EXHIBIT 10.47(b)
AMENDMENT NO. 2 TO
BUILD-TO-SUIT OFFICE LEASE AGREEMENT
BETWEEN XXXXX OPERATING PARTNERSHIP, L.P.
AND
PENNSYLVANIA CELLULAR TELEPHONE CORP.
AMENDMENT NO. 2 TO BUILD-TO-SUIT LEASE AGREEMENT
------------------------------------------------
THIS AMENDMENT NO. 2 TO BUILD-TO-SUIT LEASE AGREEMENT (the "Second
Amendment") is made this 18th day of January, 1999, by and among XXXXX XXXXXXX
NO. 33, L.P., a Pennsylvania limited partnership (hereinafter referred to as
"Landlord"), PENNSYLVANIA CELLULAR TELEPHONE CORP., a North Carolina corporation
(hereinafter referred to as "Tenant"), and XXXXX, XXXXXXX & COMPANY, an Illinois
corporation (hereinafter referred to as "Contractor").
W I T N E S S E T H
WHEREAS, Landlord, Tenant and Contractor entered into that certain Build-
to-Suit Office Lease Agreement dated as of September 26, 1997, as amended by
Amendment No. 1 to Build-to-Suit Lease Agreement dated September 15, 1998
(collectively, the "Lease"), relating to certain premises located in Susquehanna
Township, Dauphin County, Pennsylvania more particularly described in the Lease;
and
WHEREAS, Landlord, Tenant and Contractor desire to modify and amend the
Lease in certain respects as hereinafter provided.
NOW, THEREFORE, for and in consideration of the premises, the sum of Ten
Dollars ($10.00) in hand paid by each of the parties hereto to the others, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord, Tenant and Contractor do hereby covenant and
agree as follows.
1. Defined Terms. The terms and words of art used herein, as indicated
-------------
by the initial capitalization thereof, shall have the same respective meanings
given to such terms and words of art in the Lease.
2. Nonexclusive Assignment of Warranties. Landlord, Tenant and
-------------------------------------
Contractor acknowledge and agree that the assignment and transfer to Tenant of
assignable warranties required pursuant to the second sentence of Section 2.7 of
the Lease shall be a nonexclusive assignment so that such warranties shall be
owned and enforceable by each of Tenant and Landlord.
3. Limits of Liability Insurance. In the event Tenant shall exercise an
-----------------------------
option to extend the Term of the Lease for any Renewal Term, Landlord may
require that the minimum limits of liability under the commercial general
liability insurance policy to be maintained by Tenant under Section 5.2(b) of
the Lease be increased during the applicable Renewal Term to the amount of
coverage then customarily required of new tenants of office space comparable to
the Demised Premises in the metropolitan Harrisburg, Pennsylvania area, and if
Landlord shall elect to require an increase in the minimum limits of such
liability insurance (which election shall be made by written notice to Tenant
given at any time during the applicable Renewal Term, but only once during such
Renewal Term), the minimum limits of liability under the commercial general
liability
insurance required to be maintained by Landlord under Section 5.1(b) of the
Lease shall likewise be increased to an equivalent amount.
4. Change of Control. Supplementing the terms and provisions of Article
-----------------
13 of the Lease, Landlord and Tenant agree that if Tenant is a corporation, any
transfer of any of Tenant's issued and outstanding capital stock or any issuance
of additional capital stock, as a result of which the majority of the issued and
outstanding capital stock of Tenant is held by a person or persons who do not
hold a majority of the issued and outstanding capital stock of Tenant on the
date on which Tenant acquires its interest in this Lease, shall be deemed a
voluntary assignment of this Lease and subject to the provisions of this Article
13; provided, however, that this sentence shall not apply to the Tenant if (i)
at least fifty percent (50%) of the outstanding voting stock of the Tenant is
transferred to an entity that, prior to such transfer, controls, is controlled
by or is under common control with the Tenant, or (ii) all of the outstanding
voting stock of such corporation is registered under Section 12(b) or 12(g) of
the Securities and Exchange Act of 1934, as amended, after the transfer of such
stock. If Tenant is a partnership or limited liability company, any transfer of
any interest in the partnership or limited liability company, directly or
indirectly, or any other change in the composition of the partnership or limited
liability company, directly or indirectly, which results in a change in the
control of Tenant shall be deemed a voluntary assignment of this Lease and
subject to the provisions of this Article 13. Notwithstanding that a transfer
of Tenant's issued and outstanding capital stock or the issuance of additional
capital stock of Tenant or, if Tenant is a partnership or limited liability
company, any change in the control of Tenant shall be deemed a voluntary
assignment of this Lease subject to the provisions of this Article 13, such
assignment of this Lease is and shall be expressly permitted, provided that
Tenant shall have a net worth, determined after such transfer of stock, issuance
of capital stock or change in the control of Tenant, and determined in
accordance with generally accepted accounting principles, equal to or greater
than the net worth of Tenant prior to such transaction, and further provided
that any such transaction is not entered into as a subterfuge to avoid the
restrictions relating to assignments set forth in this Lease.
