AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 26, 1998
PENNSYLVANIA 6722 25-1111467 (State or other (Primary Standard (I.R.S. Employer jurisdiction of Industrial Identification No.) incorporation Classification Code or organization) Number) |
FEDERATED INVESTORS TOWER
PITTSBURGH, PENNSYLVANIA 15222-3779
(412) 288-1900
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
With Copies To:
MICHAEL C. MCLEAN
KIRKPATRICK & LOCKHART LLP
1500 OLIVER BUILDING
PITTSBURGH, PENNSYLVANIA 15222-2312
(412) 355-6500
Approximate date of commencement of the proposed sale of the securities to the public: AT THE EFFECTIVE TIME OF THE MERGER DESCRIBED IN THIS REGISTRATION STATEMENT.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 1741 and 1742 of the Pennsylvania Business Corporation Law (the "PBCL") provide that a business corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or proceeding whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director, officer, employee or agent of another domestic or foreign corporation for profit or not-for-profit, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such proceeding, if such person acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal proceeding, has no reasonable cause to believe his conduct was unlawful. In the case of an action by or in the right of the corporation, such indemnification is limited to expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person has been adjudged to be liable to the corporation unless, and only to the extent that, a court determines upon application that, despite the adjudication of liability but in view of all the circumstances, such person is fairly and reasonably entitled to indemnity for the expenses that the court deems proper.
PBCL Section 1744 provides that, unless ordered by a court, any indemnification referred to above shall be made by the corporation only as authorized in the specific case upon a determination that indemnification is proper in the circumstances because the director, officer, employee or agent of the corporation has met the applicable standard of conduct. Such determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to the proceeding; or
(2) if such a quorum is not obtainable or if obtainable and a majority vote of a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or
(3) by the shareholders.
Notwithstanding the above, PBCL Section 1743 provides that to the extent that a director, officer, employee or agent of a business corporation is successful on the merits or otherwise in defense of any proceeding referred to above as contained in sections 1741 and 1742, or in defense of any claim therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith.
PBCL Section 1745 provides that expenses (including attorneys' fees) incurred by an officer, director, employee or agent of a business corporation in defending any such proceeding may be paid by the corporation in advance of the final disposition of the action or proceeding upon receipt of an undertaking to repay the amount advanced if it is ultimately determined that the director, officer, employee or agent of the corporation is not entitled to be indemnified by the corporation.
PBCL Section 1746 provides that the indemnification and advancement of expenses provided by, or granted pursuant to, the foregoing provisions is not exclusive of any other rights to which a person seeking indemnification may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise both as to action in such person's official capacity and as to action in another capacity while holding office, and that indemnification may be granted under any bylaw, agreement, vote of shareholders or directors or otherwise for any action taken whether or not the corporation would have the power to indemnify the person under any other provision of law and whether or not the indemnified liability arises or arose from any threatened,
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pending or completed action by or in the right of the corporation, provided, however, that no indemnification may be made in any case where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct or recklessness.
The By-Laws of the Registrant provide that the Directors, officers, agents and employees of the Registrant shall be indemnified as of right to the fullest extent now or hereafter not prohibited by law in connection with any actual or threatened action, suit or proceeding, civil, criminal, administrative, investigative or other (whether brought by or in the right of the Registrant or otherwise) arising out of their service to the Registrant or to another enterprise at the request of the Registrant.
PBCL Section 1747 permits a Pennsylvania business corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another threatened, pending or completed action or other enterprise, against any liability asserted against such person and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify the person against such liability under the provisions described above.
The By-Laws of the Registrant provide that the Registrant may purchase and maintain insurance to protect itself and any Director, officer, agent or employee entitled to indemnification under the By-Laws against any liability asserted against such person and incurred by such person in respect of the service of such person to the Registrant whether or not the Registrant would have the power to indemnify such person against such liability by law or under the provisions of the By-Laws.
The Registrant maintains directors' and officers' liability insurance covering its Directors and officers with respect to liabilities, including liabilities under the Securities Act of 1933, as amended, which they may incur in connection with their serving as such. Under this insurance, the Registrant may receive reimbursement for amounts as to which the Directors and officers are indemnified by the Registrant under the foregoing By-Law indemnification provision. Such insurance also provides certain additional coverage for the Directors and officers against certain liabilities even though such liabilities may not be covered by the foregoing By-Law indemnification provision.
As permitted by PBCL Section 1713, the By-Laws of the Registrant provide that no Director shall be personally liable for monetary damages for any action taken, unless such Director's breach of duty or failure to perform constituted self-dealing, willful misconduct or recklessness. The PBCL states that this exculpation from liability does not apply to the responsibility or liability of a Director pursuant to any criminal statute or the liability of a Director for the payment of taxes pursuant to Federal, state or local law. It may also not apply to liabilities imposed upon directors by the Federal securities laws. PBCL Section 1715(d) creates a presumption, subject to exceptions, that a Director acted in the best interests of the corporation. PBCL Section 1712, in defining the standard of care a Director owes to the corporation, provides that a Director stands in a fiduciary relation to the corporation and must perform his duties as a Director or as a member of any committee of the Board in good faith, in a manner he reasonably believes to be in the best interest of the corporation and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances.
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ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following exhibits are filed as part of this registration statement:
EXHIBIT NUMBER DESCRIPTION ------- ----------- 2.01 Agreement and Plan of Merger dated as of February 20, 1998 between Federated Investors and the Company** 3.01 Restated Articles of Incorporation of the Company** 3.02 Restated By-Laws of the Company** 4.01 Form of Class A Common Stock certificate* 4.02 Form of Class B Common Stock certificate* 4.04 Stock Purchase Agreement dated August 1, 1989 between the Company and Westinghouse Credit Corporation** 4.05 Intercompany Subordination Agreement dated June 15, 1996 by and among the Company and its subsidiaries** 4.06 Shareholder Rights Agreement dated August 1, 1989 between the Company and The Standard Fire Insurance Company, as amended through January 31, 1996** 4.07 Senior Secured Credit Agreement, dated as of January 31, 1996, by and among Federated and the Banks set forth therein and PNC, National Association** 4.08 Federated Note Purchase Agreement, dated as of June 15, 1996** 4.09 Federated Program Master Agreement, dated as of October 24, 1997, among Federated, Federated Funding 1997-1, Inc., Federated Management Company, Federated Securities Corp., Wilmington Trust Company, PLT Finance, L.P., Putnam, Lovell & Thornton Inc. and Bankers Trust Company (Filed herewith) 4.10 Federated Investors Program Initial Purchase Agreement, dated as of October 24, 1997, between Federated Funding 1997-1, Inc., and Wilmington Trust Company, solely as Trustee of the PLT Finance Trust 1997-1 (Filed herewith) 4.11 Federated Investors Program Revolving Purchase Agreement, dated as of October 24, 1997, between Federated Funding 1997-1, Inc., and PLT Finance, L.P. (Filed herewith) 4.12 Federated Investors Program Fee Agreement, dated as October 24, 1997, between Federated Investors and PLT Finance, L.P. (Filed herewith) 4.13 Schedule X to Federated Program Master Agreement, dated as of October 24, 1997, among Federated, Federated Funding 1997-1, Inc., Federated Management Company, Federated Securities Corp., Wilmington Trust Company, PLT Finance, L.P., Putnam, Lovell & Thornton Inc. and Bankers Trust Company (Filed herewith) 5.01 Opinion of Kirkpatrick & Lockhart LLP as to the legality of the securities being registered* 9.01 Voting Shares Irrevocable Trust dated May 31, 1989** 10.01 Stock Incentive Plan** 10.02 Executive Annual Incentive Plan** 10.03 Federated Investors Tower Lease dated January 1, 1993, as amended on December 2, 1995 (Filed herewith) 10.04 Federated Investors Tower Lease dated February 1, 1994 (Filed herewith) 10.05 Centre City Tower Lease dated July 23, 1992, as amended** 21.01 Subsidiaries of the Registrant** 23.01 Consent of Kirkpatrick & Lockhart LLP (to be included in opinion to be filed as Exhibit 5.01)* 23.02 Consent of Ernst & Young LLP** 23.03 Consent of KPMG Peat Marwick, LLP** 24.01 Power of Attorney** 27.01 Financial Data Schedule** |
*To be filed by amendment.
**Previously filed.
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(b) Financial statement schedules have been omitted because they are inapplicable, are not required under applicable provisions of Regulation S-X, or the information that would otherwise be included in such schedules is contained in the Registrant's consolidated financial statements or accompanying notes.
ITEM 22. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(5) That prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other Items of the applicable form.
(6) That every prospectus (i) that is filed pursuant to paragraph (5) immediately preceding, or (ii) that purports to meet the requirements of section 10(a)(3) of the Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) To respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(8) To supply by means of a post-effective amendment all required information concerning a transaction, and the company being acquired involved therein, and that was not the subject of and included in the registration statement when it became effective.
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Insofar as indemnification for liabilities raising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter ha been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this amendment to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Pittsburgh, Commonwealth of Pennsylvania, on March 26, 1998.
FEDERATED INVESTORS, INC.
By: /s/ John F. Donahue ---------------------------------- John F. Donahue Chairman and Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE CAPACITY DATE /s/ John F. Donahue Chairman, Chief Executive March 26, 1998 ------------------------- Officer and Director John F. Donahue (Principal Executive Officer) * President, Chief Operating March 26, 1998 ------------------------- Officer and Director J. Christopher Donahue * Director March 26, 1998 ------------------------- John W. McGonigle /s/ Thomas R. Donahue Chief Financial Officer March 26, 1998 ------------------------- (Principal Thomas R. Donahue Financial and Accounting Officer) *By: /s/ Thomas R. Donahue --------------------- Thomas R. Donahue Attorney-in-Fact |
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Exhibit 4.09
FEDERATED INVESTORS PROGRAM
MASTER AGREEMENT
Dated as of October 24, 1997
among
FEDERATED INVESTORS,
as Parent,
FEDERATED FUNDING 1997-1, INC.,
as Seller,
FEDERATED INVESTORS MANAGEMENT COMPANY,
as Transferor,
FEDERATED SECURITIES CORP.,
as Distributor,
Principal Shareholder Servicer and
Program Servicer Agent,
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee of the
PLT FINANCE TRUST 1997-1,
as Initial Purchaser,
PLT FINANCE, L.P.,
as Revolving Purchaser,
PUTNAM, LOVELL & THORNTON INC.,
as Program Administrator, and
BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Funding and Collection Agent, except as otherwise expressly provided
TABLE OF CONTENTS Page ---- ARTICLE I RULES OF CONSTRUCTION; DEFINITIONS 1.01 Rules of Construction......................................... 2 1.02 Definitions................................................... 2 ARTICLE II EXECUTION AND DELIVERY OF PROGRAM DOCUMENTS 2.01 Program Documents; Purchase Date.............................. 2 2.02 Execution and Delivery of Transfer Agreement..................................................... 2 2.03 Execution and Delivery of Purchase Agreement............................................ 3 2.04 Execution and Delivery of Program Collection Agency Agreement................................... 3 2.05 Execution and Delivery of the Program Servicer Agent Agreement...................................... 3 ARTICLE III CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTIES PURSUANT TO THE PROGRAM DOCUMENTS 3.01 Conditions to Obligations of the Parties Under the Program Documents........................... 3 3.02 Conditions Precedent on the Initial Purchase Date................................................. 4 3.03 Conditions Precedent on Each Revolving Purchase Date....................................... 8 ARTICLE IV REPRESENTATIONS AND WARRANTIES 4.01 Representations and Warranties of the Seller, the Transferor, the Parent and the Distributor............................................... 8 4.02 Additional Representations and Warranties of the Seller...................................... 12 4.03 Additional Representations and Warranties of the Parent...................................... 14 4.04 Additional Representations and Warranties of the Distributor................................. 15 -i- |
4.05. Additional Representations and Warranties of the Transferor............................................. 16 4.06 Representations and Warranties of the Purchasers.................................................... 18 ARTICLE V COVENANTS 5.01 Covenants of the Seller, the Transferor, the Parent and the Distributor................................ 19 5.02 Additional Covenants of the Seller............................ 23 5.03 Additional Covenants of the Parent............................ 23 5.04 Additional Covenants of the Distributor....................... 28 5.05 Additional Covenants of the Transferor........................ 29 ARTICLE VI EVENTS OF TERMINATION 6.01 Events of Termination......................................... 29 ARTICLE VII THE PROGRAM ADMINISTRATOR 7.01 Authorization and Action...................................... 33 7.02 Program Administrator's Reliance, Etc......................... 33 7.03 Rights of the Program Administrator........................... 33 ARTICLE VIII PARENT'S UNDERTAKINGS 8.01. Undertakings; Payment of Damages.............................. 34 8.02. Agreement Not Affected........................................ 34 8.03. Waiver of Notice; No Offset; No Subrogation................................................ 35 ARTICLE IX MISCELLANEOUS 9.01. No Waiver; Modifications in Writing........................... 35 9.02. Payment....................................................... 35 9.03. Notices, Etc.................................................. 36 9.04. Costs and Expenses; Indemnification........................... 37 9.05. Taxes......................................................... 40 9.06. Execution in Counterparts..................................... 42 9.07. Binding Effect; Assignment.................................... 42 9.08. Governing Law; Submission to Jurisdiction.................................................. 42 9.09. Severability of Provisions.................................... 43 9.10. Confidentiality............................................... 43 9.11. Intent of Agreement........................................... 43 9.12. Continuing Obligations........................................ 44 9.13. Limited Liability............................................. 44 -ii- |
9.14. Merger........................................................ 45 9.15. Further Acts.................................................. 45 9.16. Specific Performance; Other Rights and Remedies.................................................. 45 9.17. No Proceedings................................................ 46 9.18. Additional Funds.............................................. 46 9.19. Trust Capacity................................................ 47 SCHEDULES SCHEDULE I COMPANIES, FUNDS, SHARES AND RELATED MATTERS SCHEDULE II ALLOCATION PROCEDURES SCHEDULE III BANKRUPTCY REMOTE COVENANTS SCHEDULE IV CONTINGENT DEFERRED SALES CHARGES SCHEDULE V SCHEDULE OF TRANSFERABLE NASD CAP SCHEDULE X RULES OF CONSTRUCTION; DEFINITIONS EXHIBITS EXHIBIT A FORM OF SELLER'S TRANSFER AGREEMENT EXHIBIT B FORM OF INITIAL PURCHASE AGREEMENT EXHIBIT C FORM OF TRANSFEROR'S TRANSFER AGREEMENT EXHIBIT D FORM OF PROGRAM SERVICER AGENT AGREEMENT EXHIBIT E FORM OF PROGRAM FUNDING AND COLLECTION AGENCY AGREEMENT EXHIBIT F FORM OF DISTRIBUTION PLAN EXHIBIT G FORM OF DISTRIBUTOR'S CONTRACT EXHIBIT H FORM OF PRINCIPAL SHAREHOLDER SERVICER'S AGREEMENT EXHIBIT I FORM OF SHAREHOLDER SERVICER'S AGREEMENT EXHIBIT J FORM OF IRREVOCABLE PAYMENT INSTRUCTION EXHIBIT K FORMS OF OPINIONS EXHIBIT L FORM OF INVESTOR REPORT EXHIBIT M FORM OF ADDITIONAL ELIGIBLE FUND ADDENDUM |
FEDERATED INVESTORS PROGRAM
MASTER AGREEMENT
WHEREAS, the Parent directly or indirectly owns all of the capital stock of the Distributor, the Transferor and the Seller;
WHEREAS, the Distributor is the originator of certain "Portfolio Assets" as hereinafter defined;
WHEREAS, the Parent, the Distributor, the Seller, the Transferor and the Purchasers wish to establish a program pursuant to which the Purchasers will acquire certain of the Portfolio Assets in accordance with the terms and conditions set forth herein and in the other "Program Documents," as hereinafter defined;
WHEREAS, the Purchasers have appointed the Program Administrator to administer the Program;
WHEREAS, the Purchasers and the Program Administrator have appointed the Funding and Collection Agent to serve as Funding and Collection Agent; and
WHEREAS, the Purchasers and the Program Administrator wish to appoint the Distributor as Program Servicer Agent in accordance with the terms and conditions set forth herein and in the other Program Documents;
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as follows:
ARTICLE I
RULES OF CONSTRUCTION;
DEFINITIONS
ARTICLE II
EXECUTION AND DELIVERY OF PROGRAM DOCUMENTS
(a) On the date hereof, the Distributor and the Transferor shall have executed and delivered the Transferor's Transfer Agreement, and the Transferor and the Seller shall have executed and delivered the Seller's Transfer Agreement.
(b) Pursuant to the Transferor's Transfer Agreement, the Transferor has acquired all right, title and interest in and to the Portfolio Assets from the Distributor. Pursuant to the Seller's Transfer Agreement, the Seller has acquired all right, title and interest in and to the Portfolio Assets from the Transferor.
(a) On the date hereof, the Seller and the Initial Purchaser shall have executed and delivered the Initial Purchase Agreement. It is contemplated that the Seller and the Revolving Purchaser will execute and deliver the Revolving Purchase Agreement promptly hereafter.
(b) Subject to the terms and conditions set forth herein and pursuant to the Purchase Agreements, the Purchasers shall acquire all right, title and interest in and to the Purchased Portfolio Assets from the Seller.
ARTICLE III
CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF THE PARTIES PURSUANT TO THE PROGRAM DOCUMENTS
(a) in the case of the Parent, the Distributor, the Program Servicer Agent, the Transferor and the Seller, the fulfillment to their satisfaction, or waiver by them, of the conditions precedent set forth in clauses (a), (c), (f), (k) and (l) of Section 3.02 or in Section 3.03, as applicable;
(b) in the case of the Program Administrator, the fulfillment to its satisfaction, or waiver by it, of the conditions precedent set forth in all clauses of Section 3.02 or in Section 3.03, as applicable;
(c) in the case of each Purchaser, the fulfillment to its satisfaction, or waiver by it, of the conditions precedent set forth in all clauses of Section 3.02 or in Section 3.03, as applicable; and
(d) in the case of the Funding and Collection Agent, the fulfillment
to its satisfaction or waiver by it, of the conditions precedent set forth
in clauses (a), (c) through (h), (k), (l) and (r) of Section 3.02 or in
Section 3.03, as applicable.
been duly authorized, (ii) an incumbency certificate of Wilmington Trust Company, as trustee of the Initial Purchaser as to the person or persons authorized to execute and deliver all Program Documents to which the Initial Purchaser is a party with specimen signatures of such persons acting on behalf of the Initial Purchaser and (iii) a copy of the Trust Agreement in respect of the Initial Purchaser.
(i) the representations and warranties by it contained in this Agreement and the other Program Documents to which it is a party are true and accurate on and as of such Purchase Date as though made on and as of the Purchase Date, except to the extent that such representations and warranties relate solely to an earlier date (in which case such representations and warranties shall be true and accurate on and as of such earlier date);
(ii) it has complied with all agreements and satisfied all conditions on its part to be performed or satisfied on or prior to such Purchase Date; and
(iii) no event has occurred and is continuing, or will result from the closing of the transactions on such Purchase Date that constitutes an Event of Termination or an event which, with the passage of time or notice or both would constitute an Event of Termination.
(i) the Distribution Plan of each Fund relating to the Purchased Portfolio Assets, which shall be substantially in the form of Exhibit F hereto;
(ii) the Distributor's Contracts relating to the Portfolio Assets, which shall be substantially in the form of Exhibit G hereto;
(iii) the Principal Shareholder Servicer's Agreement relating to the Portfolio Assets, which shall be substantially in the form of Exhibit H hereto; and
(iv) the Shareholder Servicer's Agreement relating to the Portfolio Assets, which shall be substantially in the form of Exhibit I hereto.
