EXHIBIT 10.13
ONE-STORY OFFICE LEASE
Property Address: Riverside Commerce Center
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Lessor: Riverside Investors, L.C.
Lessee: Portfolio Recovery Associates, LLC
Commencement: July 1, 1999
Expiration: June 30, 2006
ONE-STORY OFFICE LEASE
THIS LEASE is made as of February , 1999, by and between
Riverside Investors. L.C., a Virginia limited liability company, ("Lessor"), and
Portfolio Recovery Associates, LLC. a Delaware limited liability company,
("Lessee").
1. DESCRIPTION OF PREMISES. Lessor, in consideration of the
rents to be paid by Lessee and other covenants of Lessee contained herein, does
hereby lease to Lessee the premises described below (the "Premises"):
Suite 100 consisting of 35,179 rentable square feet, located in
a building (the "Building") commonly known as Riverside Commerce Center, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇. ▇▇ ▇▇▇▇▇.
2. TERM. The term of this lease (the "Term") shall be for a
period of seven (7) years, commencing on the 1st day of July, 1999 (the
"Commencement Date"), and ending at midnight on the 30th day of June, 2006 (the
"Expiration Date").
3. RENT. Lessee agrees to pay Lessor, without demand, deduction
or offset, annual rent for the Term of this lease in the amount of Five Hundred
Twenty Five Thousand Nine Hundred Twenty Six and 05/100 Dollars ($525,926.05)
per annum, payable monthly in advance on the Commencement Date and on the first
business day of each and every subsequent month in the amount of Forty Three
Thousand Eight Hundred Twenty Seven and 17/100 Dollars ($43,827.17). If the Term
of this lease shall commence or expire on a day other than the first day of a
calendar month, the rent for any partial month shall be pro-rated. All rent
payments shall be paid to Lessor's Managing Agent at its address specified in
paragraph 31 below, or such other place as Lessor designates in writing.
4. ACCEPTANCE OF PREMISES. Occupancy of the Premises by Lessee
shall constitute its acceptance of same, except for latent defects and
deficiencies specified in writing by Lessee to Lessor within ten (10) days after
Lessee's occupancy, or hidden defects or deficiencies which could not be
detected from a reasonable inspection of the Premises. Lessor will promptly
repair such hidden defects or deficiencies after notice from Lessee, as provided
for herein. Lessee acknowledges that Lessor has not made any warranties or
representations, oral or written, as to the use or fitness of the Premises for
any particular purpose, except for general office use. Lessor shall not be
responsible for obtaining any governmental approvals or permits necessary to
enable Lessee to occupy or use the Premises (other than the certificate of
occupancy and other approvals related to work done by Lessor to construct the
Premises), same being the sole responsibility of Lessee. Lessor shall not be
responsible for obtaining any certificates of occupancy or other approvals
required in connection with construction work done by Lessee or contractors
engaged by Lessee.
5. (a) DELAY IN COMMENCEMENT. If Lessor, due to delay in
construction or for any other reason whatsoever, cannot deliver possession of
the Premises to Lessee on the Commencement Date, this lease shall not be void or
voidable and, except as otherwise provided for herein, Lessor shall not be
liable to Lessee for any loss or damage resulting therefrom, but shall confirm
in writing the actual Commencement Date and Expiration Date of this Lease in a
form substantially similar to Exhibit A. Lessee shall not be responsible for the
payment of any rent prior to the delivery of the Premises by Lessor in
substantial conformity with the final Plans and Specifications for the Premises,
and acceptance of the Premises by local authorities for occupancy by Lessee.
Other terms of this paragraph notwithstanding, if delivery of possession of the
Premises to Lessee is delayed beyond August 1, 1999 due to delay in construction
or for any other reason whatsoever other than a Lessee caused delay, Lessor
shall be liable to Lessee for One Thousand
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Dollars ($1,000.00) for each day delivery is delayed beyond August 1, 1999. If
delivery of possession of the Premises to Lessee is delayed beyond October 1,
1999 due to delay in construction or for any other reason whatsoever other than
a Lessee caused delay, Lessee may at its option, in writing to the Lessor within
ten (10) days thereafter, void this lease. In such an event, cancellation of
the lease by Lessee in this manner shall not be considered an event of default
and Lessee will not be liable for any payment of any amounts whatsoever and
shall be due an immediate refund of any security deposits paid and a return of
any letters of credit posted without any draws therefrom.
(b) EARLY POSSESSION. If Lessee occupies the Premises prior to the
Commencement Date, the Commencement Date shall be considered the date such
occupancy begins and shall not advance the termination date; however, Lessee
shall pay rent for such period.
6. USE AND COMPLIANCE WITH LAW. The Premises shall be used only for
general office purposes, and for no other purpose without Lessor's prior written
consent. General office purposes will be understood to include the use of the
Premises as a telephone collection center and office site. Lessee shall not use
the Premises for any unlawful purpose or so as to constitute a nuisance. Lessee
covenants and agrees to comply with all restrictive covenants and ordinances and
regulations of governmental authorities applicable to the Premises; provided,
however, that Lessee shall not be required to modify the Premises to comply with
any subsequently enacted governmental requirements unless same are applicable
because of Lessee's particular use of the Premises (other than general office
use).
7. SIGNS. Lessee shall not, without the prior written consent of
Lessor and the architectural review committee having jurisdiction over the
Building, place any signs or advertising matter or material on the exterior or
interior of the Building. If Lessor approves any signage or advertising matter
or material, Lessee shall remove same at the termination or expiration of this
lease. It is expressly acknowledged that Lessee desires to place signage upon
the building and that Lessor will approve such signage in its reasonable
discretion.
8. QUIET ENJOYMENT AND COVENANT OF TITLE. Lessor covenants that it
has full right and power to execute this lease and to grant the estate demised
herein, and the Lessee, upon payment of the rents herein reserved and performing
the terms, conditions, and covenants herein contained, shall peacefully and
quietly have, hold, and enjoy the Premises during the full Term of this lease,
and any extension hereof, from all persons claiming through Lessor.
