Exhibit 10.2(d)
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE is made this 13th day of March, 2000, by and
between ONE XXXXXX ASSOCIATES LIMITED PARTNERSHIP, a Michigan limited
partnership, whose address is c/o Kojaian Management Corporation, 0000 Xxxxx
Xxxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000 (hereinafter referred
to as "Landlord") and FREEMARKETS, INC., a Delaware corporation, whose address
is 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter referred to as
"Tenant").
RECITALS:
WHEREAS, Landlord, as Landlord, and Tenant, as Tenant entered into that
certain Lease dated October 21, 1998, as amended by the First Amendment to
Lease, dated March 30, 1999, and Second Amendment to Lease dated July 20, 1999
(hereinafter collectively referred to as the "Lease"), pursuant to which Tenant
leases space in Xxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx on the 21st and 22nd
floors consisting of approximately 36,219 square feet (hereinafter referred to
as the "Original Premises"), 23rd floor consisting of approximately 17,890
rentable square feet (hereinafter referred to as "Additional Premises"), and
24th Floor consisting of approximately 18,287 rentable square feet (hereafter
referred to as the "Additional Premises II"), more particularly described
therein; and
WHEREAS, Tenant desires to lease the following additional premises in the
Building
FLOORS RENTABLE SQUARE FOOTAGE
------ -----------------------
20 17,936
25 18,561
26 18,287
27 18,287
28 18,290
29 18,291
(hereinafter referred to as and designated "Additional Premises III" on Exhibit
"A" hereto) and Landlord is willing to lease Additional Premises III to Tenant
upon the terms and conditions set forth herein; and,
WHEREAS, Landlord and Tenant have agreed upon the terms and conditions for
the leasing of Additional Premises III and the Base Rent thereof as well as
other agreements relating to the Lease and wish to set forth such agreement as
more particularly set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. (a) All Floors constituting Additional Premises III are vacant and upon
execution and delivery of this Third Amendment to Lease, Landlord shall deliver
the same to Tenant and Tenant shall accept the same in their current "as is,"
"where is" condition. Tenant acknowledges that except as expressly provided in
the Lease, as herein amended, Landlord shall not have any obligation to make any
renovations or improvements to Additional Premises III.
(b) Tenant shall construct the alterations to Additional Premises
III (hereinafter referred to as the "Initial Alterations") in accordance with
the provisions of this Paragraph 1 and Exhibit "B" hereto.
(i) Tenant shall submit plans and specifications for review and
approval by Landlord, which approval shall not be unreasonably withheld or
delayed, in accordance with Section IV of Exhibit "B" hereto.
(ii) Tenant shall hire Tedco Construction as its general contractor
(the "GC") to undertake the construction of the Initial Alterations. Tenant
and/or the GC will engage only reputable subcontractors approved in writing by
Landlord relating to structural work, HVAC, electrical, plumbing and roofing
work, and Landlord shall not unreasonably withhold
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such approval. Landlord shall not charge Tenant coordination or contractor
supervision fees. Landlord shall be responsible, at Tenant's sole cost and
expense, for work related to asbestos removal. Landlord's contractor for such
work will coordinate with the GC to provide for proper and safe removal.
(iii) Tenant shall comply with all applicable Building Codes and
requirements of insurance underwriters, including sprinklers, smoke detectors
and compartmentalization as required in construction of the Initial Alterations.
(iv) Prior to the commencement of construction, Tenant and the GC
shall have entered into a written contract for the performance of the Initial
Alterations and Tenant will cause the GC to agree in a written instrument
acceptable to Landlord in its reasonable discretion to be bound by all of the
following terms and conditions:
(A) The GC shall send copies of all notices of default sent by
the GC to Tenant pursuant to the construction contract between the GC and
Tenant (the "Construction Contract") to Landlord and no such notice shall
be effective for any purpose unless and until a copy thereof shall have
been received by Landlord.
(B) Tenant and the GC acknowledge that the GC shall have no
lien rights against Landlord's interest in the Demised Premises or any
part thereof.
