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EXHIBIT 10.1
THIRD MODIFICATION AND EXTENSION AGREEMENT
This Agreement is entered into effective as of this 3rd day
of November, 1998 between PARKWAY PARTNERS, L.L.C., a Missouri
limited liability company ("Landlord"), and XXXXX XXXXXXXXXXX
COMPANY (formerly known as Xxxxx, Inc.), a Delaware corporation
("Tenant").
RECITALS:
A. Pursuant to Commercial Building Lease dated December
21, 1994 (the "Original Lease"), Landlord leased to Tenant
approximately 28,599 rentable square feet of area in the
"Commercial Building" (as defined in the Lease, it being agreed
that capitalized terms not otherwise defined herein shall have
the meanings prescribed for such terms in the Lease).
B. Pursuant to First Modification and Ratification of
Lease dated February 26, 1996 (the "First Modification"),
Landlord leased to Tenant an additional 2,235 rentable square
feet of area in the Commercial Building.
C. Pursuant to Second Modification and Ratification of
Lease Agreement dated April 28, 1997 (the "Second Modification";
the Original Lease, as modified by the First Modification and by
the Second Modification, is herein referred to as the "Lease"),
Landlord leased to Tenant an additional 2,374 rentable square
feet of area in the Commercial Building. Accordingly, on the
date of this Agreement, the Leased Premises contains 33,208
square feet of rentable area, and Tenant's Percentage of
Operating Expenses is 71.13%.
D. The parties desire to extend the term of the Lease, as
hereinafter provided.
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NOW, THEREFORE, in consideration of the mutual
considerations provided herein and other considerations, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. EXTENSION OF TERM.
(A) The term of the Lease is hereby extended from
February 29, 2000 through February 28, 2005 (the "Extended
Term").
(B) Notwithstanding that the Second Modification
demised the "Second Expansion Space" (as therein defined) to
Tenant for a term of 5 years, the parties agree that as of the
commencement of the Extended Term, the Second Expansion Space
shall be deemed leased to Tenant on the same terms and conditions
as the balance of the Leased Premises (i.e., the term shall
extend through the balance of the Extended Term, and the Minimum
Annual Rental shall be at the rate set forth in Section 2 below).
(C) The provisions of Section 7 of the Second
Modification (captioned "Buy-Out Option") are hereby deleted and
are of no further force or effect.
2. RENTABLE AREA; MINIMUM ANNUAL RENTAL.
(A) Tenant acknowledges that Landlord has had the
square footage of the Leased Premises and of the balance of the
Commercial Building remeasured by a licensed architect, and based
on such remeasurement, the parties agree that (i) the useable
area of the Leased Premises is 30,000 square feet, (ii) the
useable area of the Commercial Building is 39,054 square feet,
and (iii) Tenant's "Percentage" (as defined in Section 5(B) of
the Lease) is 76.8%. The foregoing adjustments shall become
effective as of January 1, 1999.
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(B) Commencing February 29, 2000, and continuing
during the Extended Term, the Minimum Annual Rental shall be
$572,838.00 per annum ($47,736.50 per month).
3. OPERATING EXPENSE ESCALATION.
(A) The parties agree that for the period between
February 29, 2000 and December 31, 2000, there shall be no
Operating Expense Escalation Charge payable by Tenant. Effective
on January 1, 2001, in addition to the Minimum Annual Rental,
Tenant shall pay the Operating Expense Escalation Charge set
forth in Section 5.B of the Lease; provided, however, during the
Extended Term, the term "Base Year Operating Expenses" shall mean
the Operating Expenses incurred during calendar year 2000.
(B) The following sentence is hereby deleted from
Section 5.B:
"Notwithstanding the prior provision, in no event shall the
Operating Expense Escalation Charge exceed an amount equal to an
annual increase greater than three and one quarter percent
(3.25%) of the Base Year Operating Expenses for the first year,
and two percent (2%) per year thereafter, on a cumulative basis."
4. LANDLORD'S WORK.
(a) Landlord shall install throughout the first floor
of the Leased Premises new carpeting selected by
Tenant and reasonably approved by Landlord, having
a materials cost (including freight and taxes, but
excluding installation costs) of not more than
$18.50 per square yard. Landlord shall pay all
labor costs associated with the foregoing,
including removal and disposal of existing
carpeting, and installation of new carpeting;
however,
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Tenant, at Tenant's cost, shall be responsible for
moving its antiques to facilitate such carpet
removal and installation. Tenant and Landlord
shall mutually agree upon a detailed schedule for
the work to be performed.
(b) Landlord shall install new linoleum in the mail
room, not to exceed $30.00 per square yard for
labor and materials.
(c) Landlord shall repair and refinish the parquet
floors located in the Leased Premises.
(d) Landlord shall install an ice maker in Xxxxx'x
Garden Level kitchen (SerVend M-200) and perform
the other work described as "Landlord's Work to be
Performed" on the attached Exhibit A.
