EXHIBIT 10.04
AGREEMENT OF LEASE
BETWEEN
LIBERTY CENTER VENTURE, A PENNSYLVANIA GENERAL PARTNERSHIP,
COMPRISED OF METROPOLITAN LIFE INSURANCE COMPANY
AND GRANT LIBERTY DEVELOPMENT GROUP ASSOCIATES; AND
GRANT STREET ASSOCIATES, INC., AS THE COURT APPOINTED
RECEIVER FOR LIBERTY CENTER VENTURE,
LANDLORD,
AND
FEDERATED INVESTORS, INC.
TENANT.
FOR PREMISES IN
THE FEDERATED INVESTORS TOWER
DATED AS OF FEBRUARY 1, 1994
TABLE OF CONTENTS
Article and Title Page
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ARTICLE 1 - DEFINITIONS.................................................. 2
ARTICLE 2 - AGREEMENT TO LEASE; TERM..................................... 10
ARTICLE 3 - BASIC RENT................................................... 11
ARTICLE 4 - ADDITIONAL RENT.............................................. 12
ARTICLE 5 - USE OF PREMISES.............................................. 14
ARTICLE 6 - INTENTIONALLY DELETED........................................ 14
ARTICLE 7 - ALTERATIONS.................................................. 14
ARTICLE 8 - BUILDING SERVICES............................................ 17
ARTICLE 9 - ASSIGNMENT AND SUBLETTING.................................... 21
ARTICLE 10 - ACCESS TO PREMISES........................................... 24
ARTICLE 11 - REPAIRS...................................................... 25
ARTICLE 12 - SURRENDER OF PREMISES........................................ 26
ARTICLE 13 - TENANT LIABILITY, INDEMNIFICATION AND INSURANCE.............. 27
ARTICLE 14 - FIRE OR OTHER HAZARD......................................... 30
ARTICLE 15 - SUBORDINATION, MORTGAGEE'S APPROVAL AND ATTORNMENT........... 31
ARTICLE 16 - RECORDATION.................................................. 32
ARTICLE 17 - CONDEMNATION................................................. 33
ARTICLE 18 - ESTOPPEL CERTIFICATES........................................ 34
ARTICLE 19 - BANKRUPTCY................................................... 34
ARTICLE 20 - DEFAULTS AND REMEDIES........................................ 35
ARTICLE 21 - NON-WAIVER................................................... 38
ARTICLE 22 - EXONERATION.................................................. 38
ARTICLE 23 - QUIET ENJOYMENT.............................................. 38
ARTICLE 24 - LANDLORD'S REPRESENTATIONS AND COVENANTS..................... 39
ARTICLE 25 - SPRINKLERS................................................... 39
ARTICLE 26 - UNAVOIDABLE DELAY............................................ 39
ARTICLE 27 - SUCCESSORS................................................... 40
ARTICLE 28 - GOVERNING LAW................................................ 40
ARTICLE 29 - SEVERABILITY................................................. 40
ARTICLE 30 - CAPTIONS..................................................... 40
ARTICLE 31 - GENDER....................................................... 40
ARTICLE 32 - NOTICES...................................................... 40
ARTICLE 33 - BROKERS...................................................... 42
ARTICLE 34 - EXECUTION/COUNTERPARTS....................................... 42
ARTICLE 35 - RULES AND REGULATIONS........................................ 43
ARTICLE 36 - NO REPRESENTATIONS BY LANDLORD............................... 43
ARTICLE 37 - EXHIBITS..................................................... 43
ARTICLE 38 - ENTIRE AGREEMENT............................................. 43
ARTICLE 39 - ALTERNATIVE DISPUTE RESOLUTION............................... 43
ARTICLE 40 - TENANT REFURBISHMENT ALLOWANCE............................... 45
EXHIBITS
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"A" - Legal Description of Land
"A-l" - Plan of Premises
"B" - Calculation of Rentable Area
"C" - Rules and Regulations
"D" - Building Standard Cleaning and Janitorial
Services
"E" - Permitted Exceptions
"F" - Form of Memorandum of Lease
ii
AGREEMENT OF LEASE
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THIS LEASE is dated as of the 1st day of February, 1994, between
LIBERTY CENTER VENTURE, a Pennsylvania General Partnership, comprised of
Metropolitan Life Insurance Company and Grant Liberty Development Group
Associates; and GRANT STREET ASSOCIATES, INC., as the Court Appointed Receiver
for Liberty Center Venture, (collectively called the "Landlord") and FEDERATED
INVESTORS, INC., a Pennsylvania corporation, having its principal office at
Federated Investors Tower, Liberty Center, 1001 Liberty Avenue, Pittsburgh,
Pennsylvania 15222 (the "Tenant").
WITNESSETH:
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WHEREAS, Landlord is the owner of certain land ("Land") situate in the
City of Pittsburgh, Allegheny County, Pennsylvania as more particularly
described in Exhibit "A" attached hereto; and
WHEREAS, Landlord has developed a mixed use development upon the Land
(the "Project") including a first class general office building ("Building"), a
parking garage ("Parking Garage"), a podium ("Podium") and a hotel ("Hotel")
each as further defined in Section 1.1; and
WHEREAS, by Order of Court dated June 15, 1993, Grant Street
Associates, Inc. was appointed as the Receiver for Liberty Center Venture by the
Court of Common Pleas of Allegheny County, Pennsylvania; and
WHEREAS, Tenant desires to lease space in the Building on the terms
and conditions as hereinafter set forth; and
WHEREAS, Tenant and Landlord wish to enter into this Lease; and
WHEREAS, Grant Street Associates, Inc. has joined in this Lease as
Receiver for Liberty Center Venture; and
WHEREAS, this Lease shall continue in full force and effect in the
event that the appointment of Grant Street Associates, Inc. as Receiver for
Liberty Center Venture is reversed, overturned or otherwise terminated by
subsequent judicial action.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties, intending to be legally bound hereby, agree as follows:
ARTICLE 1 - DEFINITIONS
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1.1 For the purpose of this Lease, the following terms shall have the
following meanings:
(a) "Additional Rent" shall mean Operating Rent and any other
amounts required to be paid by Tenant to Landlord under this Lease other than
Basic Rent.
(b) "Additional Variable Operating Expenses" shall have the
meaning as set forth in Section l.l(nn) (i) (E) .
(c) "Advisor" shall have the meaning as set forth in Section
39(c).
(d) Intentionally deleted.
(e) "After Hours" shall have the meaning as set forth in Section
8.1(a) (iii).
(f) Intentionally Deleted.
(g) Intentionally Deleted.
(h) Intentionally Deleted.
(i) "Base Year" shall mean the period of twelve consecutive
months commencing on January 1, 1994, and ending on December 31, 1994.
(j) "Basic Rent" shall have the meaning as set forth in Section
3.1.
(k) "Building" shall mean that first class twenty-seven (27)
story office building located at 11th Street and Liberty Avenue at Grant Street,
Pittsburgh, Pennsylvania known as the Federated Investors Tower.
(1) "Building Holidays" shall mean those days designated as
holidays by the New York Stock Exchange from time to time including, but not
limited to, New Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving and
Christmas Day.
(m) Intentionally Deleted.
(n) "Code" shall have the meaning as set forth in Section
7.1(e).
2
(o) "Commencement Date" shall mean February 1, 1994;
(p) "Common Areas" shall mean those areas in the Building used
in common by Tenant and other tenants of the Office Area.
(q) "Comparison Year" shall have the meaning as set forth in
Section 4.1.
(r) "Election" shall have the meaning as set forth in Article
40.
(s) "Event of Default" shall have the meaning as set forth in
Section 20.1
(t) Intentionally Deleted.
(u) Intentionally Deleted.
(v) Intentionally Deleted.
(w) Intentionally Deleted.
(x) "General Building Services" shall have the meaning as set
forth in Section 8.1.
(y) "Hotel" shall mean the first class hotel developed as part
of the Project which contains approximately six hundred (600) guest rooms and
substantial meeting facilities.
(z) Intentionally Deleted.
(aa) Intentionally Deleted.
(bb) "Initial Term" shall have the meaning as set forth in
Section 2.2.
(cc) "Installations" shall have the meaning as set forth in
Section 12.2.
(dd) "Insurance Premiums" shall mean premiums and other charges
incurred by Landlord with respect to the following insurance on or for the
Building, the Land, or any portion thereof, and on any employees engaged (in
whole or in part) in connection with management, maintenance and/or operation of
the Building or Land:
3
(jj) "Normal Office Hours" shall mean 8:00 a.m. to 6:00 p.m.,
Monday through Friday, and 8:00 a.m. to 1:00 p.m. Saturday. All other time
periods and all Building Holidays shall be considered "after hours". The charges
to Tenant for overtime HVAC services shall be calculated in accordance with the
terms of Section 4.2(a) hereof.
(kk) "Office Area" shall mean the Office Floors, except for the
portion of Floor 5 occupied by the Central Mechanical Room, the Office Lobby,
and those areas of Floors 2, 3 and 4 dedicated to office use as shown on Exhibit
"A-l".
(ll) "Office Floors" shall mean Floors 5 through 27 of the
Building.
(mm) "Office Lobby" shall mean the area on the ground floor of
the Building as shown on Exhibit "A-l".
(nn) "Operating Expenses" shall mean:
(i) (A) All those expenses of every kind and character
actually incurred during each year in respect of the operation (including
electricity expenses), management, and maintenance of the Office Area in
accordance with generally accepted accounting principles and sound management
practices as applied to the operation, management and maintenance of first class
office buildings, including without limitation: (1) Insurance Premiums with
respect to the Building, Land, and/or its operation; (2) expenses for any
capital improvements and acquisitions made to the Building amortized over the
estimated useful life of such improvements or acquisitions if such capital
expenses result in net savings of labor and/or other costs over the estimated
useful life of the improvements or acquisition or are incurred to replace
existing improvements and equipment; (3) expenses for any capital improvements
made to the Building in order to comply with applicable laws, rules, ordinances
and/or regulations where such compliance is required as a result of any change
in Tenant's use or layout of the Premises or change in the location of
partitions or trade fixtures in the Premises; and (4) costs of on-site Building
management personnel and an on-site Building management office, but not the
expenses set forth in (ii) below; (B) three and ninety eight one hundredths
percent (3.98%) of the expense of maintaining the areas on the Land outside of
the Building used in common by all tenants of the Project, subject to adjustment
if additional improvements are constructed on the Land; and (C) those additional
expenses (the "Additional Variable Operating Expenses") which Landlord would
have incurred during each Lease Year had the Building been at least ninety
percent (90%) occupied.
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(ii) Operating Expenses shall not include the following: (A)
expenses for any capital improvements and acquisitions (whether owned or leased)
not specified in Subsection 1.1(nn)(i)(A)(2) and (3) above; (B) expenses for
repairs or other work occasioned by fire, windstorm or other insured hazard to
the extent recovered through insurance actually carried or which would have been
recovered through the insurance which is required to be carried by Landlord as
set forth in Section 13.1(b) in the event that Landlord did not carry such
insurance; (C) expenses incurred in leasing or procuring new tenants (e.g.,
lease commissions, advertising expenses and expenses of renovating space for new
tenants); (D) legal expenses in enforcing the terms of any lease, and legal
expenses regarding the actions styled Grant Liberty Development Group Associates
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v. Metropolitan Life Insurance Company, pending in the United States District
- --------------------------------------
Court for the Western District of Pennsylvania at 90-CA-1424, and Metropolitan
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Life Insurance Company v. Liberty Center Venture v. Urban Redevelopment Auth. of
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Pittsburgh and City of Pittsburgh, filed in the Allegheny County Court of Common
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Pleas at GD91-04073, and any other disputes among the entities which comprise
the Landlord, or between Landlord, any partners of Landlord and any lenders to
Landlord or the Project; (E) interest or amortization payments on any mortgage
or mortgages; (F) expenses in connection with maintaining and operating the
Parking Garage; (G) the cost of any other tenant's decorations; (H) the cost of
correcting design or construction defects in the Building; (I) expenses for
relamping and reballastering the Premises (which shall be reimbursed directly by
Tenant to Landlord) or the premises of any tenants other than Tenant; (J) the
cost of electricity consumed on the premises of other tenants of the Building;
(K) interest on loans made to the Landlord as debtor; (L) compensation of
management personnel not engaged exclusively in connection with management of
the Building; (M) fines or penalties for violations of laws or regulations by
Landlord; (N) cost of services provided exclusively for particular tenants; (O)
Landlord's general overhead except as related to the maintenance of an on-site
Building management office.
(iii) The Additional Variable Operating Expenses shall
annually be determined by Landlord and Tenant by mutual agreement based on the
variable operating expenses incurred in connection with occupied space. For such
purpose, Landlord and Tenant recognize and agree that such operating expenses
are seldom directly proportionate to the percentage of occupancy of the Building
and that the Tenant's Additional Rent should not be increased or decreased as a
result of vacancies in the Building. If Landlord and Tenant cannot agree upon
the amount of Additional Variable Operating Expenses for any Lease Year within
sixty (60) days after the end of such Lease Year, Landlord or Tenant may submit
the determination to the alternative dispute resolution procedures in accordance
with Article 39 hereof.
6
(oo) "Operating Manager" shall have the meaning as set forth in
Section 39(a).
