THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE is made as of the 30th day of
April, 1997, by and between MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, a Massachusetts corporation ("Landlord"), and X.X.
XXXXXX COMPANY, a Delaware corporation ("Tenant").
RECITALS:
A. Landlord's predecessor in title and Tenant entered into that
certain Lease dated June 9, 1986 (the "Original Lease"), whereby
Landlord's predecessor in title leased to Tenant certain
premises consisting of 34,767 rentable square feet of office
space on the first, second and third floors of that certain
office building known as Xxxxxx Plaza and located at 000 Xxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, for a lease term to expire on
September 30, 1991.
B. Landlord's predecessor in title and Tenant entered into a
certain Amendment to Lease dated March 14,1988 (the "First
Amendment"), whereby the premises demised under the Original
Lease were reduced to 30,844 rentable square feet of offce space
on the first, second and third floors of the aforesaid building
(the "Existing Premises").
C. Landlord and Tenant entered into a certain Second Amendment
to Lease dated June 19, 1990 (the "Second Amendment"), whereby
the expiration date of the lease term of the Original Lease, as
amended, was extended to April 30, 1997. The Original Lease, as
amended by the First Amendment and the Second Amendment, is
hereinafter called the "Lease."
D. Landlord became the owner of the aforesaid building and
succeeded to the interest of the landlord under the Lease.
E. Landlord and Tenant desire to further amend the Lease to (i)
further extend the expiration date of the lease term of the
Lease, and (ii) further reduce the premises demised under the
Lease, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged, it is
hereby agreed as follows:
1. DEFINITIONS. Each capitalized term used as a defined term in
this Third Amendment but not otherwise defined herein shall have
the same meaning as is ascribed to such capitalized term in the
Lease.
2. EXTENSION OF TERM. The expiration date of the Term is
extended from April 30, 1997 to April 30, 2007. All of the terms
and provisions of the Lease shall apply with respect to that
part of the Term occurring after April 30, 1997, except as
otherwise provided herein. From and after the date hereof, the
word "Term" as used and defined in the Lease, as hereby amended,
shall mean the initial Term as heretofore extended and as
extended under this Paragraph 2.
3. TERMINATED SPACE.
A. Termination of Lease for Terminated Space. Effective as of
April 30, 1997 (the "Termination Date") the Lease shall
terminate pro tanto with respect only to that part of the
Premises (the "Terminated Space") consisting of 3,663 rentable
square feet consisting of all of that portion of the Existing
Premises which are located on the third floor of the Building.
Rent owing for the Terminated Space shall be paid through and
apportioned as of the Termination Date. Neither Landlord nor
Tenant shall have any rights, estates, liabilities or
obligations under the Lease with respect to the Terminated Space
for the period accruing after the Termination Date, except those
which pursuant to the Lease are intended to survive the
expiration or termination of the Term.
B. Lease for Terminated Space. Landlord leases to Tenant and
Tenant takes and hires from Landlord the Terminated Space for a
lease term commencing on May 1, 1997 and expiring on September
30, 1997. There shall be no charge to Tenant fcr the use of the
Terminated Space from May 1, 1997 through September 30, 1997.
Thereafter, the Terminated Space shall be leased on a
month-to-month basis and shall expire on any date occurring on
or after September 30, 1997 and which is thirty (30) days after
the date upon which either party gives a written notice to the
other party terminating the month-to-month tenancy for the
Terminated Space. The Terminated Space shall be leased upon all
of the same terms and provisions as are contained in the Lease,
as hereby amended. Effective as of October 1, 1997, Tenant shall
pay monthly minimum rent for the Terminated Space in the amount
of Five Thousand Four Hundred Eighteen and 19/100 Dollars
($5,418.19)(i.e. $17.75 per rentable square foot of the
Terminated Space per year). If the lease term for the Terminated
Space continues after December 31, 1997, then, effective as of
January 1, 1998, Tenant shall pay Additional Rent for the
Terminated Space under Paragraphs 8 and 9 of the Original Lease,
as amended by Paragraph 2(c) of the First Amendment, Paragraphs
2(d) and 2(e) of the Second Amendment and Paragraph 6 of this
Third Amendment, except that with respect only to the Terminated
Space, "Tenant's proportionate share" as defined in Paragraph 8
of the Original Lease shall be 8.42% (and the base year for the
Terminated Space shall be calendar year 1997 as is provided in
Paragraph 6 below). Tenant shall accept the Terminated Space
during the month-to-month tenancy for the Terminated Space in an
"as-is" condition.
