, without notice to
Guarantor and without in any way affecting or terminating any of Guarantor's
obligations and liabilities hereunder, from time to time, (a) waive compliance
with the terms of the Lease or any default thereunder; (b)
modify or supplement any of the provisions of the Lease; (c) grant any extension
or renewal of the terms of the Lease; (d) effect any release, compromise or
settlement in connection therewith; (e) assign or otherwise transfer any or all
of Landlord's interest in the Lease; or (f) accept or discharge any other person
as a guarantor of any or all of the Tenant's obligations under the provisions of
the Lease.
4. Guarantor's obligations hereunder (a) shall be unconditional,
irrespective of any circumstance which might otherwise constitute a discharge of
a guarantor or Tenant at law or in equity; (b) shall be primary; (c) shall not
be conditioned upon Landlord's pursuit of any remedy which it has against Tenant
or any other person; and (d) shall survive and shall not be diminished, impaired
or delayed in connection with (i) any bankruptcy, insolvency, reorganization,
liquidation or similar proceeding relating to Tenant, its properties or
creditors or (ii) any transfer, assignment or termination of Tenant's interest
under the Lease.
5. All rights and remedies of Landlord under this Guaranty, the
Lease, or by law are separate and cumulative, and the exercise of one shall not
limit or prejudice the exercise of any other such rights or remedies. Any
waivers or consents by Guarantor as set forth in this Guaranty shall not be
deemed exclusive of any additional waivers or consents by Guarantor which may
exist in law or equity.
6. Guarantor hereby waives trial by jury in any action brought by
Landlord under or by virtue of this Guaranty. This covenant is made by Guarantor
as a further inducement to Landlord to enter into the Lease.
7. Guarantor agrees to deliver to Landlord a written instrument,
duly executed and acknowledged, certifying (a) that this Guaranty is in full
force and effect, (b) that, to the best of Guarantor's knowledge, Landlord is
not in default in the performance of any of its obligations under the Lease, and
(c) any other fact or, to the best of Guarantor's knowledge, any other condition
reasonably requested by Landlord or its assignees or by any mortgagee or
prospective mortgagee or their assignees or by any purchaser of the property
which is the subject of the Lease or any interest in such property including,
but not limited to, stating that it is understood that such written instrument
may be relied upon by any of the foregoing parties. The foregoing instrument
shall be furnished within ten (10) days after receipt of Landlord's written
request which may be made at any time and from time to time and shall be
addressed to Landlord and any mortgagee, prospective mortgagee, purchaser or
other party specified by Landlord.
8. Guarantor, at any time and from time to time after Landlord's
written request, agrees to promptly furnish to Landlord's mortgagee, prospective
mortgagee, assignee or purchaser financial information available to the public
through governmental filings by Guarantor as a public company and Guarantor's
most recent Annual Report.
9. In the event Guarantor pays any sum to or for the benefit of
Landlord pursuant to this Guaranty, then until the full payment and performance
of all obligations of Tenant under the Lease and Guarantor under this Guaranty,
Guarantor shall have no right of contribution, indemnification, exoneration,
reimbursement, subrogation or other right or remedy against or with respect to
Tenant, any other guarantor, or any collateral, whether real, personal or mixed,
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securing the obligations of Tenant to Landlord, and Guarantor hereby waives and
releases all and any such rights which it may now or hereafter have until the
full payment and performance of all obligations due under the Lease and this
Guaranty.
10. This Guaranty shall be binding upon Guarantor, and Guarantor's
heirs, administrators, executors, successors and assigns, and shall inure to the
benefit of Landlord and its heirs, successors and assigns. Without limiting the
generality of the preceding sentence, Guarantor specifically agrees that this
Guaranty may be (a) freely assigned by Landlord and (b) enforced by Landlord's
mortgagee.
11. The liability of the Guarantor hereunder, if more than one,
shall be joint and several. For purposes of this instrument the singular shall
be deemed to include the plural, and the neuter shall be deemed to include the
masculine and feminine, as the context may require.
12. If any provision of this Guaranty is held to be invalid or
unenforceable by a court of competent jurisdiction, the other provisions of this
Guaranty shall remain in full force and effect and shall be liberally construed
in favor of Landlord in order to effect the provisions of this Guaranty.
13. Guarantor agrees that this Guaranty shall be governed by and
construed according to the laws of the State in which the Premises are located
and that Guarantor is subject to the jurisdiction of the Court of the County or
relevant political subdivision in which the Premises are located.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly
executed, under seal, as of the day and year first above written.
GUARANTOR:
ADVANTA CORP.
Attest: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxx
---------------- --------------------
Name: Xxxxx Xxxxxx Name: Xxxxxx X. Xxxx
Title: Asst. Secretary Title Vice President,
Corporate Administration
(CORPORATE SEAL)
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COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY OF Montogmery :
On this 26th day of February, 2003, before me, the subscriber, a notary
public in and for the State and County aforesaid, personally appeared Xxxxxx X.
Xxxx, who acknowledged himself/herself to be the Vice Pres Corp Admin of ADVANTA
CORP., a Delaware corporation, and that s/he as such officer, being authorized
to do so, executed the same for the purpose therein contained by signing the
name of the corporation by himself/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxxxx X. Xxxxx
---------------------
Notary Public
My Commission Expires:
(Notarial Seal)