(pp) "Operating Rent" shall have the meaning as set forth in
Section 4.1(a).
(qq) Intentionally Deleted.
(rr) "Parking Garage" shall mean the parking garage located
below street level on the Land consisting of two (2) floors of parking and
containing parking spaces for approximately 580 cars.
(ss) Intentionally Deleted.
(tt) "Podium" shall mean that four story structure connecting
the Building and the Hotel.
(uu) Intentionally Deleted.
(vv) "Premises" shall mean the entire 12th floor of the
Building, consisting of 20,510 Square Feet.
(ww) "Prime Rate" shall mean the effective prime rate per
annum, as announced from time to time by Mellon Bank, N.A. at its headquarters
in Pittsburgh, Pennsylvania as its prime rate, such rate to change automatically
from time to time effective as of the effective date of each such change.
(xx) Intentionally Deleted.
(yy) "Project" shall have meaning as set forth in the Second
Recital of this Agreement.
(zz) Intentionally Deleted.
(aaa) Intentionally Deleted.
(bbb) Intentionally Deleted.
(ccc) Intentionally Deleted.
(ddd) Intentionally Deleted.
(eee) "Renewal Notice" shall have the meaning as set forth in
Section 2.3.
(fff) "Renewal Option" shall have the meaning as set forth in
Section 2.3.
7
(ggg) "Renewal Term Rent" shall have the meaning as set forth
in Section 3.1(b).
(hhh) "Renewal Term" shall have the meaning as set forth in
Section 2.3.
(iii) "Rent" shall mean the Basic Rent, Additional Rent and all
other moneys to be paid by Tenant to Landlord under this Lease.
(jjj) "Senior Manager" shall have the meaning as set forth in
Section 39(b).
(kkk) Intentionally Deleted.
(111) "Square Feet" shall mean square feet of leasable area
measured and calculated pursuant to Exhibit "B".
(mmm) "Square Foot" shall mean one square foot of leasable area
measured and calculated pursuant to Exhibit "B".
(nnn) Intentionally Deleted.
(ooo) Intentionally Deleted.
(ppp) "Taxes" shall, for purposes of this Lease, include: (i)
all real and personal property taxes, ad valorem or specific or otherwise,
levied upon, or with respect to the Building and any furniture, fixtures,
machinery, and equipment used in the operation of the Building; (ii) assessments
(on the same schedule of payments incurred by Landlord), general or special
(whether or not for work commenced or completed during the term of this Lease),
ad valorem or specific or otherwise, levied upon, or with respect to the
Building and/or Landlord and/or tenant improvements comprising, and any
furniture, fixtures, machinery, and equipment used in the operation of the
Building; (iii) any tax or excise in addition thereto or substitution thereof
levied by any governmental authority upon or in respect or by reason of
ownership, leasing, operation or occupancy of the Building and incurred by
Landlord, and any tax against Landlord on rents, including the Pittsburgh
Business Privilege Tax (the Pittsburgh Business Privilege Tax payable by Tenant
shall not include any amount which represents a tax levied on Landlord by reason
of Tenant reimbursing Landlord for such Pittsburgh Business Privilege Tax),
and/or additional rents from the Building (but excluding income and excess
profits, taxes, franchise, capital stock, and inheritance taxes, and license,
inspection and permit fees); (iv) any water charges and/or sewer rents which may
be assessed, levied, confirmed, or imposed on or in respect of or be a lien upon
the Building; (v) any and all fees, costs and expenses incurred by Landlord in
negotiating, appealing,
8
or contesting any of the foregoing items specified above in (i) through (iv);
and (vi) three and ninety eight one hundredths percent (3.98%) of the foregoing
items specified above in (i) through (v) which are assessed, levied, imposed or
incurred with respect to the Land, subject to adjustment if additional
improvements are constructed on the Land. Taxes shall not include any penalties
or interest in arrears and shall be computed as if paid at discount to the full
extent permitted by law.
(qqq) Intentionally Deleted.
(rrr) "Tenant" shall have the meaning as set forth in the
preamble to this Agreement.
(sss) "Tenant Alterations" shall have the meaning as set forth
in Section 7.1(a).
(ttt) Intentionally Deleted.
(uuu) "Tenant's Cleaning Contractor" shall have the meaning as
set forth in Section 8.4(c).
(vvv) "Tenant's Cleaning Personnel" shall have the meaning as
set forth in Section 8.4(c).
(www) "Tenant's Share" shall mean the percentage (being 3.98%)
of Operating Expenses and Taxes to be paid by Tenant.
(xxx) Intentionally Deleted.
(yyy) "Term" shall mean the Initial Term set forth in Section
2.2 together with any Renewal Term as set forth in Section 2.3.
(zzz) Intentionally Deleted.
(aaaa) Intentionally Deleted.
(bbbb) "Utility Charges" shall mean all costs for electricity,
steam, gas, water or other utilities or fuels required in connection with the
operation and maintenance of the Building or any portion thereof incurred by
Landlord and not separately metered for and paid directly by any other tenant of
the Building.
(cccc) Intentionally Deleted.
(dddd) "Window Treatments" shall mean the Building standard
window treatment consisting of one horizontal mini-blind for each window in the
Premises.
9
ARTICLE 2 -
AGREEMENT TO LEASE; TERM.
2.1 Demise. Landlord does hereby demise and let unto Tenant and
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Tenant does hereby rent, hire, take and lease from Landlord all that portion of
the Building known as the Federated Investors Tower located at the corner of
Liberty Avenue and 11th Street at Grant Street, Pittsburgh, Pennsylvania,
consisting of the entire 12th floor of the Building and being 20,510 Square Feet
defined herein as the " Premises", together with the right to the use, in common
with others, of the lobbies, entrances, elevators, and other public portions of
the Building.
TO HAVE AND TO HOLD unto the Tenant, its permitted successors and
assigns for the Term of this Lease, but subject and subordinate to the
agreements, encumbrances, covenants and conditions set forth in Exhibit "E"
attached hereto and made a part hereof.
2.2 Initial Term. The initial term of this Lease (the "Initial
------------
Term") shall commence as of 12:00 A.M. on February 1, 1994, and will terminate
at 11:59 P.M. on December 31, 1996. Provided that no Event of Default has
occurred and is continuing under the terms of this Lease, Tenant may elect, in
writing, that the Premises leased by Tenant under the terms of this Lease shall
become part of the Tenant's "Premises" as leased under the terms of that certain
Lease between Landlord and Tenant dated as of January 1, 1993 (the "Master
Lease") by written notice from Tenant to Landlord received no later than (a)
December 31, 1995 if Tenant has not exercised its option to renew the Lease as
set forth in Section 2.3 hereof, or (b) one hundred eighty (180) days prior to
the expiration of the Renewal Term if Tenant has exercised its option to renew
the Lease as set forth in Section 2.3 hereof (the "Election Date"). In the
event that Tenant elects that the Premises leased herein shall become part of
the "Premises" leased under the Master Lease, then: (i) the Premises leased
herein shall become part of the "Premises" under the Master Lease effective as
of the first day of the month immediately following the month in which Tenant
notifies Landlord that it has elected that the Premises leased herein are to
become part of the Master Lease, (ii) the Basic Rent for the Premises leased
herein shall thereafter be calculated at the rates as set forth in the Master
Lease, (iii) the Base Year shall be 1993, and (iv) Tenant shall receive a
refurbishment allowance for the Premises leased herein in an amount as set forth
in Article 40 hereof. In the event that Tenant does not elect that the Premises
leased herein are to become part of the "Premises" leased under the Master
Lease, then Tenant shall vacate the Premises leased herein upon the expiration
of the Term of this Lease.
10
2.3 Renewal Option. Provided that no Event of Default has occurred
--------------
and is continuing under this Lease on the date on which the Renewal Notice (as
hereinafter defined) is received by Landlord or on the last day of the Initial
Term, Tenant shall have the right (the "Renewal Option") to renew this Lease for
one (1) successive term of no less than six (6) months and no more than twenty
four (24) months (the "Renewal Term"). Tenant shall give Landlord written
notice ("the Renewal Notice") of its election to renew this Lease on or before
December 31, 1995, and such Renewal Notice shall set forth the length of time
(being no less than six (6) months and no more than twenty four (24) months) for
which the Renewal Term shall occur. The Basic Rent for such Renewal Term shall
then be as set forth in Section 3.1(a) hereof.
2.4 Parking.
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(a) Landlord does hereby grant Tenant a license to use six (6) non-
reserved parking spaces in the Parking Garage at monthly rental and upon terms
and subject to rules and regulations uniformly applicable for such parking
spaces in the Parking Garage. In the event there are not at least ten (10) other
reserved parking spaces in the Parking Garage leased to others, the reserved
parking spaces. shall be licensed at a monthly rental as is comparable with
similar private reserved parking in the Golden Triangle area of the City of
Pittsburgh. The reserved spaces shall be located in the Private Parking Area.
Landlord may not revoke any license given pursuant to this section during the
Term of this Lease and all rental due in connection with such license shall be
considered Additional Rent under this Lease.
(b) Landlord shall not be required to monitor the Parking Garage or
any areas within the Parking Garage except as provided in Section 8.3 hereof.
ARTICLE 3 - BASIC RENT
----------------------
3.1 Basic Rent. Tenant covenants and agrees to pay Landlord during
----------
the Term in lawful currency of the United States, without any previous demand
therefor and without any set off or deduction except as made by Tenant pursuant
to its recoupment rights specified in this Lease, an annual basic rent ("Basic
Rent"), subject to adjustment as provided below, as follows:
(a) During the Initial Term and the Renewal Term, if any, the
Basic Rent shall be in the following amounts paid in advance on the first day of
each month throughout the Initial Term and any Renewal Term:
11
(i) For the period commencing February 1, 1994 and ending on December
31, 1997 (if Tenant has exercised its Renewal Option such that the Renewal Term
extends beyond December 31, 1996, being the Expiration Date of the Initial
Term), Tenant shall pay to Landlord Basic Rent in the amount of Three Hundred
Sixty Six Thousand Sixty Five Dollars ($366,065.00) per annum, payable in equal
monthly installments of Thirty Thousand Five Hundred Five and 42/100 Dollars
($30,505.42); and
(ii) For the period commencing on January 1, 1998 and ending on the
last day of the Renewal Term, Tenant shall pay to Landlord Basic Rent in the
amount of Three Hundred Ninety Nine Thousand Nine Hundred Forty Five Dollars
($399,945.00) per annum, payable in equal monthly installments of Thirty Three
Thousand Three Hundred Twenty Eight and 75/100 Dollars ($33,328.75).
ARTICLE 4 - ADDITIONAL RENT
---------------------------
4.1 Operating Rent.
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(a) As Operating Rent, Tenant shall pay to Landlord each year
subsequent to the Base Year during the Term hereof and any Renewal Term,
Tenant's Share of any increases in Operating Expenses, Taxes and Insurance
Premiums over the Operating Expenses, Taxes and Insurance Premiums for the Base
Year. The increase, if any, in Operating Expenses, Taxes and Insurance Premiums
shall be determined by subtracting the Base Year Operating Expenses, Taxes and
Insurance Premiums from the Operating Expenses, Taxes and Insurance Premiums for
each Calendar Year subsequent to 1994 ("Comparison Year"). Tenant's Share of
increased Operating Expenses, Taxes and Insurance Premiums shall be calculated
by multiplying the increases in such costs by 3.98%.
(b) Tenant shall pay Landlord, monthly in advance beginning
January 1, 1995, one-twelfth (1/12th) of the amounts, if any, reasonably
estimated annually by Landlord to be Tenant's Operating Rent for the current
Lease Year.
(c) Landlord shall furnish to Tenant a statement, certified by
an independent public accounting firm, of the Operating Rent and Taxes for each
full or partial Lease Year on or before April 1st of the following Lease Year.
To the extent that the Tenant's Operating Rent owed by Tenant for any full or
partial Lease Year is more than the amount actually paid by Tenant under Section
4.1(a), then Tenant shall pay the actual amounts of Operating Rent due Landlord
within fifteen (15) days after receipt of the aforesaid statements. If the
Operating Rent paid by Tenant
12
for any full or partial Lease Year exceeds the amount of Operating Rent actually
owed to Landlord, such excess shall be refunded to Tenant within fifteen (15)
days after such statement is furnished.
4.2 Other Charges. Tenant shall, within fifteen (15) days after
-------------
Landlord's presenting Tenant with an itemized invoice, pay to Landlord as
Additional Rent all amounts required to be paid pursuant to this Lease,
including, without limitation, the following:
(a) Overtime HVAC charges shall be charged to Tenant for HVAC
utilized by Tenant before or after Normal Office Hours.
(b) Any charges for parking pursuant to Section 2.6(a).
(c) Any charges for relamping or reballasting pursuant to
Subsection 8.l(d).
(d) Any charges for additional elevator service pursuant to
Section 8.2.
(e) Any charges for repairs pursuant to Section
11.2.
4.3 Partial Months. If the Lease termination date is not the last
--------------
day of the month, a prorated monthly installment of Basic Rent and Additional
Rent shall be paid at the then current rate for the fractional month during
which the termination date occurs.