9. LESSOR'S SERVICES. (a) Lessor shall furnish the following
services to Lessee at Lessor's cost on and during each business day.
(i) Daily janitorial service and supplies for the Premises,
Monday through Friday, except on national holidays.
(ii) Heating and air conditioning during the appropriate
seasons at levels similar to those maintained in similar one-story office
buildings during normal business hours (8:00 am. to 10:00 p.m. Monday through
Friday and 9:00 a.m. to 1:00 p.m. Saturday).
(iii) Hot and cold water as required for drinking, cleaning
and lavatory purposes.
(iv) Electricity supplied through the Building's 110-volt 20
amp circuits for lighting purposes and for operation of small business machines
and equipment (e.g., typewriters, adding machines, personal computers and
similar equipment). If Lessee desires dedicated or 220-volt electrical circuits,
or wishes to install electrical equipment which will cause usage of electricity
within the Premises to be above normal electrical usage for general office
space, Lessee shall obtain Lessors written consent prior to installing such
equipment or circuits. Any additional electrical circuits approved shall be
installed by Lessor at Lessee's expense. Lessor may consider, among other
relevant factors, the effects of the electrical load of the Premises upon the
Building's circuits in giving or withholding its consent. Lessor may also
require that Lessee pay periodically the additional direct expense of
electricity supplied through Lessee's special circuits or excess electricity
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usage, including the cost of installing any necessary meters. Notwithstanding
the foregoing, Lessee's electricity to the Premises shall be separately metered
and shall be paid directly by Lessee.
(b) Lessor shall not be liable for the interruption of any of the
above-mentioned services caused by strikes, lockouts, accidents or other causes
beyond the reasonable control of Lessor. Any interruption of service shall never
be deemed an eviction or disturbance of Lessee's use and possession of the
Premises or any part thereof, or render Lessor liable to Lessee for damages, or
relieve Lessee from performance of Lessee's obligation under this lease, unless
the interruption is the result of gross negligence by Lessor. Lessor shall use
its best efforts to restore the interrupted service within a reasonable time
after interruption if the cause of interruption is subject to Lessors control.
(c) Lessor shall also provide exterior maintenance of the Building
and its appurtenant grounds and facilities (the "Project"), including, but not
limited to, parking lot repairs, landscape maintenance, structural repairs and
roof repairs.
(d) Lessor shall make all necessary repairs to the Premises at its
expense, except when the repairs are required as a result of misuse or neglect
by Lessee or by persons under Lessee's control or on the Premises at Lessee's
invitation, in which event, Lessee shall make such repairs at its own expense.
10. OVERTIME HVAC. INTENTIONALLY DELETED
11. ALTERATIONS BY LESSEE. Lessee shall not make any alterations to
the Premises without obtaining Lessors prior written consent, which consent
shall not be unreasonably withheld as to non-structural alterations. Any and all
alterations, additions, or other improvements made by Lessee, with or without
the consent of Lessor, regardless of how attached (except movable trade
fixtures), shall become immediately upon installation and thereafter remain the
property of Lessor, without compensation therefor to Lessee, unless otherwise
agreed in writing by Lessor; provided, however, Lessor shall have the right to
require that Lessee, upon the termination or at the expiration of this lease,
remove any or all such alterations, additions and improvements and restore the
Premises to their original condition, normal wear and tear excepted, unless such
right has been waived in writing by Lessor.
12. USE OF THE PARKING FACILITIES. Lessee and its employees and
customers shall have the non-exclusive right, in common with Lessor, other
tenants of the Building and their respective employees, guests and customers, to
park automobiles in the parking area provided by Lessor, subject to such
reasonable rules and regulations as Lessor may impose from time to time,
including the designation of specific areas in which automobiles of Lessee, its
employees, guests and customers must be parked. Lessee shall be entitled to six
(6) vehicle parking spaces for each 1,000 square feet of rentable space,
unreserved and unassigned, and shall not use more parking spaces then said
number.
13. SUBLEASING AND ASSIGNMENT. Lessee and any approved assignee or
approved subtenant may not assign their rights under this lease or the
applicable sublease, or sublet the whole or any part of the Premises, without
the prior written consent of Lessor, which approval shall not be unreasonably
withheld. Even if Lessor's consent is given, no subletting or assignment shall
release Lessee from any obligation pursuant to this lease or alter the primary
liability and obligation of Lessee to pay the rent and to perform all other
obligations to be performed by Lessee hereunder. Acceptance of rent by Lessor
from an assignee or subtenant who has not been approved by Lessor shall not
waive the default created by failure to obtain Lessor's consent. As a condition
of approving any proposed assignee or subtenant, Lessor may require such
financial and other information concerning the proposed assignee or subtenant
that Lessor deems appropriate. Approval of a proposed sublease or assignment in
any one instance shall not affect Lessor's right to approve all subsequent
assignments and subleases. Lessor shall be furnished with a duplicate
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executed original of all subleases and assignments. If Lessee requests Lessor's
consent of an assignment of Lessee's interest in this lease, Lessor may, at its
option, elect to terminate this lease as of the effective date of the proposed
assignment. If Lessee requests Lessor's consent to a sublease, Lessor may, at
its option, elect to terminate this lease as of the effective date of the
proposed sublease as to the portion of the Premises which Lessee desires to
sublease, and if such option to terminate is elected by Lessor, rent under this
lease shall be adjusted as of the effective date of the partial termination and
Lessee shall pay as additional rent on demand the cost of any demising walls
required to separate the space as to which this lease has been terminated from
the remainder of the Premises.
14. CARE OF PREMISES. Lessee agrees to take good care of the
Premises, and shall not suffer or permit any waste or injury thereto. Lessee
shall pay for all repairs to the Premises necessary due to the acts of Lessee,
its employees, agents, customers or guests, or their use of the Premises. Upon
the expiration or termination of this lease, Lessee shall surrender the Premises
in as good condition as Lessee obtained same on the Commencement Date,
reasonable wear and tear excepted.
