Exhibit 10-W
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT, dated as of October 20,1998, is entered into by and between SAN DIEGO DEVELOPMENT #1, LLC, a Colorado limited liability company, having an office at 4582 South Ulster Street Parkway, Denver, Suite 403, CO 80237 ("Landlord") and ADVANTA MORTGAGE CORP. USA, a Delaware corporation, having an office at 200 Tournament Drive, Suite 103, Horsham, PA 19044 ("Tenant").
Recitals:
i. Landlord and Tenant entered into a written lease agreement, dated August 27, 1997 (the "Lease"). (Initially capitalized terms not otherwise defined herein have the same meaning as in the Lease.)
ii. Landlord and Tenant desire to amend the Lease in the manner and form hereinafter set forth.
C. Advanta Corp., a Delaware corporation ("Guarantor") is the guarantor of Tenant's obligations under the Lease by the terms of a Corporate Guaranty (the "Guaranty").
NOW, THEREFORE, for good and valuable consideration, Landlord and Tenant hereby agree as follows:
a. As provided above, the parties acknowledge that the sole tenant under the Lease is Advanta Mortgage Corp. USA and that the references on page 1 of the Lease to "ADVANTA CORP., a Delaware corporation" and " collectively" are typographical errors and are hereby deleted.
b. Landlord has delivered all floors of the Leased Premises Tenant Ready and Substantial Completion has occurred and, notwithstanding anything to the contrary set forth in the Lease, the Rent Commencement Date shall mean October 15, 1998. Upon the execution hereof, Tenant shall pay to Landlord $79,046.19 attributable to the Minimum Rent for the period October 15 through October 31, 1998; no late interest charges shall be applicable to Tenant's payment of such installment of Minimum Rent. Tenant has not exercised any right to
2 terminate the Lease under Section 2(e) and has no further rights to terminate the Lease under Section 2(e); Landlord has no obligation to pay Tenant's Holdover Costs under the provisions of Section 2(e).
c. The addresses of Landlord and Tenant under Section 42 are hereby amended by deletion in their entirety and substitution of the following in lieu thereof:
if intended for Tenant after occupancy:
President
Advanta Mortgage Corp. USA
Welsh & McKean Roads
Springhouse, PA 19477
FAX NO. (215) 323-4844
with a copy to:
General Counsel
Advanta Mortgage Corp. USA
Welsh & McKean Roads
Springhouse, PA 19477
FAX NO. (215) 444-5915
with a copy to:
Vice President, Advanta Corporate Services
200 Tournament Drive
Horsham, PA 19044
FAX NO. (215) 674-1442
if intended for Landlord:
San Diego Development #1, LLC
c/o Miller Global-Pauls
3950 Lewiston Street
Aurora, CO 80011
FAX NO. (303) 371-1465
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with a copy to:
Lawrence J. Donovan, Jr.
Isaacson Rosenbaum Woods & Levy, PC
633 Seventeenth Street, Suite 2200
Denver, CO 80202
FAX NO. (303) 292-3152
d. Section 43(b) is hereby amended by deletion of subsections (1) and (2) and substitution of the following in lieu thereof:
"(1) (i) Without demand or notice, to reenter and take possession of the Leased Premises or any part thereof and repossess the same as of Landlord's former estate and expel Tenant and those claiming through or under Tenant and remove the effects of both or either, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of rent or preceding breach of covenants or conditions. Should Landlord elect to reenter, as provided in this subparagraph (1), or should Landlord take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Landlord may, from time to time, without terminating this Lease, relet the Leased Premises or any part thereof, either alone or in conjunction with other portions of the Building of which the Leased Premises are a part, in Landlord's or Tenant's name but for the account of Tenant, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such commercially reasonable conditions and upon such other terms (which may include concessions of free rent and alteration and repair of the Leased Premises) as Landlord, in its discretion, may determine and Landlord may collect and receive the rents therefor, which rights include the rights of Landlord under Section 1951.4 of the California Civil Code. In the event that Landlord elects to avail itself of the remedy provided by this subparagraph (1), Landlord shall not unreasonably withhold its consent to an assignment or subletting of the Leased Premises subject to the reasonable standards for Landlord's consent as are contained in this Lease. In addition, in the event Tenant has entered into a sublease which is valid under the terms of this Lease, Landlord may also, at its option, cause Tenant to assign to Landlord the interest of Tenant under said sublease, including, but not limited to, Tenant's right to payment of rent as it becomes due. Landlord shall in no way be responsible or liable for any failure to relet the Leased Premises, or any part thereof, or for any failure to collect any rent due upon such reletting. No such reentry or taking possession of the Leased Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of such intention be given to Tenant. No notice from Landlord hereunder or under a forcible entry and detainer statute or sim-
4
ilar law shall constitute an election by Landlord to terminate this Lease unless such notice specifically so states. Landlord reserves the right following any such reentry and/or reletting to exercise its right to terminate this Lease by giving Tenant such written notice, in which event the Lease will terminate as specified in said notice.