4.4 Intentionally Deleted.
4.5 Landlord's Books. Landlord shall allow Tenant access to its
----------------
books and records at reasonable times at Landlord's offices to substantiate and
audit the Additional Rent. Landlord will submit to Tenant with each calculation
or estimate of Additional Rent such detailed information concerning Taxes and
Operating Expenses and the total rentable space in the Building as is reasonably
necessary for Tenant to verify such calculation. In addition, for the purpose of
such verification Tenant shall be entitled, during regular business hours for a
period of one year from the date each such calculation is submitted by Landlord
to Tenant, to cause an independent certified public accountant to examine
Landlord's books and records for the purpose of further verifying such
calculations by Landlord. For the purpose of any such examination Landlord will
produce such books and records for examination in Allegheny County,
Pennsylvania. Appropriate adjustments between Landlord and Tenant based upon the
verifications provided for above will be made within thirty (30) days after such
verification. If Tenant's examination of Landlord's books and records
demonstrates that the actual Operating Rent paid by Tenant: (i) exceeds the
actual Operating Rent that
13
should have been charged to and paid by Tenant by in the aggregate of up to and
including three percent (3%), then Tenant shall pay for the entire cost of such
audit, or (ii) exceeds the actual Operating Rent that should have been charged
to and paid by Tenant by in the aggregate of more than three percent (3%) and up
to and including five percent (5%), then Landlord and Tenant shall share equally
the cost of such audit as reasonably incurred by Tenant, or (iii) exceeds the
actual Operating Rent that should have been charged to and paid by Tenant by in
the aggregate of more than five percent (5%), then Landlord shall reimburse
Tenant for the cost of such audit as reasonably incurred by Tenant.
ARTICLE 5 - USE OF PREMISES
---------------------------
Tenant shall use and occupy the Premises for general office and
financial services uses and those additional uses which are or in the future may
be incidental or accessory to general office or financial services uses,
subject, however, to all of the terms of this Lease, including without
limitation Article 7 - Alterations herein. Tenant shall not use or occupy the
Premises for any other purpose or business without the prior written consent of
Landlord. In no event may the Premises be used for any "walk-in" business other
than financial services uses without such consent.
Tenant shall observe and comply with all applicable governmental laws,
statutes, ordinances, rules and regulations governing Tenant's use of the
Premises and the Rules and Regulations attached as Exhibit "C". All such Rules
and Regulations shall apply to Tenant and its employees, agents, licensees,
invitees, subtenants and contractors, provided all Rules and Regulations adopted
by Landlord from time to time shall be uniformly enforced among all Building
tenants. Landlord shall not without Tenant's consent make any changes to the
Rules and Regulations which would materially interfere with Tenant's reasonable
use and enjoyment of the Premises as contemplated by this Lease. Tenant's
consent to changes in the Rules and Regulations shall not be unreasonably
withheld.
ARTICLE 6 - INTENTIONALLY DELETED
---------------------------------
ARTICLE 7 - ALTERATIONS
-----------------------
7.1 (a) From time to time after the Commencement Date, Tenant, at
Tenant's own expense, may make only such alterations, installations, additions,
improvements or changes in or to the interior of the Premises ("Tenant
Alterations") which do not: (i)
14
in any way affect or alter the structure of the Building; (ii) exceed the
structural capacity of any portion of the Building; or (iii) adversely and
materially affect the operation of the Building, any utility Systems within or
to the Building, or the rights, privileges or tenancy of any other tenant in the
Building.
(b) If Tenant makes any Tenant Alterations:
(i) Tenant, at least fifteen (15) days before
commencement of work or delivery of materials to the Building, shall furnish to
Landlord plans and specifications, necessary approvals and permits, names and
addresses of all contractors and subcontractors, contractor's liability
insurance, and indemnification in form and amount reasonably satisfactory to
Landlord.
(ii) Landlord shall have the right to require that Tenant
promptly remove any Tenant Alterations which Landlord reasonably determines are
not in accordance with Landlord's standard work letter for tenants in the
Building or are not of a type and nature which is commonly acceptable to tenants
in first class office buildings in the City of Pittsburgh and are not likely to
be acceptable to subsequent tenants of the portion of the Premises in which such
Tenant Alterations are located at the end of Term by notifying Tenant of such
requirement no later than ten (10) days after Landlord's receipt of the plans
and specifications of such Tenant Alterations. If such notice is not given to
Tenant, then in that event the construction shall remain upon and be surrendered
with the Premises at the end of the Term or be removed at Tenant's option.
Tenant shall repair any damage occasioned by such removal whether or not
Landlord required such removal, and, in default thereof, Landlord may effect
said removals and repairs at Tenant's expense.
(iii) Tenant shall perform or cause such work to be
performed in a manner which will not materially interfere with or impair the use
and enjoyment of any other portion of the Building by Landlord and/or other
tenants.
(iv) Tenant shall pay the cost of all Tenant Alterations
and any costs of decorating or redecorating the Premises and the Building
occasioned by Tenant Alterations. Landlord acknowledges that it may be obligated
to reimburse Tenant for all or part of such cost as specifically set forth in
Article 40 hereof.
(v) Tenant hereby covenants and agrees not to place or
permit to be placed any lien or liens on or against the Premises, the Land
and/or the Building and Tenant shall hold harmless, indemnify and defend
Landlord from and against any such
15
lien or liens. In the event of any Tenant Alterations costing in excess of
Twenty Five Thousand Dollars ($25,000.00), Tenant shall at Landlord's request
and expense, cause each prime contractor and subcontractor to agree to waive,
relinquish and disclaim any right or power to cause any lien to attach to the
Landlord's interest in the Premises, the Land and/or the Building and Tenant
shall furnish to Landlord documents evidencing the filing of such agreements at
its option.
(vi) Tenant shall pay all sums of money in respect of any
labor, services, materials, supplies or equipment furnished or alleged to have
been furnished to Tenant in or about the Premises, Land and/or Building which
may be secured by any mechanic's, materialmens' or other lien against the
Premises, Land and/or Building or the Landlord's interest therein and will cause
each such lien to be discharged at the time performance of any obligation
secured thereby matures. Tenant may contest such lien, but if such lien is
reduced to final judgment and if such judgment or process thereon is not stayed,
or if stayed and said stay expires, then and in each event Tenant shall
forthwith pay and discharge said judgment.
(vii) Landlord shall have the right to post and maintain on
the Premises notices of non-responsibility under the laws of the Commonwealth of
Pennsylvania.
(viii) Upon completing any Tenant Alteration, Tenant shall,
at Landlord's reasonable request, use its best efforts to furnish Landlord with
contractors' affidavits and full and final waivers of lien covering all labor
and materials expended and used.
(ix) All Tenant Alterations shall comply with all laws,
ordinances, rules and regulations of all governmental authorities, and shall be
constructed in a good and workmanlike manner, and only good grades of materials
shall be used. Such construction shall be done in a manner which does not cause
an increase in the rates for the insurance held by Landlord pursuant to
Subsection 13.1(b) hereof.
(x) Tenant shall permit Landlord to inspect and review
all construction operations in connection with any Tenant Alterations. Landlord
shall not unreasonably interfere with such construction.
(c) Subject to Section 7.1(a), Tenant shall have the right to
install, change and revise in and upon the Premises, at its own expenses,
machinery, trade fixtures, communications systems, alarm systems, lighting
fixtures, security devices, shelving, movable partitions and other equipment or
utility and
16
service connections required for or convenient in connection with the conduct of
its business, provided no such action shall interfere with any communication
system, alarm system, security device or utility services for any portion of the
Building other than the Premises.
(d) If communications systems, alarm systems, security devices
or other utility or services connections are installed or changed in accordance
with this Article, such work shall be provided by Tenant if within the Premises,
however, any such work within other areas of the Building will be done by
Landlord at Tenant's expense and all such systems and devices shall be
designated, maintained and operated so as not to interfere with any signal,
communications, alarm or other utility systems of Landlord or of other tenants
in the Building.
(e) Subject to Section 12.3 hereof, Tenant at its option upon
prior notice to Landlord may remove such leasehold improvements as referred to
in Sections 7.1(c) and 7.1(d) from the Premises at any time prior to or at the
end of the Term of this Lease except any such improvements as may be needed to
conform with any applicable electrical, building, zoning, health, safety,
seismic, fire, energy and other codes, requirements or relevant provisions of
any law, regulation or ordinance issued or adopted by the City of Pittsburgh,
County of Allegheny, Commonwealth of Pennsylvania, or the Government of the
United States of America, or any agency, department or other governmental agency
having jurisdiction over the Building, (collectively called "Code"), and subject
to the provisions of such Sections. In the event of such removal Tenant shall at
its own expense promptly repair any damage to the Premises caused by such
removal.
ARTICLE 8 - BUILDING SERVICES
-----------------------------
8.1 General Building Services. Landlord shall provide, in a manner
-------------------------
befitting a first class office building in the City of Pittsburgh, the following
services and facilities (the "General Building Services"):
(a) Chilled water for the air conditioning system serving the
Premises as follows:
(i) Throughout the Premises during hours of 7:00 a.m. to
7:00 p.m. Monday through Friday and 7:00 a.m. to 7:00 p.m. on
Saturdays, except when such days are Building Holidays, at no extra
charge; provided, however, that certain costs of such electricity and
other utility services shall be an Operating Expense as set forth
elsewhere in this Lease.
17
(ii) Intentionally Deleted
(iii) At other hours, ("After Hours") in such space as
Tenant may request, provided that such request shall be made prior to
the end of Normal Office Hours. Requests for After Hours service may
be made by telephone to the number specified by Landlord. Tenant shall
submit to Landlord a list of Tenant's personnel authorized to make
such requests. Tenant shall pay Landlord for such overtime HVAC
Services at the rate of fifty dollars ($50.00) per hour.
(iv) Landlord will maintain the air conditioning system in
a manner befitting a first class office building and will use all
reasonable care to keep the same in proper and efficient operating
condition and with the capacity for which it was designed.
(v) Tenant agrees to cooperate fully with Landlord and to
abide by all the regulations and requirements which Landlord may
reasonably prescribe for the proper functioning and protection of the
heating, ventilating and air conditioning systems. Tenant also agrees
to abide by all governmental regulations regarding heating and cooling
and agrees to indemnify Landlord for any liabilities imposed upon
Landlord for Tenant's failure to do so.
(b) Hot and unheated water for ordinary cleaning purposes and
central lavatory facilities. The cost of electricity used in point of source
heating units in said areas, other than the central lavatory facilities, shall
be included in the cost of electricity consumed by Tenant in the Premises as
determined pursuant to Section 4.1. hereof
(c) Chilled water for drinking fountains.
(d) Relamping and reballasting in Common Areas. However,
relamping and reballasting in Tenant's Premises shall be performed by Tenant, or
by Landlord at Tenant's direction in which case Tenant shall pay Landlord's Cost
thereof.
8.2 Elevator Service and Loading Dock. Landlord shall at all times
---------------------------------
provide passenger elevator services (which will be automatic) for Tenant in
common with other tenants.
Landlord shall provide freight elevator service in common with
others during Normal Office Hours. If Tenant shall require freight elevator
service and/or use of the Loading Dock
18
outside of Normal Office Hours, Tenant shall pay Landlord for any required
services of building personnel.
8.3 Attendants. Landlord shall provide attendants during Normal
----------
Office Hours for the reception and direction of visitors to the Building. After
Normal Office Hours, Landlord shall monitor the lobby of the Building and
elsewhere throughout the Building and Parking Garage to such extent as is
required in Landlord's judgment to reasonably protect the Building. By providing
such services in and about the Building, Landlord assumes no liability to Tenant
for loss, damage or theft of Tenant's installations, equipment or personal
property unless such loss, damage, or theft is due to the negligence or willful
action of Landlord or its employees or agents. Tenant shall have the right to
provide, at its sole cost and expense, attendants for the reception and
direction of Tenant's visitors to the Premises.
8.4 Cleaning and Janitorial Services.
--------------------------------
(a) Landlord shall provide Building Standard Cleaning and Janitorial
Services in and about the Building and the Premises in accordance with a
schedule of "Building Standard Cleaning and Janitorial Service" attached hereto
as Exhibit "D". To the extent that Tenant shall require special or more
frequent cleaning and janitorial services, Landlord shall, upon reasonable
advance notice by Tenant, furnish such special cleaning services. Tenant agrees
to pay Landlord, within fifteen (15) days of being billed therefor, Landlord's
Cost for providing such additional service, such charge to be deemed Additional
Rent.
(b) Without limiting the generality of the foregoing, the following
shall be considered to be "special cleaning services".
1. Any cleaning and maintenance in areas of special
security such as storage vaults.
2. All cleaning services performed at times other than
normal cleaning hours as described on Exhibit "D".