4. NEW PREMISES. Landlord leases to Tenant and Tenant leases
from Landlord those certain premises (the "Additional Premises")
consisting of 731 rentable square feet of office space on the
first floor of the Building, as shown on Exhibit A attached
hereto, for a lease term to commence on May 1,1997 and to expire
on April 30, 2007, unless sooner terminated as provided in the
Lease. The Additional Premises are leased upon all of the same
terms and provisions as are contained in the Lease, as hereby
amended, except as otherwise set forth herein. As used herein
"New Premises" shall mean and refer to 27,912 rentable square
feet consisting of the Existing Premises and the Additional
Premises less the Terminated Space. Effective as of May 1,1997,
the term "Premises" as used and defined in the Lease, as hereby
amended, shall mean and refer to the New Premises.
5. TOTAL MINIMUM RENT. Tenant shall pay total minimum rent as
and when required under the Lease for that part of the Term
occurring after April 30, 1997, except that effective as of May
1, 1997, such total minimum rent shall be in the following
amounts for the following periods:
Annual Rate
Annual Monthly of Minimum Rent
Period Minimum Rent Minimum Rent Per RSF
------------------------------------------------------------------------
5/1/97 - 4/30/00 $495,438 $41,286.50 $17.75
5/1/00 - 4/30/03 523,350 43,612.50 18.75
5/1/03 - 4/30/07 551,262 45,938.50 19.75
6. ADDITIONAL RENT. Tenant shall pay Additional Rent under
Paragraphs 8 and 9 of the Original Lease, as amended by
Paragraph 2(c) of the First Amendment and Paragraphs 2(d) and
2(e) of the Second Amendment, for that part of the Term
occurring after April 30,1997, except that effective as of May
1, 1997: (a) "Tenant's proportionate share" as defined in
Paragraph 8 of the Original Lease, shall be reduced to 65.28%
[which was determined by dividing the rentable area of the New
Premises (i.e. 27,912 square feet) by the rentable area of the
Building (i.e.42,756 square feet)], (b) all references in
Paragraph 8 of the Original Lease (as amended by Paragraph 2(d)
of the Second Amendment) to "the Total Real Estate Taxes for
calendar year 1990" shall be deleted and "the Total Real Estate
Taxes for calendar year 1997" shall be substituted in lieu
thereof, and (c) all references in Paragraph 9 of the Original
Lease (as amended by Paragraph 2(e) of the Second Amendment) to
"the Total Operating Expenses for calendar year 1990" shall be
deleted and "the Total Operating Expenses for calendar year
1997" shall be substituted in lieu thereof.
7. CONDITION OF PREMISES.
No agreement of Landlord to alter, remodel, decorate, clean or
improve the New Premises, and no representation regarding the
condition of the New Premises or the Building, have been made by
or on behalf of Landlord or relied upon by Tenant, except as is
expressly set forth in this Third Amendment. Landlord and Tenant
agree to renovate and improve the New Premises and pay for such
renovations and improvements in accordance with the Work Letter
Agreement attached hereto as Exhibit B.
8. RIGHT OF FIRST OFFER.
(a) Deletion. Paragraph 1 of the Rider attached to the Original
Lease (Right of First Refusal) is deleted from the Original
Lease in its entirety and shall be of no further force or effect.
(b) Right of First Offer. Tenant is hereby granted a one-time
right of first offer to lease the Terminated Space during the
Term. Before Landlord first leases the Terminated Space to any
party, Landlord will notify Tenant of Landlord's intent to lease
the Terminated Space. Tenant will thereupon have a one-time
right of first offer to lease the Terminated Space prior to
other third parties. Within seven (7) days after such notice,
time being of the essence, Tenant shall give Landlord a notice
that it either does or does not
desire to lease the Terminated Space. In the event that Tenant's
notice provides that it does not desire to lease the Terminated
Space or if Tenant fails to give Landlord the notice of its
desires respecting the Terminated Space within the foregoing
required seven (7) day period, then Landlord shall be entitled
to proceed to lease the Terminated Space to a third party free
and clear of Tenant's right of first offer and such right shall
be deemed forever terminated with respect to the Terminated
Space.
(c) Terms. If Tenant exercises such right of first offer, Tenant
shall lease the First Offer Space upon all of the same terms and
provisions as are contained in the Lease, as hereby amended. The
lease term for the Terminated Space shall commence on the date
which is 30 days after the date upon which Tenant exercises its
right of first offer and shall expire on April 30, 2007. The
annual rate of minimum rent per rentable square foot and the
annual rate of Additional Rent per rentable square foot payable
for the Terminated Space shall be equal at all times during the
lease term for the Terminated Space to the annual rate of
minimum rent per rentable square foot, and the annual rate of
Additional Rent per rentable square foot, respectively, then
payable for the New Premises under the Lease, as hereby amended.