The work to be performed by Landlord pursuant to this Section 4
is collectively called "Landlord's Work". Upon execution of this
Agreement, Landlord and Tenant shall cooperate to designate the
carpet to be installed pursuant to subparagraph (a) above, and
such carpet shall be ordered by Landlord within 5 days after such
designation. Except for installation of the carpet (which
Landlord shall use good faith efforts to effect within a
reasonable period of time after such carpet is received),
Landlord shall use good faith efforts to commence the balance of
Landlord's Work within a reasonable time after the execution of
this Agreement, and shall thereafter pursue the same with
reasonable diligence to completion. Without limiting the
foregoing, Landlord's Work shall be completed within 90 days
after the date of execution of this Agreement, except for the
carpet installation, which shall be completed within 90 days
after Landlord's receipt of such carpet.
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[5. SECTION 5 DELETED PER AGREEMENT OF LANDLORD AND TENANT]
6. RIGHT OF FIRST REFUSAL. In the event during the term
of this Lease, Landlord receives an offer from a third party to
purchase Landlord's interest in the Commercial Building Parcel
which Landlord desires to accept (the "Third Party Offer"),
Landlord shall (provided Tenant is not then in default beyond the
expiration of any applicable notice and grace period provided for
the curing of such default), furnish Tenant with a copy of such
Third Party Offer. During the 10 business day period following
Tenant's receipt of such Third Party Offer, Tenant shall have the
pre-emptive right to purchase the Commercial Building Parcel from
Landlord on the same terms and conditions as are set forth in the
Third Party Offer, except that Tenant shall acquire the
Commercial Building Parcel in its "as is" condition, without the
benefit of any so-called "due diligence period" which may be set
forth in the Third Party Offer. If Tenant timely elects to
purchase the Commercial Building Parcel, the parties shall
promptly enter into a purchase and sale agreement, and the
closing of such transaction shall be consummated on a date
selected by Tenant, but which shall occur not later than 45 days
after Tenant's receipt of the Third Party Offer. If Tenant does
not timely elect to so purchase the Xxxxxxxxxx Xxxxxxxx
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Xxxxxx, Xxxxxxxx shall be free to accept the Third Party Offer
and to consummate the sale of the Commercial Building Parcel, in
which case, the provisions of this Paragraph shall automatically
terminate and shall be of no further force or effect.
Notwithstanding the foregoing provisions of this Paragraph, in
the event of a foreclosure of any mortgage encumbering the
Commercial Building Parcel (or any deed in lieu of foreclosure),
the provisions of this Paragraph shall not be applicable to any
such foreclosure (or deed in lieu of foreclosure), however, such
provisions shall apply to any subsequent sale by the party who
purchased the property as part of a foreclosure (or deed in lieu
of foreclosure). Without triggering the foregoing right of first
refusal, Landlord shall be entitled to convey the Commercial
Building Parcel to (i) any entity controlled by, controlling or
under common control with Landlord or any principal of Landlord
(collectively, a "Landlord Affiliate"), (ii) to trusts for the
benefit of any Landlord Affiliate and/or for the benefit of any
of their respective spouses and/or lineal descendants, and (iii)
by testamentary disposition, but in each such case, the
provisions of this Paragraph shall survive any such transfer, and
shall be binding upon Landlord's successors in interest.
7. MISCELLANEOUS. The Lease, as herein amended, shall
continue in full force and effect in accordance with its terms.
The provisions of this Agreement shall inure to the benefit of
and be binding upon the parties hereto, their successors and
assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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The parties have executed this Agreement effective as of the
date first above written.
PARKWAY PARTNERS, L.L.C.
By: XXXXXXX HOLDFNGS, L.L.C., Managing
Member
By: XXXXXXX HOLDINGS, INC., Manager
By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx, Vice President
"LANDLORD"
XXXXX XXXXXXXXXXX COMPANY
By: /s/ Xxxx X. Xxxxxx
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Title: Xxxx X. Xxxxxx - Vice President
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EXHIBIT "A"
LANDLORD'S WORK TO BE PERFORMED
FLOOR COVERING:
1. Replace cracked marble at east & west doorways off the
lobby.
2. Replace copy room & mail room floor covering
WALL COVERING:
1. Paint copy/mail room walls
2. Paint walls by reader door
3. Paint wall where file cabinet was removed in I/S
4. Paint vents in window area.
COUNTERTOP:
1. Replace countertop in board room kitchen
WATER LEAKS:
1. Repair roof leaks (will continue to work on until
identified)
WOODWORK:
1. Repair/touch-up all scratches on wood doors - (Note-will not
be able to make perfect, but can touch-up with stain so it
will be inconspicuous)
2. Clean & polish all woodwork including doors, crown molding
in executive offices, executive conference room and
boardroom (will be done by building maintenance, as
available)
3. Shim door to boardroom kitchen
ELECTRICAL:
1. Cap off/cover any exposed outlets which protrude from floor
(Xxxxxxx office & under chairs in seating area)
PARKING LOT:
1. Repair all crumbling stairways in parking lot & put safety
treads strips