(c) In the event that Tenant elects to provide its own cleaning
services for the "Premises" under the terms of the Master Lease, then Landlord
grants to Tenant the right to provide its own cleaning services for the Premises
leased herein through an independent contractor at Tenant's own cost and
expense. Tenant may exercise such right from time to time by giving Landlord not
less than sixty (60) days' prior written notice. During the Lease Year or Lease
Years or portions thereof with respect to which notice is thereby given,
Landlord shall not be obligated to provide
19
cleaning services for the Premises. In the event Tenant obtains its own cleaning
service: (i) the personnel, equipment and work must be up to the standards for a
first class office building in the City of Pittsburgh; (ii) the contractor
performing the cleaning services ("Tenant's Cleaning Contractor") must maintain
insurance which Landlord reasonably deems to be adequate; (iii) the Tenant's
Cleaning Contractor shall provide to Landlord and maintain with Landlord a
current list of the names and addresses of all of its personnel working in the
Building ("Tenant's Cleaning Personnel"); (iv) Landlord may photograph and
require Tenant's Cleaning Personnel to wear identification badges; (v) Tenant's
Cleaning Personnel shall be subject to the Rules and Regulations of the Building
governing after Normal Office Hours invitees; (vi) in the event that Tenant
elects to utilize Tenant's Cleaning Contractor for the Premises, Tenant shall
receive a credit against Operating Rent equal to the difference (calculated on a
cost per square foot basis) between (x) the amount which Landlord was paying for
such cleaning and janitorial service for the Building prior to Tenant's election
to utilize its own cleaning personnel, and (y) the amount which Landlord is
required to pay for such cleaning and janitorial service for the Building in the
year following Tenant's election to utilize Tenant's Cleaning Contractor. Tenant
acknowledges that notwithstanding Tenant's election to hire an independent
contractor to clean its own Premises, Landlord may continue to be obligated to
pay the same amount for such cleaning services for the Building until the
expiration of the then current janitorial contract with Landlord's cleaning
contractor.
8.5 Interruption of Services.
------------------------
(a) If the Landlord shall fail to provide any of the General
Building Services to be provided by Landlord in accordance with this Article 8,
Tenant may, after seven (7) days notice to Landlord, provide the same. The
amount of any sums paid by Tenant for such purpose may be deducted by Tenant
from monthly payments of Basic Rent provided that the amount of such deduction
taken in any month is not greater than five percent (5%) of the monthly Basic
Rent.
(b) If all or any portion of the Premises shall be untenantable,
the Rent or Rent allocable to such portion shall abate beginning from the third
(3rd) full day of such failure until the Premises or portion thereof may again
be occupied, provided that Tenant shall give Landlord notice of such failure at
least forty-eight (48) hours before such abatement shall commence. If
substantial portions of the Premises are made tenantable before others, the Rent
allocable to such Premises shall commence upon restoration thereof. For the
purposes of this Subsection 8.5(b), by way of example and not limitation, the
Premises or portion thereof shall be considered "untenantable" if Landlord fails
to
20
provide: (i) any elevator service, (ii) unheated water for lavatory services, or
(iii) HVAC to maintain a temperature of no less than 64 degrees Fahrenheit or no
greater than 80 degrees Fahrenheit.
(c) For purposes of this Section 8.5, time shall be deemed to be
of the essence.
8.6 Security. If the cost to Landlord for security services in the
--------
Building and/or the cost of hazard insurance for the Building increases as a
result of Tenant vacating all or any portion of the Premises, Tenant shall pay
Landlord, on demand as Additional Rent, such increase(s) in cost.
8.7 Office Building Directory. Landlord shall provide space in the
-------------------------
Office Building Directory in the lobby to designate Tenant's floors and
departments as may be reasonably acceptable to Tenant as adequate for Tenant's
purposes.
ARTICLE 9 - ASSIGNMENT AND SUBLETTING
-------------------------------------
9.1 Notice. Should Tenant wish to assign or sublet all or a portion
------
of the Premises for all or a portion of the remainder of the Term of this Lease
it shall give Landlord notice of such intention to assign or sublet sixty (60)
days prior to the commencement date of such assignment or subletting unless
Landlord's consent is not required for such assignment or subletting pursuant to
Section 9.2 and Landlord has no right to recapture pursuant to Section 9.4, in
which case Tenant shall give Landlord notice within five (5) days after such
assignment or subletting. This notice shall specify the amount and location of
the space and period of term of such sublet or assignment, the identity of the
proposed assignee or sublessee and, if a subletting, the rent to be paid to
Tenant.
9.2 Consent Not Required. Subject to this Article 9, Tenant may
--------------------
assign or sublet all or a portion of the Premises for all or a portion of the
remainder of the Term of this Lease without the consent of the Landlord provided
that:
(a) The business or occupation of the proposed subtenant or
assignee is not extra hazardous, disruptive, or illegal and is permissible under
Article 5 and in keeping with the character of the Building.
(b) Tenant remains primarily liable to Landlord for payment of
the Rent herein reserved and for performance of all other terms of this Lease
required to be performed by Tenant.
(c) Tenant has not offered such space to a current tenant in the
Building or a former tenant who has been a tenant in
21
the Building within three (3) years of the date the subletting or assignment is
scheduled to commence, or within one (1) year of such date, if the following
conditions apply: (i) more than ninety percent (90%) of the Square Feet of the
Building are leased; (ii) space comparable to the space Tenant proposes to
sublease or assign is not available in the Building from Landlord; and (iii) no
such comparable space will be so available within six (6) months of the
scheduled date of commencement of the assignment or sublease.
(d) the proposed subtenant or assignee has a net worth equal to or
greater than that of Tenant as of the date of this Lease.
9.3 Assignment Requirements. In the event of an assignment of all
-----------------------
or a portion of the Premises, each assignee shall assume and be deemed to have
assumed this Lease and shall be and remain liable jointly and severally with
Tenant for the payment of the Basic Rent, Additional Rent and any other sums due
hereunder and for the total performance of all of the terms, covenants,
conditions and agreements herein contained on Tenant's part to be performed
during the Term of this Lease. No assignment of this Lease shall in any way
relieve Tenant from its obligations under this Lease. No assignment shall be
binding on Landlord unless such assignee shall deliver to Landlord a counterpart
of such assignment and an instrument in recordable form which contains a
covenant of assumption by the assignee; but the failure or refusal of the
assignee to execute such instrument of assumption shall not release or discharge
the assignee from its liability as set forth above.
9.4 Recapture. In the event that at any time or from time to time
---------
during the Term of this Lease, Tenant desires to sublease all or any part of the
Premises, and if, after such sublease, Tenant shall occupy less than sixty
percent (60%) of the PREMISES, Landlord shall have the right to be exercised by
giving written notice to Tenant thirty (30) days after receipt of the Tenant's
notice described in Section 9.1, to recapture the space described in Tenant's
notice and such recapture notice, shall, if given, cancel and terminate this
Lease with respect to the space therein described as of the date for the
commencement of such proposed sublease as stated in Tenant's notice. If
Tenant's notice shall cover all of the Premises, and if Landlord shall give the
aforesaid recapture notice with respect thereto, the Term of this Lease shall
expire and end on the date stated in Tenant's notice as fully and completely as
if that date had been herein definitely fixed for the expiration of the Term of
this Lease. If, however, this Lease shall be cancelled pursuant to the
foregoing with respect to less than the entire Premises, the Basic Rent and any
Additional Rent shall be adjusted on the basis of the number of Square Feet
retained by Tenant in proportion to the number of Square Feet contained in the
Premises, as described in this Lease,
22
and this Lease as so amended shall continue thereafter in full force and effect.
If Landlord fails to exercise such option, and Tenant fails to complete a
sublease with a third party within sixty (60) days thereafter in accordance with
the terms of the notice, Tenant shall again comply with all the conditions of
this Article 9 as if the notice and option hereinabove referred to had not been
given and received.
9.5 Subleasing Requirements. Any sublease entered into by Tenant for
-----------------------
all or a portion of the Premises shall be subject to and made upon the following
terms:
(a) Any such sublease shall be subject to the terms of this
Lease and no sublease shall release or relieve Tenant of any of its obligations
hereunder.
(b) The term of any sublease shall not extend beyond the Initial
Term unless Tenant has exercised the Renewal Option in which case such term
shall not extend beyond the Renewal Term.
(c) No sublease shall violate any negative covenant as to use
contained in any mortgage affecting the Building.
(d) No sublease shall be valid and no subtenant shall take
possession of the Premises subleased until an executed counterpart of such
sublease and a copy of any agreements relating to such sublease have been
delivered to the Landlord. All such documents shall be delivered by Tenant to
Landlord within ten (10) days after the execution thereof.
(e) No sublessee shall have a right to further sublease.
(f) No sublessee shall be entitled to exercise the Renewal
Option unless Tenant exercises its Renewal Option for the entire Premises (but
this shall not limit Tenant's right to exercise the Renewal Option for the
portion of the Premises not sublet by Tenant).
(g) Any rentals or benefits in lieu of any rentals received by
Tenant which are in excess of the Rent allocable to such space and the expenses
incurred by Tenant through such subletting shall be payable fifty percent (50%)
to Tenant and fifty percent (50%) to Landlord as Additional Rent.
In the event Tenant advertises space for subletting, either
directly or through a real estate agent, the advertisement shall have the prior
written approval of the Landlord which shall not be unreasonably withheld.
23
9.6 Tenant's Affiliates. Any use or occupancy of the Premises by any
-------------------
corporation or entity which controls or is controlled by the Tenant, or under
common control with the Tenant or otherwise affiliated with the Tenant, shall
be a use or occupancy of the Premises by the Tenant and shall not be deemed a
sublease of the Premises or an assignment or transfer of any right, title or
interest in this Lease, the leasehold estate created hereby or any part of same,
to any such corporation or entity governed by this Section 9.6 notwithstanding
that the corporation or entity may reimburse or pay the Tenant any part of the
cost to Tenant for such use and occupancy.
9.7 Non-Conforming Assignment or Sublet. Any purported assignment or
-----------------------------------
subletting by Tenant which is materially not in conformity with this Article
shall be voidable by Landlord unless Tenant cures such nonconformity within
thirty (30) days after notice from Landlord. If not so cured, Landlord may
require Tenant to terminate same and to recover possession of the Premises or
portion thereof so assigned or sublet. The failure of Tenant to so perform
within thirty (30) days after notice from Landlord shall entitle Landlord in
addition to any other rights and remedies it may have under this Lease to
terminate the nonconforming assignment or sublease on Tenant's behalf and
recover possession. Landlord is hereby granted Tenant's irrevocable power-of-
attorney coupled with an interest to so terminate the nonconforming assignment
or sublease and recover possession.
ARTICLE 10 - ACCESS TO PREMISES
-------------------------------
Landlord, its employees and agents shall have the right to enter the
Premises at all reasonable times upon giving Tenant reasonable prior notice and
with minimal disruption to Tenant's use of the Premises for the purpose of
examining or inspecting the same, showing the same to prospective purchasers or
mortgagees, performing extraordinary cleaning and maintenance, and making such
alterations, repairs, improvements or additions to the Premises or to the
Building as Landlord may deem necessary or desirable. Landlord, its employees
and agents shall also have such right of access for the purpose of showing the
Premises to prospective tenants during the final twelve (12) months of the Term.
If representatives of Tenant shall not be present to open and permit entry into
the Premises at any time when such entry by Landlord is necessary or permitted
hereunder, Landlord, its employees and agents may enter by means of a master key
(or forcibly in the event of an emergency), without liability of Landlord to
Tenant, so long as Landlord is not negligent in exercising the right, and
without such entry constituting an eviction of Tenant or termination of this
Lease; provided Landlord shall promptly repair any unnecessary damage caused by
such entry.
24
ARTICLE 11 - REPAIRS
--------------------
11.1 Landlord's Maintenance. Landlord shall promptly make all
----------------------
repairs necessary to maintain the plumbing, air conditioning and electrical
systems, windows, floors (excluding carpeting), and all other items which
constitute a part of the Premises or public access of the Building and are
installed or furnished by Landlord, except repairs of Tenant's trade fixtures
and property and installations which Tenant was obligated to make or which were
performed by Landlord or others at Tenant's request. Landlord shall not be
required to make any such repairs until the expiration of a reasonable period of
time after receipt of written notice from Tenant that such repairs are needed.
If Landlord fails to commence and diligently pursue such repairs prior to the
expiration of such period, Tenant may in addition to its rights under Section
8.5, make such repairs and recoup its cost by deducting the cost thereof from
monthly payments of Basic Rent. The amount of such deduction by Tenant in any
one month shall not exceed the greater of: (i) five percent (5%) of the monthly
Basic Rent, and (ii) an amount required in order to amortize Tenant's actual
cost for such repairs in equal monthly amounts over a period of twelve
consecutive months. The Tenant's actual cost for such repairs shall be verified
and substantiated by paid invoices and other appropriate documentation delivered
to Landlord. Tenant shall notify Landlord in writing prior to the making of any
repairs for which Tenant intends to claim a right of recoupment hereunder. All
repairs shall be in the quality and class of the undamaged condition. In no
event shall Landlord be obligated under this Section to repair any damage caused
by any act, omission or negligence of the Tenant or its employees, agents,
invitees, licensees, subtenants or contractors.
11.2 Tenant's Maintenance. Tenant shall take good care of the
--------------------
Premises and the fixtures and appurtenances therein. Landlord shall, at Tenant's
sole cost and expense, repair and replace all damage or injury to the Premises
and Building and to fixtures and equipment caused by Tenant or its employees,
agents, invitees, licensees, subtenants, or contractors, or as the result of all
or any of them moving in or out of the Building or by installation or removal of
furniture, fixtures or other property, which repairs and replacements shall be
in quality and class equal to the undamaged condition.