(C) Nothing contained herein shall in any event or under any
circumstances be construed as an assumption, in whole or in part, by
Landlord of any of the obligations or liabilities of Tenant under the
Construction Contract.
Tenant shall provide Landlord with signed copies of the Construction Contract
and an instrument evidencing the GC's agreement to the foregoing conditions.
(c) (i) Landlord shall pay the cost of the Initial Alterations up to
the cost of Twenty Five Dollars ($25.00) per rentable square foot (hereinafter
referred to as the "Tenant Allowance"). The Tenant Allowance shall initially be
available only on a per Floor basis, so that only Four Hundred Forty Eight
Thousand Four Hundred Dollars ($448,400.00) is available for the 20th Floor
($25.00 x 17,936), only Four Hundred Sixty Four Thousand and Twenty Five Dollars
($464,025.00) is available for the 25th Floor ($25.00 x 18,561), only Four
Hundred Fifty Seven Thousand One Hundred Seventy Five Dollars ($457,175.00) is
available for the 26th floor ($25.00 x 18,287), etc; provided, however, that if
Tenant does not utilize the entire Tenant Allowance for a Floor or Floors with
respect to which Effective Date III has occurred, the Tenant Allowance with
respect to the next Floor(s) being renovated shall be increased by such amount
not so utilized and any portion of the Tenant Allowance not initially utilized
for the cost of the Initial Alterations to Additional Premises III may, after
the completion of Additional Premises III, be utilized by Tenant for alterations
to other portions of the Premises, and provided, further, that to the extent the
entire Tenant Allowance is not so utilized during the Term, Landlord shall
retain the same.
(ii) The Tenant Allowance with respect to each Floor shall be
due and payable from Landlord to Tenant as follows: one-half (l/2) shall be paid
to Tenant within ten (10) days after Tenant has completed one-half (l/2) of the
Initial Alterations to such Floor and has submitted to Landlord a written
request for such payment together with Tenant's Architect's certificate that at
least one-half (l/2) of the Initial Alterations to such Floor have been
completed in accordance with the approved plans and specifications and the
remaining one-half (l/2) shall be paid to Tenant within thirty (30) after the
Initial Alterations to such Floor have been completed as described in Section
5.2 of Exhibit "B." Tenant shall pay all costs of the Initial Alterations in
excess of the Tenant Allowance.
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(d) Effective Date III for each Floor of Additional Premises III is
as follows:
FLOORS EFFECTIVE DATE III
------ ------------------
20 May 15, 2000
25 April 15, 2000
26 January 1, 2001
27 See Paragraph 1(e)
28 July 1, 2000
29 July 1, 2000
(herein referred to as "Effective Date III"). Each such Floor shall be deemed
part of the Premises for all purposes of the Lease and Tenant will commence
payment of Base Rent and Tenant's Share of Operating Expenses and Tenant's Share
of Taxes shall be increased accordingly as provided herein; provided, however,
that if Tenant shall commence business operations on any such Floor or portion
thereof prior to Effective Date III with respect to such Floor or portion
thereof, Effective Date III with respect to such Floor or portion thereof shall
be deemed to have occurred on the earlier date Tenant commences business
operations on such Floor or portion thereof.
(e) (i) Upon delivery thereof, the 27th Floor shall be deemed part of
the Premises for all purposes of the Lease and effective April 1, 2000, Tenant
will commence payment of Base Rent therefor and Tenant's Share of Operating
Expenses and Tenant's Share of Taxes shall be increased accordingly as provided
herein, subject to Paragraph 1(e)(ii) hereof; provided, however, that the Basic
Rent for the 27th Floor from April 1, 2000, to the earliest to occur of March
31, 2001, and the date Tenant vacates the 27th Floor in order to construct the
Initial Alterations thereto shall be Sixteen Dollars ($16.00) per rentable
square foot thereof per annum.