15. DAMAGE TO PREMISES. If the Premises shall be damaged by fire,
the elements, unavoidable accident or other casualty, but are not thereby
rendered untenantable in whole or in part, Lessor shall promptly at its expense
cause such damage to be repaired, and rent shall not be abated. If by reason of
such occurrence the Premises shall be rendered partially untenantable, Lessor
shall promptly at its own expense cause the damage to be repaired, and rent
meanwhile shall be abated for the period of untenantability in proportion to the
portion of the Premises rendered untenantable. If by reason of such occurrence
all of the Premises are rendered untenantable, Lessor shall promptly at its
expense cause the damage to be repaired, and rent shall ▇▇▇▇▇ until the Premises
are again tenantable, unless within thirty (30) days after said occurrence
Lessor shall give Lessee written notice that the estimated time necessary to
reconstruct the destroyed Premises is in excess of one hundred twenty (120) days
after the date of said notice and Lessee elects to terminate this lease by
written notice to Lessor given within fifteen (15) days after receipt of
Lessor's notice. If so terminated, this lease and the tenancy hereby created
shall cease as of the date of casualty and all rent shall be abated as of such
date. Lessor shall not be obligated to reconstruct or repair the Building or
Premises except to the extent insurance proceeds have been received with respect
to the event causing the damage. Lessor shall not be required to repair, replace
or insure any property which the Lessee may be entitled to remove from the
Premises. No damages, compensation or claims shall be payable by Lessor for
inconvenience, loss of business or other consequential damages arising from any
casualty, maintenance, repair or restoration of the Premises or Building. All
rent paid in advance shall be apportioned in accordance with the foregoing
provisions as of the date of damage; however, if the damage results wholly or in
part from the fault of Lessee, its agents, contractors, employees or invitees,
Lessee shall not be entitled to termination or any abatement or reduction in
rent.
16. LIABILITY. Lessor and its agents shall not be liable for any
injury to persons or loss or damage to property resulting from any cause other
than the negligence or willful misconduct of Lessor, its agents and employees.
Lessee shall indemnify and save Lessor harmless from all suits, actions,
damages, liability and expense arising from or out of any occurrence in, upon,
at or from the Project or the occupancy or use by Lessee of the Premises, and
occasioned wholly or in part by any act or omission of Lessee, its agents,
contractors, employees, invitees, licensees or visitors. To this end, Lessee
shall at all times during the term of this lease or any renewal thereof carry
with an approved insurance carrier licensed to operate in the state in which the
Premises are located, Comprehensive General Liability Insurance including
Blanket Contractual Liability coverage naming Lessor as an additional named
insured, with limits of liability of not less than $1,000,000 combined single
limit for personal injury and property damage. A duplicate original or agent
certified copy of
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such insurance policy shall be furnished to Lessor upon request. Lessee shall
notify Lessor promptly of any accident or loss in the Premises or the Project or
of any defects therein or in the equipment and fixtures thereof of which Lessee
has knowledge, and the repair of such defects shall be promptly made, as
provided herein.
17. INSPECTION OF PREMISES. Lessor and Lessor's agents shall have
free access during normal business hours to the Premises for the purposes of
inspection, maintenance and repair. Lessor shall have the right to show the
Premises to prospective tenants during the last one hundred eighty (180) days of
the Term of this lease.
18. HAZARDOUS MATERIALS. (a) Without Lessor's prior written consent,
Lessee shall not cause or permit any Hazardous Material to be brought upon, kept
or used in or about the Premises by Lessee, its agents, employees, contractors
or invitees, except for small quantities of such Hazardous Material incidental
to Lessee's business.
(b) Any Hazardous Material permitted on the Premises as provided in
Section 18(a) and all containers therefor, shall be used, kept, stored and
disposed of in a manner that complies with all federal, state and local laws or
regulations applicable to this Hazardous Material.
(c) Lessee shall not discharge, leak or emit, or permit to be
discharged, leaked or emitted, any material into the atmosphere, ground, sewer
system or any body of water, if that material (as is reasonably determined by
the Lessor or any governmental authority) does or may pollute or contaminate the
same or may adversely affect (aa) the health, welfare or safety of persons,
whether located on the Premises or elsewhere, or (bb) the condition, use or
enjoyment of the building or any other real or personal property and which would
result in a violation of applicable environmental laws.
(d) At the commencement of each Lease Year, Lessee shall disclose to
Lessor the names and approximate amounts of all Hazardous Material that Lessee
intends to store, use or dispose of on the Premises in the coming Lease Year. In
addition, at the commencement of each Lease Year (beginning with the second
Lease Year), Lessee shall disclose to Lessor the names and amounts of all
Hazardous Material that to Lessee's knowledge were actually used, stored or
disposed of on the Premises, if those materials were not previously identified
to Lessor at the commencement of the previous Lease Years.
(e) As used herein, the term "Hazardous Material" means (aa) any
"hazardous waste" as defined by the Resource Conservation and Recovery Act of
1976, as amended from time to time, and regulations promulgated thereunder; (bb)
any "hazardous substance" as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
and regulations promulgated thereunder; (cc) any oil, petroleum products and
their by-products, other than those used in automotive or recreational activity,
boats or motorcycles which are stored on the Demised Premises in accordance with
all applicable laws and minor leakage and spills which are, upon written request
of Lessor, promptly cleaned up; and (dd) any substance that is or becomes
regulated by any federal, state, or local governmental authority.
(f) Lessee hereby agrees that it shall be fully liable for all costs
and expenses related to the use, storage and disposal of Hazardous Material kept
on the Premises by the Lessee, and the Lessee shall give immediate notice to the
Lessor of any violation or potential violation of the provisions of Section
18(b). Lessee shall defend, indemnify and hold harmless Lessor and its agents
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs or expenses (including without limitation,
attorneys' and consultants' fees, court costs and litigation expenses) of
whatever kind or nature, known or unknown, contingent or otherwise, arising out
of or in any way related to (aa) the presence, disposal, release or threatened
release of any such Hazardous Material that is on, from or affecting the soil,
water, vegetation, buildings, personal property, persons, animals or otherwise;
(bb) any violation of any laws applicable thereto. The provisions of this
Section 18(f) shall be in addition to any other obligations and liabilities
Lessee may
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have to Lessor at law or in equity and shall survive the transactions
contemplated herein and shall survive the termination of this Lease.