(ii) If Landlord elects to take possession of the Leased Premises as provided in this subparagraph (1) without terminating the Lease, Tenant shall pay to Landlord (a) the rent and other sums as herein provided, which would be payable hereunder if such repossession had not occurred, less (b) the net proceeds, if any, of any reletting of the Leased Premises after deducting all of Landlord's commercially reasonable expenses incurred in connection with such reletting, including, but without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys' fees, expenses of employees, alteration, remodeling, and repair costs and expenses of preparation for such reletting. If, in connection with any reletting, the new lease term extends beyond the existing Term or the premises covered thereby include other premises not part of the Leased Premises, a fair apportionment of the rent received from such reletting and the expenses incurred in connection therewith, as provided aforesaid, will be made in determining the net proceeds received from such reletting. In addition, in determining the net proceeds from such reletting, any rent concessions will be apportioned over the term of the new lease. Tenant shall pay such amounts to Landlord monthly on the days on which Minimum Rent and Additional Rent and all other amounts owing hereunder would have been payable if possession had not been retaken and Landlord shall be entitled to receive the same from Tenant on each such day; or
(2) To give Tenant written notice of intention to terminate this Lease on the date of such given notice or on any later date specified therein and, on the date specified in such notice, Tenant's right to possession of the Leased Premises shall cease and the Lease shall thereupon be terminated, except as to Tenant's liability hereunder as hereinafter provided, as if the expiration of the term fixed in such notice were the end of the Term herein originally demised. In the event this Lease is terminated pursuant to the provisions of this subparagraph (2), Tenant shall remain liable to Landlord for, and Landlord shall have the right to recover from Tenant, an amount equal to (i) the worth at the time of the award of the unpaid Minimum Rent and Additional Rent which had been earned at the time of termination, (ii) the worth at the time of award of the amount by which the unpaid Minimum Rent and Additional Rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; (iii) the worth at the time of the award by which the unpaid Minimum Rent and Additional Rent for the balance of the Term after the time of the award exceeds the amount of such rental loss that Tenant proves could 5 be reasonably avoided; and (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including, but not limited to, the cost of recovering possession of the Leased Premises, commissions and other expenses of reletting, including necessary repair, demolition and renovation of the Leased Premises to the condition required to be in at the expiration of the Term, the cost of rectifying any damage to the Leased Premises occasioned by the act or omission of Tenant, reasonable attorneys fees and any other reasonable costs; and (v) at Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by law. "Worth at the time of award" as used in clauses (i) and (ii) above, shall be computed at the rate provided in Paragraph 4(c) above. As used in clause (iii) above, "worth at the time of award" shall be computed by discounting the amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus 1%."
e. If there is any conflict between the terms of this Amendment and the terms of the Lease, the terms of this Amendment govern. The Lease as hereby amended is in full force and effect, is hereby ratified and affirmed by the parties, and is binding upon the parties in accordance with its terms.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this First Amendment effective as of August 27, 1997, having executed this Lease on the dates set forth in the following notarizations. This First Amendment may be executed in counterparts, each of which (or any combination of which) when signed by all of the parties shall be deemed an original, but all of which when taken together shall constitute but one agreement. Any one or more of such duplicate signature pages may be removed from any one or more of such counterparts and annexed to other counterparts and duplicate signature pages to form a completely executed original Lease.