(ii) Upon thirty (30) days prior written notice to Landlord at
any time subsequent to the submission of plans and specifications for the
renovations to the 27th Floor and Landlord's approval thereof, which approval
shall not be unreasonably withheld or delayed, Tenant shall have the right to
vacate the 27th Floor and perform the Initial Alterations thereto. Upon such
vacation, and through the earlier of sixty (60) days after such vacation and the
date of the completion of the Initial Alterations and/or Tenant commencing
business therein, Tenant shall not be required to pay any Base Rent or other
charges relating to the 27th Floor.
(iii) Upon the earlier of sixty (60) days after such vacation
and the completion of the Initial Alterations to the 27th Floor, and/or Tenant
commencing business therein, the 27th Floor shall again be part of the Premises
for all purposes of the Lease, and Tenant will commence payment of Basic Rent in
the amount set forth in Paragraph 2(b) hereof and Tenant's Share of Operating
Expenses and Tenant's Share of Taxes shall be increased accordingly as provided
herein.
2. (a) Tenant's Share with respect to each Floor of Additional Premises
III shall be as follows:
FLOOR TENANT'S SHARE
----- --------------
20 2.81%
25 2.91%
26 2.87%
27 2.87%
28 2.87%
29 2.87%
(b) Commencing on the date of this Amendment, the Base Rent per
rentable square foot of the Premises (including the Original Premises,
Additional Premises I, Additional Premises II, and Additional Premises III as
well as any premises subsequently added to the Premises pursuant to Article 37
of the Lease as herein amended) shall be as follows:
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PERIOD RATE
------ ----
Date of this Amendment-3/31/00 $20.00
4/1/00 - 3/31/01 $20.60
4/1/01 - 3/31/02 $21.22
4/1/02 - 3/31/03 $21.86
4/1/03 - 5/31/04 $22.51
6/1/04 - 5/31/05 $23.19
6/1/05 - 5/31/06 $23.89
6/1/06 - 5/31/07 $24.61
6/1/07 - 5/31/08 $25.35
6/1/08 - 5/31/09 $26.11
6/1/09 - 5/31/10 $26.89
(c) Section 3.01 of the Lease shall be amended so that the
Expiration Date is extended to May 31, 2010, subject to the provisions of
Sections 3.02 and 37.02(d) of the Lease.
3. (a) Landlord shall renovate the restrooms on each Floor of Additional
Premises III (but not in any other portion of the Premises) to comply with The
Americans with Disabilities Act (hereinafter referred to as "ADA"). Landlord
shall not be required to spend in excess of Eighteen Thousand Dollars
($18,000.00) per Floor therefor, and any costs in excess of Eighteen Thousand
Dollars ($18,000.00) per Floor shall be charged against the Tenant Allowance for
such Floor. Such work shall be performed by Landlord in conjunction with Tenant
performing the Initial Alterations on such Floor.
(b) Landlord shall, at its sole cost and expense, and not as a
charge against the Tenant Allowance, institute an elevator modernization program
which will include system enhancements and ADA compliance. The elevators in the
elevator bank serving Floors 20-29 of the Building will be the first to be
renovated and Landlord shall use its reasonable efforts to complete the
renovation of such elevators by September 30,2000.
(c) Landlord shall, at its sole cost and expense, increase the
lighting in the Building lobby and along the perimeter of the Building exterior
proposed by Tenant and approved by Landlord, in its sole reasonable discretion.
Tenant will hire, at its expense, a lighting consultant to assist the parties in
this matter.
4. (a) Landlord shall provide, without charge to Tenant, an area on the
roof of the Building or such other common area location as mutually agreed upon
by Landlord and Tenant, for Tenant to install up to six (6), three foot by eight
foot (3' x 8') natural gas generators, together with associated cabling
equipment and risers, necessary for the use thereof (hereafter collectively
referred to as the "Generator Equipment"). The Generator Equipment shall be
installed by contractors selected by Tenant and approved in advance by Landlord
and any roof penetrations shall be made by Landlord's roofing contractor, at
Tenant's expense. The functional characteristics, size, design, load and method
of installation of the Generator Equipment shall be subject to Landlord's prior
approval, which shall not be unreasonably withheld or delayed. Tenant shall at
its expense install, maintain and repair the Generator Equipment in good and
safe condition and in compliance with all applicable laws.