19. INDEMNIFICATION. Except to the extent caused by Lessor's
negligence or breach of any term of this Lease, Lessee hereby agrees to
indemnify and hold Lessor and Lessor's agents and employees harmless from any
and all claims, damages, liabilities or expenses arising out of (aa) Lessee's
use of the Premises or the Building, (bb) any and all claims arising from any
breach or default in the performance of any obligation of Lessee and/or (cc) any
act, omission or negligence of Lessee, its agents or employees. Lessee agrees to
procure and keep in force during the Term hereof a contractual liability
endorsement to its public liability policy, specifically endorsed to cover the
indemnity provision of this section. Except to the extent caused by Lessor's
negligence or breach of any term of this Lease, Lessee further releases Lessor
and Lessor's agents and employees from liability for any damages sustained by
Lessee or any other person claiming by, through or under Lessee due to the
Premises, the Building, or any part thereof or any appurtenances thereto
becoming out of repair, or due to the happening of any accident including, but
not limited to, any damage caused by water, snow, windstorm, tornado, gas,
steam, electrical wiring, sprinkler system plumbing, heating and air
conditioning apparatus and from any acts or omissions of co-tenants or other
occupants of the Building. Lessor and Lessor's agents and employees shall not be
liable for any damage to or loss of Lessee's personal property, inventory,
fixtures or improvements, from any cause whatsoever except the affirmative acts
of negligence of Lessor, and then only to the extent not covered by insurance
required to be obtained by Lessee in accordance with Section 16 hereof.
20. COMPLIANCE WITH LAW. Lessee shall during the Term of this Lease,
at its sole cost and expense, comply with all valid laws, ordinances,
regulations, orders and requirements of any governmental authority which may be
applicable to the Premises or to the use, manner of use or occupancy thereof,
whether or not the same shall interfere with the use or occupancy of the
Premises. Lessee shall give prompt notice to Lessor of any notice it receives of
the violation of any law or requirement of any public authority with respect to
the Premises or use or occupation thereof. Lessee shall also comply with all
rules and regulations attached hereto as Exhibit B and as may be subsequently
applied by Lessor to all tenants of the Building.
21. CONDEMNATION. If all or a part of the Premises sufficient to
render same unusable for Lessee's purposes (in Lessor's reasonable judgement) or
all means of access to the Premises shall be condemned for a period in excess of
ninety (90) days or sold under threat of condemnation, this lease shall
terminate and Lessee shall have no claim against Lessor or to any portion of the
award in condemnation for the value of any unexpired Term of this lease. Lessee
may seek to recover independently compensation from the condemning authority for
moving expenses, the value of any of Lessee's property taken (other than
Lessee's leasehold interest in the Premises) or other compensable loss or
damage. In the event of a temporary taking of ninety (90) days or less, this
lease shall not terminate, but the Term hereof shall be extended by the period
of the taking and the rent shall ▇▇▇▇▇ in proportion to the area taken for the
period of such taking.
22. DEFAULT. (a) If Lessee does not pay any rent or other sum
payable by Lessee pursuant to this lease and such default continues for a period
of ten (10) days after written notice is given to Lessee (provided, however,
that no written notice shall be required if Lessor has previously given written
notice of failure to pay rent during the then current calendar year), or if
Lessee shall fail to perform any other covenant, agreement, or obligation of
Lessee pursuant to this lease and such default continues for thirty (30) days
after written notice thereof is given to Lessee, or if Lessee should become
bankrupt or insolvent or any debtor proceedings are taken by or against Lessee,
or if Lessee vacates or attempts to vacate the Premises, then Lessor shall have
the following rights and remedies:
(i) Lessor may terminate this lease by written notice to
Lessee, in which event
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this lease, all rights of Lessee, and all duties of Lessor shall immediately
cease and terminate, and Lessor may re-enter and take possession of the
Premises, remove all persons and property from the Premises and store such
property in a public warehouse or elsewhere at the cost of, and for the account
of, Lessee and enjoy the Premises free of Lessee's estate pursuant to this
lease, without prejudice, however, to any and all rights of action against
Lessee that Lessor may have for rent, damages, or breach of this lease, in
respect of which Lessee shall remain and continue liable notwithstanding such
termination;
(ii) Lessor shall have the right to re-enter the Premises and
remove all persons and property from the Premises and store such property in a
public warehouse or elsewhere at the cost of, and for the account of Lessee,
without terminating this lease. Lessor shall have the right to take such action
without service of notice except as may be expressly required herein or by
applicable law and without resort to legal process (unless required by law) and
without being deemed guilty of trespass or becoming liable for any loss or
damage which may be occasioned thereby. If Lessor elects to re-enter the
Premises as aforesaid, Lessor may, at any time thereafter, elect to terminate
this lease by giving written notice to Lessee of such election. Whether or not
Lessor elects to re-enter the Premises or takes possession of the Premises
pursuant to legal proceedings or pursuant to any notice required by law, Lessor
may, at its option, re-let the Premises or any portion thereof for the benefit
of Lessee for such Term or Terms (whether shorter or longer than the Term of
this lease) and at such rental and upon such other Terms and conditions as
Lessor, in its sole discretion, deems advisable, and, at the expense of Lessee,
Lessor shall have the right to make such repairs or alterations to the Premises
as Lessor deems necessary in order to re-let same. Provided this lease has not
been terminated by Lessor, upon each such re-letting all rentals actually
received by Lessor from such re-letting applicable to the unexpired Term of this
lease shall be applied as follows: First, to the payment of any costs and
expenses of such re-letting, including costs incurred by Lessor for brokerage
fees, legal fees and alterations and repairs to the Premises; Second, to the
payment of any indebtedness other than rent due hereunder from Lessee; Third, to
payment of any unpaid portion of rent then due. On the scheduled expiration date
of this lease, Lessor shall pay the residue, if any, to Lessee. No such re-entry
or taking of possession of the Premises by Lessor shall be construed or shall
operate as an election by Lessor to terminate this lease unless written notice
of termination is given by Lessor to Lessee, or this lease is terminated by an
order or decree of a court of competent jurisdiction.