LANDLORD:
SAN DIEGO DEVELOPMENT #1, LLC, a Colorado
limited liability company
By: SD 1, LLC, a Colorado limited liability company,
Member
By: The Pauls Corporation, LLC, a Colorado
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limited liability company, Its Manager and
Member
By: /s/ William B. Pauls
William B. Pauls, Manager
By: GE Investment Realty Partners III
Limited Partnership, a Delaware
limited partnership, Member
By: /s/ Bradford Barrett
By: MGA Real Estate Associates, LLLP, a Colorado
limited liability limited partnership, Member
By: /s/ Gregory Pohle
Authorized Signatory
7 STATE OF COLORADO )
) SS. CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 25 day of January, 1999, by William B. Pauls, as Manager of The Pauls Corporation, LLC, a Colorado limited liability company, as Manager and Member of SD #1, LLC, a Colorado limited liability company, a Member of San Diego Development #1, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires: July 31, 2001
----------------------
/s/ Virginia H. Lucky
-----------------------
Notary Public
STATE OF CALIFORNIA )
)SS. COUNTY OF LOS ANGELES )
The foregoing instrument was acknowledged before me this 27th day of January, 1999, by B. Bradford Barrett, as President of GE Investment Realty Partners III Limited Partnership, a Delaware limited partnership, a Member of SD #1, LLC, a Colorado limited liability company, a Member of San Diego Development #1, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires: November 6th, 1999
------------------------
/s/ Laura Haver
------------------------
Notary Public
STATE OF COLORADO )
)SS.
CITY AND COUNTY OF DENVER )
[seal] LAURA HAVER
Commission #1076795
Notary Public - California
Los Angeles County
My Comm. Expires Nov. 6, 1999
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The foregoing instrument was acknowledged before me this 5th day of February, 1999, by Greg Poule as authorized signatory of MGA Real Estate Associates, LLLP, a Colorado limited liability limited partnership, a member of San Diego Development #1, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires: 6/28/2001
/s/ Barbara A. Stephenson
-------------------------------------
Notary Public
signatures and notarizations continued on next page
[SEAL] 9
TENANT:
ADVANTA MORTGAGE CORP. USA,
a Delaware corporation
By: /s/ John J. Crowe, Jr.
------------------------------------ - ------------
Title: Vice President
---------------------------------- - ------------
[Corporate Seal] Attest: /s/ Michele A. Stevenson
-----------------------------------------
Assistant Secretary
STATE OF PENNSYLVANIA )
: ss. COUNTY OF MONTGOMERY )
On this the 13th day of January, 1999, before me the subscriber, a notary public in and for the Commonwealth of Pennsylvania, personally appeared John J. Crowe, Jr., who acknowledged himself to be the Vice President of ADVANTA MORTGAGE CORP. USA, a Delaware corporation, and that he as such Vice President, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the corporation by himself as Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
[Notary Seal] /s/ Patricia D. Kelly - -------------------- ---------------------------------------
Notary Public
My Commission Expires: - -------------------- ------------
[NOTARIAL SEAL
PATRICIA D. KELLY, Notary Public
Lower Gwynedd Twp., Montgomery Co.
My Commission Expires Aug. 27, 2001] 10 The undersigned, as "Guarantor" under that "Corporate Guaranty" entered into as of August 27, 1997, hereby consents to the terms of the Guaranty and acknowledges and agrees that Guarantor shall guaranty the Lease as amended by the First Amendment in accordance with the terms of the Guaranty.
ADVANTA CORP.
By: /s/ Christopher S. Derganc
------------------------------
Title: SVP
-----------------------------
[Corporate Seal] Attest: /s/ Susan Giusti
-----------------------------
Assistant Secretary
STATE OF PENNSYLVANIA )
: ss. COUNTY OF MONTGOMERY )
On this the 13th day of January, 1999, before me the subscriber, a notary public in and for the Commonwealth of Pennsylvania, personally appeared Christopher S. Derganc, who acknowledged himself to be the Sr. V.P. of ADVANTA CORP., a Delaware corporation, and that he as such Sr. V.P., being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the corporation by himself as Sr. Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
[Notarial Seal] /s/ Patricia D. Kelly
------------------------------
Notary Public
My Commission Expires:
--------
- -------------- [NOTARIAL SEAL
PATRICIA D. KELLY, Notary Public
Lower Gwynedd Twp., Montgomery, CO.