11.3 Interferences and Delays. Landlord shall not be liable by
------------------------
reason of any inconvenience, injury to, or interference with Tenant's business
arising from the making of any necessary repairs or alterations, additions or
improvements in or to the Premises or the Land and Building or to any
appurtenances or equipment therein unless such inconvenience, or injury or
interference shall be occasioned by the negligence or willful
25
action of Landlord, its agents, servants and/or employees. Landlord shall make a
reasonable effort to avoid unnecessary inconvenience to or interference with
Tenant's business. There shall be no abatement of Rent because of repairs,
alterations, additions or improvements except in the event of untenantability
as provided elsewhere in the Lease. Landlord covenants to use its best efforts
to implement such repairs, alterations, additions or improvements in a timely
and expeditious manner.
ARTICLE 12 - SURRENDER OF PREMISES
----------------------------------
12.1 Surrender. At termination of this Lease by lapse of time or
---------
otherwise, Tenant shall surrender the Premises to Landlord, together with
alterations, additions, and improvements thereto, in broom-clean condition and
in good order and repair, except for ordinary wear and tear and damage for which
Tenant is not obligated to make repairs under this Lease. If the Premises are
not left in such condition by Tenant then Landlord may restore the Premises to
such condition and Tenant shall pay Landlord for the cost of such restoration.
12.2 Landlord's Property. Upon such termination all installations,
-------------------
alterations, additions, hardware and improvements ("Installations") which have
been installed by Landlord upon the Premises shall remain upon the Premises and
shall be Landlord's property, all without compensation, allowance or credit.
12.3 Tenant's Property. At the expiration or earlier termination of
-----------------
this Lease, Tenant may remove from the Premises all trade fixtures, office
equipment, computer equipment, files and furniture which have been placed by
Tenant in the Premises if and to the extent that such removal will not cause any
damage to the structural integrity of the Building or to the floors, ceilings,
walls, HVAC, or electrical, plumbing, life safety, security or communication
systems. Such removal shall be at Tenant's sole expense and risk, and any damage
or unsightly conditions resulting from such removal shall be repaired by Tenant.
All such repair work and removal are to be completed no later than forty-five
(45) days after the date upon which this Lease terminates. Notwithstanding the
foregoing, Tenant shall have no obligation to perform said repairs at the
termination of this Lease if such repairs will be substantially demolished to
prepare the Premises for a new tenant. Further, and notwithstanding the first
sentence of this Section 12.3, if an Event of Default has occurred and is
continuing then Tenant shall not be permitted to remove any trade fixtures from
the Premises.
12.4 Waiver. TENANT EXPRESSLY WAIVES TO LANDLORD THE BENEFIT OF
------
TENANT OF 68 P.S. SECTION 250.501, APPROVED APRIL 6,
26
1951, ENTITLED "LANDLORD AND TENANT ACT OF 1951", AS MAY BE AMENDED FROM TIME TO
TIME, REQUIRING NOTICE TO QUIT UPON THE EXPIRATION OF THE TERM OF THIS LEASE OR
AT THE EXPIRATION OF ANY EXTENSION OR RENEWAL THEREOF, OR UPON ANY EARLIER
TERMINATION OF THIS LEASE, As HEREIN PROVIDED. TENANT COVENANTS AND AGREES TO
VACATE, REMOVE FROM AND DELIVER UP AND SURRENDER THE POSSESSION OF THE PREMISES
TO LANDLORD UPON THE EXPIRATION OF THIS TERM OR UPON EXPIRATION OF ANY EXTENSION
OR RENEWAL THEREOF, OR UPON ANY EARLIER TERMINATION OF THIS LEASE, AS HEREIN
PROVIDED, WITHOUT SUCH NOTICE, IN THE CONDITION AS REQUIRED ABOVE.
ARTICLE 13 - TENANT LIABILITY, INDEMNIFICATION AND INSURANCE
------------------------------------------------------------
13.1 (a) Tenant's Insurance. Tenant covenants and agrees to provide
------------------
on or before the commencement of the Term and to keep in force during the entire
Term of this Lease: (1) comprehensive general liability insurance for the mutual
benefit of Landlord and Tenant relating to the Premises and its appurtenances on
an occurrence basis in an amount of not less than $2,000,000.00 in respect of
personal injury, or death or property damage liability which insurance shall
name Landlord as an additional insured; and (2) fire and extended coverage,
vandalism, malicious mischief, boiler and machinery and all-risk insurance in an
amount adequate to cover the cost of replacement of all leasehold or building
improvements in the Premises which were originally constructed or provided by or
on behalf of Tenant, at Tenant's cost and expense, as well as the cost of
replacement of all fixtures, equipment, decoration, contents, and personal
property of Tenant. Tenant agrees to deliver to Landlord at least ten (10) days
prior to the time such insurance is first required to be carried by Tenant, and
thereafter at least fifteen (15) days prior to the expiration of any such policy
a certificate(s) of insurance evidencing compliance with its obligations
hereunder.
(b) Landlord's Insurance. Landlord agrees to maintain: (1)
--------------------
comprehensive general liability insurance relating to the Building and the
Common Areas on an occurrence basis in the minimum amount of Two Million Dollars
($2,000,000.00); and (2) fire and extended coverage, vandalism, malicious
mischief and special extended coverage insurance to the extent of the
replacement value of the Building and improvements originally constructed by
Landlord, at its own cost and expense. Landlord agrees to deliver to Tenant at
least ten (10) days prior to the time such insurance is first required to be
carried by Landlord, and thereafter at least fifteen (15) days prior to the
expiration of any such policy a certificate(s) of insurance evidencing
compliance with its obligations hereunder.
27
13.2 Non-Waiver. The minimum limits of the comprehensive
----------
general liability policy of insurance shall in no way limit or diminish
Landlord's or Tenant's liability under Section 13.3 hereof and shall be subject
to increase at any time, and from time to time, after the commencement of the
fifth Lease Year of the Term, if the parties, in the exercise of their
reasonable judgment, shall deem the same necessary for adequate protection.
Within thirty (30) days after demand therefor by Landlord or Tenant the
requested party shall furnish the requesting party with evidence that such
demand has been complied with.
13.3 Indemnities.
-----------
(a) Subject to the waiver of subrogation provision of Section
13.6, Tenant will indemnify, save harmless, and defend Landlord from and against
any and all claims and demands in connection with any accident, injury or damage
whatsoever caused to any person or property arising directly or indirectly out
of the business conducted by Tenant, its employees, agents, contractors,
subtenants or assigns in the Premises or occurring in, on or about the Premises
or any part thereof, for which Landlord is not responsible by virtue of any
negligent act or omission, or otherwise under the terms of this Lease, or
arising directly or indirectly from any act or omission of Tenant or any
concessionaire or subtenant or their respective licensees, servants, agents,
employees, or contractors, and from and against any and all costs, expenses and
liability incurred in connection with any such claim or proceeding brought
thereon. The comprehensive general liability coverage maintained by Tenant
pursuant to this Lease shall specifically insure the contractual obligations of
Tenant as set forth herein.
(b) Subject to the waiver of subrogation provision of Section
13.6, Landlord will indemnify, save harmless, and defend the Tenant from and
against any and all claims and demands in connection with any accident, injury
or damage whatsoever caused to any person or property arising directly or
indirectly out of Landlord's operation of the Building, or arising directly or
indirectly from any negligent or willful act or omission of Landlord, its
servants, agents, employees or contractors, and from and against any and all
costs, expenses and liability incurred in connection with any such claim or
proceeding brought thereon. The comprehensive general liability coverage
maintained by Landlord pursuant to this Lease shall specifically insure the
contractual obligations of Landlord as set forth herein.
13.4 Fire Rating Rules.
-----------------
(a) Tenant shall, at its own cost and expense, comply with all
of the rules and regulations of the fire insurance
28
rating organization having jurisdiction over the Building and any similar body
only to the extent that such compliance does not require structural building
alterations or any alteration to the Premises. If, at any time and from time to
time, as a result of or in connection with any failure by Tenant to comply with
the foregoing sentence or any act of omission or commission by Tenant, its
employees, contractors or licensees, or as a result of or in connection with the
use to which the Premises are put (notwithstanding that such use may be for the
purposes hereinbefore permitted or that such use may have been consented to by
Landlord), the fire insurance rate(s) applicable to the Premises, or the
Building in which same are located, or to any other premises in said Building,
or to any adjacent property owned or controlled by Landlord or an affiliate of
Landlord, and/or to the contents in any or all of the aforesaid properties shall
be higher than that which would be applicable for the least hazardous type of
occupancy legally permitted therein, Tenant agrees that it will pay directly to
Landlord, on demand, as Additional Rent, such portion of the premiums for all
fire insurance policies in force with respect to the aforesaid property and the
contents of any occupant thereof as shall be attributable to such higher rate(s)
(and such premium charges as paid directly to Landlord shall not be an Operating
Expense).
(b) Landlord represents that it will review Tenant's electrical
usage requirements which Tenant wishes to submit to Landlord and Landlord will
approve or disapprove such usage requested based upon whether such usage will
cause an overload to the electrical system of the Premises, so long as Tenant's
equipment performs within and is used in accordance with manufacturers
specifications and is used at the location specified by Tenant's request to
Landlord. If Tenant installs any electrical equipment which Landlord has not
approved that overloads the lines in the Premises or the Building in which the
Premises are located, Tenant shall, at its own cost and expense, promptly make
whatever changes are necessary to remedy such condition and to comply with all
reasonable requirements of the Landlord and the Board of Fire Insurance
Underwriters and any similar body and any governmental authority having
jurisdiction thereof. For the purpose of this paragraph, any finding or schedule
of the Fire Insurance Rating organization having jurisdiction thereof shall be
deemed to be conclusive. If gas is used in the Premises, Tenant shall install
gas cutoff devices (manual and automatic).
13.5 Abandonment of Premises. In the event Tenant vacates all or
-----------------------
any portion of the Premises and such vacation causes an increase in the premiums
for the insurance maintained by Landlord pursuant to Section 13.1(b) hereof,
Tenant shall pay directly to Landlord, on demand, as Additional Rent, the amount
of such increase (and the amount of such premium charges paid directly to
Landlord shall not be an Operating Expense).
13.6 Waiver of Subrogation. Each insurance policy carried by
----------------------
Landlord or Tenant and insuring all or any part of the
29
Building, including improvements, alterations and changes in and to the Premises
made by either of them and Tenant's trade fixtures or contents therein, shall be
written in a manner to provide that the insurance company waives all right of
recovery by way of subrogation against Landlord or Tenant, as the case may be,
in connection with any loss or damage to the Premises or the Building or to
property or business caused by any of the perils covered by fire and extended
coverage, building and contents, and business interruption insurance, for which
either party may be reimbursed as a result of insurance coverage affecting any
loss suffered by it; provided, however, that the foregoing waivers shall apply
only to the extent of any recovery made by the parties hereto under any policy
of insurance now or hereafter issued. So long as the policy or policies involved
can be so written and maintained in effect, neither Landlord nor Tenant shall be
liable to the other for any such loss or damage.
ARTICLE 14 - FIRE OR OTHER HAZARD
---------------------------------
14.1 Restoration. Should the Premises (or any part thereof) be
-----------
damaged or destroyed by fire or other hazard insured under the standard fire and
casualty insurance policy with approved standard extended coverage endorsement
applicable to the Premises, Landlord shall, except as otherwise provided herein,
and to the extent it recovers proceeds from such insurance, repair and/or
rebuild the same with reasonable diligence. Landlord will give Tenant notice
within forty-five (45) days of the damage or destruction referred to in this
Section 14.1, of Landlord's reasonable estimate of the time needed to repair or
rebuild the same. Landlord's obligation hereunder shall be limited to the
Building and improvements originally provided by Landlord at the Commencement
Date of the term of this Lease. Landlord shall not be obligated to repair,
rebuild or replace any property belonging to Tenant or any leasehold or building
improvements in the Premises which were originally constructed or provided by or
on behalf of Tenant at Tenant's cost.
14.2 Abatement. If any portion of the Premises shall be untenantable
---------
and cannot reasonably be used for the permitted use herein as a result of such
hazard, the Rent allocable to such portion shall abate until the earlier of: (i)
for any damage to the Premises which occurs to less than 5,000 Square Feet,
ninety (90) days after the date on which Landlord substantially completes its
repairs to the Building and the improvements originally constructed by Landlord
at the Commencement Date; (ii) for any damage to the Premises which occurs to
5,000 Square Feet or more, one hundred twenty (120) days after the date on which
Landlord substantially completes its repairs to the Building and the
improvements originally constructed by Landlord at the Commencement Date; or
(iii) when the Premises are again ready for occupancy by Tenant for the conduct
of its business. If substantial portions of the Premises are made tenantable
before others, and such portions are capable of sustaining Tenant's business,
the Rent allocable to such restored Premises shall commence thirty (30) days
after notice to
30
Tenant of the completion of restoration thereof or upon Tenant's full occupancy
thereof, if sooner. If the entire Premises shall be untenantable then the Term
of this Lease shall be extended for a period equal to the period beginning on
the date of such casualty and ending on the earlier of the date on which Tenant
becomes liable to pay Rent with respect to: (i) the Premises, or (ii) any
substantial portion of the Premises that is capable of sustaining Tenant's
business.
