Exhibit 10(s)
SECOND AMENDMENT TO LEASE
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This SECOND AMENDMENT TO LEASE is made and entered into this 1st day of
October, 1996 by and between RESURGENS PLAZA SOUTH ASSOCIATES, L.P., a Georgia
limited partnership (hereinafter "Landlord"), as successor in interest and title
to RESURGENS PLAZA SOUTH ASSOCIATES, a Georgia general and formerly the
Landlord, and INTERSTATE/XXXXXXX XXXX CORPORATION, a North Carolina Corporation
(hereinafter "Tenant").
WITNESSETH:
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WHEREAS, by that certain Lease dated January 25, 1990 by and between
Landlord's predecessor in interest and Tenant, there was leased to Tenant for a
Term commencing on or about August 1, 1990 and to end July 31, 1998, certain
office space located at Suite 1200 and Suite 2300, together containing
approximately 50,313 net rentable square feet, on the twelfth and twenty-third
floors of that certain building known as Resurgens Plaza South, 945 East Paces
Ferry Road, Atlanta, Georgia, (hereinafter the "Building"), all as described
therein and as now constituting "the Leased Premises," and
WHEREAS, by that certain First Amendment to Lease dated by and between
Landlord and Tenant (the "First Amendment"), modifications to the terms of the
original 1993 Lease were made as to parking arrangements for Tenant's employees
and the Rules and Regulations were supplemented, all upon the terms and
conditions set forth therein.
WHEREAS, Landlord and Tenant now mutually desire to further modify the
Lease to provide for extension of the Term thereof, for modification to and
adjustments of Rentals, for the provision by Landlord of Tenant Improvements,
and for other and related matters, all upon the terms and conditions set forth
hereinafter
NOW THEREFORE, in consideration of the payment of Ten and No/100 Dollars
($10.00) in hand paid by Tenant to Landlord, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby mutually acknowledged, the parties do now adopt hereto and
incorporate herein the foregoing recitals and do now further agree as follows:
(1) EXTENSION OF LEASE TERM The Term of the Lease is herewith extended
for a period of seven (7) years (the "Extended Term") commencing August 1, 1998
(the "New Commencement Date") and running to and through July 31, 2005 (the
"Expiration Date"). Paragraph 2 of the Lease is herewith modified and amended
accordingly.
(2) RENTALS. From and after the New Commencement Date, Tenant shall and
hereby agrees to pay Landlord in advance, without demand, deduction or set-off,
Annual Base Rental, subject to adjustment effective one (1) year next following
the New Commencement Date, in the sum of One Million One Hundred Nineteen
Thousand Four Hundred Sixty-Four and 25/100 Dollars ($1,119,464.25), in monthly
installments of Ninety-Three Thousand Two Hundred Eighty-Eight and 69/100
Dollars ($93,288.69) ("Monthly Base Rental"), due not later than the first day
of each calendar month beginning on the New Commencement Date and continuing
thereafter for the remainder of the Extended Term of the Lease. Tenant
recognizes that late payment of any rental will result in administrative and
other expense to Landlord, the extent of which would be extremely difficult to
ascertain and quantify. Therefore, in the event any payment of Monthly Base
Rental as herein and hereafter modified, and/or Additional Rental, remains
unpaid for five (5) days after notice that said amount is due, Tenant shall
pay to Landlord an additional charge in an amount of five percent (5%) of the
Base Rental and/or Additional Rental
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then due, not as a penalty but to liquidate the damages so occasioned to
Landlord and to reimburse Landlord for Landlord's additional cost in processing
such late payment, which amount shall be added to the Base Rental and/or
Additional Rental then due, and shall be immediately then due and payable.
Sub-paragraphs 3 (a) and (b) of the Lease are hereby deemed modified and
superseded accordingly
(3) ANNUAL RENTAL ADJUSTMENTS. (a) The Base Rental for each twelve (12)
month period subsequent to the completion of the First Year of the Extended Term
shall, as of August 1, 1999, be computed by increasing by one-half a number
obtained by multiplying the then current Monthly Base Rental (less any
adjustment provided for in sub-paragraph (3)(b) hereinbelow as to operating cost
increases), by a fraction whose numerator shall be the Consumer Price Index
("CPI") for all Urban Consumers (1982-84-=100) published by the United States
Department of Labor, Bureau of Labor Statistics (or by any similar or succeeding
agency), for the calendar month prior to the expiration of the first and each
successive lease year of the Extended Term, and whose denominator shall be the
CPI for the month of July, 1998, as to the first such adjustment, and for the
month of July of each successive year for all annual adjustments thereafter, the
resulting product thereof to be known as the "Adjusted Monthly Base Rental;"
provided that, in no event shall the Adjusted Monthly Base Rental be less than
the Monthly Base Rental stated in Paragraph 2 hereinabove. Landlord shall notify
Tenant annually in writing of the Adjusted Monthly Base Rental within sixty (60)
days subsequent to the date on which the increase in Monthly Base Rental is due,
and Tenant shall pay the Adjusted Monthly Base Rental to Landlord on the first
day of each calendar month thereafter for the following twelve (12) month period
or for those months remaining in that period after notification. Paragraph 3 of
the Lease is
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supplemented and modified accordingly.