The provisions of Paragraph 7 of this Third Amendment shall
apply with respect to the Terminated Space, except that the Tl
Allowance for the Terminated Space shall be an amount equal to
the product of (i) 3,663, multiplied by (ii) $17.00, multiplied
by (iii) a fraction, the numerator of which is the number of
months in the lease term for the Terminated Space and the
denominator of which is 120, and the amount of the remaining
balance (if any), of "Landlord's Contribution" as defined in
Paragraph 8(b) of the Work Letter Agreement shall be adjusted
upward by such amount and Tenant shall have 210 days after the
lease term for the Terminated Space commences to utilize 100% of
such additional allowance.
(d) Amendment. In the event that Tenant exercises its right of
first offer, then Tenant shall have thirty (30) days from the
date of the notice within which to amend the Lease by adding the
Terminated Space. In the event Tenant fails to sign such
amendment to the Lease within said thirty (30) day period, time
being of the essence, then Landlord shall be entitled to proceed
to market and/or lease the Terminated Space to a third party
free and clear of such right of first offer and such right of
first offer shall be deemed terminated.
(e) Personal Right. The right of first offer herein granted
shall be a personal right in favor of X.X. Xxxxxx Company, and
shall terminate and become null and void upon any assignment of
the Lease or sublease of the Premises, or any part thereof.
9. SIGNAGE. Tenant shall have the right to maintain during the
Term, as hereby extended, (i) Tenant's sign (the ``Penthouse
Sign") now located on the penthouse of the Building, and (ii)
Tenant's sign now located on Landlord's monument sign for the
Building located on the Land; provided, however, that if
Landlord's monument sign deteriorates or is damaged by any cause
(other than damage caused by Landlord, in which event Landlord
shall repair Landlord's monument sign, at its expense) and
Landlord elects not to rebuild or repair Landlord's monument
sign, then Tenant, at its expense, may, subject to applicable
laws, rebuild or repair Landlord's monument sign (at the same
location and of a size and design which is approved by Landlord,
which approval shall not be unreasonably withheld), in which
event Tenant shall continue to have the non-exclusive right to
maintain a sign identifying X.X. Xxxxxx Company on such repaired
or rebuilt monument sign with letters of the same height as now
exist on such monument sign. Tenant, at its expense, shall
maintain the Penthouse Sign during the Term. Landlord agrees
that no tenant of the Building will be permitted to install
either (a) any sign identifying such tenant and located on the
exterior facade of the Building, or (b) any monument sign
identifying such tenant and which sign is located on the Land
and contains letters which are larger than the letters
identifying X.X. Xxxxxx Company on any monument sign on the Land
which then exists. The signage restrictions contained herein are
personal to X.X. Xxxxxx Company and shall automatically
terminate if at any time during the Term, as hereby extended,
X.X. Xxxxxx Company is in actual occupancy of and conducting
business from less than 20,000 rentable square feet of space in
the Building and paying rental for less than 20,000 rentable
square feet of space in the Building.
10. REMEDIES. Notwithstanding anything contained in Paragraph 25
of the Original Lease to the contrary, in the event of any
default or breach of the Lease by Tenant, Landlord shall take
reasonable measures to mitigate the damages recoverable against
Tenant; provided, however, that Landlord shall not be obligated
to relet or attempt to relet the Premises on a priority basis
per other unleased or unoccupied space in the Building.
11. ACCELERATED RENT. The first sentence of Paragraph 24 of the
Original Lease is deleted and the following sentence is
substituted in lieu thereof:
In the event of any default or breach of this Lease by Tenant
as set forth in Paragraph twenty-three (23) hereof, the amount,
if any, by which (a) the rent reserved herein for the entire
unexpired portion of the term of this Lease, exceeds (b) the
fair rental value of the Premises for the entire unexpired
portion of the term of this Lease (taking into account a
reasonable period for reletting and tenant concessions on
reletting such as tenant improvement allowances and rental
abatements), shall, at Landlord's option, thereupon be
accelerated and immediately become due and payable in an amount
determined by discounting such excess at the rate of 5% per
annum on a present value basis to the date of such default or breach.