14.3 Landlord's Option to Terminate.
------------------------------
(a) Notwithstanding anything to the contrary contained in the
preceding Section 14.1 or elsewhere in this Lease, Landlord, at its option, may
terminate this Lease on thirty (30) days notice to Tenant, given within sixty
(60) days after the occurrence of any damage or destruction if at least fifty
percent (50%) of the Premises is damaged or destroyed as a result of a risk
which is not covered by Landlord's insurance. Further, if the Premises, the
Building or tenant improvements in the Premises which were originally
constructed by Landlord for Tenant, or any substantial parts of any of the
foregoing are rendered unfit for use and occupancy by reason of damage occurring
at any time during the Term, Landlord, at its discretion, may terminate this
Lease or may restore such Premises in accordance with Paragraph 14.1 hereof; but
Landlord shall, not be obligated to repair and restore the Premises unless
Tenant shall, within forty-five (45) days of the occurrence of such damage,
elect in writing to make the Premises leased herein a part of the "Premises" as
leased by Tenant under the terms of the Master Lease. In the event that Tenant
elects to make the Premises leased herein part of the "Premises" leased under
the terms of the Master Lease, the provisions of Section 14 of the Master Lease
shall then be controlling.
14.4 Waiver. Except to the extent specifically provided for in this
------
Lease, none of the Rent payable by Tenant, nor any of Tenant's other obligations
under any provisions of this Lease, shall be affected by any damage to or
destruction of the Premises or Building by any cause whatsoever, and Tenant
hereby specifically waives any and all additional rights it might otherwise have
under any law or statute.
ARTICLE 15 - SUBORDINATION, MORTGAGEE'S APPROVAL AND ATTORNMENT
---------------------------------------------------------------
15.1 Subordination. Provided that Landlord has complied with the
-------------
provisions of Section 15.3, Landlord shall have the right and privilege to
subject and subordinate this Lease at all times to the lien of any and all
mortgages, ground leases and superior leases now or hereafter placed upon
Landlord's interest in the Premises and on the Land and Building or upon any
buildings hereafter placed upon the Land and to any and all advances to be made
under such mortgages, and all renewals, modifications, extensions,
consolidations and replacements thereof. This provision shall be self operative,
and Tenant further covenants and agrees to
31
execute and deliver, upon demand, such further instrument or instruments
subordinating this Lease on the foregoing basis to the lien of any such
mortgage, ground lease or superior lease as shall be desired by the Landlord and
any mortgagees or lessor.
15.2 Attornment. Provided that Landlord has complied with the
----------
provisions of Section 15.3, Tenant shall, in the event of the sale or assignment
of Landlord's interest in the Land and/or Building, or in the event of any
proceedings brought for the foreclosure of, or in the event of the exercise of
the power of sale under any mortgage covering the Land and Building, or in the
event of termination of Landlord's interest in the Land and/or Building pursuant
to any ground lease or superior lease, attorn to and recognize such purchaser,
mortgagee or lessor as Landlord under this Lease, and in any such events,
Landlord named herein shall not thereafter be liable on this Lease except for
actions and omissions occurring prior to such attornment.
15.3 Non-Disturbance. Landlord shall procure and deliver for
---------------
Tenant's benefit, concurrently with the execution of this Lease, a written
agreement between Tenant and the lessor of any existing ground lease or superior
lease or holder of any mortgage, to which this Lease is subordinate, providing
in substance that so long as Tenant is not in material default under this Lease
beyond any grace period, Tenant shall not be joined as a party defendant in any
action or proceeding which may be instituted or taken by the lessor for the
purpose of terminating any ground lease or superior lease by reason of any
default thereunder, or in any foreclosure action or proceeding which may be
instituted or taken by the holder of any mortgage, Tenant shall not be evicted
from the Premises, nor shall Tenant's leasehold estate or possession under this
Lease be terminated or disturbed, nor shall any of Tenant's rights under this
Lease be affected, in any way, by reason of any default under any ground lease,
superior lease or any mortgage, and if Landlord's interest in the Building or
this Lease shall be terminated, this Lease shall remain in effect. Further, in
the event that any future ground lease, superior lease or mortgage, to which
this Lease is subordinate, is entered into by Landlord after the date of this
Lease, Landlord shall also procure and deliver for Tenant's benefit, with
reasonable promptness, an agreement between Tenant and the lessor of any future
ground lease or superior lease or holder of any mortgage which agreement shall
set forth the provisions as described in the first sentence of this Section
15.3.
ARTICLE 16 - RECORDATION
------------------------
This Lease Agreement may not be recorded, but a memorandum thereof, in
the form attached hereto as Exhibit "F", may be recorded by Landlord or Tenant.
Both parties agree to execute any further documents as may be necessary or
convenient for such recordation or to terminate any recorded memorandum of the
Existing Lease.
32
ARTICLE 17 - CONDEMNATION
-------------------------
17.1 Complete Taking. In the event that the whole or substantially
---------------
the whole of the Building shall be condemned or taken in any manner for any
public or quasi-public use, this Lease, and the terms and estate hereby granted,
shall forthwith cease and terminate as of the date possession is taken by the
taking authority.
17.2 Partial Taking. In the event that any part of the Building
--------------
shall be so condemned or taken, this Lease shall remain in force and effect as
to the part of the Premises not so condemned or taken, except that: (i) if the
taking shall nevertheless be so extensive that Landlord shall decide not to
restore the Building, then Landlord (whether or not the Premises are affected)
may at its option terminate this Lease and the term and estate hereby granted
shall be terminated as of the date of such taking of possession for such use; or
(ii) Tenant may, if more than twenty-five percent (25%) of the Premises should
be condemned or taken, elect at any time within sixty (60) days of the date of
such taking, to cancel this Lease upon written notice to Landlord, and thereupon
this Lease shall terminate upon the date Tenant may specify in said notice. Upon
any such taking or condemnation and the continuing in force of this Lease as to
any part of the Premises, the Basic Rent and Tenant's Share shall be abated by
an amount representing the part of the Basic Rent and Tenant's Share properly
allocable to the portion of the Premises which may be so condemned or taken.
17.3 Termination. In the event of the termination of this Lease
-----------
pursuant to the provisions of Section 17.1 or 17.2, this Lease and the term and
estate hereby granted shall expire as of the date of such termination in the
same manner and with the same effect as if that were the date set for the normal
expiration of the Term. The provisions of this Section 17.3 shall apply pro
---
tanto to any partial termination of this Lease pursuant to the provisions of
- -----
this Article.
17.4 Award. Landlord shall be entitled to receive the entire award
-----
arising from any condemnation proceeding without deduction therefrom for any
estate vested in Tenant by this Lease and Tenant shall receive no part of such
award or awards, except as provided in Section 17.5. Tenant hereby expressly
assigns to Landlord any and all of its right, title and interest in or to such
award or awards or any part thereof.
17.5 Tenant's Award. Notwithstanding the foregoing, in the event of
--------------
any condemnation or taking pursuant to Section 17.1 or 17.2, Tenant shall be
entitled to appear, claim, prove and receive in the condemnation proceeding such
portion of such award or such award as may be made as represents the total value
of all alterations and improvements constructed by Tenant, together with such
amounts for business interruption, moving expenses and similar items for which a
tenant may recover damages under applicable law.
33
17.6 Temporary Taking. If the temporary use or occupancy of all or
----------------
any part of the Premises shall be condemned or taken for any public or quasi-
public use during the Term, Tenant shall be entitled to any award for same and
this Lease shall be and remain unaffected by such condemnation or taking and
Tenant shall continue to pay in full the Basic Rent, Additional Rent and other
sums payable hereunder by Tenant. In the event of any such taking as in this
Section 17.6 referred to, Tenant shall be entitled to appear, claim, prove and
receive the entire award for such taking as represents compensation for use or
occupancy of the Premises and Landlord shall be entitled to appear, claim, prove
and receive the entire award as represents the cost of restoration of the
Premises.
17.7 Restoration. In the event of: (i) any condemnation or taking of
-----------
less than the whole of the Building and this Lease shall continue in effect in
whole or in part; or (ii) any condemnation or taking for a temporary use or
occupancy of all or any part of the Premises, Landlord, at its expense, and
whether or not any award or awards shall be sufficient for the purposes, shall
proceed with reasonable diligence to repair, alter and restore the remaining
part of the Building and the Premises to substantially their former condition to
the extent that the same may be feasible and so as to constitute a complete and
tenantable Building and Premises.
ARTICLE 18 - ESTOPPEL CERTIFICATES
----------------------------------
At any time, and from time to time but not more than once a year,
either party upon the written request of Landlord, any mortgagee, Tenant, or any
subtenant agrees to execute and deliver to the requesting party without charge
and in a form satisfactory to the requesting party, within ten (10) days of such
written request, a written statement: (i) ratifying this Lease; (ii) confirming
the Commencement Date and termination date of the Term of this Lease; (iii)
certifying that Tenant is in occupancy of the Premises, and that this Lease is
in full force and effect and has not been modified, assigned, supplemented or
amended, except by such writings as shall be stated; (iv) certifying that to the
best of Tenant's knowledge or Landlord's knowledge as the case may be that all
conditions and agreements under this Lease to be satisfied and performed have
been satisfied and performed except as shall be stated; (v) certifying that
Tenant or Landlord as the case may be is not in material default under this
Lease and that there are no defenses or offsets against the enforcement of this
Lease by the other then known or stating the defaults and/or defenses claimed by
Tenant or Landlord as the case may be; (vi) reciting the amount of advance Rent,
if any, paid by Tenant and the date to which Rent has been paid; and (vii) any
other pertinent information which Landlord, Tenant, the mortgagee or subtenant
shall reasonably require.
ARTICLE 19 - BANKRUPTCY
-----------------------
If there shall be filed against Tenant, in any court, pursuant to any
statute, either of the United States or of any
34
state, a petition in bankruptcy or insolvency or for reorganization or for the
appointment of a receiver or trustee of all of Tenant's property and Tenant
fails to secure a discharge thereof within thirty (30) days from the date of
such filing or within such reasonable time required to obtain a discharge, or if
Tenant shall voluntarily file any such petition or make an assignment for the
benefit of creditors or petition for or enter into an arrangement with Tenant's
creditors, then, in any such event, this Lease, at the option of Landlord, may
be cancelled and terminated. In the event of a termination of this Lease
pursuant to this article, neither Tenant nor any other person claiming through
or under Tenant (whether by virtue of any statute or any order of any court or
otherwise) shall be entitled to acquire or remain in possession of the Premises
except as otherwise provided by law, or written agreement, and Landlord shall
have no further liability hereunder to Tenant or any such other person except
for any amounts accrued or actions or omissions occurring prior to such
termination, and Tenant and any such person shall forthwith quit and surrender
the Premises. If this Lease shall be so cancelled or terminated, Landlord, in
addition to the other rights and remedies of Landlord contained elsewhere in
this Lease, or under any statute or rule of law, may retain as liquidated
damages any Rent, and any other money received by Landlord from Tenant or
otherwise on behalf of Tenant.
ARTICLE 20 - DEFAULTS AND REMEDIES
----------------------------------
20.1 Defaults. The occurrence of any of the following, if the same
--------
continues uncured after such notice and grace periods as hereinafter set forth,
if ANY, shall constitute an "Event of Default" under this Lease by Tenant:
(a) Tenant shall fail, neglect or refuse to pay any installment of
Rent or any other monies agreed by it to be paid within ten (10) days after
notice that the same is due and payable in accordance with the terms hereof.
(b) Tenant shall refuse to comply with provision(s) of the Rules and
Regulations, which failure or refusal Landlord reasonably deems to create a
material and immediate nuisance or a dangerous condition and which default can
be and is not cured within thirty (30) days after notice of such failure or
refusal.
(c) Tenant shall fail or refuse to keep and perform any of the other
covenants, conditions, stipulations or agreements herein contained, and in the
event any such default shall continue for a period of more than sixty (60) days
after notice thereof (provided, however, that if the cause for giving such
notice involves the making of repairs or other matters reasonably requiring a
longer period of time than said sixty (60) day period, Tenant shall be deemed to
have complied with said notice so long as it has commenced to comply with such
notice within said sixty (60) day period and is diligently prosecuting
compliance of said notice).
35
(d) Tenant shall more than four (4) separate times in any
twelve (12) month period be more than ten (10) days late in the payment of Rent,
Additional Rent and/or other sums or charges due Landlord under this Lease or
default in the keeping, observing or performing of any other material covenants
or agreements herein contained to be kept, observed or performed by Tenant and
irrespective of whether or not Tenant shall have timely cured any defaults;
provided that Landlord shall have given Tenant written notice of each such late
payment prior to the receipt of such payment.
20.2 Remedies. In the event of any Event of Default under this Lease,
--------
Landlord, at its option, may terminate this Lease upon and by giving written
notice of termination to Tenant; and/or exercise any one or more of the
following remedies upon written notice to Tenant:
(a) Landlord may perform for the account of Tenant any such
default of Tenant and immediately recover as Additional Rent any expenditures
made and the amount of any obligations incurred in connection therewith, plus
interest at the Prime Rate from the date of any such expenditure.
(b) Enter and take possession of the Premises and all trade
fixtures, installations, alterations and improvements installed or placed in the
Premises by Tenant.
