EXHIBIT 10(2.5)
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FIFTH MODIFICATION AGREEMENT
This Agreement is entered into effective as of this 1st day of March,
2003, between 1900 Associates L.L.C., a Kansas limited liability company
("Landlord"), and Xxxxx Xxxxxxxxxxx Company, a Delaware corporation ("Tenant").
RECITALS
A. Tenant and Landlord are party to that certain Commercial
Building Lease dated December 21, 1994 (the "Original Lease"), as amended by (i)
that certain First Modification and Ratification of Lease dated February 26,
1996, (ii) that certain Second Modification and Ratification of Lease Agreement
dated Xxxxx 00, 0000, (xxx) that certain Third Modification and Extension
Agreement dated November 3, 1998 and (iv) that certain Fourth Modification
Agreement dated December 29, 1998 (the Original Lease, as amended, to be
referred to as the "Lease").
B. Landlord and Tenant desire to amend the Lease as provided
herein.
NOW, THEREFORE, in consideration of the mutual consideration
set forth in this Agreement, Landlord and Tenant agree to amend the Lease as
follows:
1. EXTENSION OF TERM. Notwithstanding anything to the contrary,
the Lease Expiration Date is changed to December 31, 2008.
2. LEASED PREMISES. The Leased Premises is changed to include all
rentable square feet in the building except for the storage and mechanical space
located in the northeast lower level comprising approximately 2,500 square feet
which Landlord reserves the right to occupy.
3. MINIMUM ANNUAL RENTAL. Notwithstanding anything to the
contrary, the Minimum Annual Rental shall be as follows:
LEASE PERIOD MINIMUM ANNUAL RENTAL
3/1/03- 2/28/04 $647,619
3/1/04- 2/28/05 $662,779
3/1/05- 2/28/06 $712,779
3/1/06- 2/28/07 $769,779
3/1/07-12/31/08 $769,779
4. OPERATING EXPENSE ESCALATION. The parties agree that for
calendar year 2003, there shall be no Operating Expense Escalation Charge
payable by Tenant. Effective January 1, 2004, 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, the term "Base Year Operating
Expenses" shall mean the Operating Expenses incurred during calendar year 2003
and the Tenant's Pro Rata Share of Operating Expenses shall increase to one
hundred percent (100%).
5. PARKING. Article 44 of the Lease is amended to provide that
Landlord shall provide Tenant with all parking spaces (exclusive of visitor and
handicap parking) available in the parking lot located on the Commercial
Building Parcel for Tenant's use at all times.
6. RENEWAL OPTION. Section 1 of the Fourth Modification Agreement
is replaced in its entirety with the following:
(A) Provided that Tenant is not in default beyond any applicable
period to cure at any time from the exercise of the option
until the expiration of the Lease Expiration Date, Tenant
shall have an option to renew this Lease for one (1)
additional term of five (5) years (the "Renewal Term"),
exercisable by giving Landlord written notice of the exercise
by not less than 360 days before the expiration of the Lease
Expiration Date (the "Expiration Date"). The Renewal Term
shall be on the same terms, covenants and conditions as set
forth in the Lease with respect to the Extended Term, except
that the Minimum Annual Rental (the "MAR") payable during the
Renewal Term shall be computed as herein provided.
(B) For the Renewal Term, MAR shall be computed as an amount equal
to ninety percent (90%) of the then prevailing Market Rate (as
hereinafter defined) of the Leased Premises, as if vacant with
the then existing improvements, based on its use as general
office space, and for comparable office buildings in the
Kansas City metropolitan area, adjusting the Base Year
Operating Expenses to mean Operating Expenses incurred during
calendar year 2007. In determining Market Rate, the parties
shall also take into account the condition of the Leased
Premises at the commencement of the Renewal Term, the length
of the Renewal Term, Tenant's obligation to pay its
proportionate share of increases in Operating Expenses as
herein provided, the absence of any obligation of Landlord to
provide any tenant improvement to the Leased Premises for the
Renewal Term, and such other factors as are relevant in the
opinion of the parties making such determination.