(iii) All rent (annual rent and all payment of additional rent
reasonably ascertainable) for the remainder of the then current Term shall
become due and payable, at the option of Lessor; or,
(iv) Lessor may lock up the Premises and preclude Lessee's
access thereto. Lessee grants to Lessor a security interest in all of Lessee's
property located in the Premises, and agrees to execute and deliver such
financing statements and other instruments as may be necessary to perfect such
security interest;
(b) In addition to all remedies specified in this lease, Lessor
shall have all remedies available pursuant to applicable law.
(c) No re-entry, taking possession of, or repair of the Premises by
Lessor, termination of this lease or any other action taken by Lessor as a
result of any default of Lessee shall relieve Lessee of any of its liabilities
or obligations hereunder which arose prior to or by reason of such termination,
whether or not the Premises are re-let.
(d) All remedies of Lessor shall be cumulative. Election by Lessor
to exercise any remedy shall not prevent or be deemed a waiver of Lessor's right
to thereafter exercise any other remedy.
(e) Lessee agrees to pay upon demand all costs, fees and expenses
(including, without limitation, court costs and reasonable attorney's fees)
incurred by Lessor in enforcing this lease.
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23. HOLDING OVER. If Lessee remains in possession of the Premises
after the expiration or termination of the Term of this lease without Lessor's
written consent, such possession shall, at Lessor's option, (a) be a tenancy at
sufferance only, during which tenancy at sufferance annual rent shall be due and
payable at 125% of the annual rent due for the last Term, or (b) result in an
extension of this lease on a month-to-month basis, upon the terms and conditions
applicable to the last year of the preceding Term, except annual rent, which
shall be at 125% of the rent due during the last month of the Term. All other
provisions of this lease shall remain in force during the period of any such
tenancy at sufferance or month-to-month renewal. Acceptance of rent by Lessor
during any holdover tenancy at sufferance shall not waive the default created by
Lessee's holdover or Lessor's option to select the tenancy created by the
holdover.
24. SURRENDER OF PREMISES. Lessee shall surrender the Premises at
the expiration or sooner termination of the lease Term, broom-cleaned, with all
rubbish removed, free of subtenancies, and in good condition and repair,
reasonable wear and tear excepted. Lessee shall deliver all keys to Lessor or
Lessor's agent.
25. INFORMATION CONCERNING LESSEE. Lessee shall furnish within
fifteen (15) days after request from Lessor such current information concerning
the financial condition of Lessee as Lessor may reasonably require up to twice
in any 12 month period. Such financial information shall include (but is not
necessarily limited to) a financial statement dated not more than twelve (12)
months prior to Lessors request. Such financial statement shall be prepared in
accordance with generally accepted accounting principles and annually certified
by a certified public accountant. A general partner or officer of Lessee shall
furnish a certification to Lessor to the effect that there either has or has not
been any material adverse change in the financial condition of Lessee since the
date of the financial statement submitted, and if such certification states that
there has been a material adverse change, furnishing such details concerning
same as Lessor may request.
26. AUTHORITY OF LESSEE. Lessee shall furnish to Lessor within
fifteen (15) days after request from Lessor such corporate resolutions,
certificates of incumbency, partnership resolutions, partnership agreements.
legal opinions or other information as Lessor may reasonably request in order to
confirm that the execution and delivery of this lease has been duly authorized
by Lessee and that the person(s) executing this lease on behalf of Lessee were
duly authorized to do so. All such corporate or partnership resolutions,
certificates or agreements shall be certified as being duly adopted and/or in
full force and effect, without amendment, by an appropriate officer or partner
of Lessee.
27. LETTER OF CREDIT. As security for Lessee's obligations under
Paragraph 3 of this Lease, Lessee shall, upon execution and delivery of this
Lease, deliver to Lessor a clean irrevocable Letter of Credit (the "Letter") in
the amount of $500,000.00, which Letter shall be issued by a major commercial
bank (the "Bank") reasonably acceptable to Lessor, which Letter shall be
transferable and shall specify that multiple draws are permitted, and upon which
Lessor may draw by presentation of a sight draft accompanied by a certificate
executed by Lessor stating: "We certify that Portfolio Recovery Associates, LLC
is in default pursuant to the terms of Paragraph 3 of its Lease with Riverside
Investors, L.C., or its successor in interest and the amount drawn hereunder
represents the amount required to cure such default." The Letter shall either
(x) expire upon the achievement by Lessee of gross revenues (cash collections)
in the prior 12 months of $15,000,000 or more, and pre-tax operating cash flow
of $7,500,000 or more (pre-tax operating cash flow will be defined as cash
collections as designated in the footnotes to Lessee's audited financial
statements, less all operating expenses, adding back depreciation and
amortization, exclusive of taxes and interest expense, as all of these items
appear in Lessees audited financial statements), or (y) be renewed periodically
so that the original Letter or a replacement thereof shall be in full force and
effect throughout the term of this Lease. Lessee shall deliver to Lessor any
replacement Letters not less than thirty (30) days prior to the expiration of
the then current Letter. If Lessee shall fail so to
9
deliver any replacement Letter, then Lessor shall be entitled to draw upon the
existing Letter. If Lessor shall draw upon any such Letter as a result of the
failure of Lessee to perform any of its obligations under Paragraph 3 of this
Lease or its obligations under this Section, Lessee shall immediately deliver to
Lessor an additional Letter in the amount so drawn by Lessor, and otherwise on
terms identical to the Letter. If the Bank shall become or be declared insolvent
or be liquidated or reorganized or shall be subject to any provision of any
bankruptcy law or code as then in effect or if the Letter shall cease to be in
full force or effect (all collectively, a "Failure") then the date on which any
of the foregoing shall occur shall be deemed to be the expiration of the Letter,
whereupon Lessee shall immediately deliver a replacement Letter from another
Bank. For purposes of Section 22, if Lessee shall fail to deliver a replacement
Letter as aforesaid within ten (10) days after notice from Lessor of the
occurrence of a Failure, such event shall be deemed a default by Lessee in the
payment of rent.