(c) Relet the Premises or any part thereof for such terms, upon
such conditions as Landlord may deem proper and at a rental rate as close to the
then current market rate as Landlord reasonably can. In the event of such
reletting: (i) Landlord shall receive and collect the rent therefrom and shall
first apply such rent against such expenses as Landlord may have incurred in
recovering possession of the Premises, placing the same in good order and
condition, altering or repairing the same for reletting, and such other
expenses, commissions and charges, including attorneys' fees, which Landlord may
have paid or incurred in connection with such repossession and reletting, and
then shall apply such rent against any amounts due Landlord under the Lease; and
(ii) the tenant of such reletting shall be under no obligation to see to the
application by Landlord of any rent collected by Landlord, nor shall Tenant have
any right to collect any rent under such reletting.
In exercising its right to attempt to relet the Premises Landlord may
make such alterations, repairs, replacements and/or decorations in the Premises
as Landlord, in Landlord's sole judgment, considers advisable and necessary for
the purpose of reletting the Premises; and the making of such alterations,
repairs, replacements and/or decorations shall not operate or be construed to
release Tenant from liability hereunder as aforesaid. Landlord shall, in no
event, be liable in any way whatsoever for failure to relet the Premises, or, in
the event that the Premises are relet, for failure to collect the Rent hereof
under such
36
reletting unless Landlord has acted in a commercially unreasonable manner.
(d) Notwithstanding any such reletting by Landlord without
termination of this Lease, Landlord may elect to terminate this Lease for a
previous Event of Default. Should Landlord at any time terminate this Lease, in
addition to any other remedy it may have, it may recover from Tenant any direct
damages it may incur by reason of such breach, including the cost of recovering
and reletting the Premises and including at the time of such termination the
worth of the excess, if any, of the amount of Rent reserved in this Lease for
the remainder of the Term over the then reasonable rental value of the Premises
for the remainder of the Term.
(e) In addition to any and all remedies provided hereunder or by
law, upon the occurrence of any Event of Default by Tenant hereunder, Tenant
hereby empowers any attorney of any court of record within the United States to
appear, with or without declaration filed, for Tenant, and for any other persons
claiming under, by or through Tenant, and confess judgment forthwith against
Tenant and such other persons and in favor of Landlord, in an amicable action of
ejectment for the Premises, together with such costs of suit and reasonable
attorneys' commission for collection and forthwith issue a writ or writs of
execution thereon, with release of all errors, and without stay of execution,
and inquisition and extension upon any levy or real estate is hereby expressly
waived, and condemnation agreed to, and exemption of any and all property from
levy and sale by virtue of any exemption law now in force or which may be
hereafter enacted is also expressly waived by Tenant. The entry of judgment
under the foregoing warrant shall not exhaust the same, but successive judgments
may be entered thereunder from time to time as often as defaults occur.
(f) Landlord shall have the right of injunction, in the event of a
breach or threatened breach by Tenant of any of the terms and conditions hereof,
to restrain the same and the right to invoke any remedy allowed by law or in
equity, whether or not other remedies, indemnity or reimbursements are herein
provided. The rights and remedies given to Landlord in this Lease are distinct,
separate and cumulative remedies; and no one of them, whether or not exercised
by Landlord, shall be deemed to be in exclusion of any of the others.
(g) Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event of Landlord's obtaining
possession of the Premises, by reason of the violation by Tenant of any of the
covenants and conditions of this Lease or otherwise.
20.3 Interest on Late Payments. In addition to all other remedies,
-------------------------
any amount billed by Landlord and required to be paid by Tenant under the
provisions of this Lease shall begin to accrue interest on the sixteenth (16th)
day after such billing if payment
37
has not been made by such date. Any payment of Basic Rent, Additional Rent or
rent for the Private parking Area shall begin to accrue interest on the day
after such payment is due if payment has not been made by such date. The
aforesaid interest shall: (i) be at the Prime Rate; (ii) continue to accrue
until payment is received by Landlord; and (iii) be deemed reimbursement of
extra costs and losses suffered by Landlord due to such delay in payment.
ARTICLE 21 - NON-WAIVER
-----------------------
The failure or delay on the part of either party to enforce or
exercise at any time any of the provisions, rights or remedies in this Lease
shall not constitute a waiver of such right, nor shall it affect the validity of
this Lease or any part therefrom or the right of the party to thereafter enforce
each and every such provision, right or remedy contained herein. No waiver of
any breach of this Lease shall be held to be a waiver of any other or subsequent
breach. The receipt and acceptance by Landlord of Rent at a time when the
payment of such Rent is in default under this Lease shall not be construed as a
waiver of such default. No act or thing done by Landlord or Landlord's agents or
employees during the term of this Lease shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept such a surrender shall be
valid unless in writing and signed by Landlord.
ARTICLE 22 - EXONERATION
------------------------
Neither the Landlord nor any successor in interest that may be an
individual, joint venture, tenancy in common, firm or partnership, general or
limited, shall be subject to personal liability on such individual or on the
numbers of such joint venture, tenancy in common, firm or partnership in respect
to any of the covenants or conditions of this Lease. The Tenant shall look
solely to the equity of the Landlord in the Land and Project and the rents,
issues and profits derived therefrom for the satisfaction of the damages of the
Tenant in the event of a breach by the Landlord. This clause is and shall be
considered an integral part of this Lease.
ARTICLE 23 - QUIET ENJOYMENT
----------------------------
Landlord covenants that it has good and marketable title to the
Building and the Premises; that, upon recordation of the lease memorandum in
accordance with Article 16 hereof, Tenant shall have a valid leasehold estate in
the Premises free and clear of mortgages, liens and encumbrance, except as set
forth in Exhibit "E"; that it has not violated any applicable zoning or any
other land use control laws; and that, so long as Tenant pays the Rent due and
payable hereunder and performs the covenants herein on its part to be performed,
Tenant shall and may peaceably have, hold and enjoy the Premises for the Term of
this Lease.
ARTICLES 24 - LANDLORD'S REPRESENTATIONS AND COVENANTS
------------------------------------------------------
38
24.1 Identity of Landlord; Validity of Lease. Landlord represents
---------------------------------------
that it is a Pennsylvania general partnership whose general partners are
Metropolitan Life Insurance Company and Grant Liberty Development Group
Associates (a Pennsylvania general partnership having as its general partners
Forest City Grant Liberty Associates, a Pennsylvania Limited Partnership; JLM
Grant Liberty Associates, a Pennsylvania Limited Partnership; WJB Grant Liberty
Associates, a Pennsylvania Limited Partnership; UDA Grant Liberty Associates, a
Pennsylvania Limited Partnership; and BHKR Grant Liberty Associates, a
Pennsylvania Limited Partnership). Grant Street Associates, Inc. is the Court
appointed Receiver of Liberty Center Venture, having been so appointed by Order
of Court dated June 15, 1993, entered at No. G.D. 91-04073 in the Court of
Common Pleas of Allegheny County, Pennsylvania. A copy of such Order of Court
has been provided to Tenant.
In the event of any change in control or ownership of Landlord,
Landlord shall give Tenant written notice thereof within sixty (60) days after
the occurrence of such change. Landlord represents and covenants to Tenant that
this Lease shall remain in full force and effect and be binding on Landlord in
the event that the appointment of Grant Street Associates, Inc. as Receiver for
Liberty Center Venture is reversed, overturned or otherwise terminated by
subsequent judicial action.
ARTICLE 25 - SPRINKLERS
-----------------------
If the "sprinkler system" installed in the Building shall be damaged
or injured by reason of any act or omission of Tenant, or Tenant's agents,
servants, employees, licensees or visitors, Tenant will forthwith restore the
same to good working conditions at its own expense. If after initial occupancy
and by reason of Tenant's business, or any change by Tenant in the location of
partitions, trade fixtures or other contents of the Premises, changes,
modifications, alterations, additional sprinkler heads or other equipment are
required by the Board of Fire Underwriters or any bureau, department or official
of the state or city government having jurisdiction over the Building or become
necessary to prevent the imposition of a penalty or charge against the full
allowance for a sprinkler system in the fire insurance rate as fixed by the fire
insurance company insuring the Building, then Tenant shall, at Tenant's expense,
promptly make and supply such changes, modifications, alterations, additional
sprinkler heads or other equipment within the Premises.
ARTICLE 26 - UNAVOIDABLE DELAY
------------------------------
Except for the purpose of determining whether the Premises or any
portion thereof are untenantable pursuant to any provisions of this Lease, in
the event that either party shall be delayed or hindered in, or prevented from
the performance of any work, service or other acts required under this Lease to
be performed by such party, and such delay or hinderance is due to
39
strikes, lockouts, acts of God, governmental restrictions, unavoidable fire or
other casualty, or other causes of a like nature beyond the control of the party
so delayed or hindered, then performance of such work, service or other act
shall be excused for the period of such delay and the period for the performance
of such work, service or other act shall be extended for a period equivalent to
the period of such delay. In no event shall such delay constitute a termination
of this Lease, or any extension thereof.
ARTICLE 27 - SUCCESSORS
-----------------------
The respective rights and obligations provided in this Lease shall
bind and shall inure to the benefit of the parties hereto, their legal
representatives, heirs, successors and assigns.
ARTICLE 28 - GOVERNING LAW
--------------------------
This Lease shall be construed, governed and enforced in accordance
with the laws of the Commonwealth of Pennsylvania.
ARTICLE 29 - SEVERABILITY
-------------------------
If any provision of this Lease shall be held to be invalid, void or
unenforceable, the remaining provisions hereof shall in no way be affected or
impaired and such remaining provisions shall remain in full force and effect.
ARTICLE 30 - CAPTIONS
---------------------
Article headings, section headings and titles and the table of
contents to this Lease are for convenience and reference only, and are in no way
to be construed as defining, limiting or modifying the scope or intent of the
various provisions of this Lease.
ARTICLE 31 - GENDER
-------------------
As used in this Lease, the word "person" shall mean and include where
appropriate, an individual, corporation, partnership or other entity, the plural
shall be substituted for the singular, and the singular for the plural, where
appropriate, and words of any gender shall mean and include any other gender.
ARTICLE 32 - NOTICES
--------------------
All notices required or permitted hereunder shall be effective when
tendered to the recipient by the postal authorities and shall be deemed
sufficiently given if sent by registered or certified mail, return receipt
requested, addressed to the Landlord or Tenant, as the case may be, as follows:
To Landlord: Metropolitan Life Insurance Company
40
Suite 1910
600 Vine Street
Cincinnati, OH 45202
Attn: Assistant Vice President Real
Estate Investments
and
2001 Spring Road
Suite 400
Oak Brook, IL 60521-1813
Attn: Vice President
Forest City Grant Liberty Associates
1400 Terminal Tower
Cleveland, OH 44113-2204
Attn: R.H. Marques, Vice President
JLM Grant Liberty Associates
Essex Street and Route 17
Maywood, NJ 07607
Attn: Joseph L. Muscarelle, Jr.
UDA Grant Liberty Associates
1133 Penn Avenue
Pittsburgh, Pennsylvania 15222
Attention: Don Carter
WJB Grant Liberty Associates
c/o Omni Evaluation Services
P.O. Box 62310
Pittsburgh, PA 15241
Attention: Randall Benyon
Burt, Hill, Kosar, Rittlemann Assoc.
400 Morgan Center
Butler, PA 16001
Attention: Ralph Burt
c/o Losi M. Roth
with a copy to: Liberty Center Venture
c/o Alan B. Gordon, Esquire
Sable, Makoroff & Gusky, P.C.
Seventh Floor Frick Building
437 Grant Street
Pittsburgh, PA 15219
41
James Dawson, President
Grant Street Associates, Inc.
2626 One Mellon Bank Center
500 Grant Street
Pittsburgh, PA 15219
To Tenant: 1001 Liberty Avenue
Pittsburgh, PA 15222
Attn: David M. Taylor
with a copy to: Alan H. Finegold, Esquire
Kirkpatrick & Lockhart
1500 Oliver Building
Pittsburgh, PA 15222
John H. Cummings, Jr., Esquire
Federated Investors, Inc.
1001 Liberty Avenue
Pittsburgh, PA 15222
Robert S. Carey
The Carey Company
Suite 950
Federated Investors Tower
1001 Liberty Avenue
Pittsburgh, PA 15222
Either party may change its address by written notice so given to the
other. The notice to Grant Street Associates, Inc. as set forth above shall be
required so long as Grant Street Associates, Inc. remains as the Receiver for
Landlord. Landlord shall notify Tenant in the event that Grant Street
Associates, Inc. is no longer the Receiver for Liberty Center Venture.
ARTICLE 33 - BROKERS
--------------------
Landlord hereby warrants to Tenant that no real estate broker has or
will represent Landlord in this transaction. Tenant hereby warrants to Landlord
that no real estate broker other than The Carey Company has or will represent
Tenant in this transaction. Landlord and Tenant shall indemnify each other
against and hold the other harmless from all liabilities, claims, and expenses
(including reasonable attorneys fees) arising out of the breach of their
respective warranty. Landlord shall pay to The Carey Company a total commission
in the sum of Eighteen Thousand Dollars ($18,000.00) for all services rendered
by it in connection with this Lease. Such commission shall be earned and be
payable to The Carey Company only upon the execution of this Lease by both the
Landlord and Tenant.