(i) & Worcester LLP, special New York and Sullivan Investment Company Act counsel to the Parent, the Distributor, the Transferor and the Seller, substantially in the form of Exhibit K-1; and
(ii) Dickstein, Shapiro, Morin & Oshinsky LLP, special counsel to each Company, substantially in the form of Exhibit K-2.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
(a) it is duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, with full power and authority to own and operate its property, conduct the business in which it is now engaged and to execute and deliver and perform its obligations under this Agreement and the other Program Documents to which it is a party, and it is in compliance with all Applicable Law and duly qualified to do business as a foreign corporation or business trust and is in good standing in each jurisdiction in which the nature of its business or the performance of its obligations under this Agreement and the other Program Documents to which it is a party requires such qualification, where the failure to so comply or to be so qualified could reasonably be expected to give rise to an Adverse Effect;
(b) the execution, delivery and performance by it of this Agreement, the other Program Documents to which it is a party and the other instruments and agreements contemplated hereby or thereby have been duly authorized by all requisite corporate action by it and have been duly executed and delivered by it and constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy laws and any other similar laws affecting the rights and remedies of creditors generally and by equitable principles;
(c) neither the execution and delivery of this Agreement, the other Program Documents to which it is a party, or any instrument or agreement referred to herein or therein, or contemplated hereby or thereby, nor the consummation of any of the transactions herein or therein contemplated, nor compliance with the terms, conditions and provisions hereof or thereof by it (i) will conflict with, or result in a breach or violation of, or constitute a default under, the certificate of its incorporation or by- laws, (ii) will conflict with, or result in a breach or violation of, or constitute a default under, or permit the acceleration of any obligation or liability in, or but for any requirement of the giving of notice or the passage of time (or both) would constitute such a conflict with, breach or violation of, or default under, or permit any such acceleration in, any contractual obligation or any agreement or document to which it is a party or by which it or any of its properties is bound (or to which any such obligation, agreement or document relates, including any Distributor's Contract, any Principal Shareholder Servicer's Agreement, any Shareholder Servicer's Agreement and any Distribution Plan) where such conflict, breach or violation could reasonably be expected to give rise to an Adverse Effect, (iii) will violate any Applicable Law, the violation of which could reasonably be expected to give rise to an Adverse Effect, (iv) could reasonably be expected to give
rise to or permit the creation or imposition of any Adverse Claim upon any Portfolio Assets or any Program Collections or any Related Collections relating to any Fund, or (v) could, in and of themselves, reasonably be expected to give rise to the termination of any Distributor's Contract, any Principal Shareholder Servicer's Agreement, any Shareholder Servicer's Agreement or any Distribution Plan;
(d) it has obtained all Governmental Authorizations and Private Authorizations, and made all Governmental Filings, necessary for the execution, delivery and performance by it of this Agreement, the other Program Documents to which it is a party and the agreements and instruments contemplated hereby or thereby and no consents which have not been obtained or waivers under any instruments to which it is a party or by which it or any of its properties is bound are required by it to be obtained in connection with the execution, delivery or performance of this Agreement and the other Program Documents, except to the extent the failure to so obtain or make the same could not reasonably be expected to give rise to an Adverse Effect;
(e) the principal place of business and principal executive office of the Seller, the Transferor and the Distributor, and the place where any and all records concerning the Purchased Portfolio Assets are kept is at their address specified in Section 9.03 (except as otherwise permitted by Section 5.01(o));
(f) each of its representations and warranties made or deemed made pursuant to the Program Documents is true and accurate (except to the extent that such representations and warranties related solely to an earlier date (in which case such representations and warranties shall be true and accurate as of such earlier date)), and each of the applicable conditions precedent set forth in Article III has been satisfied or waived in writing;
(g) it is not in default in any of its obligations under this Agreement or any other Program Document to which it is a party which default could reasonably be expected to give rise to an Adverse Effect;
(h) there are no proceedings or investigations pending, or, to the best of its knowledge, threatened, against it before any Authority (i) asserting the invalidity of this Agreement, any other Program Document to which it is a party or any certificate, document or agreement executed by it in connection herewith or therewith, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any other Program Document, or (iii) seeking any determination or ruling which, if granted, could reasonably be expected to adversely affect the performance by it of its obligations under, or the validity or enforceability of, this Agreement, any other Program Document to which it is a party or any agreement, certificate or document executed by it in connection herewith or therewith, which in each case, if adversely determined, could otherwise reasonably be expected to give rise to an Adverse Effect;
(i) it is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act;
(j) it is not engaged principally or as one of its important activities in the business of extending, or arranging for the extension of, credit for the purpose of purchasing or carrying (x) any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or (y) any margin security within the meaning of Regulation G of the Board of Governors of the Federal Reserve System and no part of the proceeds of the Purchase Price or Transfer Price paid to it, if any, under the Transfer Agreements or the Purchase Agreements will be used to purchase or carry any margin stock or any margin securities, respectively, within the meaning of said regulations (except investments in funds managed by an Affiliate of the Parent in accordance with ordinary business operations) or to extend credit to others for such purpose in a manner which is inconsistent with or a violation of the provisions of said regulations, and it will not hold margin stock or margin securities (including shares in such funds) such that the aggregate current market value (as defined in said regulations) of all thereof shall exceed 25% of the value (as determined by any reasonable method) of its consolidated assets;
(k) all written information provided by it or by DST Systems, Inc. at its request to the Purchasers, the Program Administrator or any other Person in writing for purposes of or in connection with this Agreement, the other Program Documents to which it is a party or the transactions contemplated hereby or thereby is, and all such information hereafter provided by any such Person to the Purchaser, the Program Administrator or any other Person in writing will be, when taken as a whole, true, correct and complete in all material respects and not misleading;
(l) Neither it nor any ERISA Affiliate has engaged in a "prohibited
transaction," as such term is defined in Section 4975 of the Code or in a
transaction subject to the prohibitions of Section 406 of ERISA, which
would subject it or any ERISA Affiliate (after giving effect to any
exemption) to the tax or penalty on prohibited transactions imposed by
Section 4975 of the Code, Section 502 of ERISA or any other liability under
ERISA which tax, penalty or other liability would have an Adverse Effect.
Neither the transactions contemplated hereby nor the exercise of any of the
Purchaser's or the Program Administrator's rights and remedies under any of
the Program Documents constitutes a prohibited transaction under ERISA or
the Code or otherwise results or will result in the Purchaser or the
Program Administrator being a fiduciary or party in interest under ERISA
with respect to an ERISA plan or its assets or the Purchased Portfolio
Assets or being deemed in violation of Section 404 or Section 406 of ERISA;
(m) it has filed or caused to be filed all federal, state and local tax returns which are required to be filed (except where such nonfiling could not reasonably be expected to have an Adverse Effect), and paid or caused to be paid all taxes as shown on said returns or any other taxes or assessments payable by it to the extent that such taxes have become due unless the same are being contested in good faith by appropriate proceedings, and in respect of which appropriate reserves have been established and the nonpayment of which could not reasonably be expected to have an Adverse Effect;
(n) the Purchased Portfolio Assets relating to each Fund constitute Eligible Portfolio Assets;
(o) no Share of a Fund to which a Purchased Portfolio Asset relates contains any Conversion Feature other than a Permitted Conversion Feature;
(p) no Share of a Fund taken into account in computing the Purchase Price paid pursuant to the Purchase Agreements entitles the holder thereof to redeem the same in a Free Redemption except in the specific situations set forth in the Prospectus of such Fund as in effect on the date hereof or pursuant to the Systematic Withdrawal Program;
(q) it is not contemplating the filing of a petition by it under any state or federal bankruptcy or insolvency laws, and it has no Actual Knowledge of any Person contemplating the filing of any such petition against it;
(r) all financial statements of it and its consolidated subsidiaries delivered to the other Parties fairly present its assets, liabilities and financial condition and income as of the dates thereof and have been prepared in accordance with generally accepted accounting principles consistently applied; as of the date hereof, there exists no equity or long-term investments in, or outstanding advances to, or guaranties of, any Person except such equity, investment, advances, or guaranties reflected in the financial statements or in the footnotes thereto;
(s) all action necessary or advisable to protect, preserve and perfect the applicable Purchaser's first priority ownership interest in the Purchased Portfolio Assets free and clear of all Adverse Claims has been duly and effectively taken and no security agreement, financing statement, equivalent security or lien instrument or continuation statement covering all or any part of such Purchased Portfolio Assets is required to be on file or on record in any jurisdiction, except such as may have been filed, recorded or made as contemplated by this Agreement and the other Program Documents; and
(t) the factual assumptions set forth in the opinion of Sullivan & Worcester dated as of the Initial Purchase Date on certain bankruptcy matters including "true sale" and "substantive consolidation" issues are true and correct as of such date.
(a) the Seller was founded solely for the purpose of performing its obligations under the Program Documents and activities incidental thereto, and it has the requisite corporate power and authority and legal right to sell Portfolio Assets relating to each Fund sold on such Purchase Date, and the Program Collections and the Ancillary Rights with respect thereto, to the applicable Purchaser in accordance with the terms of this Agreement and the applicable
Purchase Agreement and the Seller has duly authorized each such sale to the applicable Purchaser by all necessary action;
(b) the transfer of Portfolio Assets to the Seller under the Seller's Transfer Agreement and the transfer of Portfolio Assets to the applicable Purchaser under the applicable Purchase Agreement on such Purchase Date each constitutes a valid and complete True Sale of all right, title and interest in and to such Portfolio Assets, as the case may be, free and clear of any Adverse Claim; such transfers have not been made with an intent to hinder, delay or defraud any present or future creditor; each of the Purchase Price and the Transfer Price is fair consideration and of reasonably equivalent value to the Portfolio Assets so transferred; and immediately after the purchase pursuant to the applicable Purchase Agreement the Distributor, the Transferor and the Seller will remain solvent and will have adequate capital for the conduct of its business;
(c) immediately after the transfer of the Portfolio Assets to the Seller under the Seller's Transfer Agreement and immediately prior to each purchase of the Purchased Portfolio Assets by the applicable Purchaser under the Purchase Agreement on such Purchase Date, (i) no party claiming through the Seller has any right, title or interest in such Portfolio Assets, the Ancillary Rights with respect thereto or the Program Collections in respect thereto, including any payments or proceeds in respect thereto, (ii) the Seller owns such Portfolio Assets, the Ancillary Rights with respect thereto and the Program Collections in respect thereto free and clear of all Adverse Claims or other such restrictions on transfer created by or arising out of the acts or omissions of any Federated Entity, and (iii) such Portfolio Assets, the Ancillary Rights with respect thereto and the right to Program Collections in respect thereto have not been sold, transferred or assigned by the Seller to any other Person;
(d) this Agreement and the Purchase Agreements and the actions of the Seller required to be taken pursuant to the terms hereof and thereof are and at all times shall be effective to transfer to the applicable Purchaser all of the Seller's right, title and interest in, to and under the Purchased Portfolio Assets free and clear of any Adverse Claim;
(e) the Seller is not prevented by any Applicable Law from paying the Program Collections directly to the Program Collection Account in accordance with the applicable Irrevocable Payment Instruction;
(f) the Seller is in full compliance with the Bankruptcy Remote Covenants;
(g) the Seller has clearly and unambiguously marked all of its books, records and electronic, computer files and master data processing records relating to the Portfolio Assets to indicate the interests of the applicable Purchaser in the Purchased Portfolio Assets;
(h) giving effect to the transactions contemplated by the Program Documents, the sum of the Seller's assets exceeds and will, immediately following
the transactions contemplated hereby, exceed the Seller's total liabilities (including subordinated, unliquidated, disputed and contingent liabilities). The Seller's assets do not and, immediately following the transactions contemplated hereby will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. The Seller does not intend to, and does not believe that it will, incur debts and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of the Seller); and
(i) the Seller has not used and will not use any tradenames or assumed names other than Federated Funding 1997-1, Inc.
(a) the Parent has delivered to the Purchasers and the Program Administrator a true, correct and complete copy of each Distribution Plan, Distributor's Contract, Principal Shareholder Servicer's Agreement, Shareholder Servicer's Agreement, Advisory Agreement and each Prospectus in effect on the date of this Agreement, each of which is in full force and effect and has not been amended in any manner from the form delivered except: (i) in respects which could not reasonably be expected to give rise to an Adverse Effect or (ii) with the prior written consent of the Program Administrator; and the Fundamental Investment Objectives and Policies relating to each Fund have not been changed in any respect from those set forth in the Prospectus so delivered, except as approved by (1) the board of directors or trustees of such Fund and (2) the shareholders of such Fund;
(b) each of the Companies and each Advisor is in compliance with the Fundamental Investment Objectives and Policies relating to each Fund;
(c) each of the Distributor, the Principal Shareholder Servicer, the Program Servicer Agent, the Seller, the Transferor, each Advisor, the Shareholder Servicer, each Company and the Advisory Agreement, Distribution Plan, the Distributor's Contract, the Principal Shareholder Servicer's Agreement, the Shareholder Servicer's Agreement, the Prospectus and the Contingent Deferred Sales Charge arrangements, in each case relating to each Fund, is in compliance in all material respects with Applicable Law, including Rule 12b-1 of the Investment Company Act and the Conduct Rules;
(d) the Asset Based Sales Charge and Contingent Deferred Sales Charge and Shareholder Servicing Fee arrangements relating to the Shares of each Fund and the payments provided for in, and actually being made pursuant to, the Distribution Plan and the Prospectus for each such Fund are fairly and accurately described in the Distribution Plan and Prospectus relating to such Fund;
(e) the Parent is the indirect record and beneficial owner of all of the outstanding shares of capital stock of the Seller, the Transferor, the Shareholder Servicer and the Distributor;
(f) the Distributor is a registered broker-dealer under the Exchange Act, and is a member of the NASD;
(g) each Advisor is a registered investment adviser under the Investment Advisers Act;
(h) each Company is registered as an investment company under the Investment Company Act; and
(i) neither the Seller, the Transferor, the Distributor, any Company nor any Transfer Agent is prevented by any Applicable Law from paying the Program Collections directly to the Program Collection Account in accordance with the applicable Irrevocable Payment Instruction.
(a) The Distributor has the requisite corporate power and authority and legal right to sell Portfolio Assets relating to each Fund, and the Program Collections and the Ancillary Rights with respect thereto, to the Transferor in accordance with the terms of the Transferor's Transfer Agreement and the Distributor has duly authorized each such sale to the Transferor by all necessary action;
(b) the transfer of Portfolio Assets to the Transferor under the Transferor's Transfer Agreement constitutes a valid and complete True Sale to the Transferor of all right, title and interest in and to such Portfolio Assets free and clear of any Adverse Claim; such transfer has not been made with an intent to hinder, delay or defraud any present or future creditor; the Transfer Price for such Portfolio Assets is fair consideration and of reasonably equivalent value to the Portfolio Assets so transferred; and immediately after the purchase pursuant to the Transferor's Transfer Agreement the Distributor will remain solvent and will have adequate capital for the conduct of its business;
(c) immediately after each transfer of Portfolio Assets to the Transferor under the Transferor's Transfer Agreement and by the Transferor to the Seller under the Seller's Transfer Agreement, and immediately prior to each purchase of Purchased Portfolio Assets by the applicable Purchaser under the applicable Purchase Agreement on such Purchase Date, (i) no party claiming through the Distributor has any right, title or interest in such Portfolio Assets, the Ancillary Rights with respect thereto or the Program Collections in respect thereto, including any payments or proceeds in respect thereto, and (ii) the Seller owns such Portfolio Assets, the Ancillary Rights with respect thereto and the Program Collections in
respect thereto free and clear of all Adverse Claims or other such restrictions on transfer created by or arising out of the acts or omissions of the Distributor;
(d) neither the Distributor (as Distributor, Principal Shareholder Servicer or Program Servicer Agent) nor any Company or Transfer Agent is prevented by any Applicable Law from paying the Program Collections directly to the Program Collection Account in accordance with the applicable Irrevocable Payment Instruction;
(e) the Distributor is a registered broker-dealer under the Exchange Act, and is a member of the NASD;
(f) the Distributor has clearly and unambiguously marked its books, records and electronic, computer files and master data processing records relating to the Portfolio Assets to indicate the interests of the Transferor, the Seller and the applicable Purchaser in the Portfolio Assets;
(g) giving effect to the transactions contemplated by the Program Documents, the sum of the Distributor's assets exceeds and will, immediately following the transactions contemplated hereby, exceed the Distributor's total liabilities (including subordinated, unliquidated, disputed and contingent liabilities). The Distributor's assets do not and, immediately following the transactions contemplated hereby will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. The Distributor does not intend to, and does not believe that it will, incur debts and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of the Distributor); and
(h) the Distributor has not used and will not use any trade names or assumed names other than Federated Securities Corp.
(a) the Transferor has the requisite corporate power and authority and legal right to sell Portfolio Assets relating to each Fund, and the Program Collections and the Ancillary Rights with respect thereto, to the Seller in accordance with the terms of the Seller's Transfer Agreement and the Transferor has duly authorized each such sale to the Seller by all necessary action;
(b) the transfer of Portfolio Assets to the Seller under the Seller's Transfer Agreement and the transfer of Portfolio Assets to the applicable Purchaser under the applicable Purchase Agreement on such Purchase Date each constitutes a valid and complete True Sale of all right, title and interest in and to such Portfolio Assets, as the case may be, free and clear of any Adverse Claim; such transfers have not been made with an intent to hinder, delay or defraud any present or future creditor; each of the Purchase Price and the Transfer Price is fair consideration and
of reasonably equivalent value to the Portfolio Assets so transferred; and immediately after the purchase pursuant to the applicable Purchase Agreement the Distributor, the Transferor and the Seller will remain solvent and will have adequate capital for the conduct of its business;
(c) immediately after the transfer of the Portfolio Assets to the Seller under the Seller's Transfer Agreement and immediately prior to each purchase of the Purchased Portfolio Assets by the applicable Purchaser under the Purchase Agreement on such Purchase Date, (i) no party claiming through the Transferor has any right, title or interest in such Portfolio Assets, the Ancillary Rights with respect thereto or the Program Collections in respect thereto, including any payments or proceeds in respect thereto, (ii) the Seller owns such Portfolio Assets, the Ancillary Rights with respect thereto and the Program Collections in respect thereto free and clear of all Adverse Claims or other such restrictions on transfer created by or arising out of the acts or omissions of any Federated Entity, and (iii) such Portfolio Assets, the Ancillary Rights with respect thereto and the right to Program Collections in respect thereto have not been sold, transferred or assigned by the Transferor to any other Person;
(d) the Transferor is not prevented by any Applicable Law from paying the Program Collections directly to the Program Collection Account in accordance with the applicable Irrevocable Payment Instruction;
(e) the Transferor has clearly and unambiguously marked all of its books, records and electronic, computer files and master data processing records relating to the Portfolio Assets to indicate the interests of the applicable Purchaser in the Purchased Portfolio Assets;
(f) giving effect to the transactions contemplated by the Program Documents, the sum of the Transferor's assets exceeds and will, immediately following the transactions contemplated hereby, exceed the Transferor's total liabilities (including subordinated, unliquidated, disputed and contingent liabilities). The Transferor's assets do not and, immediately following the transactions contemplated hereby will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. The Transferor does not intend to, and does not believe that it will, incur debts and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of the Transferor); and
(g) the Transferor has not used and will not use any tradenames or assumed names other than Federated Investors Management Company and Federated Disbursing Corp.
(a) it is duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, with full power and authority to execute and deliver and perform its obligations under this Agreement and the other Program Documents to which it is a party, and it is duly qualified to do business as a foreign corporation or business trust and is in good standing in each jurisdiction in which the performance of its obligations under this Agreement and the other Program Documents to which it is a party requires such qualification, where the failure to be so qualified could reasonably be expected to give rise to an Adverse Effect;
(b) the execution, delivery and performance by it of this Agreement, the other Program Documents to which it is a party and the other instruments and agreements contemplated hereby or thereby have been duly authorized by all requisite trust or partnership, as the case may be, action by it and have been duly executed and delivered by it and constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy laws and any other similar laws affecting the rights and remedies of creditors generally and by equitable principles;
(c) neither the execution and delivery of this Agreement, the other Program Documents to which it is a party, or any instrument or agreement referred to herein or therein, or contemplated hereby or thereby, nor the consummation of any of the transactions herein or therein contemplated, nor compliance with the terms, conditions and provisions hereof or thereof by it (i) will conflict with, or result in a breach or violation of, or constitute a default under, its trust document or partnership agreement, as the case may be, or (ii) will violate any Applicable Law, the violation of which could reasonably be expected to give rise to an Adverse Effect; and
(d) it has sufficient resources, including its rights under certain funding arrangements and its ability to access the capital markets, to meet its obligations under the Program Documents.