(b) In addition, commencing on the first day of the first month
following the close of the first year of the Extended Term, the Landlord may
increase the Monthly Base Rental or Adjusted Monthly Base Rental, as the case
may be, by an amount equal to the difference between one-twelfth of Tenant's
proportionate share of the actual operating expenses of the Building for the
12-month period just ended in excess of $7.50/square foot of Net Rentable Area
in the Building.
Subparagraph (3)(f) of the Lease is modified accordingly.
(4) LANDLORD CONTRIBUTION TO TENANT IMPROVEMENTS. At its sole cost and expense,
Landlord shall re-carpet the Premises, matching specification of Tenant's
existing carpet (Legend's Xxx Xxxxx) using a carpet supplier and installer
chosen by Landlord. Landlord shall also repaint Premises prior to December 31,
1998. Further Landlord shall repaint the Premises during the 5th year Extended
Term, upon receipt of reasonable prior written notification from Tenant of its
desire therefor, and establishing a start date for such painting. Any further
improvements or refurbishment of the Lease Premises, in addition to the
foregoing, shall be performed at the sole cost and expense of Tenant. The
provisions of Special Stipulations ("Exhibit F") of the Lease entitled
"Architectural Allowance" are inapplicable hereto and, having been fulfilled
said Stipulation is now and hereafter declared abrogated, inoperative, null and
void.
(5) BROKER. Tenant represents and warrants that no broker, agent,
commission salesman, or other person, other than The Xxxxxx Group, has
represented Tenant in the negotiations for the procurement of this Second
Amendment and that no commission, fee or compensation of any kind is due and
payable in connection therewith to any said person or entity other than The
Xxxxxx Group. The payment of a commission shall be the sole responsibility of
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Landlord, under the terms of a separate agreement to be entered into by and
between Landlord and The Xxxxxx Group. Tenant and Landlord also acknowledge that
American Resurgens Management Corp. has acted as agent for Landlord in this
transaction and is to be compensated solely by Landlord for its services in
connection therewith in accordance with a separate agreement with Landlord.
American Resurgens Management Corp. has not acted as agent for Tenant in
connection with this transaction. The provision of Special Stipulations (Exhibit
"F") to the original Lease, having been fulfilled, are declared inapplicable to
this Second Amendment, and same are abrogated and made null, void and of no
effect.
(6) HEATING, VENTILATION & AIR CONDITIONING. Notwithstanding the
provisions of Paragraph 13 ("Service and Utilities") of the Lease, after-hours
heating, ventilating and air conditioning will be provided by Landlord to Tenant
upon prior reasonable request therefor, on a floor-by-floor basis, at a charge
of Seventy Five Dollars ($75.00) per hour, per floor. The provisions of said
Paragraph 13 of the Lease are hereby modified and amended accordingly.
(7) PARKING. Notwithstanding the provisions of Paragraph 26 ("Parking")
of the Lease, the monthly charge therefor, payable in advance, shall be at the
rate of Fifty-Five Dollars ($55.00) per space, per month throughout the Extended
Term. Paragraph 26 of the Lease is hereby amended and modified accordingly.
(8) FULL FORCE AND EFFECT. All of the terms, covenants and conditions of
the Lease and of the Exhibits thereto, except and to the extent as modified by
this Second Amendment To Lease, shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto by and through their duly authorized
officers have executed this Second Amendment to Lease under their hands and
seals the day and year first above written.
WITNESS/ATTEST:
/s/ (Signature illegible)
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LANDLORD:
RESURGENS PLAZA SOUTH ASSOCIATES, L.P.,
A Georgia Limited Partnership
By: RESURGENS PLAZA SOUTH LTD., A
Georgia Limited Partnership
By: RESURGENS - AHE, L.P., A Georgia
Limited Partnership, its sole general partner
By: RESURGENS PLAZA- AHE, INC., A
Georgia Corporation, its sole general partner
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By: /s/ Xxxxx X. XxXxxxx L.S.
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(Printed Name): Xxxxx X. XxXxxxx
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(Title): President
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(CORPORATE SEAL)
(Signatures continued on next page)
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APPROVED:
GENERAL ELECTRIC REAL ESTATE EQUITIES, INC.
By: /s/ (Signature illegible)
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Its: /s/ Authorized Signatory
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TENANT:
INTERSTATE/XXXXXXX LANE
CORPORATION
A North Carolina Corporation
By: /s/ Xxxxxx X. Xxxx L.S.
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(Printed Name): Xxxxxx X. Xxxx
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(Title): Senior Managing Director &
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Chief Financial Officer
(CORPORATE SEAL)
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