SEVENTH AMENDMENT OF OFFICE LEASE
Exhibit
10.44
SEVENTH
AMENDMENT OF OFFICE LEASE
This
Amendment (this “Amendment”)
is
made and entered
into as of January 25, 2007, by
and
between NINE
PENN CENTER ASSOCIATES, L.P.,
a
Pennsylvania limited partnership (“Landlord”)
and
PMA
CAPITAL INSURANCE COMPANY
(“Tenant”).
BACKGROUND
A. Pursuant
to that certain Office Lease between Landlord and Lorjo Corp. (the “Original
Lessee”)
dated
as of May 26, 1994, as amended by that certain First Amendment of Office Lease
dated October 30, 1996, by that certain Second Amendment of Office Lease dated
as of December 1, 1998, by that certain Assignment and Assumption of Lease
and
Consent dated as of December 29, 2000, by that certain Third Amendment of Office
Lease dated as of May 16, 2001, by that certain Fourth Amendment of Office
Lease
dated as of July 2, 2003, by that certain Fifth Amendment of Office Lease dated
as of April 30, 2004 and by that certain Sixth Amendment of Office Lease dated
as of June 14, 2004 (as so amended, the “Lease”),
Landlord leases to Tenant certain premises (the “Premises”)
agreed
to contain (i) 22,651
Rentable
Square Feet,
comprising the entire rentable area of the 30th
floor of
the Building,
and
(ii) 4,384 Rentable Square Feet of space on the P-2 level (the “P-2
Space”)
used
solely for storage, mail handling and other administrative functions (which
P-2
Space is not included in the Rentable Area of the Premises for purposes of
computing any allowances payable by Landlord), in the building presently known
as Mellon Bank Center, located at 0000 Xxxxxx Xxxxxx in Philadelphia,
Pennsylvania (the “Building”).
B. Pursuant
to the aforesaid Assignment and Assumption of Lease and Consent dated as of
December 29, 2000, the Original Lessee assigned to Tenant, which assumed, all
of
the Original Lessee’s right, title and interest as tenant under the
Lease.
C. Landlord
and Tenant now desire to further amend the Lease as hereinafter set
forth.
AGREEMENTS
NOW,
THEREFORE, intending to be legally bound hereby and in exchange for good,
valuable and sufficient consideration received, Landlord and Tenant agree that
the Lease is hereby amended as follows:
1. Background;
Definitions.
The
Background of this Amendment, above, is hereby incorporated within and agreed
to
form a part of the agreements contained in this Amendment. All terms defined
in
the Lease and not otherwise defined in this Amendment shall have the respective
meanings ascribed to them in the Lease when used in this Amendment.
2. Reduction
of Premises.
Effective as of the earlier to occur of (a) the date on which Tenant completes
Vacation (defined in Section 3 hereof) or (b) January 31, 2007 (the
“Effective
Date”),
the
Premises shall be permanently reduced by the elimination therefrom of the P-2
Space, and the Lease is amended to define the term “Premises”
to
mean
solely the 22,651 Rentable
Square Feet
comprising the entire rentable area of the 30th
floor of
the Building.
3. Vacation
of P-2 Space; Holdover.
Tenant,
Tenant’s sublessees and licensees, and all other persons and entities claiming
by, through and under Tenant shall vacate the P-2 Space, removing all goods
and
effects therefrom and leaving same vacant, broom clean, and otherwise in the
condition in which the P-2 Space is required to be left at the end of the Term,
at Tenant’s sole expense, on or before the Effective Date (“Vacation”).
In
the event that Tenant shall fail to complete Vacation on or before the Effective
Date, then such continued occupancy shall (without limiting any of Landlord's
rights or remedies concerning an Event of Default) constitute a tenancy at
sufferance from month to month at a minimum monthly rent equal to two (2) times
the total of the Minimum Rent payable for the P-2 Space for the month of the
December, 2006 and, in addition thereto, Tenant shall pay to Landlord (a) all
other Rent falling due during the holdover period (without increase), as if
the
Term had been extended, plus (b) an amount equal to all damages, consequential
as well as direct, sustained by Landlord by reason of Tenant's retention of
possession of the P-2 Space. Neither Landlord's demand nor Landlord's receipt
of
the aforesaid compensation for use and occupancy shall be deemed to provide
Tenant with any right to any use, occupancy, or possession of the P-2 Space
either for the period for which such compensation has been demanded or paid,
or
for any time before or after such period. The provisions of this Section 3
shall
not be deemed to limit or constitute a waiver of any other rights or remedies
of
Landlord provided in the Lease or at law or in equity.
4. Landlord’s
Contingency.
Tenant
acknowledges that Landlord is presently negotiating to lease the P-2 Space
to
another tenant in the Building (the “Successor
Lessee”),
and
Tenant agrees that this Amendment shall be null and void upon Tenant’s receipt
of written notice from Landlord stating that negotiations with the Successor
Lessee have terminated without the Successor Lessee and Landlord having executed
a lease of the P2 Space Space. In order to enable Landlord to pursue
negotiations with the Successor Lessee respecting such lease, Landlord and
Tenant agree that, apart from Landlord’s negotiations with the Successor Lessee,
neither Landlord nor Tenant shall offer the P-2 Space or any portion thereof
for
lease or sublease to any third party for a period of ten (10) days after the
date of full execution of this Amendment.