Notwithstanding the foregoing, the Letter shall not be less than (i)
$500,000 during the first year of the Term and (ii) upon achievement of the
foregoing release criteria, $250,000 during the second year of the Term.
28. RULES AND REGULATIONS. The rules and regulations attached to
this lease as Exhibit B shall be and are hereby made a part of this lease.
Lessee, its employees, customers and guests shall perform and abide by such
rules and regulations, and any amendments or additions to such rules and
regulations as may be made from time to time by Lessor.
29. SUBORDINATION. This lease is subject and subordinate to all
security liens, mortgages, deeds of trust and related financing instruments
which may now or hereafter affect the Premises or the Project, and to all
renewals, modifications, consolidations, replacement, amendments and extensions
thereof, unless Lessor or any lender secured by a mortgage, deed of trust or
similar security instrument elects to make this lease superior to same, which it
may do at its option. Lessee and Lessor shall execute within ten (10) days after
request from the other party, a subordination, non-disturbance and attornment
agreement in a form reasonably acceptable to Lessor and its lender. Lessee
hereby irrevocably appoints Lessor its attorney in fact to execute and deliver
any such instrument on behalf of Lessee, if Lessee fails or refuses to execute
or deliver same as required hereby. Lessee shall also execute within ten (10)
days after request an agreement with any lender pursuant to which Lessee agrees
to give such lender notice of any default by Lessor pursuant to this lease,
agrees to accept performance by such lender of appropriate curative action, and
agrees to give such lender a minimum period of sixty (60) days after Lessee's
notice to such lender for the lender to cure Lessor's default prior to Lessee
terminating this lease due to Lessor's default. Lessee hereby irrevocably
appoints Lessor its attorney in fact to execute and deliver any such instruments
on behalf of Lessee, if Lessee fails or refuses to execute or deliver same as
required hereby.
30. ESTOPPEL STATEMENT. Within ten (10) days after request therefor
by Lessor, Lessee agrees to deliver in recordable form a certificate prepared by
Lessor to any proposed mortgagee or purchaser of the Premises or to Lessor
certifying (if such is the case) that this lease is in full force and effect,
that there are no defense or offsets thereto, or stating those claimed by
Lessee, and such other facts related to this lease, the Premises or Lessee as
Lessor may request. If Lessee does not execute and return such certificate as
required above, Lessee hereby irrevocably appoints Lessor as its attorney in
fact to execute such certificate on behalf of Lessee.
31. NOTICES. Any notices required pursuant to this lease shall be in
writing. Addresses to which notices shall be sent are as follows:
TO LESSEE: Portfolio Recovery Associates, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
10
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
TO LESSOR: Riverside Investors, L.C.
c/▇ ▇▇▇▇▇▇▇▇ Sigma Commercial Real Estate, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
TO MANAGING AGENT: ▇▇▇▇▇▇▇▇ Sigma Commercial Real Estate, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Either party may at any time designate by written notice to the other a change
of address for notices. All notices, demands and requests which are addressed as
provided above and are (i) deposited in the United States mail, registered or
certified, postage prepaid, return receipt requested, or (ii) accepted for
overnight delivery by Federal Express, ▇▇▇▇▇, Purolator, Airborne or Express
Mail, delivery charges prepaid or with delivery not conditioned upon payment of
charges, shall be deemed to have been given for all purposes hereunder at the
time such notice, demand or request shall be deposited in the United States mail
or accepted for delivery by the applicable overnight delivery service.
32. PAST DUE RENTS. Lessee recognizes and acknowledges that if rent
payments are not received when due, Lessor will suffer damages and additional
expense thereby and Lessee therefore agrees that a late charge equal to $500
(five hundred dollars) may be assessed by Lessor as additional rental if Lessor
has not received any monthly installment of annual rent or other rent or
additional rent due pursuant to this lease within five (5) days after its due
date. If rent payments are not received within 10 days of when due, and if a
minimum of 24 hour prior written or verbal notice is given by Lessor to Lessee,
the total late charge for that month's rent payment will be increased to 10%. If
any check given in payment of rent is not honored when due, Lessor may require
that subsequent rent payments be made by certified or cashier's check.
33. BUILDING NAME. Lessor reserves the right to change at any time
the name, address or designation of the Building without any liability to
Lessee.
34. RIGHT TO RELOCATE. INTENTIONALLY DELETED
35. RENT TAXES. INTENTIONALLY DELETED
36. AREA OF THE PREMISES. The rentable area of the Premises shall be
measured using the American National Standard Method of Measuring Floor Area in
Office Buildings, ANSI 265.1-1996, published by the Building Owners and Managers
Association International.
37. TAXES ATTRIBUTABLE TO LESSEE'S IMPROVEMENTS. INTENTIONALLY
DELETED
38. ELECTRICITY STOP. INTENTIONALLY DELETED
39. DEFINITION OF LEASE YEAR. The first lease year is the period
beginning on the Commencement Date and ending one (1) year after the last day of
the month preceding the month in which the Commencement Date occurs. The second
lease year shall begin on the day after the end of the first lease year, and
shall end one (1) year after the end of the first lease year. The third and
subsequent lease years shall begin and end on the appropriate anniversary dates
of the beginning and ending dates of the second lease year.
40. SUCCESSOR AND ASSIGNS. This lease shall bind and inure to the
benefits of the successors, assigns, heirs, executors, administrators and legal
representatives of the parties hereto. This provision shall not give Lessee by
implication any right to assign its rights or interest pursuant to this lease.
The provisions of paragraph 13 above govern Lessee's right to assign and sublet.
11
41. RELATIONSHIP OF LESSOR AND LESSEE. It is expressly understood
and agreed that Lessor shall not be construed as or held to be a partner, joint
venturer or associate of Lessee, it being expressly understood and agreed that
the relationship between the parties hereto is and shall at all times remain
that of landlord and tenant.