12. PARKING. Landlord agrees that the parking rights granted to
Tenant pursuant to Paragraph 38 of the Original Lease, as
amended by paragraph 39(c) of the Second Amendment, shall
consist of not less than 3 parking spaces per 1,000 square feet
of the Premises, (a) 12 of which such parking spaces shall be
for the exclusive use of Tenant at the location shown on Exhibit
C attached hereto (and which location may be changed by Landlord
at any time upon 30 days' prior written notice to Tenant, but
only if such change is required by events beyond Landlord's
reasonable control and in any event, at least six (6) of such
parking spaces shall remain directly in front of the Building),
and (b) the balance of such parking spaces to be non-exclusive
parking spaces in the parking areas and facilities from time to
time established by Landlord for the Building. Landlord agrees
that Landlord will not grant to any other tenant of the Building
more than 12 exclusive parking spaces. Further, if Landlord
desires at any time during the Term, as hereby extended, to
grant to other tenants of the Building, a number of exclusive
parking spaces (the "Other Tenant Exclusive Parking Spaces"),
which, in the aggregate with all other then existing Other
Tenant Exclusive Parking Spaces, is in excess of 12, then (i)
Tenant shall be entitled to an additional number of exclusive
parking spaces (Tenant's Additional Exclusive Parking Spaces")
equal to the amount by which the total number of Other Tenants
Exclusive Parking Spaces exceeds 12, and (ii) Tenant shall have
the right to first select the location of 50% of Tenant's
Additional Exclusive Parking Spaces; then Landlord and/or the
other tenants shall have the right to select the location of
100% of the Other Tenant Exclusive Parking Spaces, and then
Tenant shall have the right to select the location of the
remaining 50% of Tenant's Additional Exclusive Parking Spaces.
Tenant's right to receive the Additional Exclusive Parking
Spaces are personal to X.X. Xxxxxx Company and shall
automatically terminate if at any time during the Term, as
hereby extended, X.X. Xxxxxx Company is in actual occupancy of
and conducting business from less than 20,000 rentable square
feet of space in the Building and paying rental for less than
20,000 rentable square feet of space in the Building.
13. BUILDING SERVICES.
(a) Paragraph 13(a) of the Original Lease is amended to
substitute "7:30 A.M." for "8:30 A.M." and "6:30 P.M." for "5:30
P.M." in the third line.
(b) Paragraph 13(e) of the Original Lease is amended to delete
the words "and inside".
(c) Paragraph 13(i) of the Original Lease is deleted in its
entirety.
14. RULES AND REGULATIONS. Rule 10 (Public Entrance) in Exhibit
C attached to the Original Lease is amended to delete the last
sentence in said Rule 10 and substitute the following sentence
in lieu thereof:
"Persons entering the Building after 5:30 P.M. on business days
other than Saturday and after 1:00 P.M. on Saturdays and at all
times on Sundays and holidays shall comply with such reasonable
security procedures which may be implemented by Landlord from
time to time to control after hour access to the Building".
15. CLEANING SPECIFICATIONS. Exhibit D attached to the Lease is
deleted in its entirety and the Exhibit D attached hereto is
substituted in lieu thereof.
16. INSURANCE.
(a) Tenant, at its expense, shall purchase and maintain during
the Term (i) fire insurance on Tenant's contents in the
Premises, and (ii) commercial general liability insurance
covering the Premises in an amount of $2,000,000 for injury
and/or death and over third party property damage per occurrence
and in an amount of $3,000,000 for injury and/or death and third
party property damage in the aggregate.
(b) Landlord shall purchase and maintain during the Term (i)
fire insurance, with extended coverage endorsement, on the
Building, and (ii) commercial general liability insurance
covering the Building in an amount of $2,000,000 for injury
and/or death and third party property damage per occurrence and
in an amount of $3,000,000 for injury and/or death and third
party damages in the aggregate. Such insurance may be in the
form of blanket and umbrella policies. The cost of such
insurance shall be included in Operating Expenses. Landlord, at
its option, may elect to self-insure against the liabilities
herein specified in accordance with a self-insurance plan which
is consistent with sound accounting practices.
(c) Neither party nor its agents, employees or guests shall be
liable for any loss or damage to the Building, the Premises or
the property or contents of such party caused by fire or any
other cause within the scope of standard fire and extended
coverage insurance policies (whether or not such insurance is
actually in effect), it being understood that each party shall
look solely to its insurer (if any) for reimbursement for such
loss or damage. Each party agrees to obtain endorsements to
their respective fire insurance policies as provided in
Paragraph 19(c) of the Original Lease to permit the waivers
herein provided.