5. Brokers. Each
of
Landlord and Tenant represents and warrants to the other that no real estate
brokers or finders other than Xxxxx & Xxxxx Company (“Broker”)
have
been involved in the negotiation of this Amendment, and each of Landlord and
Tenant agrees to indemnify and hold the other harmless of and from any costs,
expenses or liabilities incurred by the other as a result of any
misrepresentation or breach of warranty of the indemnifying party contained
in
this Section 5. Landlord shall pay a fee or commission to Broker on account
of
this Amendment pursuant to a separate written agreement.
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6. Confirmation
of Remedy.
In order
to preserve for Landlord the benefit of the remedy of confession of judgment
for
ejectment contained in the Lease, Sections 17.2.3 and 17.2.5 of the Lease are
hereby restated and ratified as follows:
17.2.3 any
prothonotary or attorney of any court of record is hereby irrevocably authorized
and empowered to appear for Tenant in any action to confess judgment against
Tenant, and may sign for Tenant an agreement, for which this Lease shall be
his
sufficient warrant, for entering in any competent court an action or actions
in
ejectment, and in any suits or in said actions to confess judgment against
Tenant as well as all persons claiming by, through or under Tenant for the
recovery by Landlord of possession of the Premises. Such authority shall not
be
exhausted by any one or more exercises thereof, but judgment may be confessed
from time to time as often as any event set forth in Subsection 17.1 hereof
shall have occurred or be continuing. Such powers may be exercised during as
well as after the expiration or termination of the original Term and during
and
at any time after any extension or renewal of the Term, and/or
17.2.5 In
any confession of judgment for ejectment, Landlord shall cause to be filed
in
such action an affidavit setting forth the facts necessary to authorize the
entry of judgment and if a true copy of this Lease (and of the truth of the
copy, such affidavit shall be sufficient proof) be filed in such action, it
shall not be necessary to file the original as a warrant of attorney,
notwithstanding any law, rule of court, custom or practice to the contrary.
Tenant releases to Landlord, and to any and all attorneys who may appear for
Tenant, all procedural errors in any proceedings taken by Landlord, whether
by
virtue of the powers of attorney contained in this Lease or not, and all
liability therefor. Tenant expressly waives the benefits of all laws, now or
hereafter in force, exempting any property within the Premises or elsewhere
from
distraint, levy or sale. Tenant further waives the right to any notice to remove
as may be specified in the Pennsylvania Landlord and Tenant Act of April 6,
1951, as amended, or any similar or successor provision of law, and agrees
that
five (5) days notice shall be sufficient in any case where a longer period
may
be statutorily specified, and/or
7. Effect
of Amendment.
As
amended hereby, the Lease remains in full force and effect. In the event of
any
conflict or inconsistency between the terms of this Amendment and the remaining
terms of the Lease, the terms of this Amendment shall govern and
control.
SECTIONS
17.2.3 AND 17.2.5 OF THE LEASE, RESTATED IN THIS AMENDMENT, PROVIDE FOR THE
CONFESSION OF JUDGMENT AGAINST TENANT FOR EJECTMENT. IN CONNECTION THEREWITH,
TENANT, KNOWINGLY, VOLUNTARILY,
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INTENTIONALLY
AND UPON ADVICE OF SEPARATE COUNSEL, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS
IT MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE
CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF
PENNSYLVANIA. WITHOUT LIMITATION OF THE FOREGOING, TENANT HEREBY SPECIFICALLY
WAIVES ALL RIGHTS TENANT HAS OR MAY HAVE TO NOTICE AND OPPORTUNITY FOR A HEARING
PRIOR TO EXECUTION UPON ANY JUDGMENT CONFESSED AGAINST TENANT BY LANDLORD
HEREUNDER.
TENANT
(I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF LANDLORD HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LANDLORD WILL NOT SEEK TO EXERCISE
OR
ENFORCE ITS RIGHTS TO CONFESS JUDGMENT HEREUNDER, AND (II) ACKNOWLEDGES THAT
THE
EXECUTION OF THIS AMENDMENT BY LANDLORD HAS BEEN MATERIALLY INDUCED BY, AMONG
OTHER THINGS, THE INCLUSION IN THIS AMENDMENT OF SAID RIGHTS TO CONFESS JUDGMENT
AGAINST TENANT. TENANT FURTHER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY
TO
DISCUSS SAID PROVISIONS WITH TENANT’S INDEPENDENT LEGAL COUNSEL AND THAT THE
MEANING AND EFFECT OF SUCH PROVISIONS HAVE BEEN FULLY EXPLAINED TO TENANT BY
SUCH COUNSEL, AND AS
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EVIDENCE
OF SUCH FACT AN AUTHORIZED OFFICER OF TENANT SIGNS HIS OR HER INITIALS IN THE
SPACE PROVIDED BELOW.
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/s/
WEH
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(Initials)
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IN
WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto
have caused this Amendment to be executed by their duly authorized
representatives as of the day and year first above written.
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PMA
CAPITAL INSURANCE COMPANY
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By:
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/s/
Xxxxxxx Xxxxxxxxxxxx
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Name:
Xxxxxxx Xxxxxxxxxxxx
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Title:
CFO
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NINE
PENN CENTER ASSOCIATES, L.P.
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By
NINE PENN CENTER PROPERTIES TRUST,
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a
Maryland real estate investment trust, its general
partner
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By:
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/s/
Xxxxxxxx X. Xxxxx
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Name:
Xxxxxxxx X. Xxxxx
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Title:
Senior Vice President
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