42. LIMITATION OF LESSOR'S OBLIGATION. The obligations of Lessor
hereunder shall be binding only upon its interest in the Project and the
proceeds of any insurance maintained by Lessor therefor, and not upon any other
assets of Lessor or any partner of Lessor personally. Lessee agrees to look
solely to the equity of Lessor in the Project, and Lessor's insurer for the
satisfaction of any remedies of Lessee or judgement obtained by Lessee as a
result of a breach by Lessor of this lease. Such exculpation of liability shall
be absolute and without any exception whatsoever.
43. PERFORMANCE BY LESSOR AND LESSEE. If, after notice to Lessor as
provided herein, Lessor fails to perform any of its obligations hereunder within
the applicable time frame, Lessee may, at its option (but shall be under no
obligation to do so), perform the obligation of the Lessor which Lessor has
failed to perform. Any amounts advanced in so performing obligations of Lessor
shall reduce by the amount so advanced, the subsequent month's rent due from the
Lessee to the Lessor; provided however, that if Lessee should make any offsets,
Lessee agrees that in all events it shall continue to pay not less than eighty
percent (80%) of the applicable monthly rent. To the extent that Lessee cannot
offset in full in any particular month all amounts due to Lessee as a result of
this provision, Lessee may continue to offset in subsequent months until Lessee
is reimbursed in full.
If Lessee fails to perform any of its obligations hereunder, Lessor may,
at its option (but shall be under no obligation to do so), perform the
obligation of Lessee which Lessee has failed to perform. Any amounts advanced in
so performing obligations of Lessee shall bear interest at the rate of eighteen
(18%) percent per annum (or, if lower, the highest lawful rate) from the date
expended until repaid, shall be due and payable on demand, and failure to pay on
demand shall constitute an independent event of default hereunder. Payment or
performance by Lessor of the obligations of Lessee shall not waive or cure any
breach occasioned by Lessee's failure or refusal to pay or perform same.
44. WAIVER. Delay in asserting or prosecuting any right, claim or
cause of action accruing hereunder is not and shall not be deemed to be a waiver
of, and shall not prejudice the same, or any other right, claim or cause of
action accruing hereunder at any time. Waiver of any right, claim or cause of
action at any time shall not prejudice any other right, claim or cause of action
which Lessor may have or which shall thereafter accrue, and shall not waive
Lessors right to assert any other right, claim or course of action. Acceptance
by Lessor of rent from Lessee during the existence of any default shall not
constitute a waiver of such default, or a waiver of the right of Lessor to
insist upon Lessee's strict compliance with the terms of this lease.
45. PARAGRAPH HEADINGS. The paragraph headings of this lease are
used for convenience only, and are in no way to be construed as a part of this
lease or as a limitation on the scope of the particular provision to which they
refer.
46. INVALIDITY. If any provision of this lease shall be held to be
invalid, whether generally or as to specific facts or circumstances, the same
shall not affect in any respect whatsoever the validity of the remainder of this
lease, which shall continue in full force and effect. Any provision held invalid
as to any particular facts and circumstances shall remain in full force and
effect as to all other facts and circumstances.
47. GOVERNING LAW. This lease and the rights of the parties
hereunder shall be interpreted in accordance with the laws of the state in which
the Project is located.
48. BROKERS. Lessor warrants and represents that Lessor has not
obtained the services of any real estate broker other than ▇▇▇▇▇▇▇▇ Sigma
Commercial Real Estate. Inc.
12
("Agent") in negotiating or consummating this Lease. Lessee warrants and
represents that no agent, broker or finder was involved on its behalf in
negotiating or consummating this lease. Lessee agrees to indemnify and hold
Lessor harmless from any and all claims for brokerage commissions arising out of
any communications or negotiations between Lessee and any broker (other than
Agent) regarding this lease.
49. AGENCY AND OWNERSHIP DISCLOSURE.
(a) Lessor and Lessee each acknowledge that, in connection with this
lease:
INITIAL ONE
THE AGENT IS REPRESENTING THE LESSOR EXCLUSIVELY
------
OR
X THE AGENT IS REPRESENTING THE LESSOR AND LESSEE, AND
------ LESSOR AND LESSEE EXPRESSLY CONSENT TO THE AGENT ACTING
AS A DUAL REPRESENTATIVE BY THEIR EXECUTION OF THIS
LEASE AND THEIR REVIEW AND EXECUTION OF THE ATTACHED
DISCLOSURE OF DUAL REPRESENTATION).
(b) Initial one or both, if applicable:
One or more principals of Lessor are licensed Virginia
------ real estate brokers or salespersons.
and/or
X Agent and/or one or more brokers or salespersons of
------ Agent has an ownership interest in Lessor.
50. ENTIRE AGREEMENT. This lease together with the attached Exhibits
and Riders referred to herein and specified below, contains the entire agreement
of the parties related to this transaction, supersedes all prior negotiations
and agreements and represents their final and complete understanding. This lease
may not be modified orally, through course of performance or in any manner other
than by agreement in writing, signed by the parties hereto.
51. EXHIBITS AND ADDITIONAL PROVISIONS. The Exhibits designated as
A. B. C & D, and Rider designated as No. 1 which are attached hereto and are a
part of this lease, and are incorporated herein as if set forth in full.
13
IN WITNESS WHEREOF, this lease has been duly executed by the parties
hereto as of the date and year first above written.
LESSOR: RIVERSIDE INVESTORS, L.C.,
A VIRGINIA LIMITED LIABILITY COMPANY
By: ▇▇▇▇▇▇▇▇ Development Group, Inc.
Its: Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Senior Vice President
LESSEE: PORTFOLIO RECOVERY ASSOCIATES, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Its: President
-----------------------------------
14
RIDER NO. 1
DATED FEBRUARY , 1999
BY AND BETWEEN
RIVERSIDE INVESTORS, L.C. ("LESSOR")
AND
PORTFOLIO RECOVERY ASSOCIATES, LLC ("LESSEE")
The following paragraphs are made a part of this Lease, and in the event
of any inconsistency between the following paragraphs and any other terms of
this Lease, the following paragraphs shall control:
1. ESCALATION. The rent, as described in the Lease, shall increase three
percent (3%) per annum on the anniversary of the Commencement Date if such date
is the first day of the month. If the term of this Lease shall commence on a day
other than the first day of a calendar month, the increase shall occur on the
first day of the month immediately following the month of the Commencement Date.