ARTICLE V
COVENANTS
(a) (i) preserve and maintain its legal existence and all of its material rights, privileges and franchises, and duly observe and conform to all requirements of Applicable Law relative to it, the conduct of its business or to its properties or assets, (ii) preserve and keep in full force and effect its corporate existence, rights, privileges and franchises, and maintain records of its resolutions or similar actions
regarding the transactions contemplated by the Program Documents and (iii) obtain, maintain and keep in full force and effect all Governmental Authorizations and Private Authorizations which are necessary or appropriate to properly carry out the transactions contemplated to be performed by it under this Agreement and the other Program Documents, except in such case where the failure to so observe, conform to, preserve, obtain, maintain or keep in full force and effect could not reasonably be expected to give rise to an Adverse Effect;
(b) duly fulfill all obligations on its part to be performed under or in connection with this Agreement and the other Program Documents and the agreements and instruments entered into in connection herewith or therewith;
(c) keep proper books of record and account in accordance with its normal business practice in which full and appropriate entries shall be made of all dealings or transactions in relation to its business and activities and shall (in the case of the Seller, the Transferor and the Distributor) mark its data processing or other records, if any, so as to clearly indicate that the Purchased Portfolio Assets have been sold to the applicable Purchaser;
(d) promptly deliver to the Program Administrator copies of any amendments or modifications to its certificate of incorporation or by-laws, certified by an authorized officer;
(e) (i) promptly give written notice to the Program Administrator of the occurrence of any Event of Termination (or event which, with the passage of time or notice, or both, would constitute an Event of Termination), the failure of any conditions precedent set forth in Section 3.02 or Section 3.03 to be fully satisfied on or immediately prior to the applicable Purchase Date, or any breach of any term or condition of any Program Document, which in each case relates to or is caused by it or any of its Affiliates or the performance of any such Persons under any Program Document, (ii) give written notice to the Program Administrator, promptly after it becomes aware thereof, of any other Event of Termination (or event which with the passage of time, notice or both would constitute such an Event of Termination), or the failure of any other conditions precedent set forth in Section 3.02 or Section 3.03 or any other breach of any terms or conditions of any Program Documents, and (iii) promptly give written notice to the Program Administrator of any litigation or proceedings with respect to it or any of its Affiliates or affecting it, any of its Affiliates or any of their respective assets or properties, which if adversely determined, could reasonably be expected to give rise to an Adverse Effect;
(f) cause to be paid and discharged all taxes, assessments and other charges or levies of any Authority imposed upon it, or upon any of its income or assets, unless and to the extent that the same shall be contested in good faith by appropriate proceedings which could not reasonably be expected to give rise to an Adverse Effect;
(g) to the extent obtained or received by it, furnish or cause to be furnished to the Program Administrator a copy of all Private Authorizations and all
Governmental Authorizations obtained or required to be obtained by it in connection with the transactions contemplated by this Agreement, the Transfer Agreements, the Purchase Agreements and any other Program Documents to which it is a party;
(h) annually, or more frequently as the Program Administrator may request upon the occurrence and during the continuance of an Event of Termination (or an event which upon the passage of time or notice, or both, would constitute an Event of Termination), (i) cause an independent nationally recognized accounting firm selected by it and reasonably satisfactory to the Program Administrator and the Parent to enter its premises (and each other Person to whom it delegates any of its duties under the Program Documents) and examine and audit the books, records and accounts relating to the Portfolio Assets, the Program Collections in respect thereof and its or such other Person's performance under the Program Documents, (ii) permit such accounting firm to discuss its or such other Person's affairs, finances, accounts and performance under the Program Documents with the officers, partners, employees and accountants of it or such other Person, (iii) cause such accounting firm to provide the Purchasers and the Program Administrator with a certified report in respect of the foregoing, which shall be in form and scope reasonably satisfactory to the Program Administrator and the Purchasers, and (iv) authorize such accounting firm to discuss such affairs, finances, records and accounts with representatives of the Program Administrator or the Purchaser and any Permitted Designee;
(i) permit and cause each Person to which it delegates any of its duties under the Program Documents to permit the Purchasers, the Program Administrator or any Permitted Designee to, upon reasonable advance notice and during normal business hours, visit and inspect its and such Person's books, records and accounts relating to the Purchased Portfolio Assets, the Program Collections in respect thereto and its performance under the Program Documents and to discuss the foregoing with the officers, partners, employees and accountants of it and such Person, all as often as the Purchasers, the Program Administrator or any such Permitted Designee may reasonably request, all at the cost and expense of the requesting party;
(j) promptly, at its expense, execute and deliver to the Program Administrator and the Purchasers such further instruments and documents, and take such further action as the Program Administrator or the Purchasers may from time to time reasonably request in order to further carry out the intent and purpose of this Agreement and the other Program Documents and to establish and protect the rights, interests and remedies created, or intended to be created, hereby and thereby, and the protection and perfection of each Purchaser's first priority ownership interest in the Purchased Portfolio Assets free and clear of all Adverse Claims, including, without limitation, the execution, delivery, recordation and filing of financing statements and continuation statements under the UCC of any applicable jurisdiction;
(k) promptly deliver to the Program Administrator copies of all notices, requests, agreements, amendments, supplements, waivers and other documents received or delivered by it under or with respect to any of the Program Documents;
(l) in the event that, notwithstanding the Irrevocable Payment Instructions, it shall receive any Program Collections from any Company or Transfer Agent or other Person, promptly upon its receipt of any such Program Collections remit the same to the Funding and Collection Agent for deposit into the Program Collection Account and, until such funds are so deposited into the Program Collection Account, ensure that such amounts are not commingled with any other funds;
(m) promptly notify the Program Administrator and the Purchasers of any material adverse change with respect to the business, properties (in respect of properties, other than in the ordinary course of its and each Fund's business, as conducted on the date hereof), financial condition or results of operations of it, or, to its knowledge, any Company or Fund since December 31, 1996;
(o) not (in the case of the Seller, the Transferor and the
Distributor) move its principal executive office or the place where it
keeps its records concerning the Purchased Portfolio Assets from the
offices specified in Section 4.01(e), unless (a) it shall have given to
the Program Administrator not less than twenty (20) days prior written
notice of its intention to do so, clearly describing the new location and
(b) it shall have taken such action, satisfactory to the Program
Administrator and the Purchasers, to maintain the title or ownership of
the Purchasers in the Purchased Portfolio Assets at all times fully
perfected and in full force and effect;
(p) not amend, waive, terminate or otherwise modify the terms of any Irrevocable Payment Instruction or take any action inconsistent with any Irrevocable Payment Instruction;
(q) not act affirmatively to change its operations in any material manner if at the time of such action, based upon all of the facts and circumstances, it is
clear that such change would materially impair the ability of the Seller, the Distributor or the Parent to perform their obligations under the Program Documents;
(s) not take any action to cancel, terminate, amend, supplement, modify or waive any of the provisions of the Distributor's Contract, the Principal Shareholder Servicer's Agreement, the Shareholder Servicer's Agreement, the Distribution Plan, the Conversion Features or the Contingent Deferred Sales Charge arrangements applicable to the holders of any Shares of any Fund affecting its rights thereunder (including by way of allowing Free Redemptions in respect of Shares of any Fund under circumstances not required by the Prospectus of such Fund in effect on the date of this Agreement or by the Systematic Withdrawal Program or by allowing Free Redemptions which are not Permitted Free Exchanges), or request, consent or agree to any such cancellation, termination, amendment, supplement, modification or waiver, except with the prior written consent of the Program Administrator, except that it may from time to time waive a Contingent Deferred Sales Charge that becomes payable provided it pays in accordance with the Program Servicing Procedures an amount to the applicable Purchaser equal to the Contingent Deferred Sales Charge to which such Purchaser would have been entitled;
(t) cause or ensure that all written information provided to the Seller, the Purchasers or the Program Administrator for purposes of or in connection with this Agreement or any other Program Document or the transactions contemplated hereby or thereby by the Parent, Seller, Transferor, Distributor or DST Systems, Inc. at the request of any of the foregoing is, and all such information hereafter provided in writing by any such Person to the Seller, the Purchasers or the Program Administrator will be, when taken as a whole, true, correct, complete in all material respects and not misleading on the date such information is stated or certified; and
(u) cause and ensure that all actions, which the opinion of Sullivan & Worcester dated as of the Initial Purchase Date on certain bankruptcy matters including "true sale" and "substantive consolidation" assumes will be taken or omitted by it, will be taken or omitted as so assumed.
(a) use the Purchase Price paid to it on the Purchase Date solely for the purpose of purchasing Portfolio Assets or for reimbursing itself for the purchase price of the Portfolio Assets purchased under the Seller's Transfer Agreement pursuant to and in accordance with the terms of the Seller's Transfer Agreement; and
(b) comply in all respects with the Bankruptcy Remote Covenants at all times.
(a) cause the Seller to use the Purchase Price paid to it on any Purchase Date solely for the purpose of purchasing Portfolio Assets or for reimbursing itself for the purchase price of the Portfolio Assets purchased under the Seller's Transfer Agreement pursuant to and in accordance with the terms of the Seller's Transfer Agreement; and cause the Transferor to use the Transfer Price paid to it on any date solely for the purpose of purchasing Portfolio Assets or for reimbursing itself for the purchase price of the Portfolio Assets purchased under the Transferor's Transfer Agreement pursuant to and in accordance with the terms of the Transferor's Transfer Agreement;
(b) cause each Advisor to manage each applicable Fund in accordance with the Fundamental Investment Objectives and Policies in respect of such Fund as in effect from time to time;
(c) (consistent with the fiduciary obligations of the Federated Entities to the Funds) use its best efforts, which are commercially reasonable in relation to the consequence to the Purchasers if they are not successful, to maintain the Fundamental Investment Objectives and Policies in respect of any Fund as reflected in the Prospectus of such Fund, except for changes approved by: (i) the board of directors or trustees and (ii) shareholders of each Fund; and, in the event that as a consequence of fiduciary obligations of the Federated Entities to the Funds it cannot resist a proposed change in the Fundamental Investment Objectives and Policies in respect of the Fund, or in the event that despite its best efforts such change will be made, it shall, prior to taking any action inconsistent with the maintenance of such Fundamental Investment Objectives and Policies, or failing to take the action it could otherwise take, or to the effectiveness of such change, as the case may be: (i) notify the Purchasers and the Program Administrator in writing of the nature of such change, and (ii) if applicable, provide certification by a responsible officer that such change is necessary in order to comply with such fiduciary obligations;
(d) (consistent with the fiduciary obligations of the Federated Entities to the Funds) use its best efforts, which are commercially reasonable in relation to the consequences to the Purchasers if they are not successful, to obtain the approval of the Board of Trustees of each Company in respect of each Fund to: (a) annually re-approve the Distribution Plan, the Distributor's Contract, the Principal Shareholder Servicer's Agreement, and the Shareholder Servicer's
Agreement relating to each such Fund, if necessary in order to continue
payments in respect of the Purchased Portfolio Assets relating to such
Fund, and (b) in the event any of the foregoing shall be terminated with
respect to any such Fund, to approve a new distribution plan and
distributor's contract, principal shareholder servicer's agreement, and
the shareholder servicer's agreement in respect of such Fund so as to
permit the continued payments in respect of the Purchased Portfolio Assets
relating to such Fund as though no such termination had occurred. In the
event that as a consequence of fiduciary obligations of the Federated
Entities to the Funds, it cannot endeavor to obtain the approval of the
Board of Trustees of a Fund to take the actions described in clauses (a)
and (b) above, or in the event that despite its efforts such action will
not be taken, it shall, prior to taking any action inconsistent with the
actions described in clauses (a) and (b) above, or failing to take any
action it could otherwise take, or to any termination referred to in
clause (b) above: (i) notify the Purchasers and the Program Administrator
in writing of the nature of such failure or inability or termination, and
(ii) provide certification by a Responsible Officer that such failure or
inability is required in order to comply with such fiduciary obligations;
(e) provide prompt written notice to the Purchasers and the Program Administrator of any action by the Board of Directors of any Advisor or the Shareholder Servicer or the Board of Trustees of any Company in respect of any Fund to make any modification, amendment or supplement to, or any waiver of any provisions of, or any termination, of any Distribution Plan, any Distributor's Contract, any Principal Shareholder Servicer's Agreement, any Shareholder Servicer's Agreement, any Advisory Agreement, any Conversion Feature, any Contingent Deferred Sales Charge arrangement, any Fundamental Investment Objectives and Policies of any Company in respect of any Fund, or any modification, amendment, supplement or waiver in the amounts payable or actually being paid thereunder, each as in effect on the date of that agreement, to the extent that any such modification, amendment, supplement or waiver could reasonably be expected to give rise to an Adverse Effect;
(f) cause each of the Seller, the Transferor and the Distributor, to comply in all respects with their covenants under the Program Documents at all times;
(g) furnish to the Program Administrator:
(A) annually within 120 days after the end of each fiscal year audited consolidated financial statements of the Parent and its consolidated subsidiaries prepared in accordance with GAAP for such fiscal year;
(B) quarterly within 45 days after the end of the first three fiscal quarters of any fiscal year unaudited consolidated financial statements of the Parent and its consolidated subsidiaries prepared in accordance with GAAP for such fiscal quarter;
(C) such other information as the Program Administrator or the Purchasers may reasonably request and which is reasonably available;
(h) (consistent with the fiduciary obligations of the Federated Entities to the Funds) not initiate or propose the adoption by any Fund of a plan of liquidation, a plan to dispose of a substantial portion of its assets out of the ordinary course of business (except in connection with a merger expressly authorized by this Agreement) or any other plan of action with similar effect (a "Liquidation Plan"), and use its best efforts, which are commercially reasonable in relation to the consequences to the Purchasers if they are not successful, to cause the board of directors or board of trustees and shareholders of each Fund to avoid adopting any Liquidation Plan, and in any event the Parent shall promptly notify the Program Administrator of any proposed Liquidation Plan by any Fund;
(i) the Parent will not permit to occur any change in Control of the Parent, the Distributor, the Principal Shareholder Servicer, the Shareholder Servicer or any Advisor unless either:
(1) in connection with such change in Control:
(i) either (A) such Distributor, Principal Shareholder Servicer, Shareholder Servicer, Advisor or the Parent shall remain distributor, principal shareholder servicer, shareholder servicer or advisor, as the case may be, for the Funds and the Parent shall remain the ultimate parent of each of the foregoing or (B) if another Person shall be retained to replace any of the foregoing to act as distributor, principal shareholder servicer, shareholder servicer or investment advisor, as the case may be, for the Funds, or as parent, such Person shall (x) meet the requirements of (iii) below with reference to the expertise, experience and capacity applicable to the function it undertakes to perform and (y) have agreed, in respect of periods from and after its retention, to be bound by the undertakings of the Distributor, the Principal Shareholder Servicer, the Shareholder Servicer, the Advisor or the Parent, as the case may be, under the Program Documents and shall have confirmed as of a current date the representations and warranties of the Distributor, the Principal Shareholder Servicer, the Shareholder Servicer, the Advisor or the Parent, as the case may be, except such representations and warranties as expressly relate solely to an earlier date (in which case such representations and warranties shall be true and correct as of such earlier date);
(ii) in the case where another Person is retained to replace the Distributor, Principal Shareholder Servicer, Shareholder Servicer or the Advisor to act as distributor, principal shareholder servicer, shareholder servicer or investment advisor, as the case may be, for the Funds, ownership of at least 51% of the voting securities of each of the Persons serving as the distributor, the principal shareholder
servicer, the shareholder servicer or investment advisor to the Funds is retained by, or transferred to, a single Person (the "Immediate Parent");
(iii) in the case where another Person is retained to replace the Distributor, Principal Shareholder Servicer, Shareholder Servicer, Advisor or the Parent to act as distributor, principal shareholder servicer, shareholder servicer, investment advisor or parent, as the case may be, for the Funds, in the reasonable opinion of the Parent, the Immediate Parent, together with its affiliated subsidiaries (including the Immediate Parent and the Persons then serving as distributor, principal shareholder servicer, shareholder servicer and investment advisor to the Funds) in the aggregate, have financial resources and mutual fund management, distribution and investment advisory expertise, experience and capacity immediately after the change in Control sufficient to satisfy the obligations of their counterparts under the Program Documents; and
(iv) in the case where another Person is retained to replace the Distributor, Principal Shareholder Servicer, Shareholder Servicer or the Advisor to act as distributor, principal shareholder servicer, shareholder servicer or investment advisor, as the case may be, for the Funds, a majority of the Board of Trustees or Board of Directors of the Funds, including a majority who are not "Interested Persons" (as defined by Section 2(a)(19) of the Investment Company Act) shall have either (i) reapproved the Distributor's Contracts, the Principal Shareholder Servicer's Agreements, the Shareholder Servicer's Agreements and any advisory contracts, or (ii) approved substitute agreements substantially identical thereto so that no Adverse Effect could reasonably be expected to result from such substitute agreements; or
(2) the Program Administrator shall have consented to such change in Control, such consent not to be unreasonably withheld;
(j) ensure that each Transfer Agent's tracking capabilities and/or the Seller's tracking capabilities for each Fund is sufficient to: (i) track the Portfolio Assets and provide the information specified to be in the Investor Reports and (ii) identify and remit Program Collections and Related Collections to the Funding and Collection Agent, and the Parent shall use its best efforts to replace any Transfer Agent which does not maintain such capabilities or in respect of which an event similar to those described in Section 6.01(e) occurs (whether or not the Transfer Agent is a Federated Entity to which Section 6.01(e) applies) within 60 days after becoming aware of such event.
(b) promptly upon preparation, deliver to the Program Administrator, copies of the semi-annual unaudited reports and annual audited reports of each Company;
(c) (consistent with the fiduciary obligations of the Federated Entities to the Funds) use its best efforts, which are commercially reasonable in relation to the consequences to the Purchasers if they are not successful, to obtain the approval of the Board of Trustees of each Company in respect of each Fund to: (a) annually re-approve the Distribution Plan, the Distributor's Contract, the Principal Shareholder Servicer's Agreement, and the Shareholder Servicer's Agreement relating to each such Fund, if necessary in order to continue payments in respect of the Purchased Portfolio Assets relating to such Fund, and (b) in the event any of the foregoing shall be terminated with respect to any such Fund, to approve a new distribution plan and distributor's contract, principal shareholder servicer's agreement, and the shareholder servicer's agreement in respect of such Fund so as to permit the continued payments in respect of the Purchased Portfolio Assets relating to such Fund as though no such termination had occurred. In the event that as a consequence of fiduciary obligations of the Federated Entities to the Funds it cannot endeavor to obtain the approval of the Board of Trustees of a Fund to take the actions described in clauses (a) and (b) above, or in the event that despite its efforts such action will not be taken, it shall, prior to taking any action inconsistent with the actions described in clauses (a) and (b) above, or failing to take any action it could otherwise take, or to any termination referred to in clause (b) above: (i) notify the Purchasers and the Program Administrator in writing of the nature of such failure or inability or termination, and (ii) provide certification by a Responsible Officer that such failure or inability is required in order to comply with such fiduciary obligations;
(d) provide prompt written notice to the Program Administrator of any action by its Board of Directors or the Board of Directors of any Advisor or the Shareholder Servicer or the Board of Trustees of any Company in respect of any Fund to make any modification, amendment or supplement to, or any waiver of any provisions of, or any termination, of any Distribution Plan, any Distributor's Contract, any Principal Shareholder Servicer's Agreement, any Shareholder Servicer's Agreement any Advisory Agreement, any Conversion Feature, any Contingent Deferred Sales Charge arrangement, or any Fundamental Investment
Objectives and Policies of any Company in respect of any Fund, or any modification, amendment, supplement or waiver in the amounts payable or actually being paid thereunder, each as in effect on the date of that agreement, to the extent that any such modification, amendment, supplement or waiver could reasonably be expected to give rise to an Adverse Effect;
(e) deliver to the Program Administrator, promptly after the filing thereof with the SEC, any report on Form N-SAR (or successor form), any Prospectus (including any Form N-1A (or successor form) and any statement of additional information) or any amendment or supplement to any of the foregoing, any proxy statements and all other notices (out of the ordinary course) to shareholders of each Fund, annual reports of each Company and any other filings (out of the ordinary course), made by any Company in respect of each Fund;
(f) promptly notify the Program Administrator of any material adverse change with respect to the business, properties (in respect of properties, other than in the ordinary course of the Distributor's and each Fund's business, as conducted on the date hereof) or the financial condition or results of operations of the Distributor, or to the Distributor's knowledge, any Company or Fund, since December 31, 1996, including any material change in the sales commission structure relating to any Fund or arrangements, distribution fees, contingent deferred sales charges or exchange privileges for shareholders; and
(g) keep each Irrevocable Payment Instruction in full force and effect.
(a) use the Transfer Price paid to it on the Purchase Date solely for the purpose of purchasing Portfolio Assets or for reimbursing itself for the purchase price of the Portfolio Assets purchased under the Transferor's Transfer Agreement pursuant to and in accordance with the terms of the Transferor's Transfer Agreement.