(b) Tenant shall be responsible for and shall at its sole cost and
expense repair any damage caused by the installation, maintenance, operation,
condition or use of the Generator Equipment, and any related roof or wall
penetrations, including, without limitation, any damage to the Building or
Landlord's other tenant's premises or personal property.
(c) Tenant shall be responsible for all utilities, expenses, taxes
and assessments in connection with the Generator Equipment and shall obtain and
maintain in effect any and all licenses, permits and other governmental
approvals which are or may become required for the operation and use of the
Generator Equipment.
(d) Tenant shall indemnify and hold Landlord harmless from any
losses, costs, claims, actions, causes of action, expenses (including reasonable
attorney's fees) or liabilities of
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any sort whatsoever arising by reason of the installation, maintenance,
operation, condition, use or removal of the Generator Equipment.
(e) Upon the expiration or termination of the Lease, Tenant shall
remove the Generator Equipment and repair any damage resulting from such
removal, at Tenant's sole cost and expense.
5. Landlord shall provide two (2) security guards to be stationed at the
main security desk on the first Floor of the Building on a twenty-four (24)
hours per day, three hundred sixty five (365) days per year basis (except
Sunday, when only one guard shall be on duty) and the cost thereof shall be
included in Operating Expenses.
6. Section 21.02 of the Lease shall be deleted and the following shall be
substituted therefor:
(a) Tenant shall have the right, at its sole cost and expense, to
install four (4) signs on the upper exterior of the Building, and
identification signage at ground level and in the Building lobby. The
size, design, and location of each such sign shall be subject to
Landlord's approval and the approval of all governmental entities having
jurisdiction. Landlord hereby approves the design, size and location of
such signs as shown on Exhibit "C" hereto. Tenant shall install, operate
and maintain such signs and at the expiration or earlier termination of
this Lease, Tenant shall remove such signs and repair any damage to the
Building resulting therefrom, all at Tenant's sole cost and expense.
(b) During the Term, the Building shall be named "FreeMarkets
Center," provided that Landlord reserves the right to change the street
address of the Building without creating or incurring any liability to
Tenant. Tenant acknowledges that the change of the name of the Building to
"Freemarkets Center" will require Landlord to incur costs to replace
marketing materials and Tenant shall reimburse Landlord the cost thereof
within (30) days after the presentation of invoices therefor, but not to
exceed the sum of Twenty Thousand Dollars ($20,000).
7. Section 35.17 of the Lease shall be deleted and the following shall be
substituted therefor:
Tenant shall be entitled to five (5) parking spaces in Landlord's parking
garage in the Building for each full Floor of the Building occupied by
Tenant and prorata for partial floors. As portions of Additional Premises
III and premises added to the Premises pursuant to Article 37 hereof shall
become part of the Premises hereunder, such additional parking shall be
provided to Tenant at the rates provided below. Four (4) of such parking
spaces shall be designed as reserved for Tenant's exclusive use (and the
remaining spaces shall not be reserved); provided, however, that Landlord
shall not be responsible for policing Tenant's right to exclusively use
such reserved parking spaces and shall have no responsibility to Tenant if
the same are not available through acts or omissions of others unless
Landlord has caused or permitted such acts. The monthly rate for such
parking spaces shall be at market rates for parking spaces in the
Building.
8. (a) Sections 37.02 and 37.03 shall be deleted from the Lease.
(b) The following shall be inserted as Section 37.02 of the Lease:
Section 37.02 Right to Lease Additional Premises.
(a) Provided Tenant is not in default after delivery of notice and
beyond the expiration of applicable cure periods at the time of the
exercise of such right, if Landlord receives an acceptable offer to
initially lease any premises in the Building located on Floors 12, 14, 15,
16, 17, 18 and/or 19, during the initial Term, Landlord shall notify
Tenant of such
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offer in writing and Tenant shall have the right to lease such premises
under the terms of this Section 37.02. Landlord's notice shall set forth
the area constituting such premises, the location thereof and the
anticipated delivery date therefor.