5. Amendments to Lease. Landlord, Tenant and Contractor hereby agree
-------------------
that, notwithstanding anything contained in the second sentence of Section 19.14
of the Lease to the contrary, from and after the date hereof, Contractor shall
not be required to join in or be a party to any modification or amendment to the
Lease unless such modification or amendment affects the obligations and
liabilities of Contractor under the Lease. No modification or amendment to the
Lease entered into solely by Landlord and Tenant which does not affect the
obligations and liabilities of Contractor under the Lease will modify or release
the obligations and liabilities of Contractor under the Lease.
6. Third Party Claims. Landlord and Tenant hereby agree that the waiver
------------------
of claims by Landlord set forth in Section 19.17 of the Lease shall be
inapplicable to any crossclaims asserted by Landlord against Tenant resulting
from claims asserted against Landlord by any party unrelated to Landlord.
Likewise, Landlord and Tenant hereby agree that the waiver of claims by Tenant
set forth in Section 19.17 of the Lease shall be inapplicable to any crossclaims
asserted by Tenant against Landlord resulting from claims asserted against
Tenant by any party unrelated to Tenant.
2
7. Brokerage Fees Upon Expansion. Landlord and Tenant acknowledge that
-----------------------------
brokerage fees payable to Tenant's Broker in connection with the leasing of the
Expansion Improvements (as provided in the registration letter dated September
19, 1997 referred to in Section 19.17 of the Lease) are included in the
"Expansion Costs" under Exhibit 3.1(h) of the Lease.
8. Errata.
------
(a) Section 1.3 of the Lease is hereby amended by adding to the words "day
after the" after the words "from the" appearing in the tenth line of Section 1.3
of the Lease.
(b) Section 3.1(c) of the Lease is hereby amended by deleting the last
sentence thereof and by substituting in lieu thereof the following:
In no instance however, shall the Initial Improvements Base Rent plus the
Change Order Base Rent payable during the or any succeeding Lease Year of
the applicable Renewal Term be less than the Initial Improvements Base Rent
plus the Change Order Base Rent payable by Tenant during the last Lease
Year of the Initial Term or during the last Lease Year of the preceding
Renewal Term, as applicable.
(c) The last grammatical paragraph of Section 3.1(f) of the Lease is hereby
amended by changing the word "paid" to "the monthly amount payable" in the
fourth line of such grammatical paragraph and by adding the words "last year of
the" before the words "Initial Term" in the fourth line of such grammatical
paragraph, before the word "preceding" in the fifth line of such grammatical
paragraph, before the word "Initial Term" in the eighth line of such grammatical
paragraph and before the word "preceding" in the eighth line of such grammatical
paragraph.
(d) Section 3.1(h) is hereby amended by inserting the word "Term" after the
word "Initial" in the thirteenth line of Section 3.1(h) of the Lease.
9. Ratification. Except as expressly modified and amended herein, the
------------
Lease shall remain in full force and effect and, as modified and amended herein,
is expressly ratified and confirmed by the parties hereto.
10. Binding Effect. This Second Amendment shall be binding upon and
--------------
shall inure to the benefit of Landlord, Tenant and Contractor and their
respective legal representatives, successors and assigns. This Second
Amendment shall be governed by and construed under the laws of the Commonwealth
of Pennsylvania.
11. Initial Term Commencement Date and Initial Term Termination Date. The
----------------------------------------------------------------
"Initial Term Commencement Date", as described in Section 1.1 of the Lease,
shall be November 16, 1998 and the "Initial Term Termination Date", as described
in Section 1.1 of the Lease, shall be November 15, 2008.
[Signatures contained on following page]
3
IN WITNESS WHEREOF, each of the parties hereto has caused this Second
Amendment to be duly executed as of the day, month and year above written.
LANDLORD:
XXXXX XXXXXXX NO. 33, L.L.C.,
a Pennsylvania limited partnership
By: /s/ XX Xxxxxxx
-----------------------------------
Name:_________________________________
Title:________________________________
TENANT:
PENNSYLVANIA CELLULAR TELEPHONE CORP.,
a North Carolina corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
---------------------------------
Title: Vice President
--------------------------------
CONTRACTOR:
XXXXX, XXXXXXX & COMPANY,
an Illinois corporation
By: /s/ XX Xxxxxxx
-----------------------------------
Name:_________________________________
Title:________________________________
4
CONSENT
The undersigned VANGUARD CELLULAR FINANCIAL CORP., a North Carolina
corporation, as "Guarantor" under that certain Build-To-Suit Office Lease
Agreement Guaranty Payment and Performance dated September 26, 1997 (the
"Guaranty"), does hereby consent to the execution and delivery of the within and
foregoing Second Amendment and does hereby confirm to and agree with Landlord
(i) that such Second Amendment shall not affect or reduce the continuing
liability of the undersigned under the Guaranty, and (ii) that such Guaranty is
and shall remain in full force and effect.
This 13th day of January, 1999.
VANGUARD CELLULAR FINANCIAL CORP.,
a North Carolina corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-------------------------------
Title: Vice President
------------------------------
5