ARTICLE VI
EVENTS OF TERMINATION
(a) the Parent, the Distributor (as Distributor, Principal Shareholder Servicer or as Program Servicer Agent), the Seller, the Transferor, the Shareholder Servicer, any Advisor, any Transfer Agent or any Company or Fund shall fail to make or cause to be made in the manner and when due any payment or deposit to be made or to be caused to be made by it under this Agreement or any of the other Program Documents and such failure shall continue for three (3) Business Days; or
(b) the Parent, the Distributor (as Distributor, Principal Shareholder Servicer or as Program Servicer Agent), the Seller, the Transferor, the Shareholder Servicer, any Advisor, any Transfer Agent or any Selling Agent, or any Company shall fail to perform or observe any covenant or agreement on its part to be performed or observed under any Program Document (other than those described in clause (a) of this Section 6.01) and such failure could have an Adverse Effect; or
(c) (i) any representation or warranty made or deemed made by the
Parent, the Distributor (as Distributor, Principal Shareholder Servicer or
as Program Servicer Agent), the Transferor, the Seller, the Shareholder
Servicer (or any of their respective officers) under or in connection with
any Program Document (except where such incorrect or misleading
representation or warranty could not reasonably be expected to give rise to
an Adverse Effect) shall have been incorrect when made or deemed made, or
(ii) any Investor Report or any other statement, certificate or report
delivered by or on behalf of the Parent, the Distributor, the Seller or the
Shareholder Servicer in connection with this Agreement, or any other
Program Document (except where such incorrect or misleading document or
statement could not reasonably be expected to give rise to an Adverse
Effect), shall have been false, incorrect or misleading when delivered; or
(d) the applicable Purchaser shall fail to acquire in a True Sale, or shall cease to have, a 100% undivided ownership interest in any Purchased Portfolio Asset, free and clear of any Adverse Claim; or
(e) (i) the Seller, the Transferor, the Distributor, the Parent, the Shareholder Servicer, any Advisor, any Transfer Agent which is a Federated Entity, any Company or any Fund or any Significant Affiliate thereof shall generally not pay its Debts as such Debts become due, or shall admit in writing its inability to pay its Debts generally, or shall make a general assignment for the benefit of creditors or in the case of the Distributor the Distributor shall otherwise become "insolvent" within the meaning of SIPA; or (ii) any proceeding shall be instituted by or against the Seller, the Transferor, the Distributor, the Parent, the Shareholder Servicer, any Advisor, any Transfer Agent which is a Federated Entity, any Company, any Fund or any Significant Affiliate thereof seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up reorganization, arrangement, adjustment, protection, relief, or composition of it or its Debts under any Applicable Law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of sixty (60) days; or (iii) any of the actions sought in any proceeding described in (ii) above (including an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or (iv) the Seller, the Transferor, the Distributor, the Parent, the Shareholder Servicer, any Advisor, any Transfer Agent which is a Federated Entity, any Company, any Fund or any Significant Affiliate
thereof shall take any action to authorize any of the actions set forth above in this Section 6.01(e); or
(f) there shall have occurred any material adverse change in (i) the financial condition or results of operations of the Parent and its consolidated subsidiaries taken as a whole since December 31, 1996; or (ii) the Seller, the Transferor the Shareholder Servicer, the Parent, the Distributor, any Advisor or any Transfer Agent which is a Federated Entity shall fail to make payments when due in respect of Debt aggregating in excess of $5,000,000, provided that the determination of default on such Debt is not being diligently contested in good faith through appropriate proceedings;
(g) any Distribution Plan, Distributor's Contract, Principal Shareholder Servicer's Agreement, Shareholder Servicer's Agreement, Prospectus, the Conduct Rules, or the Contingent Deferred Sales Charge arrangements applicable to holders of Shares of any Fund or the terms of any Conversion Feature in respect of any Share of any Fund, each as in effect on the date of this Agreement, shall be amended, waived, supplemented or modified, in any manner or by any means (including a change in Applicable Law), which could reasonably be expected to have an Adverse Effect, unless waived by the Program Administrator;
(h) the Securities Investor Protection Corporation, established under SIPA, shall have applied for a protective decree against the Distributor; or
(i) the Distributor shall have failed to meet the minimum capital requirements prescribed from time to time by Rule 15c3-1 under the Exchange Act and such failure continues uncured for 10 days after the Distributor obtains knowledge thereof; or
(j) the SEC shall have modified or terminated Rule 12b-1 of the Investment Company Act or the NASD shall have modified or terminated the Conduct Rules in a manner which could reasonably be expected to give rise to an Adverse Effect; or
(k) the Distributor shall cease to be registered as a broker/dealer under the Exchange Act and with the NASD or the NASD suspends the Distributor's membership or registration; or
(l) any Company or any Transfer Agent shall, without the written consent of the Program Administrator, fail to withhold from redemption proceeds paid to any holder of a Share any Contingent Deferred Sales Charges required to be withheld and remit such funds to the Program Collection Account in accordance with any Irrevocable Payment Instruction, or shall be prevented by any Authority or by any Applicable Law from doing so or any Company or any Transfer Agent shall so assert in writing; or
(m) any Company shall be required by any Authority or any Applicable Law to cease or suspend the sale of Shares of any Fund under circumstances that could reasonably be expected to result in an Adverse Effect; or
(n) any Company in respect of itself or any Fund shall propose or effect a merger or other combination with another Person not constituting a Fund if, in the reasonable judgment of the Program Administrator, the amount of the potential unrealized Program Collections from such Fund is material; or
(o) as of any Calculation Date the NAV Decline Ratio (adjusted for stock splits, capital gains and annual and quarterly income distributions) from the end of the immediately preceding calendar month shall be twenty- five percent (25%) or more; or
(p) the applicable Advisor shall cease to act as the investment advisor of any Fund under the applicable Advisory Agreement; or
(q) aggregate Free Redemptions result in the occurrence of the Redemption Threshold Date;
ARTICLE VII
THE PROGRAM ADMINISTRATOR
Seller, the Parent, the Distributor, the Servicer or any Advisor or Transfer Agent), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (ii) makes no warranty or representation to any of the other parties to this Agreement and shall not be responsible to any of the other parties to this Agreement for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement or the other Program Documents; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the other Program Documents on the part of any of the other parties to this Agreement or to inspect the property (including the books and records) of any of the other parties to this Agreement; (iv) shall not be responsible for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the other Program Documents or any other instrument or document furnished pursuant hereto or thereto in respect of any Person other than the Program Administrator; and (v) shall incur no liability under or in respect of this Agreement or any other Program Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier, telegram, cable or telex) believed by it to be genuine and signed or sent by the proper party or parties.
ARTICLE VIII
PARENT'S UNDERTAKINGS
unenforceability, defense, offset or counterclaim. Each of the Parent, the Distributor and the Transferor further covenants and agrees that it shall, and the Parent shall cause Federated Investors Inc., a Pennsylvania corporation, and FII Holdings Inc., a Delaware corporation, to, (i) comply at all times with items 1, 2, 4 through 7, 11, 12, 14 and 15 of the Bankruptcy Remote Covenants in all respects, (ii) not commingle assets with Seller and (iii) maintain an arm's- length relationship with Seller, (iv) note the separate legal existence and financial condition of the Seller in any consolidated financial statements which include the Seller and (v) maintain adequate capital in light of its contemplated business operation.
ARTICLE IX
MISCELLANEOUS
right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Program Administrator and the Purchasers, at law or in equity. No amendment, modification, supplement, termination or waiver of this Agreement or any other Program Document shall be effective unless the same shall be in writing and signed by the parties thereto. Any waiver of any provision of this Agreement, and any consent to any departure by any party to this Agreement or any other Program Document from the terms of any provision of this Agreement or any other Program Document, shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on any party to this Agreement or any other Program Document in any case shall entitle a Federated Entity to any other or further notice or demand in similar or other circumstances.
If to the Initial Purchaser:
PLT Finance Trust 1997-1
c/o Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust
Administration
Facsimile No.: (302) 651-8882
If to the Revolving Purchaser:
PLT Finance, L.P.
19 Fulton Street, 5th Floor
South Street Seaport
New York, New York 10038
Attention: Vice President
Facsimile No.: (212) 233-0829
If to the Program Administrator:
Putnam, Lovell & Thornton Inc.
19 Fulton Street, 5th Floor
South Street Seaport
New York, New York 10038
Attention: Vice President
Facsimile No.: (212) 233-0829
If to the Parent, the Seller, the Transferor or the Distributor:
Federated Investors
Federated Investors Tower
1001 Liberty Avenue
Pittsburgh, Pennsylvania 15222-3779
Attention: Raymond J. Hanley
Facsimile No.: (412) 288-7046
If to the Funding and Collection Agent:
Bankers Trust Company
Four Albany Street
New York, New York 10006
Attention: Corporate Trust and
Agency Group-Structured Finance
Facsimile No.: 212-250-6439
(b) All notices, demands, consents, requests and other communications
to be sent or delivered hereunder or under any other Program Document shall be
deemed to be given or become effective for all purposes of this Agreement or of
such Program Document as follows: (a) when delivered in person, when given; (b)
when sent by mail, when received by the Person to whom it is given, unless it is
mailed by registered, certified or express mail, in which case it shall be
deemed given or effective on the earlier of the date of receipt or refusal; and
(c) when sent by telegram, telecopy or other form of rapid transmission shall be
deemed to be given or effective when receipt of such transmission is
acknowledged, electronically or otherwise.
Parent agrees to pay promptly on demand to the other Parties hereto (other than any other Federated Entity) (i) all reasonable costs and expenses in connection with the preparation, review, negotiation, reproduction, execution, delivery, administration and any modification, amendment and waiver of this Agreement and the other Program Documents, (ii) all costs and expenses incurred in connection with the enforcement of, or preservation of, any rights under this Agreement and the other Program Documents, (iii) all actuarial fees, UCC filing fees and periodic auditing expenses in connection with the transactions contemplated by this Agreement and the other Program Documents, and (iv) all reasonable fees and disbursements of counsel in connection with the foregoing.
(i) any failure or alleged (by Persons other than the Indemnified Party) failure by any Federated Entity to perform any of its obligations, covenants, or agreement contained in any Program Document to which it is a party promptly and fully;
(ii) any representation or warranty made or deemed made by any Federated Entity contained in any Program Document or in any certificate, written statement or report delivered by or on behalf of any such Person in connection herewith or therewith is, or is alleged (by Persons other than the Indemnified Party) to have been false or misleading in any respect when made;
(iii) any failure by any Federated Entity to comply promptly and fully with any Applicable Law or any contractual obligation binding upon it;
(iv) any proceeding by or against any Federated Entity seeking to adjudicate such Person, bankrupt or insolvent, or seeking liquidation, winding up, administration, reorganization, arrangement, adjustment, protection, relief, or composition of such Person or the debts of such Person under any law relating to bankruptcy, insolvency, liquidation, administrative, reorganization or relief of debtors or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian, administrator, liquidator, or other similar official for such Person or for a substantial part of such Person's property; and
(v) preparation for a defense of, any investigation, litigation or proceeding arising out of any of the transactions, events or circumstances described above.
(c) Unless the Parent shall have assumed responsibility for contesting a Liability as provided in the next sentence, the Program Administrator and the Purchasers may, but shall have no obligation to, contest, settle or compromise such Liability. The Parent may pursue, at its sole cost and expense, such lawful rights as are available at law to contest any Liability asserted against the Purchasers or the Program Administrator provided: (i) the Parent has assumed responsibility for such contest and conceded in writing its responsibility to indemnify the Indemnified Party, in accordance with this Section, for the full amount of such Liability; (ii) such contest is conducted in a manner which does not result in a Lien on the Portfolio Assets and, if the manner of contest does not defer the obligation to pay the Liability, the Parent shall pay such Liability when due, subject to the right to recover such Liability if the contest is successful, (iii) the Parent shall have provided to the Indemnified Party such undertakings as the Indemnified Party shall request, in form and substance satisfactory to the Indemnified Party whereby the Parent agrees to hold the Indemnified Party harmless from any and all liabilities, costs and expenses which may arise as a consequence of such contest; (iv) the Parent shall have furnished the Indemnified Party with an opinion, in form and scope reasonably satisfactory to the Indemnified Party that there is a meritorious basis for such contest; (v) the contest of such Liability may be conducted in a manner which does not affect the liability of the Indemnified Party, for any liability not indemnified by the Parent; (vi) the contest of such Liability can be separated from any contest of any other liability in respect of which the Parent has not indemnified the Indemnified Party, without prejudicing the Indemnified Party's ability to deal with or otherwise contest such other liability; and (vii) the Indemnified Party has not waived its right to indemnification by the Parent in respect of such Liability. The Parent shall keep the Indemnified Party fully advised on a current basis concerning any such contest, and, without limiting the foregoing: (a) the Parent shall give the Indemnified Party reasonable notice of and a reasonable opportunity to be present in person or by counsel at any proceeding in connection therewith; (b) the Parent shall give the Indemnified Party notice of any proposed filings or papers to be served or filed by the Parent in connection with any such proceedings and a reasonable opportunity to comment upon them; and (c) the Parent shall promptly supply the Indemnified Party with copies of
any filings or papers served upon the Parent in connection with such proceedings; it being understood that the Indemnified Party shall bear its own costs incurred in connection with any participation by the Indemnified Party or its counsel in the contest as contemplated by this sentence.
(d) Without prejudice to the survival of any other agreement of the
Parent, hereunder, the agreement and obligations of the Parent contained in this
Section 9.04 and of the Parent in Article VIII shall survive the termination of
this Agreement.
(b) In addition, the Parent agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any transfer of Portfolio Assets in connection herewith or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any other Program Document (hereinafter referred to as "Other Taxes").
(c) The Parent will indemnify the Program Administrator and the Purchasers for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 9.05) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted, so long as there is a reasonable basis for the assertion of such Taxes or Other Taxes. This indemnification shall be made within 30 days from the date the Program Administrator or the Purchaser makes written demand therefor to the Parent. The Purchasers and the Program Administrator shall endeavor to avoid or reduce any Taxes or Other Taxes subject
(d) Within thirty (30) days after the date of any payment of Taxes, the Parent will furnish to the Purchasers and the Program Administrator the original or a certified copy of a receipt evidencing payment thereof.
(e) In the event the Parent, shall pay a Tax or Other Tax pursuant to this Section 9.05 and all or a portion of such Tax or Other Tax previously paid by the Parent is later refunded by the applicable taxing Authority the recipient of such refund shall pay to the Parent, the portion of such refund which relates to the amount previously paid by the Parent.
(f) Unless the Parent shall have assumed responsibility for contesting a Tax or Other Tax described in paragraph (c) of this Section 9.05 as provided in the next sentence, the Program Administrator and the Purchasers may, but shall have no obligation to, contest, settle or compromise such Tax or Other Tax. The Parent may pursue, at its sole cost and expense, such lawful rights as are available at law to contest any Tax or Other Tax asserted against the Purchasers or the Program Administrator provided: (i) the Parent has assumed responsibility for such contest and conceded in writing its responsibility to indemnify such Purchaser or the Program Administrator, as the case may be, in accordance with this Section, for the full amount of such Tax or Other Tax; (ii) such contest is conducted in a manner which does not result in a Lien on the Portfolio Assets and, if the manner of contest does not defer the obligation to pay the Tax or Other Tax, the Parent shall pay such Tax or Other Tax when due, subject to the right to recover such Tax or Other Tax if the contest is successful, (iii) to the extent not covered by Section 9.04(b), the Parent shall have provided to such Purchaser or the Program Administrator, as the case may be, such undertakings as such Purchaser or the Program Administrator, as the case may be, shall request, in form and substance satisfactory to such Purchaser, or the Program Administrator, as the case may be, whereby the Parent agrees to hold such Purchaser or the Program Administrator, as the case may be, harmless from any and all liabilities, costs and expenses which may arise as a consequence of such contest; (iv) the Parent shall have furnished such Purchaser or the Program Administrator, as the case may be, with an opinion, in form and scope reasonably satisfactory to such Purchaser or the Program Administrator, as the case may be, of counsel reasonably satisfactory to such Purchaser or the Program Administrator, as the case may be, that there is a meritorious basis for such contest; (v) the contest of such Tax or Other Tax may be conducted in a manner which does not affect the liability of such Purchaser or the Program Administrator, as the case may be, for any tax not indemnified by Parent; (vi) the contest of such Tax or Other Tax can be separated from any contest of any other tax in respect of which the Parent has not indemnified such Purchaser or the Program Administrator, as the case may be, without prejudicing such Purchaser's or the Program Administrator's, as the case may be, ability to deal with or otherwise contest such other liability; and (vii) such Purchaser or the Program Administrator, as the case may be, has not waived its right to indemnification by the Parent in respect of such Tax or Other Tax. The Parent shall keep such Purchaser or the Program Administrator, as the case may be, fully advised on a current basis concerning any such contest, and, without limiting the foregoing: (a) the Parent shall give such Purchaser or the Program Administrator, as the case may be, reasonable notice of and a reasonable opportunity to be present in person or by counsel at any proceeding in
connection therewith; (b) the Parent shall give such Purchaser or the Program Administrator, as the case may be, notice of any proposed filings or papers to be served or filed by the Parent in connection with any such proceedings and a reasonable opportunity to comment upon them; and (c) the Parent shall promptly supply such Purchaser or the Program Administrator, as the case may be, with copies of any filings or papers served upon the Parent in connection with such proceedings; it being understood that such Purchaser or the Program Administrator, as the case may be, shall bear its own costs incurred in connection with any participation by such Purchaser or the Program Administrator, as the case may be, or its counsel in the contest as contemplated by this sentence.
(g) Without prejudice to the survival of any other agreement of the Parent, hereunder, the agreements and obligations of the Parent contained in this Section 9.05 shall survive the termination of this Agreement.
(b) Each of the Seller, the Transferor, the Parent and the Distributor hereby irrevocably submits itself to the non-exclusive jurisdiction of the courts of the State of New York and to the non-exclusive jurisdiction of any Federal Court of the United States located in the southern district of New York, for the purposes of any suit, action or other proceeding arising out of this Agreement or any other Program Document or any of the transactions contemplated hereby or thereby.
ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
contemplated hereby had not taken place, and the Purchasers and the Program Administrator shall not be required or obligated in any manner to perform or fulfill any of the obligations of the Federated Entities under, pursuant to or in connection with any Purchased Portfolio Assets.
(b) The Parties to this Agreement are expressly put on notice of and hereby expressly agree to the limitation of liability as set forth in the Trust Agreement of the Initial Purchaser and agree that the obligations assumed by the Initial Purchaser pursuant to this Agreement and the other Program Documents be limited in any case to the trust and its assets. Nothing herein shall be construed as creating any liability of the entity serving as Trustee of the trust, individually or personally, to perform any covenant either expressed or implied contained in any of the Program Documents all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under such parties. The parties to this Agreement shall not seek satisfaction of any obligation of the Initial Purchaser under this Agreement or any other Program Document from any of the shareholders of the trust, the trustees, directors, officers, employees or agents of those entities, or any of them, except as contemplated under the Trust Agreement of the Initial Purchaser, as the case may be.
(c) None of the Federated Entities (other than the Parent), nor any shareholder, officers or agents of any thereof, shall be liable hereunder or under the other Program Documents for the obligations of the Seller, and the other parties hereto and thereto shall look solely to the assets of the Seller for the payment of any claim hereunder or thereunder for the performance of the obligations of the Seller, except to the extent expressly set forth herein or in any other Program Document.
such instruments, and take all such actions, as the Program Administrator may reasonably deem necessary or advisable for assuring or confirming to each Purchaser its rights and interest in and to, and remedies in respect of, the Purchased Portfolio Assets. In addition, the Seller, the Transferor, the Distributor and the Parent, agree to do all things and execute and deliver all instruments, assignments, other documents and assurances, as the Program Administrator or its counsel reasonably deems necessary to permit each Purchaser to convey any portion of its right, title and interest in the Purchased Portfolio Assets and the Program Documents in connection with any assignment by such Purchaser permitted by this Agreement and the other Program Documents.
Termination) shall have occurred and be continuing, the Seller may request that
an Additional Eligible Fund become a "Fund" under this Agreement on the Addition
Effective Date for such Additional Eligible Fund. On and as of such Addition
Effective Date, (i) each Additional Eligible Fund shall become a Fund hereunder,
(ii) the Program Documents (including Schedule I to the Master Agreement) shall
be deemed to be supplemented to reflect such addition, and (iii) any reference
in this Agreement to any change or modification since the date of this Agreement
to the distributor's contract, distribution plan, principal shareholder
servicer's agreement, advisory agreement, prospectus or contingent deferred
sales charge arrangement in respect of such Additional Eligible Fund shall be
deemed to refer to any change or modification thereof since such Addition
Effective Date.
The term "Addition Effective Date" shall mean with respect to any Additional Eligible Fund, the first date on which all of the following conditions shall have been satisfied:
(i) the Program Administrator shall have received a fully executed Additional Eligible Fund Addendum, together with such signed opinions of counsel to the applicable Company, the Distributor, the Transferor, the Seller and the Parent, each dated a date reasonably near the Addition Effective Date, as the Program Administrator shall have reasonably requested, all in form, scope and substance satisfactory to the Program Administrator;
(ii) the Program Administrator shall have received such instruments, certificates and documents regarding the addition of such Additional Eligible Fund from the Distributor, the Transferor, the Parent, the Seller and the applicable Company as the Program Administrator shall reasonably request; and
(iii) the Program Administrator shall have received evidence satisfactory to it that (a) the conditions in respect of such Additional Eligible Fund set forth in Section 3.02 of this Agreement immediately after the Addition Effective Date shall be satisfied, and (b) that on such Addition Effective Date the Portfolio Assets relating to such Additional Eligible Fund shall constitute Eligible Portfolio Assets.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
FEDERATED INVESTORS
By: /s/ Thomas R. Donahue ------------------------- Name: Thomas R. Donahue Title: Vice President |
FEDERATED FUNDING 1997-1, INC.
By: /s/ Thomas R. Donahue --------------------------- Name: Thomas R. Donahue Title: Vice President |
FEDERATED INVESTORS MANAGEMENT
COMPANY
By: /s/ Thomas R. Donahue --------------------------- Name: Thomas R. Donahue Title: Vice President |
FEDERATED SECURITIES CORP.
By: /s/ Byron F. Bowman --------------------------- Name: Byron F. Bowman Title: Vice President |
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee of the
PLT FINANCE TRUST 1997-1 as Initial
Purchaser
By: /s/ Debra Eberly ---------------- Name: Debra Eberly Title: Administrative Account Manager |
PLT FINANCE, L.P.
By: PLT Finance, Inc.,
General Partner
By: /s/ William P. Henson --------------------- Name: William P. Henson Title: Vice President and Treasurer |
PUTNAM, LOVELL & THORNTON INC.,
as Program Administrator
By: /s/ Robert T. Fleisher ---------------------- Name: Robert T. Fleisher Title: Vice President |
BANKERS TRUST COMPANY, not in its individual capacity
but solely as
Funding and Collection Agent
By: /s/ Louis Bodi -------------- Name: Louis Bodi Title: Vice President |
01740009.AQ4
918
Schedule I To Master Agreement
Federated American Leaders Fund, Inc. Class B Federated Equity Funds FUNDS SHARES ----- ------ |
1. Federated Aggressive Growth Fund Class B
2. Federated Growth Strategies Fund Class B
3. Federated Small Cap Strategies Fund Class B
4. Federated Capital Appreciation Fund Class B
Federated Equity Income Fund, Inc. Class B Federated Fund for U.S Government Securities, Inc. Class B Federated Government Income Securities, Inc. Class B Federated High Income Bond Fund, Inc. Class B Federated Municipal Opportunities Fund, Inc. Class B Federated Municipal Securities Fund, Inc. Class B Federated Stock and Bond Fund, Inc. Class B Federated Utility Fund, Inc. Class B I-1 |
Fixed Income Securities, Inc. FUNDS SHARES ----- ------ |
1. Federated Strategic Income Fund Class B
International Series, Inc.