(C) The term "Market Rate" shall mean the rate per square foot of
rentable area then being quoted for comparable office
buildings with the characteristics noted in paragraph 1(B)
above. If the parties do not agree upon the Market Rate within
thirty (30) days after Tenant exercises its option to renew,
each party shall choose a "Qualified Appraiser" who shall make
such determination on its behalf and submit the same to the
other party (together with the information forming the basis
for such determination) within seventy-five (75) days after
Tenant exercises its option to renew (with each party paying
the fee for its own appraiser). "Qualified Appraiser" shall
mean an appraiser who is independent, licensed and a member of
the American Institute of Real Estate Appraisers (the
"AIREA"). Unless the two Qualified Appraisers agree to the
Market Rate within fifteen (15) days following delivery of the
last of the two appraisals, the two Qualified Appraisers shall
choose a third Qualified Appraiser and notify Landlord and
Tenant of such choice. Each party shall share equally the cost
of the third Qualified Appraiser. If the two Qualified
Appraisers cannot or do not agree on the choice of a third
Qualified Appraiser within ten (10) days following expiration
of the immediately preceding fifteen (15) day period, the
third Qualified
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Appraiser shall be selected by the most senior officer of the
Kansas City Chapter or branch of the AIREA or its successor,
or if there shall be no successor, a professional organization
having a function, standards and qualifications similar
thereto. Within thirty (30) days after his or her appointment,
the third Qualified Appraiser shall determine the Market Rate
of the Leased Premises, in the condition as specified in
paragraph 1(B) and taking into account the factors specified
in paragraph 1(B), by selecting as such Market Rate either the
Market Rate proposed by Tenant's Qualified Appraiser or the
Market Rate proposed by Landlord's Qualified Appraiser, and
submitting such determination to each party in writing.
(D) Based on said mutual agreement or third Qualified Appraiser's
determination, Landlord and Tenant shall promptly thereafter
execute a written agreement establishing the aforesaid MAR,
which shall be binding upon the parties commencing with the
first year of the Renewal Term.
7. PURCHASE OPTION. Tenant is hereby granted the right,
exercisable by written notice to Landlord at any time after March 1, 2005 and
during the term of this Agreement, to purchase the Commercial Building Parcel.
Upon such exercise of Tenant's option, as to the Commercial Building Parcel, the
Lease shall also be deemed to be a real estate sale contract between Landlord,
as Seller, and Tenant, as Buyer, on and subject to the following terms and
conditions:
(A) The purchase price (the "Purchase Price") for the Commercial
Building Parcel shall be Four Million Six Hundred Eighty Five
Thousand One Hundred and No/100 Dollars ($4,685,100.00).
(B) The closing date (the "Closing Date") shall be specified in
Tenant's written notice exercising its purchase option with
such Closing Date to be within ninety (90) days after notice.
(C) Landlord shall deliver to Tenant, not later than thirty (30)
days after the exercise of Tenant's purchase option hereunder,
a survey of the Commercial Building Parcel conducted not more
than ninety (90) days prior to the Closing Date by a surveyor
licensed by the State of Kansas, such survey to be sufficient
in form to cause the deletion from the title policy referred
to in paragraph (D) below of any exceptions concerning matters
which would be disclosed by a survey of the Commercial
Building Parcel or easements or claims of easements not shown
by the public records. Said survey shall also show the
location of all easements, rights-of-way and other matters
disclosed by the title commitment referred to in paragraph (D)
below. If such survey reveals any encroachments, overlaps or
other matters which are not acceptable to Tenant, then, unless
Tenant shall waive such objections, Tenant shall revoke its
exercise of its option hereunder and continue its occupancy of
the Commercial Building Parcel upon and subject to all of the
terms and provisions hereof.
(D) Landlord shall furnish Tenant, at Landlord's expense, an
Owner's Policy of Title Insurance, in form reasonably
acceptable to Tenant, in the amount of the Purchase Price,
issued by a title insurance company
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approved by Tenant and authorized to insure titles in the
State of Kansas, insuring a merchantable fee simple title in
Tenant as of the Closing Date. Landlord shall, not later than
twenty (20) days after the exercise of Tenant's purchase
option hereunder, deliver to Tenant a commitment for such
title policy. If such commitment contains any matters which
are not acceptable to Tenant, Tenant shall, within twenty (20)
days after receipt of such commitment, notify Landlord in
writing of such objections. Landlord hereby covenants and
agrees to use its reasonable efforts to correct such
objections (but shall not be required to commence any
litigation against any third parties); provided, however, that
if Landlord is unable to correct such objections within thirty
(30) days after receipt of written notice of objection from
Tenant, then, unless Tenant shall elect to waive such
objections, Tenant shall revoke its exercise of its option
hereunder and continue its occupancy of the Leased Premises
upon and subject to all of the terms and provisions hereof.
Landlord covenants and agrees to execute and deliver to the
title company a seller's affidavit in such reasonable form as
the title company may require.
(E) The risk of loss shall be upon Landlord prior to the Closing
Date. In the event that prior to the Closing Date any of the
improvements on the Commercial Building Parcel are destroyed
or damaged by fire or other casualty, Tenant may, at its
option, enforce its rights under this option and accept an
assignment of the insurance proceeds payable as a result of
such casualty, or, in the event Tenant elects not to proceed
with the purchase of the Commercial Building Parcel pursuant
to its rights under this option, Tenant shall revoke its
exercise of its option hereunder and continue its occupancy of
the Commercial Building Parcel upon and subject to all of the
terms and provisions hereof.