(b) Tenant shall have ten (10) days from the date of Landlord's
notice to Tenant to advise Landlord in writing that Tenant exercises its
right to lease the same. Failure by Tenant to notify Landlord within the
time specified shall constitute Tenant's waiver of its right to lease such
premises and Landlord shall thereafter have the right to lease such
premises to a third party or parties on terms and provisions acceptable to
Landlord, in its sole discretion, for a period of six (6) months;
provided, however, that if Landlord has not entered into a lease of such
premises pursuant to such offer within six (6) months after such notice to
Tenant pursuant to Section 37,02(a), Landlord shall be required to again
offer such premises to Tenant pursuant to Section 37.02(a) prior to
leasing the same to a third party. In the event Landlord enters into a
lease with a third party for such premises, Tenant shall not have the
right to lease such premises pursuant to this Section 37.02 if such
premises again become available.
(c) If Tenant exercises its right to so lease such premises, this
Lease will be amended to add such premises to the Premises at the Base
Rent and all of the other terms and provisions hereof, including a Twenty
Five Dollar ($25.00) per square foot Tenant Allowance. Tenant shall
renovate such premises in compliance with the provisions of this Lease.
(d) Landlord shall renovate the restrooms for each Floor of the
Additional Premises (but not in any other portion of the Premises) to
comply with the ADA. Landlord shall not be required to spend in excess of
Eighteen Thousand Dollars ($18,000.00) per Floor therefor, and any costs
in excess of Eighteen Thousand Dollars ($18,000.00) per Floor shall be
charged against the Tenant Allowance for such Floor. Such work shall be
performed by Landlord in conjunction with Tenant performing the Initial
Alterations on such Floor.
(e) Notwithstanding anything to the contrary contained in this
Lease, each time Tenant exercises its right to so lease any such premises
pursuant to this Section 37.02, the initial Term shall be extended for a
period of one-hundred and twenty (120) full calendar months from and after
the date such premises are first deemed to be part of the Premises. In
addition, the Base Rent shall be increased by three percent (3%) per annum
over the rent in effect in the immediately preceding year, commencing
January 1, 2010 and for each year thereafter that the initial Term has
been extended as aforesaid.
(f) Prior to the delivery of possession of each such premises
pursuant to this Section 37.02, Landlord and Tenant shall execute an
amendment to this Lease reflecting the addition of such premises to the
Premises, the additional Base Rent, the change in Tenant's Share of
Operating Expenses and Tenant's Share of Taxes, the Base Rent for the
extended portion of the initial Term and any other revisions necessary
because of such premises being added to the Premises.
(g) Landlord shall not have responsibility for delays in delivering
any such premises as a result of any occupant's failure to vacate such
premises at the end of its lease, but Landlord shall immediately institute
proceedings to obtain possession of such premises and this Lease with
respect to such premises shall not commence until such premises are
vacated and delivered to Tenant as herein provided.
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9. Exhibit "A" to the Lease is hereby deleted in its entirety and replaced
by Exhibit "A" attached hereto. All references in the Lease to Exhibit "A" shall
hereinafter mean Exhibit "A" hereto.
10. Each of Landlord and Tenant acknowledges that the Lease is in full
force and effect and neither Landlord nor Tenant is currently in default
thereunder.
11. The Lease, as herein amended, is hereby ratified and confirmed by the
parties and shall remain in full force and effect.
WITNESS: ONE XXXXXX ASSOCIATES LIMITED
PARTNERSHIP,
a Michigan limited partnership
By: ONE OLIVER-GP, INC.,
a Michigan corporation
Its: General Partner
By: /s/ Xxxx Xxxxxxx
-------------------------------- ------------------------------------
Xxxx Xxxxxxx
Its: President
--------------------------------
FREEMARKETS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------- ------------------------------------
Its: Vice President
-------------------------------- -----------------------------------
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