FUNDS SHARES ----- ------ 1. Federated International Equity Fund Class B 2. Federated International Income Fund Class B |
Investment Series Funds, Inc.
FUNDS SHARES ----- ------ 1. Federated Bond Fund Class B |
Liberty U.S. Government Money Market Trust Class B Municipal Securities Income Trust FUNDS SHARES ----- ------ 1. Federated Pennsylvania Municipal Income Fund Class B |
World Investment Series, Inc.
FUNDS SHARES ----- ------ 1. Federated World Utility Fund Class B 2. Federated Asia Pacific Growth Fund Class B I-2 |
3. Federated Emerging Markets Fund Class B 4. Federated European Growth Fund Class B 5. Federated International Small Company Fund Class B 6. Federated Latin American Growth Fund Class B 7. Federated International High Income Fund Class B 8. Federated International Growth Fund Class B |
SCHEDULE II
to
the Federated Investors
Program Master Agreement
PROGRAM ALLOCATION PROCEDURES
Program Collections in respect of Portfolio Assets which constitute Contingent Deferred Sales Charges, Asset Based Sales Charges and Shareholder Servicing Fees related to Shares of each Fund shall be allocated by the Program Administrator among the Initial Purchaser, the Revolving Purchaser and the Seller in accordance with this Schedule II.
Defined terms used in this Schedule II and not otherwise defined herein shall have the meaning assigned to them in Schedule X to the Master Agreement. As used herein the following terms shall have the meanings indicated:
Shares of each Fund, which are outstanding from time to time, shall be attributed to the Initial Purchaser, the Revolving Purchaser and the Seller in accordance with the following rules;
(a) Commission Shares attributed to the Initial Purchaser shall be Commission Shares related to Portfolio Assets acquired by the Initial Purchaser, the Date of Original Issuance of which occurred on or after the Inception Date of such Fund and on or prior to the Initial Purchase Cut-Off Date.
(b) Commission Shares attributed to the Revolving Purchaser shall be Commission Shares related to Portfolio Assets acquired by the Revolving Purchaser, the Date of Original Issuance of which occurs after the Initial Purchase Cut-Off Date and on or prior to the last Purchase Cut-Off Date.
(c) Commission Shares attributable to the Seller shall be Commission Shares, the Date of Original Issuance of which occurs after the last Purchase Cut-Off Date.
(e) A Commission Share redeemed other than in connection with a Permitted Free Exchange or converted to a Class A share is attributable to the Initial Purchaser, Revolving Purchaser or Seller based upon the Date of Original Issuance in accordance with rule (a), (b), (c) and (d) above.
Omnibus Shares of a Fund outstanding on any date shall be attributed to the Initial Purchaser, Revolving Purchaser or Seller, as the case may be, in the same proportion that outstanding Commission Shares of such Fund are attributed to it on such date.
Free Shares of a Fund outstanding on any date shall be attributed to the Initial Purchaser, Revolving Purchaser or Seller, as the case may be, in the same proportion that the Commission Shares of such Fund outstanding on such date are attributed to it on such date.
CDSCs in respect of the redemption of Commission Shares shall be allocated to the Initial Purchaser, Revolving Purchaser or Seller depending upon whether the related redeemed Commission Share is attributable to the Initial Purchaser, Revolving Purchaser or Seller, as the case may be, in accordance with Part I above.
Aggregate CDSCs in respect of the redemption of Omnibus Shares of all Funds during any period shall be allocated to the Initial Purchaser, Revolving Purchaser or Seller in the same proportion that aggregate CDSCs related to Commission Shares of all Funds during such period were allocated to each thereof.
Assuming that the Asset Based Sales Charge remains constant over time and among Funds so that Part VI hereof does not become operative:
(1) The portion of the aggregate Asset Based Sales Charges accrued in respect of all Shares of all Funds during any calendar month allocable to the Initial Purchaser, Revolving Purchaser or Seller is determined by multiplying the total of such Asset Based Sales Charges by the following fraction:
where:
A = The aggregate Net Asset Value of all Shares of all Funds attributed to the Initial Purchaser, the Revolving Purchaser or the Seller, as the case may be, and outstanding at the beginning of such calendar month
B = The aggregate Net Asset Value of all Shares of all Funds at the beginning of such calendar month
C = The aggregate Net Asset Value of all Shares of all Funds attributed to the Initial Purchaser, the Revolving Purchaser or the Seller, as the case may be, and outstanding at the end of such calendar month
D = The aggregate Net Asset Value of all Shares of all Funds at the end of such calendar month
(2) If the Program Administrator reasonably determines that the Transfer Agent is able to produce automated monthly reports which allocate the average Net Asset Value of the Commission Shares (or all Shares if available) of all Funds among the Initial Purchaser, Revolving Purchaser and Seller in a manner consistent with the methodology detailed in Part I and Part III(1) above, the portion of the Asset Based Sales Charges accrued in respect of all Shares of all Funds during a particular calendar month will be allocated to the Initial Purchaser, the Revolving Purchaser or the Seller by multiplying the total of such Asset Based Sales Charges by the following fraction:
(A)/(B)
where:
A = Average Net Asset Value of all the Commission Shares (or all Shares if available) of all Funds for such calendar month attributed to the Initial Purchaser, the Revolving Purchaser or the Seller, as the case may be
B = Total average Net Asset Value of all Commission Shares (or all Shares if available) of all Funds for such calendar month
The portion of the Shareholder Servicing Fees accrued in respect of all Shares of all of the Funds during a particular calendar month and allocable to the Initial Purchaser and the Revolving Purchaser is determined by the following formula:
(A - (E x ((C + D)/2))) x B
where:
A = Shareholder Servicing Fees accrued in respect of all Shares of all of the Funds during a particular calendar month
B = fraction referred to in Part III (1) for such calendar month, in respect of the Initial Purchaser or the Revolving Purchaser, as the case may be
C = 4% Commission Assets of all Funds as of the beginning of such calendar month
D = 4% Commission Assets of all Funds as of the end of such calendar month
E = .25% times a fraction the numerator of which is the number of days in such calendar month and the denominator of which is 365
The remainder of such Shareholder Servicing Fees accrued in respect of a Fund during a particular calendar month and not allocated to the Initial Purchaser or Revolving Purchaser shall be allocated to the Seller.
The allocation of amounts such as expense and indemnity payments shall be accomplished in the following manner:
shall submit the question to arbitration in accordance with the commercial arbitration rules of the American Arbitration Association and the decision reached by the arbitrator shall be final and binding on the Parties hereto. The Funding and Collection Agent shall be notified promptly in writing by the Program Administrator of any adjustment in the Initial Purchaser's Portion, the Revolving Purchaser's Portion or the Seller's Portion or of any arbitration award pursuant to this Part VI.
EXHIBIT I TO
PROGRAM ALLOCATION PROCEDURES
SELLING AGENTS CURRENTLY OFFERING OMNIBUS SHARES
1. Merrill Lynch, Pierce, Fenner & Smith Incorporated
2. Core-Link
EXHIBIT II TO
PROGRAM ALLOCATION PROCEDURES
SELLING AGENTS CURRENTLY SELLING SHARES
UNDER A 4% COMMISSION STRUCTURE
Schedule III To Master Agreement
The Seller shall, and the Parent shall cause the Seller to:
1. maintain books and records separate from any other Person;
2. maintain its accounts separate from any other Person;
3. not commingle assets with those of any affiliate;
4. conduct its own business in its own name;
5. prepare and maintain separate financial statements;
6. pay its own liabilities out of its own funds;
7. observe all corporate formalities;
8. maintain an arm's-length relationship with its affiliates;
9. not guarantee or become obligated for the debts of any other entity or hold out its credit as being available to satisfy the obligations of others;
10. not acquire obligations or securities of its shareholders;
11. allocate fairly and reasonably any overhead for shared office space, if any;
12. use separate stationery, invoices, and checks;
13. not pledge its assets for the benefit of any other Person or make any loans or advances to any Person;
14. hold itself out as a separate entity;
15. correct any known misunderstanding regarding its separate identity;
16. maintain adequate capital in light of its contemplated business operations, including an initial capital contribution by FII Holdings Inc. of $25,000;
17. ensure that its certificate of incorporation shall: (a) limit its corporate purposes to the performance of its obligations under the Program Documents and activities incidental thereto, including the ownership of the beneficial interest in the Initial Purchaser; (b) prohibit it from incurring Debt, other than in connection with the activities described in (a); (c) require that it
have at least one duly appointed Independent Director; (d) require the unanimous consent of its directors to: (i) institute bankruptcy or insolvency proceedings, (ii) dissolve, liquidate, consolidate, merge, or sell all, or substantially all, of its assets, (iii) engage in any activity other than that specified in (a) above or (iv) amend its certificate of incorporation; and (e) require that the directors consider the interests of the Purchasers and creditors in connection with all corporate actions;
18. not permit the Distributor or the Transferor to have any equity or other ownership interest, direct or indirect, in it; and
19. not conduct its daily business such that it requires management by any other Federated Entity or other Person.
Schedule IV To Master Agreement
Years from Fund Shares Purchase CDSC Rate -------------------- --------- 0-1 5.50% 1-2 4.75 2-3 4.0 3-4 3.0 4-5 2.0 5-6 1.0 6+ 0.0 |
Schedule V To Master Agreement
SCHEDULE OF TRANSFERABLE NASD CAP
If the number of calendar months which have passed since the Date of Original Issuance of the Share of th Redeeming Fund redeemed in connection with a Permitted Free Exchange falls in a given range of calendar months indicated in Column I below, the amount by which the Maximum Aggregate Sales Charge Allowable in respect of the Issuing Fund must be increased as a result of such Free Exchange is the percentage set forth in Column II below directly opposite such range of calendar months in Column I of the date of redemption Net Asset Value of the Share of the Redeeming Fund so redeemed.
I II CALENDAR MONTHS PERCENTAGE --------------- ---------- 0 to 12 5.90% 13 to 24 5.25% 25 to 36 4.60% 37 to 48 4.00% 49 to 60 3.40% 61 to 72 2.90% 73 to 84 2.50% 85 to 96 2.00% 97 or more 0% |
Schedule X To Master Agreement |
[Distributed Separately]
Exhibit 4.10
FEDERATED INVESTORS PROGRAM
INITIAL PURCHASE AGREEMENT
Dated as of October 24, 1997
between
FEDERATED FUNDING 1997-1, INC.,
as Seller
and
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee of the
PLT FINANCE TRUST 1997-1,
as Initial Purchaser
TABLE OF CONTENTS Page ---- ARTICLE I RULES OF CONSTRUCTION; DEFINITIONS 1.01. Rules of Construction....................... 1 1.02. Definitions................................. 1 ARTICLE II SALE AND PURCHASE OF THE PORTFOLIO ASSETS 2.01. Sale and Purchase........................... 2 2.02. Transfers and Payments...................... 2 2.03. Recording of Sales and Transfers............ 2 2.04. Initial Purchaser's Collection Rights....... 3 2.05. Continuing Obligations...................... 3 2.06. Further Assurances.......................... 3 ARTICLE III SECURITY INTEREST 3.01. Security Interest........................... 3 ARTICLE IV MISCELLANEOUS 4.01. Modifications in Writing.................... 4 4.02. Notices..................................... 4 4.03. Binding Effect, Assignment.................. 4 4.04. Governing Law............................... 4 4.05. Severability of Provisions.................. 4 4.06. Trust Capacity.............................. 4 EXHIBITS Exhibit A Purchased Portfolio Assets |
FEDERATED INVESTORS PROGRAM
INITIAL PURCHASE AGREEMENT
FEDERATED INVESTORS PROGRAM INITIAL PURCHASE AGREEMENT, dated as of October 24, 1997 (this "Agreement"), between FEDERATED FUNDING 1997-1, INC. (the "Seller") and WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee of the PLT FINANCE TRUST 1997-1 (the "Initial Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller and the Initial Purchaser are parties to that certain Federated Investors Program Master Agreement dated as of the date hereof with Federated Investors, as Parent, the Seller, the Initial Purchaser, and the "Distributor," "Transferor," "Funding and Collection Agent," "Revolving Purchaser" and "Program Administrator," each as defined therein (the "Master Agreement").
WHEREAS, the Seller desires to sell to the Initial Purchaser, and the Initial Purchaser desires to purchase from the Seller, on the terms and subject to the conditions specified in this Agreement and the Master Agreement, the Purchased Portfolio Assets (defined as hereinafter provided);
NOW, THEREFORE, in consideration of the foregoing premises, and the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
RULES OF CONSTRUCTION; DEFINITIONS
ARTICLE II
SALE AND PURCHASE OF THE RECEIVABLES
(b) The parties to this Agreement intend that the transactions contemplated hereby shall be, and shall be treated as, a purchase by the Initial Purchaser and a sale by the Seller of the Purchased Portfolio Assets, constituting a True Sale, and shall not be treated as a lending transaction. The sale of Purchased Portfolio Assets by the Seller hereunder shall be without recourse to, or representation or warranty of any kind (express or implied) by, the Seller, except as set forth in the Master Agreement.
(b) The parties agree, to the fullest extent they may lawfully do so, that the Initial Purchase Price for the purchase and sale of the Purchased Portfolio Assets pursuant to Section 2.02(a) above represents reasonably equivalent value for the transfer of the same by the Seller to the Initial Purchaser pursuant to this Agreement.
ARTICLE III
SECURITY INTEREST
ARTICLE IV
MISCELLANEOUS
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the day and date first above written.
FEDERATED FUNDING 1997-1, INC.,
as Seller
By: /s/ Thomas R. Donahue --------------------------- Name: Thomas R. Donahue Title: Vice President |
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee of the
PLT FINANCE TRUST 1997-1
By: /s/ Debra Eberly ------------------------------- Name: Debra Eberly Title: Administrative Account Manager |
Exhibit A to Initial Purchase Agreement
All Portfolio Assets, together with the Program Collections and the
Ancillary Rights with respect thereto, arising directly or indirectly out of the
Commission Shares of each Fund issued on or prior to the Initial Purchase Cut-
Off Date, and, pursuant to the Program Allocation Procedures, consisting of
[Confidential Treatment Requested] of Portfolio Assets arising directly or
indirectly out of 5.5% Commission Shares and [Confidential Treatment Requested]
of Portfolio Assets arising directly or indirectly out of Commission Shares sold
on a 4% commission basis.
Exhibit 4.11
FEDERATED INVESTORS PROGRAM
REVOLVING PURCHASE AGREEMENT
Dated as of October 24, 1997
between
FEDERATED FUNDING 1997-1, INC.,
as Seller
and
PLT FINANCE, L.P.,
as Revolving Purchaser
TABLE OF CONTENTS Page ---- ARTICLE I RULES OF CONSTRUCTION; DEFINITIONS 1.01. Rules of Construction....................... 1 1.02. Definitions................................. 1 ARTICLE II SALE AND PURCHASE OF THE PORTFOLIO ASSETS 2.01. Sale and Purchase........................... 4 2.02. Purchase Notices............................ 4 2.03. Transfers and Payments...................... 4 2.04. Recording of Sales and Transfers............ 5 2.05. Initial Purchaser's Collection Rights....... 5 2.06. Continuing Obligations...................... 5 2.07. Further Assurances.......................... 5 ARTICLE III CONDITIONS PRECEDENT 3.01. Conditions to Obligations of the Parties Under the Program Documents......... 5 3.02. Conditions Precedent on the Initial Revolving Purchase Date..................... 6 3.03. Conditions Precedent on Each Revolving Purchase Date............................... 9 ARTICLE IV SECURITY INTEREST 4.01. Security Interest........................... 10 ARTICLE V MISCELLANEOUS 5.01. Modifications in Writing.................... 10 5.02. Notices..................................... 11 5.03. Binding Effect, Assignment.................. 11 5.04. Governing Law............................... 11 5.05. Severability of Provisions.................. 11 SCHEDULES SCHEDULE I Purchase Price Percentage EXHIBITS EXHIBIT A Form of Revolving Purchase Notice i |
EXHIBIT B Attribution of Placement Net Cash Gains, Placement Net Cash Losses and Residuals to Revolving Purchaser's Purchased Portfolio Assets |
FEDERATED INVESTORS PROGRAM
REVOLVING PURCHASE AGREEMENT
FEDERATED INVESTORS PROGRAM REVOLVING PURCHASE AGREEMENT, dated as of
October 24, 1997 (this "Agreement"), among FEDERATED FUNDING 1997-1, INC. (the
"Seller") and PLT Finance, L.P. (the "Revolving Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller and the Revolving Purchaser are parties to that certain Federated Investors Program Master Agreement dated as of the date hereof with Federated Investors, as Parent, the Seller, the Revolving Purchaser, and the "Distributor," "Transferor," "Funding and Collection Agent," "Initial Purchaser" and "Program Administrator," each as defined therein (the "Master Agreement").
WHEREAS, the Seller desires to sell to the Revolving Purchaser, and the Revolving Purchaser desires to purchase from the Seller, from time to time, on the terms and subject to the conditions specified in this Agreement and the Master Agreement, the Revolving Purchaser's Purchased Portfolio Assets (defined as hereinafter provided) pursuant to the Federated Investors program (the "Program");
NOW, THEREFORE, in consideration of the foregoing premises, and the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
RULES OF CONSTRUCTION; DEFINITIONS
Date and prior to the Computation Date in respect of such Placement minus
(c) the amount of Unrecovered Program Expenditures as of such Computation Date.
ARTICLE II
SALE AND PURCHASE OF THE RECEIVABLES
(b) The parties to this Agreement intend that each transaction contemplated hereby shall be, and shall be treated as, a purchase by the Revolving Purchaser and a sale by the Seller of the Revolving Purchaser's Purchased Portfolio Assets relating thereto, constituting a True Sale, and shall not be treated as a lending transaction. Each sale of Revolving Purchaser's Purchased Portfolio Assets by the Seller hereunder shall be without recourse to, or representation or warranty of any kind (express or implied) by, the Seller, except as set forth in the Master Agreement.
(b) The parties agree, to the fullest extent they may lawfully do so, that the Revolving Purchase Price for the purchase and sale of the Revolving Purchaser's Purchased Portfolio Assets relating thereto pursuant to Section 2.03(a) above represents reasonably equivalent value for the transfer of the same by the Seller to the Revolving Purchaser pursuant to this Agreement.
the Seller shall indicate on its books and records that all such Revolving Purchaser's Purchased Portfolio Assets relating thereto have been sold or conveyed to the Revolving Purchaser. In addition, the Seller shall not carry any Revolving Purchaser's Purchased Portfolio Assets sold to the Revolving Purchaser on its accounting records, and the Seller agrees that all such Revolving Purchaser's Purchased Portfolio Assets have been and will be, as contemplated by the terms of this Agreement, transferred and sold to the Revolving Purchaser and carried on the Revolving Purchaser's accounting records. Notwithstanding the foregoing, Shareholder Servicing Fees may be reflected as assets of the Distributor, the Transferor or the Seller if such treatment is required by GAAP and if all appropriate financial statements are footnoted to reflect the sale thereof to the Revolving Purchaser, in a manner reasonably satisfactory to the Program Administrator.
ARTICLE III
CONDITIONS PRECEDENT
(a) in the case of the Parent, the Distributor, the Program Servicer Agent, the Transferor and the Seller, the fulfillment to their satisfaction, or waiver by them, of the conditions precedent set forth in clauses (a), (j) and (k) of Section 3.02;
(b) in the case of each of the Program Administrator and Revolving Purchaser, the fulfillment to its satisfaction, or waiver by it, of the conditions precedent set forth in all clauses of Section 3.02 or in Section 3.03 as applicable; and
(c) in the case of the Funding and Collection Agent, the fulfillment to its satisfaction, or waiver by it, of the conditions set forth in clauses (a), (d), (e) (f), (j) and (k) of Section 3.02.
documents to be executed by or on behalf of the Revolving Purchaser in connection with the transactions contemplated hereby or thereby have been duly authorized, and (ii) an incumbency certificate of the General Partner of the Revolving Purchaser as to the person or persons authorized to execute and deliver all Program Documents to which the Revolving Purchaser is a party with specimen signatures of such persons acting on behalf of the Revolving Purchaser.
(i) the representations and warranties by it contained in this Agreement and the other Program Documents to which it is a party are true and accurate on and as of such Purchase Date as though made on and as of the Purchase Date, except to the extent that such representations and warranties relate solely to an earlier date (in which case such representations and warranties shall be true and accurate on and as of such earlier date);
(ii) it has complied with all agreements and satisfied all conditions on its part to be performed or satisfied on or prior to such Purchase Date; and
(iii) no event has occurred and is continuing, or will result from the closing of the transactions on such Purchase Date that constitutes an Event of Termination or an event which, with the passage of time or notice or both would constitute an Event of Termination.
of the parties thereto, and in the case of each Fund, has been approved in the manner required by the Investment Company Act and the rules and regulations adopted thereunder:
(i) the Distribution Plan of each Fund relating to the Revolving Purchaser's Purchased Portfolio Assets, which shall be substantially in the form of Exhibit F to the Master Agreement;
(ii) the Distributor's Contracts relating to the Portfolio Assets, which shall be substantially in the form of Exhibit G to the Master Agreement;
(iii) the Principal Shareholder Servicer's Agreement relating to the Portfolio Assets, which shall be substantially in the form of Exhibit H to the Master Agreement; and
(iv) the Shareholder Servicer's Agreement relating to the Portfolio Assets, which shall be substantially in the form of Exhibit I to the Master Agreement.