ARTICLE 34 - EXECUTION/COUNTERPARTS
-----------------------------------
This Lease shall become effective only when it has been signed by a
duly authorized officer or representative of each of the parties and delivered
to the other party. This Lease may be
42
executed in multiple counterparts. Each of such fully executed copies shall be
deemed original and it shall not be necessary in making proof of this Lease to
produce or account for more than one such counterpart.
ARTICLE 35 - RULES AND REGULATIONS
----------------------------------
Rules and Regulations for the Building are attached hereto as Exhibit
"C" and incorporated herein. If there are inconsistencies between the Rules and
Regulations in Exhibit "C" and the Lease, the Lease provisions shall prevail.
Landlord shall not be required to enforce the Rules and Regulations except to
the extent necessary to prevent an adverse effect on Tenant's use and enjoyment
of the Premises. Landlord will not discriminate against Tenant in the
administration of the Rules and Regulations. Tenant may use the food preparation
and dining facilities currently located in the Premises as the same may be
relocated by Tenant in its discretion.
ARTICLE 36 - NO REPRESENTATIONS BY LANDLORD
-------------------------------------------
Tenant acknowledges and agrees that, except as expressly set forth in
this Lease, and the exhibits hereto, there have been no representations,
promises or warranties made by or on behalf of Landlord with respect to the
Premises or the Land and Building or with respect to the suitability of either
for the conduct of Tenant's business.
ARTICLE 37 - EXHIBITS
---------------------
All Exhibits attached hereto are incorporated herein by reference and
made a part hereof.
ARTICLE 38 - ENTIRE AGREEMENT.
-----------------------------
This Lease, including the Exhibits hereto, contains all the
agreements, conditions, understandings, representations and warranties made
between the parties hereto with respect to the subject matters hereof, and may
not be modified orally or in any manner other than by an agreement in writing
signed by both parties hereto or their respective successors in interest.
ARTICLE 39 - ALTERNATIVE DISPUTE RESOLUTION
-------------------------------------------
(a) Except as otherwise provided in this Lease, if any dispute arises
out of this Lease, either Landlord or Tenant shall have the right to invoke
dispute resolution procedures pursuant to this Article by written notice to the
other party. The invocation by either party of the dispute resolution procedures
set forth in this Article shall serve to preclude the commencement of judicial
proceedings by either party hereto during the pendency of such dispute
resolution proceedings except as otherwise provided in Section 39(i) below. Each
party shall name a representative (the
43
"Operating Manager") promptly after execution of this Lease who shall
participate in the resolution of disputes pursuant to this Article. Each party
may at any time replace the Operating Manager by providing written notice to the
other party of the identity of its new Operating Manager. The Operating Managers
shall meet within ten (10) days after receipt of written notice that dispute
resolution pursuant to this Article is being invoked and shall attempt to
resolve the dispute through informal discussions.
(b) If the dispute is not resolved at such meeting by the Operating
Managers, then within ten (10) days after the Operating Managers meet each
Operating Manager shall refer the dispute to a senior executive (the "Senior
Manager") of the party. The Senior Manager for Tenant shall be any elected
officer of Tenant and for Landlord shall be as designated by the partners of
Landlord. The Senior Managers shall meet (either in person or by telephone
conference call) to attempt to resolve the dispute within thirty (30) days after
the dispute has been referred to them. Not less than fifteen (15) days prior to
the meeting of the Senior Managers, the Operating Managers shall exchange
written summaries of the issues and the evidence relating to the dispute.
(c) If the dispute is not resolved at the initial meeting of the
Senior Managers, it shall be referred within thirty (30) days after the meeting
of the Senior Managers to a mutually acceptable neutral advisor (the "Advisor")
to be mutually selected by the parties.
(d) The parties shall enter into an agreement with the Advisor
prohibiting any ex parte contacts with the Advisor without the written consent
-- -----
of the other party and requiring the Advisor to treat any information conveyed
to him as confidential. The agreement shall provide that the Advisor will be
disqualified as a trial witness, consultant, or expert for either party and that
his advisory opinion of the likely outcome of any litigation of the dispute is
inadmissible in any subsequent arbitration or judicial proceedings for any
purpose. The agreement shall also provide that the fees and expense of the
Advisor are to be divided equally between the parties, provided, however, that
if the dispute is not settled and subsequently proceeds to trial or to formal
arbitration, then the fees and expenses of the Advisor shall be apportioned in
the same manner as costs allowed by the trial court or arbitrator, respectively.
(e) Ten (10) days after the Advisor has been designated, each party
shall submit to the Advisor, and to the other party, a written statement of no
more than thirty (30) pages summarizing the issues and underlying evidence
supporting its position. The Advisor may in his sole discretion conduct a mini-
trial, under such rules of procedure as he shall prescribe, at which the parties
shall present their respective positions on the dispute.
(f) The Advisor shall, within thirty (30) days after his appointment,
deliver to the parties his nonbinding written opinion which evaluates each
party's position and concludes which party is
44
likely to prevail at a judicial trial on the merits. Within ten (10) days after
the Advisor issues such written opinion to the parties, the Senior Managers
shall meet again in an attempt to resolve the dispute.
(g) After the procedures described in the preceding subsections (a)
through (f) have been carried out and good faith attempts to resolve the dispute
pursuant thereto have failed: (i) either party may begin formal judicial
proceedings relating to any dispute arising out of this Lease which is alleged
to involve default by either party pursuant to this Lease; or (ii) upon written
agreement of the parties the dispute may be submitted to formal arbitration by a
panel of three arbitrators conducted according to the rules of arbitration of
the American Arbitration Association. Such arbitration shall be held in
Pittsburgh, Pennsylvania. Either party may institute a formal judicial
proceeding with respect to disputes alleged to involve an Event of Default
pursuant to this Lease at any time when necessary to prevent the running of any
applicable statute of limitations, provided that any such judicial proceeding is
thereafter stayed pending the completion of the proceedings provided for in this
section.
(h) The dispute resolution procedure set forth in this Section is
intended to be a method for reaching negotiated compromises of disputes. All
written or oral statements or conduct, including offers of settlement, made in
the course of proceedings held hereunder shall: (i) be deemed to be
confidential, (ii) not be construed as an admission of liability for any
purpose, and (iii) be inadmissible in a court of law or equity for any purpose.
(i) The existence of a dispute resolution proceeding under this
section shall not be deemed to be a waiver or suspension of any rights or
obligations of either Landlord or Tenant under this Lease and each party shall
continue to perform its obligations under this Lease while the dispute
resolution proceeding is being conducted, except that if (1) the dispute
involves an Event of Default (i) described in Section 20.1(a) with respect to
Tenant's obligations to pay Basic Rent or Additional Rent, or (ii) described in
Section 20.1(c) if there is an immediate and substantial danger to life or
property, or such non-performance by Tenant is in violation of an applicable
law, regulation or court order, Landlord shall have the right to forego the
dispute resolution provisions of this Article 39 and may, at its option,
immediately commence any judicial proceedings necessary or desirable to obtain
the benefit of Landlord's remedies contained in Article 20, and (2) nothing in
this Article 39 shall preclude Tenant's right to forego the dispute resolution
provisions of this Article 39 and seek equitable relief in one or more judicial
proceedings against Landlord to enjoin actions of Landlord which prevent Tenant
from using the Premises for the conduct of Tenant's business or to obtain one or
more injunctions against Landlord which require that Landlord take actions in
order to enable Tenant to conduct its business in the Premises as provided
herein.
45
ARTICLE 40 - TENANT REFURBISHMENT ALLOWANCE
-------------------------------------------
Tenant shall not receive any improvement or other allowance with
respect to the Premises leased herein unless Tenant elects in writing, within
the time periods as described in Section 2.2 hereof, that such Premises are to
become part of the "Premises" leased by Tenant under the terms of the Master
Lease (the "Election"). Upon the Election, Landlord will reimburse Tenant in an
amount not to exceed twelve dollars ($12.00) per Square Foot for the Tenant's
actual cost of refurbishment of the Premises (for new carpet, painting,
wallpapering and the like). Such refurbishment allowance is to be used by Tenant
solely for the actual refurbishment of the Premises leased herein, and Landlord
agrees that such refurbishment allowance may be applied against initial
improvements to the Premises made by Tenant prior to its occupancy of the
Premises. Such refurbishment allowance shall be payable by Landlord to Tenant
within thirty (30) days after Landlord's receipt of copies of paid invoices and
other evidence reasonably requested by Landlord to confirm the completion of the
refurbishment work regarding the Premises. The parties agree that upon the
Election, Tenant shall become entitled to receive a Refurbishment Allowance (as
such term is defined in Section 6.4 of the Master Lease) on the tenth
anniversary and, if applicable, the twentieth anniversary of the first day on
which the Premises become part of the "Premises" leased by Tenant under the
Master Lease in amounts determined by reference to Section 6.4 and the "Base
Year TIA/PSF" column of Exhibit I of the Master Lease. At the request of either
party at any time subsequent to the Election, the other party hereto shall
execute an amendment to the Master Lease pursuant to which an amended Exhibit I
containing an additional column setting forth the Refurbishment Allowance to be
paid by Landlord to Tenant relating to the Premises leased hereunder shall be
added to the Master Lease.
46
IN WITNESS WHEREOF, and intending to be legally bound hereby, Landlord
and Tenant have hereunto respectively signed and sealed multiple originals of
this Lease as of the day and year first above written.
TENANT:
FEDERATED INVESTORS, INC.
Date: October 12, 1994 By: SIGNATURE ILLEGIBLE
---------------- ------------------------------
TITLE: __________________________
LANDLORD:
LIBERTY CENTER VENTURE:
BY: GRANT STREET ASSOCIATES, INC., as Receiver for LIBERTY
CENTER VENTURE
By: /s/ James C. Dawson
----------------------------------------------------------
James C. Dawson, President
BY: GRANT LIBERTY DEVELOPMENT GROUP ASSOCIATES, PARTNER
FOREST CITY GRANT LIBERTY ASSOCIATES, Partner
By: FOREST CITY RESIDENTIAL DEVELOPMENT, INC.,
General Partner
By: /s/ R.H. Marques
---------------------------------------------------
R.H. Marques, Vice President
JLM GRANT LIBERTY ASSOCIATES, Partner
By: JOS. L. MUSCARELLE, INC.,
General Partner
By: /s/ Joseph L. Muscarelle
---------------------------------------------------
Joseph L. Muscarelle, President
BY: METROPOLITAN LIFE INSURANCE COMPANY, PARTNER
By: /s/ Dennis J. Conroy
---------------------------------------------------
DENNIS J. CONROY
Title: ASSISTANT VICE PRESIDENT
------------------------------------------------
47
FIRST AMENDMENT TO AGREEMENT OF LEASE FOR
PREMISES IN THE FEDERATED INVESTORS TOWER
-----------------------------------------
THIS FIRST AMENDMENT TO AGREEMENT OF LEASE FOR PREMISES IN THE FEDERATED
INVESTORS TOWER is made and entered into as of the 2nd day of November, 1995, by
and between:
LIBERTY CENTER VENTURE, a Pennsylvania General Partnership ("Landlord");
AND
FEDERATED INVESTORS, INC. ("Tenant").
WHEREAS, Landlord and Tenant entered into an Agreement of Lease for Premises
in The Federated Investors Tower (the "Lease") dated as of the 1st day of
February, 1994, said Premises consisting of the entire 12th floor of the
Building (as defined therein) and being 20,510 square feet; and
WHEREAS, Landlord and Tenant now wish to amend the Lease under the following
terms and conditions;
NOW THEREFORE, Landlord and Tenant, in consideration of the mutual covenants
herein contained and intending to be legally bound, agree as follows:
I Section 2.3 of the Lease is hereby amended to read as follows:
2.3 Renewal Option. Provided that no Event of Default has occurred and is
--------------
continuing under this Lease on the date on which the Renewal Notice (as
hereinafter defined) is received by Landlord or on the last day of the Initial
Term, Tenant shall have the right (the "Renewal Option") to renew this Lease for
one (1) successive term of no less than twelve (12) months and no more than
twenty-four (24) months (the "Renewal Term"). Tenant shall give Landlord written
notice (the "Renewal Notice") of its election to renew this Lease on or before
December 31, 1996, and such Renewal Notice shall set forth the length of time
(being no less than twelve (12) months and no more than twenty-four (24) months
for which the Renewal Term shall occur. The Basic Rent for such Renewal Term
shall then be as set forth in Section 3.1(a) hereof.
2
II Republication of Lease. All terms and conditions of the Lease not
----------------------
inconsistent herewith shall remain in full force and effect through the Initial
Term and during the Renewal Term.
IN WITNESS WHEREOF, this instrument has been duly executed by the parties hereto
as of the date first above written.
TENANT: FEDERATED INVESTORS, INC.
By: /s/ David M. Taylor
------------------------------
Its: Vice President
------------------------------
ATTEST:
By: /s/ John N. Cummings
------------------------------
Its: Staff Attorney
------------------------------
LANDLORD: LIBERTY CENTER VENTURE
By: New Liberty Center Partnership,
General Partner
By: F. C. Liberty, Inc., General
Partner
By: /s/ R. H. Marques
------------------------------
Its: V.P. Fin & Admin
------------------------------
Title
3