My Commission Expires Aug. 27, 2001]
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LEASE
between
SAN DIEGO DEVELOPMENT #1, LLC,
a Colorado limited liability company, Landlord
and
ADVANTA MORTGAGE CORP. USA,
a Delaware corporation, Tenant
12 TABLE OF CONTENTS
Paragraph Caption Page 1. Leased Premises ......................................... 1
2. Term; Rent Commencement Date; Conditions Precedent ...... 2
3. Options to Extend ....................................... 4
4. Minimum Rent ............................................ 4
5. Assessments Under Declaration ........................... 6
6. Real Estate Taxes ....................................... 7
7. Plans and Specifications ................................ 9
8. Construction; Landlord's Work; Landlord's Improvements .. 11
9. Timing of Landlord's Work ............................... 11
10. Landlord's .............................................. 12
11. Landlord's Financial Condition .......................... 12
12. Tenant's Work ........................................... 12
13. Landlord's Contribution for Tenant's Work ............... 13
14. Manner of Tenant's Work ................................. 13
15. Construction Cooperation ................................ 14
16. Landlord Delay; Tenant Delay/Governmental Inducements ... 14
17. Use and Occupancy of Leased Premises .................... 14
18. Hazardous Materials ..................................... 14
19. Tenant's Signs .......................................... 15
20. Intentionally Omitted ................................... 15
21. Utilities ............................................... 15
i 13 22. Maintenance and Repair ................................................ 16
23. Alterations ........................................................... 17
24. Tenant's Trade Fixtures ............................................... 20
25. Surrender of Leased Premises .......................................... 20
26. Property in the Leased Premises ....................................... 21
27. Landlord's Access to Leased Premises .................................. 21
28. Zoning, Land Use Regulations, Utilities and Compliance with Laws,
Ordinances, and Requirements of Public Authorities .................... 21
29. Assignment and Subletting ............................................. 23
30. Holdover .............................................................. 24
31. Indemnification of Landlord and Tenant ................................ 25
32. Liability Insurance ................................................... 25
33. Fire and All Risk Insurance ........................................... 27
34. Intentionally Omitted ................................................. 30
35. General Insurance Requirements ........................................ 30
36. Damage or Destruction ................................................. 30
37. Eminent Domain ........................................................ 32
38. Subordination, Recognition, Non-Disturbance and Attornment ............ 35
39. Quiet Enjoyment ....................................................... 37
40. Condition of Title .................................................... 38
41. Recording; Delivery of Title Report ................................... 38
42. Notices, Payment of Rent .............................................. 38
43. Tenant's Default ...................................................... 40
44. Intentionally Omitted ................................................. 42
ii 14 45. Landlord's Default ............................................. 42
46. Remedies Cumulative ............................................ 44
47. No Waiver ...................................................... 44
48. Waiver of Jury Trial ........................................... 44
49. Unavoidable Delays ............................................. 44
50. Relationship of Parties ........................................ 45
51. Estoppel Certificates .......................................... 45
52. Broker ......................................................... 46
53. Covenants to Run with the Land; Binding Effect ................. 46
54. Choice of Law .................................................. 46
55. Entire Agreement; Interpretation ............................... 46
56. Invalidity of Certain Provisions. .............................. 46
57. Captions ....................................................... 46
58. Definitions .................................................... 47
59. Arbitration .................................................... 51
60. Limitation on Landlord Liability ............................... 51
61. Guaranty ....................................................... 51
iii 15
EXHIBITS
Exhibit "A" - Legal Description of Leased Premises Exhibit "B" - Guaranty Exhibit "C" - Permitted Exceptions Exhibit "D" - Final Plans and Specifications Exhibit "E" - Tenant's Plans and Specifications Exhibit "F" - Landlord's Improvements portion of Tenant's Work Exhibit "G" - Form of Subordination, Nondisturbance and Attornment
Agreement
iv 16
LEASE
THIS LEASE made this 27th day of August, 1997, between SAN DIEGO DEVELOPMENT #1, LLC, a Colorado limited liability company, having an office at 4582 South Ulster Street Parkway, Denver, Suite 403, CO 80237 ("Landlord") and ADVANTA MORTGAGE CORP. USA, a Delaware corporation, and ADVANTA CORP., a Delaware corporation, having offices at 200 Tournament Drive, Suite 103, Horsham, PA 19044 (collectively "Tenant").
WITNESSETH:
1. Leased Premises. Landlord does hereby demise and let unto Tenant and Tenant does hereby lease and take from Landlord for the term and upon the conditions set forth in this Lease:
ALL THAT CERTAIN Lot or piece of ground located on Rancho Bernardo Road, in the County of San Diego, State of California, commonly known as lot 63, 4S Ranch and which is more particularly described on EXHIBIT "A", attached hereto (the "Leased Premises"), the same being a subdivided lot within the business park known as "4S Ranch" (the "Park").
TOGETHER WITH the building to be erected thereon, of 3 stories and approximately 130,000 gross square feet, having approximately 127,000 rentable square fe ...
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