(i) Sullivan & Worcester LLP, special New York and Investment Company Act counsel to the Parent, the Distributor, the Transferor and the Seller, substantially in the form of Exhibit K-1 to the Master Agreement; and
(ii) Dickstein, Shapiro, Morin & Oshinsky LLP, special counsel to each Company, substantially in the form of Exhibit K-2 to the Master Agreement.
Termination shall have occurred and be continuing as of such Revolving Purchase Date.
ARTICLE IV
SECURITY INTEREST
ARTICLE V
MISCELLANEOUS
ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the day and date first above written.
FEDERATED FUNDING 1997-1, INC.,
as Seller
By:/s/ Thomas R. Donahue --------------------------------- Name: Thomas R. Donahue Title: Vice President |
PLT FINANCE, L.P.
BY: PLT FINANCE, INC., as General Partner
By:/s/ William P. Henson --------------------------------- Name: William P. Henson Title: Vice President and Treasurer |
Schedule I To Revolving Purchase Agreement
PURCHASE PRICE PERCENTAGE
All Companies PURCHASE PRICE FUNDS SHARES PERCENTAGE ----- ------ -------------- 4.0% 5.5% Commission Commission ---------- ---------- |
1. All Funds Class B [Confidential Treatment Requested]
Exhibit A To Revolving Purchase Agreement
REVOLVING PURCHASE NOTICE
FEDERATED INVESTORS PROGRAM
PLT FINANCE, L.P.
as Revolving Purchaser
PUTNAM, LOVELL & THORNTON INC.
as Program Administrator
Pursuant to Section 2.02 of the above-referenced Revolving Purchase Agreement, you are hereby notified that on ______________, 199__ (the "Revolving Purchase Date"), the undersigned proposes, subject to the terms and conditions set forth in the Revolving Purchase Agreement and the other Program Documents, to sell to PLT Finance, L.P., certain Portfolio Assets relating to each of the Funds, as set forth in Schedule I attached hereto. The Purchase Cut-Off Dates and the Revolving Purchase Prices for such Portfolio Assets are set forth on Schedule II attached hereto. Capitalized terms used herein unless otherwise defined herein shall have the meanings assigned to such terms in the Revolving Purchase Agreement.
The undersigned certifies that the conditions precedent set forth in
Section 3.02 of the Revolving Purchase Agreement have been satisfied. The
undersigned represents that Schedule I hereto is true, correct and complete and
accurately described the Portfolio Assets to be purchased by the Revolving
Purchaser on the Revolving Purchase Date, that the Unamortized Gross Purchase
Amount in respect of each such Portfolio Assets is properly represented on
Schedule I, that each Portfolio Asset designated as being under the 5.5%
Commission Structure represents an entitlement to Distribution Fees and
Servicing Fees at an annual rate of one percent (1%) per annum of Net Asset
Value and that each Portfolio Asset designated as being under the 4% Commission
Structure represents an entitlement to Distribution Fees at an annual rate of
three quarters of one percent (0.75%) per annum of Net Asset Value.
FEDERATED FUNDING 1997-1, INC.
BY:_______________________________
Authorized Signatory
Schedule I to Exhibit A to Federated Investors Program Revolving Purchase Agreement
Revolving Purchase Date: _________________
Aggregate Revolving Purchase Price: _________________
Purchase Cut-Off Date: _________________
4% Commission Structures Sales: _________________
4% Revolving Purchase Price: _________________
5.5% Commission Structure Sales: _________________
5.5% Revolving Purchase Price: _________________
Unamortized Gross Purchase Amount: _________________
Exhibit B To Revolving Purchase Agreement
The portion of the Placement Net Cash Gain, if any, in respect of any Placement is allocated to the Revolving Purchaser's Portfolio Assets by multiplying (i) the Placement Net Cash Gain for such Placement by (ii) a fraction, the numerator of which is the outstanding principal, immediately prior to the Placement Determination Date, of the Revolving Purchaser Warehouse Funding Debt related to the Purchased Portfolio Assets included in such Placement and the denominator of which is the outstanding principal immediately prior to the Placement Determination Date, of all Revolving Purchaser Warehouse Funding Debt related to all purchased portfolio assets included in such Placement.
The portion of the Placement Net Cash Loss, if any, in respect of any Placement is allocated to the Revolving Purchaser's Purchased Portfolio Assets by multiplying (i) the Placement Net Cash Loss for such Placement by (ii) a fraction, the numerator of which is the outstanding principal, immediately prior to the Placement Determination Date, of the Revolving Purchaser Warehouse Funding Debt related to the Purchased Portfolio Assets included in such Placement, and the denominator of which is the outstanding principal, immediately prior to the Placement Determination Date, of all Revolving Purchaser Warehouse Funding Debt related to all purchased portfolio assets included in such Placement.
The portion of Residuals, if any, in respect of the any Placement is allocated to the Revolving Purchaser's Purchased Portfolio Assets by multiplying (i) the Residuals as of any Monthly Settlement Date for such Placement by (ii) a fraction, the numerator of which is the outstanding principal, immediately prior to the Placement Determination Date, of the Revolving Purchaser Warehouse Funding Debt related to the Purchased Portfolio Assets included in such Placement, and the denominator of which is the outstanding principal, immediately prior to the Placement Determination Date, of all Revolving Purchaser Warehouse Funding Debt related to all purchased portfolio assets included in such Placement.
Exhibit 4.12
FEDERATED INVESTORS PROGRAM
FEE AGREEMENT
Dated as of October 24, 1997
between
FEDERATED INVESTORS,
as Parent
and
PLT FINANCE, L.P.,
as Revolving Purchaser
TABLE OF CONTENTS Page ---- ARTICLE I RULES OF CONSTRUCTION; DEFINITIONS 1.01. Rules of Construction............... 1 1.02. Definitions......................... 1 ARTICLE II FEE 2.01. Fee................................. 2 2.02. Payment............................. 2 2.03. Certain Understandings.............. 2 ARTICLE III MISCELLANEOUS 3.01. Modifications in Writing............ 2 3.02. Notices............................. 2 3.03. Binding Effect, Assignment.......... 2 3.04. Governing Law....................... 3 3.05. Severability of Provisions.......... 3 |
FEDERATED INVESTORS PROGRAM
FEE AGREEMENT
FEDERATED INVESTORS PROGRAM FEE AGREEMENT, dated as of October 24,
1997 (this "Agreement"), among FEDERATED INVESTORS (the "Parent") and PLT
Finance, L.P. (the "Revolving Purchaser").
W I T N E S S E T H:
WHEREAS, the Parent and the Revolving Purchaser are parties to that certain Federated Investors Program Master Agreement dated as of the date hereof with the Parent, the Seller, the Revolving Purchaser, and the "Distributor," "Transferor," "Funding and Collection Agent," "Initial Purchaser" and "Program Administrator," each as defined therein (the "Master Agreement") relating to the program contemplated thereby (the "Program");
WHEREAS, the Seller and the Revolving Purchaser are also parties to the Revolving Purchase Agreement; and
WHEREAS, the Parent and the Revolving Purchaser wish to set forth their understandings relating to the Fee as hereinafter defined;
NOW, THEREFORE, in consideration of the foregoing premises, and the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
RULES OF CONSTRUCTION; DEFINITIONS
ARTICLE II
FEE
Fundamental Investment Objectives and Policies in effect from time to time, the Revolving Purchaser agrees to pay to the Parent the Fee.
ARTICLE III
MISCELLANEOUS
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the day and date first above written.
FEDERATED INVESTORS,
as Parent
By: /s/ Denis McAuley ----------------------------- Name: Denis McAuley Title: Vice President |
PLT FINANCE, L.P.
BY: PLT FINANCE, INC., as General Partner
By: /s/ William P. Henson ----------------------------- Name: William P. Henson Title: Vice President and Treasurer |
Exhibit 4.13
[S&K DRAFT ]
RULES OF CONSTRUCTION; DEFINITIONS
Singular words shall connote the plural as well as the singular, and vice versa (except as indicated), as may be appropriate.
Unless otherwise indicated, references within any document to appendices, articles, schedules, sections, paragraphs, clauses or exhibits are references to appendices, articles, schedules, sections, paragraphs, clauses or exhibits in or to such document.
The words "herein," "hereof" and "hereunder" and other words of similar import used in any document refer to such document as a whole and not to any particular appendix, article, schedule, section, paragraph, clause, exhibit or other subdivision.
The headings, subheadings and table of contents are solely for convenience of reference and shall not constitute a part of any such document nor shall they affect the meaning, construction or effect of any provision thereof.
References to any Person shall include such Person, its permitted successors and assigns.
Except as otherwise expressly provided, reference to any agreement means such agreement as amended, modified or supplemented from time to time in accordance with the applicable provisions thereof and other Operative Documents.
Except as otherwise expressly provided, any reference to any statute, law or regulation shall be deemed to be a reference to such statute, law rule or regulation as from time to time in effect, any successor statutory or regulatory provision.
References to "including" shall mean including without limiting the generality of any description preceding such term, and for purposes hereof the rule of ejusdem generis shall not be applicable to limit a general statement, followed by or referable to an enumeration of specific matters, to matters similar to those specifically mentioned.
Each of the parties to the Program Documents and its counsel have reviewed and revised, or requested revisions to, the Program Documents, and the usual rule of construction that any ambiguities are to be resolved against the drafting party shall be inapplicable in the construction and interpretation of the Program Documents.
(i) which shall have in full force and effect a distribution plan, distributor's contract, principal shareholder servicer's agreement and shareholder servicing agreement, substantially in the form of Exhibits F, G, H and I to the Master Agreement;
(ii) with respect to which the Distributor shall act as a principal underwriter and principal shareholder servicer, the Shareholder Servicer shall act as shareholder servicer and an Advisor shall act as investment adviser;
(iii) with respect to which the Distributor shall be entitled to receive Asset Based Sales Charges, Shareholder Servicing Fees and Contingent Deferred Sales Charges on a basis and at a level comparable to that of other Funds;
(iv) with respect to which there shall be in full force and effect an Irrevocable Payment Instruction, in the form of Exhibit J to the Master Agreement, which has been acknowledged and agreed to by the related Company and the Transfer Agent as contemplated thereby; and
(v) in respect of which the applicable Advisor or the Distributor shall have furnished to the Purchasers and the Program Administrator: (A) a true and complete copy of the prospectus for such series; (B) a true and complete copy of the distribution plan in respect of such series; (C) a true and complete copy of the distributor's contract and principal shareholder servicer's agreement and the shareholder servicing agreement in respect of such series; and (D) to the extent not reflected in the prospectus described in clause (A) above, a statement of the Fundamental Investment Objectives and Policies of such series.
contemplated by the Program Documents, (iii) any adverse effect upon the status of any transfer of any Portfolio Assets or Purchased Portfolio Assets under the Program Documents as a True Sale, (iv) any adverse effect upon the Seller's status as a Bankruptcy Remote Entity, (v) any material adverse effect upon the Seller's, the Parent's, the Distributor's, the Shareholder Servicer's, any Advisor's, any Transfer Agent's or any Company's ability to pay or perform its respective obligations under any Program Document in a timely manner, (vi) any adverse effect on the status of the Portfolio Assets as Eligible Portfolio Assets, (vii) any adverse effect on the amount or timely receipt by the Funding and Collection Agent of any Program Collections in accordance with the terms of any Irrevocable Payment Instruction or any other Program Document, (viii) any adverse effect on the Purchasers' right, title or interest in the Purchased Portfolio Assets, the Program Collections in respect thereto, the Program Collection Account or the Ancillary Rights in respect of the Purchased Portfolio Assets, (ix) any material adverse effect on any of the other rights of the Purchasers or the Program Administrator under the Program Documents, or (x) any material adverse effect on the remedies of the Purchasers or the Program Administrator under any Program Document.
Maximum Aggregate Sales Charge Allowable payable in respect of such Portfolio Assets, minus (ii) the aggregate amounts paid by the applicable Company and the holders of its Shares relating thereto.
(a) the Prime Rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
such Fund, by the shareholders of such Fund on any redemption of Shares relating to such Fund in accordance with the Distributor's Contract and the Prospectus relating to such Fund.
value is required to be computed by the applicable Company, in respect of such Fund in its reports to its shareholders, and (ii) with respect to any Share of such Fund as of any date, the quotient obtained by dividing the net asset value of such Fund (as computed in accordance with clause (i) above) as of such date allocated to the Shares of such Fund (in accordance with the Distribution Plan and the Prospectus) by the number of Shares of such Fund outstanding on such date.
to the Revolving Purchaser and the Program Administrator following the Revolving Purchaser's failure to make a requested purchase under the Revolving Purchase Agreement for a period in excess of 30 days in respect of which all conditions precedent to such purchase have been satisfied (except for Section 3.03(h) of the Revolving Purchase Agreement).
such Person is the "debtor", as such term is used in the Bankruptcy Code, the Purchased Portfolio Assets and the proceeds thereof will not be deemed the property of the debtor.
EXHIBIT 10.03
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 JANUARY 1, 1993
TABLE OF CONTENTS
Article and Title Page ----------------- ---- ARTICLE 1 - DEFINITIONS.................................................. 2 ARTICLE 2 - AGREEMENT TO LEASE; TERM; RIGHT TO LEASE AVAILABLE SPACE; RIGHT TO REDUCE SIZE OF PREMISES............ 11 ARTICLE 3 - BASIC RENT................................................... 17 ARTICLE 4 - ADDITIONAL RENT.............................................. 20 ARTICLE 5 - USE OF PREMISES.............................................. 24 ARTICLE 6 - LANDLORD PAYMENTS, TENANT IMPROVEMENT ALLOWANCES, UPGRADES...................... 24 ARTICLE 7 - ALTERATIONS.................................................. 28 ARTICLE 8 - BUILDING SERVICES............................................ 31 ARTICLE 9 - ASSIGNMENT AND SUBLETTING'................................... 35 ARTICLE 10 - ACCESS TO PREMISES.......................................... 38 ARTICLE 11 - REPAIRS..................................................... 39 ARTICLE 12 - SURRENDER OF PREMISES....................................... 40 ARTICLE 13 - TENANT LIABILITY, INDEMNIFICATION AND INSURANCE............. 41 ARTICLE 14 - FIRE OR OTHER HAZARD........................................ 44 ARTICLE 15 - SUBORDINATION, MORTGAGEE'S APPROVAL AND ATTORNMENT.......... 47 ARTICLE 16 - RECORDATION................................................. 48 ARTICLE 17 - CONDEMNATION................................................ 48 ARTICLE 18 - ESTOPPEL CERTIFICATES....................................... 50 ARTICLE 19 - BANKRUPTCY.................................................. 51 ARTICLE 20 - DEFAULTS AND REMEDIES....................................... 51 ARTICLE 21 - NON-WAIVER.................................................. 54 ARTICLE 22 - EXONERATION................................................. 54 ARTICLE 23 - QUIET ENJOYMENT............................................. 55 ARTICLE 24 - LANDLORD'S REPRESENTATIONS AND COVENANTS....................55 |
ARTICLE 25 - SPRINKLERS.................................................. 56 ARTICLE 26 - UNAVOIDABLE DELAY........................................... 57 ARTICLE 27 - SUCCESSORS.................................................. 57 ARTICLE 28 - GOVERNING LAW............................................... 57 ARTICLE 29 - SEVERABILITY................................................ 57 ARTICLE 30 - CAPTIONS.................................................... 57 ARTICLE 31 - GENDER...................................................... 58 ARTICLE 32 - NOTICES..................................................... 58 ARTICLE 33 - BROKERS..................................................... 60 ARTICLE 34 - EXECUTION/COUNTERPARTS...................................... 60 ARTICLE 35 - RULES AND REGULATIONS....................................... 60 ARTICLE 36 - NO REPRESENTATIONS BY LANDLORD.............................. 60 ARTICLE 37 - EXHIBITS.................................................... 61 ARTICLE 38 - ENTIRE AGREEMENT............................................ 61 ARTICLE 39 - ALTERNATIVE DISPUTE RESOLUTION.............................. 61 ARTICLE 40 - RECOUPMENT.................................................. 63 ARTICLE 41 - MISCELLANEOUS............................................... 64 |
"A" - Legal Description of Land "A-1" - Plan of Premises "B" - Calculation of Rentable Area "C" - Additional Rent Template "D" - Permitted Exceptions "E" - Form of Space Report "F" - Outstanding Obligations under the Existing Lease "G" - Electricity "Base Line" Calculation "H" - Rules and Regulations "I" - Payment Dates of Tenant Improvement And Refurbishment Allowances "J" - Building Standard Cleaning and Janitorial Services "K" - Form of Memorandum of Lease |
THIS LEASE is dated as of the 1st day of January, 1993, 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").
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 leases space in the Building pursuant to an Agreement of Lease dated November 30, 1984 between Tenant and Grant Liberty Development Group Associates ("Original Lessor"); and
WHEREAS, such lease was amended pursuant to the provisions of (i) the First Amendment to Lease between Original Lessor and Tenant dated August 13, 1986; (ii) the Second Amendment to Lease between Original Lessor and Tenant dated December 4, 1986; (iii) the Third Amendment to Lease Agreement between Liberty Center Venture and Tenant dated September 13, 1990; (iv) the Fourth Amendment to Lease Agreement between Liberty Center Venture and Tenant dated July 10, 1992; and (v) the Fifth Amendment to Lease Agreement between Liberty Center Venture and Tenant dated December 8, 1993 (the lease as amended shall be referred to herein as the "Existing Lease"); and
WHEREAS, Tenant and Landlord wish to enter into this Lease and thereby terminate and replace the Existing 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:
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 1.1(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) "AIREA" shall have the meaning as set forth in Section 3.1(b).
(g) "Available Space" shall have the meaning as set forth in
Section 2.4.
(h) "Bankruptcy Code" shall have the meaning as set forth in Article 40.
(i) "Base Year" shall mean the period of twelve consecutive months commencing on January 1, 1993, and ending on December 31, 1993.
(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.
(l) "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) "Central Mechanical Room" shall mean the mechanical room serving both the Building and the Hotel as shown on Exhibit "A-1".
(n) "Code" shall have the meaning as set forth in Section 7.1(e).
(o) "Commencement Date" shall mean January 1, 1993.
(p) "Common Areas" shall mean those areas in the Building used in common by Tenant and other tenants of the Office Area.
(q) "Diesel Fuel Pump Room" shall be that room located within the Parking Garage containing Tenant's diesel fuel pumps and diesel fuel storage for supply to Tenant's emergency electrical generators located in the UPS Room.
(r) "Event of Default" shall have the meaning as set forth in
Section 20.1
(s) "Existing Lease" shall have the meaning as set forth in the preamble to this Agreement.
(t) "Expansion Notice" shall have the meaning as set forth in
Section 2.4(a).
(u) "Expansion Space" shall have the meaning as set forth in
Section 2.4 (a).
(v) "Fifth Amendment" shall have the meaning as set forth in
Section 2.8.
(w) "Final Notice" shall have the meaning as set forth in
Section 2.3.
(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) "Hotel Operator" shall have the meaning as set forth in
Section 24.2(b).
(aa) "Initial Leased Premises" shall mean the following areas in
the Building and Parking Garage reserved for or dedicated to Tenant's use: (i)
Floors 15 through 27 inclusive of the Building and Floors 10, 11 and one-half of
the 8th floor of the Building, as shown on the drawing attached hereto as
Exhibit "A-1"; (ii) Tenant's Uninterrupted Power Supply Room (the "UPS Room")
and Tenant's Special Mechanical Room, both located on the 4th floor of the
Building; (iii) Tenant's 1st Floor Receiving Area as shown on Exhibit "A-1";
(iv) the Tenant's Upper Parking Lobby as shown on Exhibit "A-1"; and (v) the
Diesel Fuel Pump Room located in the Parking Garage.
(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:
(i) all risk insurance coverage with extended coverage endorsement, including coverage against the perils of flood and earthquakes;
(ii) public liability insurance;
(iii) elevator insurance;
(iv) boiler insurance, sprinkler leakage, water damage, legal liability and pilferage insurance on Building equipment, property and materials;
(v) workers' compensation and employer's liability insurance for the employees specified above, and such premiums shall be prorated between the Building and the Hotel based upon the percentage of services performed by such employees for the Building and for the Hotel;
(vi) rent and business interruption insurance for the business of Landlord;
(vii) all other insurance which a reasonably prudent operator of a first-class office building may carry; and
(viii) any other insurance concerning or relating to the ownership and/or operation of the Building or Land in such amounts and of such types as Landlord may elect to carry in its reasonable discretion.
(ee) "Land" shall mean the land upon which the Project is situate as more particularly described in Exhibit "A".
(ff) "Landlord" shall have the meaning as set forth in the preamble to this Lease.
(gg) "Landlord's Cost" shall mean the actual hourly cost to Landlord of providing a particular service to Tenant as determined annually by Landlord, exclusive of Landlord's overhead and profit, which shall not be unreasonable in comparison with the cost for similar services in other first class office buildings in the City of Pittsburgh. Landlord shall provide reasonably satisfactory evidence of such cost and its calculation thereof at the reasonable request of Tenant.