(F) Landlord shall convey the Commercial Building Parcel on the
Closing Date to Tenant by a general warranty deed, properly
executed and conveying the Commercial Building Parcel free and
clear of all liens and encumbrances whatsoever, except as
hereinabove provided.
(G) In the event that, after Tenant's exercise of its option
hereunder, either party shall default in its agreements set
forth in this Section 7, the non-defaulting party shall have
all rights and remedies available at law, in equity or
hereunder.
(H) Right to Exchange Real Property. Buyer agrees that Seller,
through the use of a qualified intermediary, may desire to
transfer the Commercial Building Parcel through a tax free
exchange, deferred exchange or reverse exchange of real
property pursuant to Section 1031 of the Internal Revenue
Code; provided, however (i) in no event shall any such
exchange, or Seller's inability to complete any such exchange,
impair or otherwise affect the Closing Date, (ii) Buyer shall
have no obligation or liability to Seller or any other party
in any respect for any matters in connection with any such
exchange other than payment of the Purchase Price in exchange
for the conveyance to Buyer of fee simple title to the
Commercial Building Parcel by deed subject only to those
matters permitted hereunder and (iii) Seller shall indemnify
and hold Buyer
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harmless from and against any claims, actions, liability and
expense in connection with each such exchange.
8. 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 ten (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. 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 sixty (60) days after
Tenant's receipt of the Third Party Offer. If Tenant does not timely elect to so
purchase the Commercial Building Parcel, Landlord 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.
9. LANDLORD'S WORK. Landlord agrees to perform the work described
on the attached Exhibit A within 120 days after the date hereof except that the
requirement to clean all carpets in Item 1 of Floor Covering shall be completed
between the dates of May 15, 2003 and June 1, 2003.
10. OTHER TERMS. Except as modified herein, all other terms and
conditions of the Lease shall remain unmodified and in full force and effect.
The parties have executed this Agreement effective as of the date
indicated above.
1900 ASSOCIATES L.L.C. XXXXX XXXXXXXXXXX COMPANY
a Kansas limited liability company a Delaware corporation
By: /s/ XXXXX XXXXX By: /s/ XXXXX X. XXXXXX
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Xxxxx Xxxxx, Manager Xxxxx X. Xxxxxx, Vice President
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EXHIBIT A
0000 XXXXXXX XXXXXXX XXXXXXX
XXXXXXX XXXXX, XXXXXX 00000
FLOOR COVERING
1. Clean all carpeting.
2. Repair cracked marble at east & west doorways off the lobby.
3. Clean carpeting in lobby elevator.
4. Replace plants in atrium.
WALL COVERING
1. Clean/vacuum wall covering in CEO and Executive Assistant's offices.
2. Clean/vacuum wall covering in executive conference room.
3. Glue wall covering in various offices that has come undone because of roof leakage.
4. Paint walls at west end where reader door is located
5. Paint walls in freight elevator area.
6. Repair wallpaper in doorway into sitting room in the ladies restroom
7. Clean/paint lower level doors west end into HVAC area.
8. Xxxxx Enterprise contract with linen company for walk-off mats for west reader door and lobby.
CABINETS
1. Repair cabinets in copy room area.
2. Repair backsplashes in lower level Xxxxx'x current kitchen.
APPLIANCES
1. Replace dishwasher in board room.
PLUMBING
1. Replace or repair where possible faucets in mailroom and boardroom kitchens.
2. Replace or repair where possible all faucets and drain stops in restrooms throughout building.
CEILING TILES/LIGHTING
1. Replace all damaged/badly stained ceiling tiles on upper level.
LADIES' RESTROOMS
1. SANITIZE ALL RESTROOMS
2. Repair toilets so that they flush properly.
3. Clean the tile walls and floors.
4. Repair/reattach Formica covering to all restroom stall doors.
MEN'S RESTROOMS
1. SANITIZE ALL RESTROOMS
2. Repair toilets so that they flush properly.
3. Clean the tile walls and floors.
WATER COOLERS
1. REPAIR all water coolers.
WOODWORK
1. Repair/touch up all scratches on wood doors.
2. Clean all woodwork, crown molding in executive offices, executive conference room, board room.
ELECTRICAL
1. Cap off/cover any exposed floor outlets so that employees don't trip over them.
PARKING LOT
1. Repave parking lot as suggested.
2. Fix parking lot lights as required.
EXTERIOR
1. Replace all sidewalks.
2. Replace/repair all brick on patio.
OLD MTW AREA
1. Repair, kitchen floor
2. Clean carpeting in large open area
3. Repair north wall where cubicles had been mounted
4. Clean all glass
5. Paint walls where necessary