2. RENT ABATEMENT. Provided this Lease is in full force and effect and no
default by Lessee has occurred hereunder, Lessor shall provide Lessee with a
rent abatement in the amount of $46.215 (the "Rent Abatement"). Such Rent
Abatement shall be taken in six (6) equal monthly installments of $7,702.50 per
month for the first six (6) months of the Lease Term. The Rent Abatement is
based on 5,688 square feet at $16.25 per square foot. All other provisions of
the Lease shall be in effect during the Abatement Months. The entire rent
otherwise due and payable for the Abatement Months shall become immediately due
and payable upon the occurrence of a default under the Lease.
3. RENEWAL OPTION. Provided this Lease is in full force and effect and no
default by Lessee has occurred hereunder, Lessee shall have the right to renew
this Lease for one (1) five (5) year term upon providing Lessor with written
notice one hundred eighty (180) days prior to the current expiration. The
renewal term shall be subject to the terms and conditions set forth in this
Lease and the rent shall be at the lesser of the then escalated rent or the fair
market value at the time of the renewal. Lessee's rights as to this option are
personal to the original Lessee executing the Lease and may not be exercised or
be assigned, voluntarily, by or to any person or entity other than the original
Lessee.
Lessor shall provide written notice of Lessor's determination of the fair market
rental rate not later than ten (10) days after the last day upon which Lessee
may timely exercise the right giving rise to the necessity for such fair market
rental rate determination. Lessee shall have ten (10) days ("Lessee's Review
Period") after receipt of Lessor's notice of the fair market rental rate within
which to accept such fair market rental rate or to reasonably object thereto in
writing. Failure of Lessee
15
to so object to the fair market rental rate submitted by Lessor in writing
within Lessee's Review Period shall conclusively be deemed Lessee's approval and
acceptable thereof. In the event Lessee reasonably objects to the fair market
rental rate submitted by Lessor within Lessee's Review Period, Lessor and Lessee
shall attempt in good faith to agree upon such fair market rental rate within
fifteen (15) days following Lessee's Review Period (the "Outside Agreement
Date"). If Lessee and Lessor do no agree upon a fair market rental rate by the
Outside Agreement Date, then each party's determination shall be submitted to
appraisal in accordance with the provisions that follow.
Lessor and Lessee shall, at its own expense, appoint one licensed Virginia real
estate broker ("Broker") to determine market rental rate of the Premises. Within
thirty (30) days of the Outside Agreement Date, each Broker shall submit its
appraisal. If the difference in the two appraisals does not exceed ten percent
(10%) of the rental rate then in effect, "Fair Market Value" shall be the
average of the two appraisals.
If the difference between the two appraisals shall exceed ten percent (10%) of
the rental rate then in effect, then the two Brokers shall, within ten (10)
days, appoint a third licensed real estate Broker to perform a third appraisal,
to be performed within fifteen (15) days thereafter. The cost of the third
appraisal shall be shared equally by the Lessor and Lessee.
In the event that the third appraisal is neither (i) more than ten percent (10%)
greater than the higher of the two previous appraisals, nor (ii) more than ten
percent (10%) less than the lower of the two previous appraisals, the third
appraisal shall be deemed to be "Fair Market Value". In the event that the third
appraisal is more than ten percent (10%) greater than the higher of the two
previous appraisals, then "Fair Market Value" shall be the higher of the two
previous appraisals. In the event the third appraisal is more than ten percent
(10%) less than the lower of the two previous appraisals, "Fair Market Value"
shall be the lower of the two previous appraisals.
4. RIGHT OF FIRST REFUSAL. Provided this Lease is in full force and effect
and no default by Lessee has occurred hereunder, Lessee shall have the right of
first refusal to lease contiguous space (the "Space"), excluding space initially
teased to Maersk Lines, Ltd. or affiliates outlined on Exhibit D in accordance
with the provisions set forth below, as such Space becomes available to lease to
third parties. If Lessor receives a bona fide offer (the "Offer") from a third
party to lease the Space, and the Offer is acceptable to Lessor, Lessor, prior
to acceptance of the Offer, shall provide Lessee with the terms of the Offer in
writing. Lessee must deliver written notice to Lessor within five (5) business
days after receipt of such written terms of the Offer whether Lessee intends to
lease the Space. Lessee's failure to notify Lessor within such time shall be
deemed a waiver of Lessee's right to lease such Space. If Lessee timely notifies
Lessor that it desires to lease the Space covered by the Offer, Lessor shall
thereupon lease the Space to Lessee (and Lessee shall accept such Space) upon
the terms and conditions as contained in this Lease except for any terms
specified in the Offer which differ from the terms of this Lease, in which case
the terms of the Offer shall govern. Notwithstanding the foregoing, if Lessee
exercises its right to lease the Space within the first two years of the Term,
Lessor shall lease the Space to Lessee upon the terms and conditions as
contained in this Lease except that the improvement allowance shall be prorated
based on the then-remaining term of the Lease. if Lessee exercises its right to
lease the Space, the parties shall promptly thereafter execute an amendment to
the Lease to include the Space and to document the lease terms thereof. If
Lessee fails to accept the Offer, Lessor may at any time thereafter lease such
Space to any party upon any terms Lessor deems appropriate. Lessee's rights
described in this provision are personal to the original Lessee executing the
Lease and may not be exercised or be assigned voluntarily or involuntarily, by
or to any person or entity other than the original Lessee.
16
5. TENANT IMPROVEMENTS. Lessor shall provide Lessee with an allowance of
Three Hundred Forty Seven Thousand Five Hundred and 00/100 Dollars ($351,790.00)
("Improvement Allowance") for tenant improvements to be constructed in
accordance with the Work Letter Agreement (Exhibit C) attached hereto and
incorporated herein by reference. All costs in excess of the Improvement
Allowance shall be at Lessee's cost.
17