(hh) "Lease Year" shall mean any calendar year during the Term.
(ii) "Loading Dock" shall mean the loading dock serving the Hotel, the Building, and retail tenants of the Project and corridors providing access to such loading dock as shown on Exhibit "A-1".
(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"; provided, however, that there shall be no after hours charge for HVAC services provided to Tenant between 7:00 a.m. and 7:00 p.m. Monday through Saturday. 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-1".
(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-1".
(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, 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) one-half (1/2) of the expense of operating, managing and maintaining the Central Mechanical Room; (C) one- third (1/3) of the expense of operating, managing and maintaining the Loading Dock; (D) fifty and twenty-seven one hundredths percent (50.27%) 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 (E) 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.
(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 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.
(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) "Original Lessor" shall have meaning as set forth in the Fourth Recital of this Agreement.
(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) "Plans" shall mean those final building drawings and specifications as have been prepared by Grant Liberty Joint Venture Architects.
(tt) "Podium" shall mean that four story structure connecting the Building and the Hotel and shown on the Plans.
(uu) "Preliminary Notice" shall have the meaning as set forth in Section 2.3.
(vv) "Premises" shall mean the actual space leased by Tenant from time to time under this Lease.
(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) "Private Parking Area" shall mean the area on the upper level of the Parking Garage shown on Exhibit "A-i" as "Parking Area" which includes thirty (30) parking spaces in a separate private area and a private elevator entranceway.
(yy) "Project" shall have meaning as set forth in the Second Recital of this Agreement.
(zz) "Reduction Space" shall have the meaning as set forth in
Section 2.5(a).
(aaa) "Refurbishment Allowance" shall have the meaning as set forth in Section 6.4.
(bbb) "Refusal Notice" shall have the meaning as set forth in
Section 2.4(c).
(ccc) "Refusal Space" shall have the meaning as set forth in
Section 2.4(c).
(ddd) "Reimbursement Amount" shall have the meaning as set forth in Section 6.3.
(eee) "Remaining Operating Expenses" shall have the meaning as set forth in Section 4.1.
(fff) "Renewal Options" shall have the meaning as set forth in
Section 2.3.
(ggg) "Renewal Term Rent" shall have the meaning as set forth in
Section 3.1(b).
(hhh) "Renewal Terms" 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) "Space Report" shall have the meaning as set forth in
Section 2.4(a).
(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) "Sum A" shall have the meaning as set forth in Section 3.1(b).
(ooo) "Sum B" shall have the meaning as set forth in Section 3.1(b).
(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, or contesting any of the foregoing items specified above in (i)
through (iv); and (vi) fifty and twenty-seven one hundredths percent (50.27%) 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) "Tax Protest" shall have the meaning as set forth in
Section 4.4.
(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) "Tenant Finish Allowance" shall have the meaning as set forth in Section 6.5.
(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 of Operating
Expenses and Taxes to be paid by Tenant, calculated in accordance with Exhibit
"C". In the event that: (i) Tenant exercises its right to lease any Expansion
Space; or (ii) Tenant exercises its right to reduce the size of its Premises; or
(iii) Landlord exercises its right to recapture pursuant to Section 9.4, then,
in any such event, Tenant's Share shall be recalculated by pro-rating Tenant's
Share based on the date Tenant's liability to pay Basic Rent with respect to
such space commenced or terminated, as the case may be.
(xxx) "Tenant's Upper Parking Lobby" shall mean the area on the upper level of the Parking Garage shown on Exhibit "A-1" as "Lobby G232" which contains an aggregate area of 169 square feet.
(yyy) "Term" shall mean the Initial Term set forth in Section 2.2 together with any Renewal Terms as set forth in Section 2.3.
(zzz) "Upgrade Work" shall have the meaning as set forth in
Section 6.3.
(aaaa) "UPS Room" shall have the meaning as set forth in Section 1.1(aa).
(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; provided, however, that with respect to electricity the term Utility Charges shall include only electricity consumed in the Common Areas and shall not include: (i) any electricity consumed by Tenant in the Premises, provided that certain costs for such electricity shall be paid by Tenant in accordance with the terms of Section 4.1(a) (i) hereof; or (ii) any electricity consumed on the premises of any other tenant of the Building.
(cccc) "Value" shall have the meaning as set forth in Section 3.1(b).
(dddd) "Window Treatments" shall mean the Building standard window treatment consisting of one horizontal mini-blind for each window in the Premises.
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 "D" attached hereto and made a part hereof.
(a) On or before January 1 and July 1 of each year during the Term, Landlord shall provide to Tenant a written report regarding the status of all leasable area in the Building in the form attached hereto as Exhibit "E" (the "Space Report") . The Space Report shall set forth the expiration date of all leases of space in the Building, the location and size of such leasable space, whether or not the tenant under each existing lease has any renewal options and the dates by which such renewal options must be exercised, and a description of all vacant space in the Building. Landlord further agrees that if during the period between the dates of any consecutive Space Reports any tenant of the Building vacates, indicates in writing its intention to vacate, or agrees in writing with Landlord to vacate any space in the Building in advance of the scheduled vacation date set forth in the most recent Space Report with regard to such space, then Landlord shall so
notify Tenant in writing by an interim report within ten (10) business days following the occurrence of such action. If Tenant desires to lease any of such vacant space or any of 2 the then occupied space after the expiration of an existing lease (with no renewal rights or containing renewal rights which were not exercised) with another tenant of the Building (collectively called the "Available Space") as set forth on the Space Report or such interim report, Tenant shall have a period of thirty (30) days after its receipt of a Space Report or such interim report in which to respond, in writing (the "Expansion Notice"), declaring its intention to lease any of the Available Space and identifying the Available Space to be leased by Tenant (the "Expansion Space").
Tenant acknowledges that if an existing tenant of any such Expansion Space timely exercises a pre-existing renewal option, expansion option or other right with respect to the leasing of such Expansion Space, and the existing tenant and Landlord do not: (j) modify or amend the existing tenant's lease in a significant, material manner in connection with the exercise by such tenant of its renewal right, expansion right or other such right; or (ii) waive any significant, material term or provision thereof in connection with the exercise by such tenant of its renewal right, expansion right or other such right, then Tenant shall have no right to lease such Expansion Space. Tenant further acknowledges that if an existing tenant has a renewal option, expansion option, or other right with respect to the leasing of such Expansion Space wherein the rent is to be calculated at a fair market rate or a percentage thereof, then the rental rate as agreed to by Landlord and such tenant shall be deemed to be the fair market rate or the percentage thereof as referenced in such renewal option, expansion option or other right.
Each Expansion Notice delivered by Tenant to Landlord shall specify whether or not such Expansion Space will become part of the Premises under the terms of this Lease.
(b) Tenant acknowledges and agrees that it shall be entitled to lease such Expansion Space as part of the Premises pursuant to this Lease only if such Expansion Space constitutes at least one-half (1/2) of a full floor of the Building. If Tenant elects to lease such Expansion Space pursuant to this Lease and such Expansion Space is to become part of the Premises hereunder, then the following terms shall be applicable: (i) the Basic Rent for such Expansion Space shall be calculated at the rate at which Tenant is then currently paying Basic Rent for the Premises in accordance with the terms of this Lease; (ii) Operating Rent for such Expansion Space shall be calculated by reference to the Base Year; and (iii) Landlord shall pay to Tenant the Tenant Finish Allowance (as defined in Section 6.5 hereof) for such Expansion Space, advanced to Tenant in monthly draws based on the value of
the improvements made by Tenant (up to the maximum amount of the Tenant Finish Allowance) completed as certified by Tenant's architect on AIA Form G702 and submitted to Landlord along with appropriate supporting documentation and copies of paid invoices regarding such improvements. Tenant further acknowledges and agrees that no Expansion Space leased by Tenant pursuant to this Lease may be subsequently designated by Tenant as Reduction Space pursuant to Section 2.5(a) hereof.
(c) If Tenant informs Landlord in an Expansion Notice that such Expansion Space is not to become part of the Premises under the terms of this Lease, then Tenant may lease such Expansion Space from Landlord upon such terms and conditions as the Landlord and Tenant may agree in writing . In the event that Landlord and Tenant do not agree on such terms for the leasing of the space as described in the first sentence of this Subparagrapn (c), then Tenant shall have a right of first refusal with respect to such space (the "Refusal Space") on the following terms and conditions:
(i) such right of first refusal shall continue so long as (a) Tenant leases no less than 265,000 Square Feet in the Building (being the size of the Initial Leased Premises less 53,983 Square Feet), and (b) an Event of Default has not occurred and is not continuing under the terms of this Lease; and
(ii) if Landlord receives a bona fide offer to lease all or part of such Refusal Space. Landlord shall give written notice to Tenant (the "Refusal Notice") of such offer. Tenant shall have the right for a period of five (S) days after its receipt of such Refusal Notice to agree, in writing, to lease the space identified in the Refusal Notice on the terms set forth in the Refusal Notice; and
(iii) If within the above-described five (5) day period (a) Tenant notifies Landlord, in writing, that Tenant does not intend to lease such Refusal Space. or (b) Tenant does not respond, in writing, to the Refusal Notice stating that Tenant elects to lease such Refusal Space on the terms and conditions as set forth in the Refusal Notice, then Landlord shall be permitted to lease such Refusal Space on the terms as set forth in the Refusal Notice and Tenant's right of first refusal hereunder shall terminate with respect to the lease by Landlord of such Refusal Space as set forth in the Refusal Notice.
(d) The Commencement Date for such Expansion Space shall be the earlier of: (i) for any Expansion Space which is less than 5,000 Square Feet, ninety (90) days after the date on which Landlord delivers possession of such Expansion Space to Tenant in broom clean condition with no demolition; or (ii) for any Expansion
Space which is 5,000 Square Feet or more, one hundred twenty (120) days after the date on which Landlord delivers possession of such Expansion Space to Tenant in broom clean condition with no demolition; or (iii) the date upon which Tenant occupies part of the Expansion Space for the conduct of Tenant's business.
(a) Tenant shall provide Landlord with at least twelve (12) months prior written notice of its intention to reduce the size of the Premises. Such written notice shall be delivered by Tenant to Landlord no later than December 31, 1995 and such notice shall specify the date on which Tenant shall vacate such portion of the Premises. If Tenant exercises its right to reduce the size of the Premises as set forth herein, Tenant may reduce the size of the Premises by an amount not to exceed 53.983 Square Feet of area (the "Reduction Space") . The Reduction Space consists of and is limited to the rentable area of the Tenant's Premises located on the 8th, 10th and 11th floors of the Building, and does not include any Expansion Space leased by Tenant whether pursuant to this Lease or otherwise. The actual vacation of such space by Tenant shall occur no earlier than December 31, 1996, and no later than on December 31, 1998.
(b) Tenant shall have no right to reduce the size of the Premises for any part of the 15th through 27th floors (inclusive) of the Building. In no event shall Tenant be permitted to reduce its Premises below the size of 265,000 Square Feet, which is the size of the Initial Leased Premises less 53,983 Square Feet. There shall be no cancellation penalty to the Tenant because of its exercise of the right to reduce the size of the Premises as set forth herein.
(c) If Tenant elects to reduce the size of the Premises by an amount of less than 53,983 Square Feet in less than full floor increments, no less than one-half (1/2) floor may be returned to Landlord pursuant to such reduction of the Premises (except in the case of the 8th floor on which Tenant is presently occupying only one-half (1/2) the floor, in which event Tenant will return to Landlord all of its space located on such 8th floor). It is further agreed that should Tenant reduce the size of the Premises on a floor now currently occupied in its entirety by Tenant, the expense of erecting a common corridor on such floor shall be borne by the Landlord.
2.6 Parking. (a) Landlord does hereby grant Tenant a license to use sixty (60) non-reserved and thirty (30) 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 shall make available to Tenant on the same terms a license to use six
(6) non-reserved parking spaces for every additional floor (three (3) for every
additional half-floor) of Expansion Space which Tenant leases and makes a part
of the Premises pursuant to the terms of this Lease. If Tenant desires to
license additional parking spaces in connection with Tenant's lease of Expansion
Space pursuant to the terms of this Lease, then Tenant must exercise such right
by providing written notice thereof to Landlord at the time that Tenant delivers
its Expansion Notice to Landlord with respect to such Expansion Space containing
a designation that such Expansion Space is to become a part of the Premises
hereunder. 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) Tenant may upon thirty (30) days notice to Landlord reduce the number of non-reserved parking spaces licensed to Tenant in which event Landlord shall have no obligation to reserve such spaces for use by Tenant.
(c) 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.
and ending on the date of execution of this Lease. In the event that the
calculation as set forth on Exhibit "F" indicates that a credit balance is due
and owing to Tenant, then the amount of such credit balance shall be applied
against Basic Rent hereunder for consecutive successive month(s) beginning on
the date of execution of this Lease until such credit balance has been
reimbursed in full to Tenant. Notwithstanding the foregoing, the 2,380 Square
Feet located on the 7th Floor of the Building and occupied by Tenant pursuant to
the Fifth Amendment to Lease dated December 8, 1993 (the "Fifth Amendment")
shall become subject to this Lease, but the Term and Basic Rent provisions
relating to such space as set forth in the Fifth Amendment shall continue to be
governed by Sections 2 and 3 of the Fifth Amendment and not by the terms of this
Lease; provided, however that Tenant shall have no separate renewal rights with
regard to such 2,380 Square Feet and, upon the expiration of the term for such
space as set forth in the Fifth Amendment, Tenant shall either: (i) elect in
writing to have such space be a part or the Expansion Space and become part of
the Premises under the terms of this Lease; or (ii) agree in writing with
Landlord regarding other terms and conditions for the leasing of such space; or
(iii) return possession of such space to Landlord.
(a) During the Initial Term, the Basic Rent shall be in the following amounts paid in advance on the first day of each month throughout the Initial Term:
(i) For the period commencing January 1, 1993 and ending on December 31, 1997, Tenant shall pay to Landlord Basic Rent.in the amount of Nineteen Dollars ($19.00) per Square Foot per year, being the sum of Six Million Sixty Thousand Six Hundred Seventy Seven Dollars ($6,060,677.00) per annum, payable in equal monthly installments of Five Hundred Five Thousand Fifty Six and 42/100 Dollars ($505,056.42); and
(ii) For the period commencing on January 1, 1998 and ending on December 31, 2001, Tenant shall pay to Landlord Basic Rent in the amount of Twenty-One Dollars ($21.00) per Square Foot per year, being the sum of Six Million Six Hundred Ninety Eight Thousand Six Hundred Forty Three Dollars ($6,698,643.00) per annum, payable in equal monthly installments of Five Hundred Fifty
Eight Thousand Two Hundred Twenty and 25/100 Dollars ($558,220.25); and
(iii) For the period commencing on January 1, 2002 and ending on December 31, 2005, Tenant shall pay to Landlord Basic Rent in the amount of TWENTY-TWO and 50/100 Dollars ($22.50) per Square Foot per year, being the sum of Seven Million One Hundred Seventy Seven Thousand One Hundred Seventeen and 50/100 Dollars ($7,177,117.50) per annum, payable in equal monthly installments of Five Hundred Ninety Eight Thousand Ninety Three and 13/100 Dollars ($598,093.13); and
(iv) For the period commencing on January 1, 2006 and ending on December 31, 2007, Tenant shall pay to Landlord Basic Rent in the amount of Twenty-Four Dollars ($24.00) per Square Foot per year, being the sum of Seven Million Six Hundred Fifty Five Thousand Five Hundred Ninety Two Dollars ($7,655,592.00) per annum, payable in equal monthly installments of Six Hundred Thirty Seven Thousand Nine Hundred Sixty Six Dollars ($637,966.00).
The actual dollar calculations of Basic Rent as set forth in subparagraphs (i) through (iv) hereinabove are subject to: (a) increase for any Expansion Space leased by Tenant which is designated by Tenant as becoming part of the Premises, and (b) decrease for any Reduction Space which is returned by Tenant to Landlord or any space recaptured by Landlord pursuant to Section 9.4.
(b) For each Renewal Term, Basic Rent shall be adjusted to an
amount ("Renewal Term Rent") which shall be the lesser of: (i) one hundred
percent (100%) of fair market rent ("Value") for such Renewal Term; provided,
however, that in no event shall such Value be less than the Basic Rent for the
year immediately prior to the first year of each respective Renewal Term; or
(ii) twenty-five dollars ($25.00) per Square Foot per year for the first Renewal
Term of five years; twenty-seven dollars ($27.00) per Square Foot per year for
the second Renewal Term of five years, and twenty-nine dollars ($29.00) per
Square Foot per year for the third Renewal Term of four years. Value shall be
the rental rate for other leases of comparable size space in comparable Class
"A" office buildings located in downtown Pittsburgh at the time of commencement
of each Renewal Term. The Base Year shall be 1993 for all Renewal Terms. If the
Value cannot be agreed upon by Landlord and Tenant within thirty (30) days after
the Preliminary Notice, as defined in Section 2.3 hereof, the Value shall be
determined by an appraiser or appraisers agreed upon by Landlord and Tenant. If
Landlord and Tenant are unable to agree on an appraiser or appraisers within
forty-five (45) days after the Preliminary Notice, Landlord and Tenant each
shall appoint, within sixty (60) days after Preliminary Notice of the exercise
of the
Renewal Option, a reputable real estate appraiser who is a member of the
American Institute of Real Estate Appraisers or of a successor body hereafter
constituted and exercising similar functions (referred to hereinafter as
"AIREA") and who has no affiliation of any kind with either Landlord or Tenant.
If either of the parties fails to appoint an appraiser within such sixty (60)
day period, then the one appraiser appointed shall be the sole appraiser and the
provision of this Section 3.1(b) relating to more than one appraiser shall not
apply. The third appraiser shall be appointed by the first two appraisers. If
the first two appraisers are unable to agree on a third appraiser within thirty
(30) days after the appointment of the second appraiser. then the third
appraiser shall be appointed by the then President of AIREA unless such
President is affiliated with either Landlord or Tenant, in which case the third
appraiser shall be appointed by the highest ranking officer of the AIREA who is
not affiliated with either Landlord or Tenant. If the determinations of any two
or all three of the appraisers shall be identical in amount, such amount shall
be the Value. If the determination of all three appraisers shall be different in
amount, the highest appraised Value shall be averaged with the middle Value
(said average being hereinafter referred to as "Sum A"), the lowest appraised
Value shall be averaged with the middle Value (said average being hereinafter
referred to as Sum "B"), and the Value shall be determined as follows:
(i) If neither Sum A nor Sum B differs from the middle appraised Value by more than five percent (5%) of such middle appraised Value, the then Value shall be deemed to be the average of the three appraisals;
(ii) If either Sum A or Sum B (but not both of said sums) differs from the middle appraised value by more than five percent (5%) of such middle appraised Value, the then Value shall be the average of the middle appraised Value and the appraised value closest in amount to said middle Value; and
(iii) If both Sum A and Sum B differ from the middle appraised Value by more than five percent (5%) of such middle appraised Value, the appraisals shall have no force and effect, and the Value shall be determined by a panel of not less than three nor more than five qualified real estate appraisers who shall be members of the AIREA and who shall not be affiliated with the Landlord or Tenant, in which case the panel shall be appointed by the highest ranking officer of the AIREA who shall not be affiliated with Landlord or Tenant.
The Value as determined in accordance with the provisions of this
Section 3.1(b) shall be binding and conclusive on the Landlord and Tenant if
Tenant gives Final Notice of its exercise of the applicable Renewal Option. All
costs and expenses of any appraisal shall be shared equally by Landlord and
Tenant and all agreements with appraisers appointed in accordance with this
Subsection 3.1(b) must provide that such appraisals be completed within three
(3) months of such appointment.
(a) Tenant agrees to pay as operating rent ("Operating Rent") to
Landlord, for each year subsequent to the Base Year, an amount equal to: (i)
charges for all electricity consumed by Tenant in the Premises which exceed the
charges for all electricity consumed by Tenant in the Premises for the Base Year
("Tenant's Base Line Electric Usage") as provided in Section 4.1(b); (ii)
Tenant's Share of the amount, if any, by which the Taxes, Utility Charges and
Insurance Premiums incurred by Landlord with respect to the Building for such
year exceed such charges for the Base Year as set forth on Exhibit "G"; (iii)
Tenant's Share of all Operating Expenses other than Taxes, Utility Charges and
Insurance Premiums (the "Remaining Operating Expenses") as automatically
increased by four percent (4%) per year on a compounded, cumulative basis over
the Remaining Operating Expenses for the Base Year; and (iv) to the extent in
any Lease Year or partial Lease Year the Remaining Operating Expenses increase
by more than seven percent (7%) from the immediately preceding Lease Year, the
portion of such increase in excess of seven percent (7%). Exhibit "C" to this
Lease contains the Operating Rent template which sets forth in detail the Base
Year Taxes and Operating Expenses and the calculation of Additional Rent.
(b) Tenant's Base Line E1ectric Usage is 7.94 watts per Square Foot as set forth on Exhibit "G" hereto. The electrical charges to be paid by Tenant shall consist of any increase in the consumption of electricity in excess of Tenant's Base Line Electric Usage and any increase in excess of the average of the electric rates for the year 1993 as enacted by the utility provider. Tenant shall pay any estimated increase in electricity costs in the same manner as other estimated Operating Rent increases as set forth in Section 4.1(c) of this Agreement.