17. NOTICES. Effective as of the date of this Third Amendment,
Tenant shall send each notice desired or required to be given by
Tenant under the Lease to Landlord at the following address:
Cornerstone Real Estate Advisers, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
18. BROKER. Tenant represents to Landlord that except for Oxford
Development Company and Xxxxx & Xxxxx Company (the "Brokers"
collectively), Tenant has not dealt with any real estate broker,
salesperson or finder in connection with this Third Amendment,
and no other such person initiated or participated in the
negotiation of this Third Amendment or is entitled to any
commission in connection herewith. Tenant hereby agrees to
indemnify, defend and hold Landlord, its property manager and
their respective employees harmless from and against any and all
liabilities, claims, demands, actions, damages, costs and
expenses (including attorneys' fees) arising from either (i) a
claim for a fee or commission made by any broker, other than the
Brokers, claiming to have acted by or on behalf of Tenant in
connection with this Third Amendment, or (ii) a claim of, or
right to, lien under the Statutes of Pennsylvania relating to
real estate broker liens with respect to any such broker
retained by Tenant. Landlord agrees to pay any commissions owing
to the Brokers in connection with this Third Amendment if and to
the extent same are due and owing.
19. BINDING EFFECT. The Lease, as hereby amended, shall continue
in full force and effect, subject to the terms and provisions
thereof and hereof. In the event of any conflict between the
terms of the Lease and the terms of this Third Amendment, the
terms of this Third Amendment shall control. This Third
Amendment shall be binding upon and inure to the benefit of
Landlord, Tenant and their respective successors and permitted
assigns.
20. SUBMISSION. Submission of this Third Amendment by Landlord
or Landlord's agent, or their respective agents or
representatives, to Tenant for examination and/or execution
shall not constitute an option to extend the Term of the Lease
or in any manner bind Landlord and no obligations on Landlord
shall arise under this Third Amendment unless and until this
Third Amendment is fully signed and delivered by Landlord and
Tenant; provided, however, the execution and delivery by Tenant
of this Third Amendment to Landlord or Landlord's agent, or
their respective agents or representatives, shall constitute an
irrevocable offer by Tenant to extend the Term of the Lease on
the terms and conditions herein contained, which offer may not
be revoked for fifteen (15) days after such delivery.
21. LIMITATION OF LIABILITY. Neither Landlord nor any principal
of Landlord nor any owner of the Building, whether disclosed or
undisclosed, shall have any personal liability with respect to
any of the provisions of the Lease, as hereby amended, or the
Premises, and if Landlord is in breach or default with respect
to Landlord's obligations under the Lease, as hereby amended, or
otherwise, Tenant shall look solely to the equity of Landlord in
the Building for the satisfaction of Tenant's remedies or judgments.
IN WITNESS WHEREOF, this Third Amendment is executed as of the
day and year aforesaid.
LANDLORD:
MASSACHUSETTES MUTUAL LIFE
INSURANCE COMPANY, a Massachusettes
corporation
By: CORNERSTONE REAL ESTATE
ADVISERS, INC., its agent
ATTEST:
By: /s/X. Xxxxxxx
/s/Xxxxxxx X. Xxxxxxx Title: Vice President
TENANT:
X.X. XXXXXX COMPANY, a Delaware
corporation
ATTEST:
/s/Xxxxx X. Xxxxx By: /s/Xxx X. Xxxxxx XX
Title: President
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
I, Xxxxxxx Xxxxxxx, a Notary Public in and for said County,
in ths State of aforesaid, do hereby certify that Xxxxxx
Xxxxxxx, the Vice President of CORNERSTONE REAL ESTATE ADVISORS,
INC., agent for MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a
Massachusetts corporation (the "Corporation"), personally known
to me to be the same person whose name is subscribed to the
foregoing instrument as such Xxxxxx Xxxxxxx, appeared before me
this day in person and acknowledged that he/she signed the said
instrument as his/her own free and voluntary act for the uses
and purposes therein set forth.
GIVEN under my hand and notorial seal, this 29th day of May,
1997.
/s/Xxxxxxx X. Xxxxxxx
Notary Public
[SEAL]
COMMONWEALTH OF PENNSYLVANIA )
) SS.
COUNTY OF ALLEGHENY )
I, Xxxxx Close, a Notary Public in and for said County, in the
State aforesaid, do hereby certify that Xxx X. Xxxxxx XX, the
President of X.X. XXXXXX COMPANY, a Delaware corporation (the
"Corporation"), personally known to me to be the same person
whose name is subscribed to the foregoing instrument as such Xxx
X. Xxxxxx XX, appeared before me this day in person and
acknowledged that he signed the said instrument as his own free
and voluntary act for the uses and purposes therein set forth.
GIVEN under my hand and notorial seal, this 20th day of May,
1997.
/s/Xxxxx X. Close
Notary Public
[SEAL]