(c) Tenant shall pay Landlord, monthly in advance beginning January 1, 1994, 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.
(d) 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 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.
(a) Overtime HVAC charges shall be charged to Tenant for HVAC
utilized by Tenant: (i) before 7:00 a.m. or after 7:00 P.M. Monday through
Saturday; provided, however, that Tenant acknowledges that full HVAC services
shall not be run continuously on Saturdays and Tenant shall be required to place
a telephone call to Landlord to order such HVAC services (and Tenant shall also
advise Landlord of the approximate time to turn off such HVAC services); and
(ii) at any time on Sunday. Such overtime HVAC charges shall be charged to
Tenant at an initial rate during the Base Year of $40.00 per hour, regardless of
the number of floors in the Building for which such overtime HVAC is utilized.
Such overtime HVAC rate shall be increased by 4% per year compounded annually
for each Lease Year subsequent to the Base Year. The Landlord and Tenant hereby
acknowledge that the $40.00 per hour charge for overtime HVAC services is made
in contemplation of the continuation of Tenant's current usage of overtime HVAC
on a periodic basis and by a limited number of Tenant's personnel and
departments for a limited number of hours. If Tenant changes its current manner
of business operations in the Premises and commences a double shift of personnel
working any hours before 7:00 a.m. or after 7:00 p.m., extends its business
hours, or otherwise has an overtime usage of HVAC services of more than six
hundred fifty (650) hours of overtime usage in any Lease Year, Tenant shall pay
to Landlord, for each hour of overtime HVAC usage in excess of 650 hours per
Lease Year, Landlord's actual cost to provide such overtime HVAC services to
Tenant. Landlord's actual cost shall be as determined by an electrical
engineering firm to be mutually selected by Landlord and Tenant, and the expense
of retaining such electrical engineering firm shall be shared equally between
Landlord and Tenant.
(b) Any charges for parking pursuant to Section 2.6(a).
(c) Any charges for relamping or reballasting pursuant to Subsection 8.1(d).
(d) Any charges for additional elevator service pursuant to
Section 8.2.
(e) Any charges for repairs pursuant to Section 11.2.
(a) If the assessment on the Land and/or the Building for real estate tax purposes is increased or decreased subsequent to the date hereof, Tenant shall receive notice from Landlord of such increased or decreased assessment in sufficient detail to enable Tenant to analyze the effect of such increase on Tenant's Operating Rent and to consult with Landlord.
(b) Should Landlord determine that it does not wish to protest such real estate tax assessment, Tenant shall have the right after consultation with Landlord to challenge by legal proceedings or otherwise any such assessment in the name of the Landlord ("Tax Protest") and Landlord shall cooperate fully with Tenant in providing all necessary information, documents and testimony to allow Tenant to protest such real estate tax assessments. Tenant's selection, use of, and fee arrangements with legal counsel, real estate appraisers and experts shall be subject to Landlord's approval, such approval shall not be unreasonably withheld.
(c) In the event any Tax Protest results in an increase in Taxes for any year during the Term of this Lease, Tenant shall upon fifteen (15) days' notice, pay to Landlord the Tenant's Share of such increase, even if the Term of this Lease has expired prior to the final disposition of such Tax Protest.
(d) In the event any Tax Protest results in a recovery of Taxes paid by Landlord or a reduction in Taxes to be paid by Landlord in respect of any calendar year, the amount of such recovery or reduction (net of costs incurred in obtaining such recovery) shall be treated as a reduction in Taxes for that calendar year in which Landlord actually receives such refund or is entitled to such reduction.
(e) Tenant shall have the rights conferred by this Section 4.4 only so long as Tenant is leasing not less than 100,000 Square Feet.
(f) In the event any Tax Protest results in a recovery or savings of Taxes for any year during the Term of this Lease, Landlord shall from such savings (and up to a maximum amount of the tax savings for the Project) reimburse Tenant for all its costs and expenses, including reasonable attorneys' fees, incurred in connection with such Tax Protest to the extent of the fee arrangement previously approved by Landlord in accordance with (b) above.
percent (5%), then Landlord shall reimburse Tenant for the cost of such audit as reasonably incurred by Tenant.
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 "H". 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.
(a) In the event that Tenant does not exercise its right to reduce the size of the Premises as described in Section 2.5 of this Lease, then Landlord will reimburse Tenant for a tenant improvement allowance at the rate of $26.15 per Square Foot in a total sum not to exceed One Million Four Hundred Twelve Thousand Twenty-Eight Dollars ($1,412,028.00), attributable to the 53,983 Square Feet occupied by Tenant on the 8th, 10th and 11th floors of the Building. In the event that Tenant does not notify Landlord in
writing and delivered to Landlord on or before December 31, 1995 that Tenant is exercising its right to reduce the size of its Premises, then such reimbursement shall occur within thirty (30) days after December 31, 1995.
(b) In the event that Tenant exercises its right to reduce the size of its Premises as set forth in Section 2.5 herein and Tenant returns all of the 53,983 Square Feet of Reduction Space to Landlord on December 31, 1996, then the amount of the improvement allowance owing to Tenant shall be solely as set forth in the Fourth Amendment to Lease Agreement between Liberty Center Venture and Tenant dated July 10, 1992 (being the sum of $909,241.00, which sum Tenant has already received as a rent credit for such space) and no additional amount of the above referenced improvement allowance shall be due and owing to Tenant.
(c) In the event that Tenant exercises its right to reduce the size of its Premises as set forth in Section 2.5 herein and Tenant returns all or part of the 53,983 Square Feet of Reduction Space to Landlord at any time after December 31, 1996, then Tenant shall receive the amount of the improvement allowance as set forth in the Fourth Amendment to Lease Agreement between Liberty Center Venture and Tenant dated July 10, 1992 (being the sum of $909,241.00, which sum Tenant has already received as a rent credit for such space), plus an additional 73/120 of such improvement allowance calculated on a per Square Foot basis and pro-rated on a monthly basis for each full month after December 31, 1996 during which Tenant occupies all or part of the aforesaid 53,983 Square Feet. Such reimbursement to Tenant shall occur within sixty (60) days after the date on which Tenant returns the Reduction Space to Landlord.
(d) If Tenant exercises its right to reduce the size of the Premises by less than all of the 53,983 Square Feet pursuant to Section 2.5 hereof, then, with respect to the remaining balance of the 53,983 Square Feet which Tenant is not returning to Landlord pursuant to Section 2.5, Landlord shall reimburse Tenant for the tenant improvement allowance at the rate of $26.15 per Square Foot with respect to the remaining Square Footage which continues to be leased by Tenant on the 8th, 10th, and 11th floors of the Building. Such reimbursement shall occur within sixty (60) days after December 31, 1995.
reconstruction of the lobby security desk. Items (i) and (ii) shall hereafter be
referred to as the "Upgrade Work." Landlord shall have the right to approve the
design and materials to be used in connection with the Upgrade Work, which
approval shall not be unreasonably withheld or delayed. The payment of the
Reimbursement Amount to Tenant for the Upgrade Work shall be made within sixty
(60) days after the completion of all Upgrade Work and Landlord's receipt of (x)
all paid invoices and lien waivers for such work and (y) a certificate of
Tenant's architect indicating that all Upgrade Work was completed in accordance
with the approved plans and specifications. Landlord hereby grants to Tenant a
temporary license with respect to the Building lobby, elevator cabs and elevator
shafts to the extent required to perform the Upgrade Work. Tenant may commence
the Upgrade Work at any time after the execution and delivery of this Lease by
the Landlord and Tenant. Tenant shall provide Landlord with at least thirty (30)
days prior written notice before commencing any of such Upgrade Work. All of
such Upgrade Work shall be performed by Tenant and its contractors in compliance
with all insurance requirements and in compliance with all applicable laws,
regulations, ordinances and requirements of any governmental and quasi-
governmental bodies or agencies having jurisdiction thereof. The Tenant shall
obtain all required permits and governmental approvals for such Upgrade Work,
and Tenant shall perform or cause such work to be performed in a manner which
will not interfere with or substantially impair the operation, use and enjoyment
of the Building by Landlord and/or any other tenant of the Building. Tenant
shall, upon the request of Landlord, perform the elevator cab upgrade work and
any other Upgrade Work which would materially disrupt or interfere with the
normal operation of the Building at hours other than during Normal Office Hours.
Tenant shall indemnify, defend and hold Landlord harmless from and against all
claims, demands, causes of action, damages and liability arising or resulting
from the Upgrade Work unless such claim, demand, cause of action, damages or
liability results solely from the negligence or intentional acts of Landlord.
of space with respect to such 53,983 Square Feet and, accordingly, no such compounding shall commence until the eleventh year following the anniversary date of the occupancy by Tenant of each increment of space of such 53,983 Square Feet and until such eleventh year Tenant shall receive only a ten dollar ($10.00) per Square Foot Refurbishment Allowance (which is to be paid on the tenth anniversary date of the occupancy by Tenant of each increment of space) with respect to such 53,983 Square Feet. Further, in the event that Tenant exercises its right to reduce the Premises by up to the 53,983 Square Feet described in Section 2.5 hereof, Tenant will forfeit and shall not be entitled to a Refurbishment Allowance with respect to the space that is returned to Landlord by Tenant pursuant to Section 2.5 hereof. It is further agreed by Landlord and Tenant that: (i) the Refurbishment Allowance shall be used by Tenant for actual refurbishment of the Premises for which such allowance is given; and (ii) no Refurbishment Allowance will be paid with respect to any portion of the Premises for which a Refurbishment Allowance has previously been paid under this Section and with respect to which less than five years remain on the Term of this Lease; provided, however, that if Tenant subsequently exercises one or more Renewal Options such that more than five years remain on the Term of this Lease (and the exercise of such renewal options causes Tenant to reach the above described tenth, twentieth or thirteenth anniversaries, respectively), then Tenant shall receive the Refurbishment Allowance with respect to such portion of the Premises; and (iii) the Refurbishment Allowance shall be payable by Landlord to Tenant on the later of (x) the ten, twenty and thirty year anniversary dates, as the case may be, and (y) the date on which the Refurbishment Allowance is actually expended by Tenant.
however, that if Tenant subsequently exercises one or more Renewal Options such that at least five (5) years remain on such Term or Renewal Term, then Landlord shall pay to Tenant the difference between (i) the actual improvement allowance (calculated at $5.00 per Square Foot per year and compounded as set forth hereinabove) received by Tenant with respect to such Expansion Space and (ii) the Tenant Finish Allowance calculated in accordance with the first sentence of this Section 6.5.
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) 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 6 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 lien or liens. In the event of any Tenant Alterations costing in excess of One Hundred Thousand Dollars ($100,000.00), 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 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.
(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.
(ii) In Tenant's mechanical rooms and data processing rooms (not to exceed 6,000 Square Feet) on a 24 hour 365 day basis at no extra charge; provided, however, that the cost of electricity and other utility services for providing such chilled water shall be an Operating Expense.
(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 to Landlord the cost for such overtime HVAC Services as set forth in Section 4.2(a) hereof.
(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, central lavatory facilities, Tenant's executive dining room kitchen on the 27th Floor, Tenant's chief executive officer's private bathroom on the 27th Floor and the vending area and cafeteria currently located on the 17th Floor. 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.
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 outside of Normal Office Hours, Tenant shall pay Landlord for any required services of building personnel.
(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 "J". 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 "J".
(c) Landlord grants to Tenant the right to provide its own cleaning services for the Premises 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 cleaning services for the Leased 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.
(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 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 provide: (i) any elevator service, (ii) unheated water for lavatory services,
or (iii) HVAC to maintain a temperature of no less than 64*F or no greater than
80*F.
(c) For purposes of this Section 8.5, time shall be deemed to be of the essence.
(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) In the case of Premises other than the Private Parking Area,
Tenant has not offered such space to a current tenant in the Building or a
former tenant who has been a tenant in 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.
(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 a Renewal Option in which case such term shall not extend beyond the Renewal Term of the latest Renewal Option to be exercised by Tenant.
(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 a Renewal Option unless Tenant exercises its Renewal Option for the entire Premises (but this shall not limit Tenant's right to exercise a 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.
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.
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. Notwithstanding the foregoing, Landlord shall not enter the area designated as "data center" without a guard or other representative provided by Tenant, except in emergency conditions. If representative 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.
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.
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 AND EXTENSION OR RENEWAL THEREOF, OR UPON ANY EARLIER TERMINATION OF THIS LEASE, As HEREIN PROVIDED, WITHOUT SUCH NOTICE, IN THE CONDITION AS REQUIRED ABOVE.
(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.
(a) Tenant shall, at its own cost and expense, comply with all of the rules and regulations of the fire insurance 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).
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).
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 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.
(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 (1) 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
within five (5) years of the end of the Term, Landlord shall not be obligated to
repair and restore the same unless Tenant shall within forty-five (45) days of
the occurrence of such damage either (a) exercise additional Renewal Option(s)
hereunder such that at least ten (10) years remain on the Term from the date of
Tenant's occupancy of the restored Premises, or (b) if all Renewal Options have
been exercised, renew this Lease for an additional term such that at least ten
years remain in the Term from the date of Tenant's occupancy of the restored
Premises, upon the terms and subject to all of the conditions applicable to a
Renewal Term hereunder, which additional term Landlord hereby grants Tenant.
Under either of said circumstances, the term of the Renewal Option or the
additional term shall be extended for an additional period equal to the time
required for such repair and restoration. If Tenant does not agree to exercise
the additional Renewal Option(s) or to
renew this Lease hereof for the above described ten (10) year period, this Lease shall at Landlord's option terminate as set forth in this Section.
(b) In the event that Landlord exercises the right to terminate as set forth in this Section and the damage to the Building and/or Premises which was the cause of such termination is restored within three (3) years of such damage, then Landlord shall offer the Premises to Tenant under the terms and conditions of this Lease as such terms and conditions would have been in effect had the damage not occurred. Such offer shall remain open for a period of sixty (60) days.
(a) Notwithstanding anything to the contrary contained in
Section 14.1 or elsewhere in this Lease, Tenant, at Tenant's option, may
terminate this Lease if: (i) the Premises or any parts thereof are damaged or
destroyed, and (ii) the Landlord will be unable to complete the repair and
restoration of the Premises in less than (A) twenty four (24) months after the
expiration of the forty-five (45) day period provided in Section 14.1 if thirty
three percent (33%) or less of the Premises is damaged, or (B) eighteen (18)
months after the expiration of the forty-five (45) day period provided in
Section 14.1 if more than thirty three percent (33%) of the Premises is damaged.
Tenant shall notify Landlord of its election to terminate this Lease following
the occurrence of such damage or destruction within thirty (30) days of the
earlier of: (i) its receipt of Landlord's estimate of the time needed to repair
or rebuild the Premises, or (ii) the expiration of the forty-five (45) day
period provided in Section 14.1 in which Landlord is required to furnish such
estimate to Tenant. Tenant shall have no right to terminate this Lease upon the
occurrence of a casualty to any part of the Premises if the damaged Premises can
reasonably be restored in less than (A) twenty four (24) months after the
expiration of the forty-five (45) day period provided in Section 14.1 if thirty
three percent (33%) or less of the Premises is damaged, or (B) eighteen (18)
months after the expiration of the forty-five (45) day period provided in
Section 14.1 if more than thirty three percent (33%) of the Premises is damaged.
(b) If Tenant does not elect to terminate this Lease or if
Landlord has estimated that such repair and restoration will be completed in
less than: (i) twenty four (24) months after the expiration of the forty-five
(45) day period set forth in Section 14.1 if thirty three percent (33%) or less
of the Premises is damaged, or (ii) eighteen (18) months after the expiration of
the forty-five (45) day period set forth in Section 14.1 if more than thirty three percent (33%) of the Premises is damaged, then Landlord shall immediately (unless Landlord has the right, and has elected, to terminate this Lease pursuant to Section 14.3) commence and complete the restoration and reconstruction of the Premises as set forth in Section 14.1. If Landlord fails to complete such repair and restoration within the time period as estimated by Landlord, then the Basic Rent allocable to such portion of the Premises shall abate beginning on the date on which Tenant's obligation to pay Basic Rent with respect to such portion of the Premises resumes under Section 14.2 in an amount equal to the Basic Rent which would have been allocable to such portion of the Premises (but which was abated pursuant to Section 14.2) during the period beginning on the date on which Landlord estimated that such repairs would be completed and ending on the date in which Landlord satisfies its obligation to restore the Premises under Section 14.1; provided, however, that the date as estimated by Landlord for completion of the required repairs and restoration shall be extended for any delay occurring after the Landlord has provided the estimated completion date to Tenant and resulting from labor strikes, acts of God, delays caused by Tenant, its agents or contractors, or for any other cause beyond Landlord's control.
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 Lana 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.
This Lease Agreement may not be recorded, but a memorandum thereof, in the form attached hereto as Exhibit "K", 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.
terminate as of the date possession is taken by the taking authority.
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.
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.
If there shall be filed against Tenant, in any court, pursuant to any statute, either of the United States or of any 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.
(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).
(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.
(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 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 'low 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.
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.
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 members 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.
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 encumbrances, except as set forth in Exhibit "ID"; 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.
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.
(a) The enclosed pedestrian access between the Building and the Hotel shall be open at reasonable times, subject to any security requirements of the Hotel and the Building.
(b) Landlord shall use its best efforts and will cooperate with Tenant in obtaining from the operator of the Hotel (the "Hotel Operator"):
(i) A suite or suites to be designated for Tenant's exclusive use within the Hotel which suite or suites shall be leased or licensed directly by the Hotel Operator to Tenant at the normal rates chargeable by the Hotel Operator;
(ii) Priority as to the use of an available suite or suites from time to time;
(iii) The use by Tenant and such of its employees and guests as it shall in writing designate on a preferential basis of any recreational facilities and amenities that may be available within the Hotel at normal charges for the use of such facilities and amenities.
Tenant acknowledges that this Subsection 24.2(b) is not a guaranty that the Hotel Operator will give Tenant such preferential treatment.
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 ications, 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.
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 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.
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.
This Lease shall be construed, governed and enforced in accordance with the laws of the Commonwealth of Pennsylvania.
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 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.
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.
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 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 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.
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 Three Hundred Thousand Dollars ($300,000.00) 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.
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 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.
Rules and Regulations for the Building are attached hereto as Exhibit "H" and incorporated herein. If there are inconsistencies between the Rules and Regulations in Exhibit "H" 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.
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.
All Exhibits attached hereto are incorporated herein by reference and made a part hereof.
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. This Lease supersedes the Existing Lease (except as otherwise provided in Section 2.8 hereof) and the letter of intent dated November 29, 1993 executed by Landlord and Tenant.
(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 "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.
(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 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.
With regard to Article 6 of this Lease, as well as any Other provisions in this Lease which require or provide for the Payment of money by Landlord to or for the benefit of Tenant, in
future, arising out of, relating to or in connection with the Existing Lease or Tenant's occupancy of the Premises or any portion thereof prior to the date on which this Lease is executed and delivered by Tenant and Landlord.
Except as otherwise provided in this Lease, Tenant, for itself and its successors and assigns, hereby releases Landlord, its successors and assigns, and all past, present and future partners, officers, directors, shareholders, parent corporations, affiliates, subsidiaries, agents, representatives and employees of Landlord, of and from any and all liabilities, claims, demands, and rights of actions of whatever kind or nature, whether in contract or tort or in law or equity or otherwise, which it ever had, now has or may have in the future, and agrees that it will never institute any action or suit at law or in equity or otherwise against Landlord or any of Landlord's successors or assigns, or any of Landlord's past, present or future partners, officers, directors, shareholders, parent corporation or corporations, affiliates, agents, representatives or employees, nor institute, prosecute or in any way aid in the institution or prosecution of any claim, demand, action, or cause of action for damages, costs, expenses, compensation or other amount for or on account of any damage or loss, known or unknown, past, present or future, arising out of, relating to or in connection with the Existing Lease or Tenant's occupancy of the Premises or any portion thereof prior to the date on which this Lease is executed and delivered by Tenant and Landlord.
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: May 4, 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 |
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 ----------------- ---- 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 |
"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 |
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").
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:
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).
(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:
(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.
(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.
(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.
(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,
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.
ARTICLE 2 -
AGREEMENT TO LEASE; TERM.
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.
(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.
(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:
(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).
(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
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.
(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.
4.4 Intentionally Deleted.
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.
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.
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)
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
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
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.
(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.
(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.
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
outside of Normal Office Hours, Tenant shall pay Landlord for any required services of building personnel.
(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
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.
(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
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.
(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
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.
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.
(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.
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.
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.
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.
(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.
(a) Tenant shall, at its own cost and expense, comply with all of the rules and regulations of the fire insurance
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).
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.
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.
(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.
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.
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.
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.
If there shall be filed against Tenant, in any court, pursuant to any statute, either of the United States or of any
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.
(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).
(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.
(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
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
This Lease shall be construed, governed and enforced in accordance with the laws of the Commonwealth of Pennsylvania.
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 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.
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.
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
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 |
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.
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.
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
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.
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.
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.
All Exhibits attached hereto are incorporated herein by reference and made a part hereof.
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.
(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
"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.
(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
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.
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.
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 ------------------------------------------------ |
FIRST AMENDMENT TO AGREEMENT OF LEASE FOR
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:
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 |