Exhibit 10.42
FOURTH AMENDMENT TO LEASE
THIS AMENDMENT made this 24th day of June, 1998, by and among 1430
L.L.C., successor in interest to West Peachtree Point Partners L.P. (The
Landlord), and Mindspring Enterprises, Inc., a Georgia Corporation (The Tenant).
WHEREAS, by Agreement of Lease ("The Lease") dated August 11, 1995,
amended February 6, 1996 ("The First Amendment"), amended September 25, 1996
("The Second Amendment"), amended February 10, 1997 ("The Third Amendment"),
Landlord leased to Tenant that certain Premises known as Suite 400 located in
the building ("The Building"), now situated on the property at 0000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx.
NOW, THEREFORE, in consideration of the Premises and the additional
terms and conditions set forth below, Landlord and Tenant hereby agree to amend
said Lease as follows:
1. FOURTH EXPANSION PREMISES. Landlord does hereby rent and lease to Tenant
and Tenant does hereby rent and lease from Landlord for general office use
reasonable and customary in Atlanta, Georgia, the space described below together
with the non-exclusive right to use the common areas (as the same may from time
to time be changed by Landlord) in common with all other Tenants of the Building
and their licensees and invitees and in common with any other parties permitted
by Landlord to use such areas, 17,998 rentable square feet of space located on
the first, second and fifth floors of that certain building consisting of
approximately 68,987 rentable square feet and commonly known as 0000 Xxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxx, said space to be located as shown on the floorplans
attached hereto as "Exhibit A-4" and made a part hereof by reference.
2. RENT. Tenant shall pay to Landlord, c/o RB Management Services at 0000
Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 or at such other place as Landlord
shall designate in writing to Tenant, annual base rent in an amount equal to
$238,473.50, payable in equal monthly installments of $19,872.79, due on the
first day of each calendar month, in advance, without abatement, demand,
deduction, or offset whatsoever, except as provided in Article 10 herein.
3. TERM. The term for the Fourth Expansion Premises shall be forty-eight (48)
months, and shall commence on July 15, 1998 ("The Commencement Date") and shall
terminate at noon on July 14, 2002 ("The Expiration Date"). Should Tenant not
occupy a portion of the Fourth Expansion Premises, due to Landlord's inability
to relocate the existing tenants located on the fifth floor of the Building,
then the monthly rental shall be prorated based upon actual square footage
available to Tenant to occupy. Landlord shall have ninety (90) days from the
Commencement Date to make best efforts to provide for Tenant to occupy all space
located on the fifth floor. After ninety (90) days, should Tenant not be able to
occupy a portion of the fifth floor of the Fourth Expansion Premises, due to
existing tenants still located on the floor, Tenant shall have the option to
occupy within thirty (30) days thereafter any reasonable portion of other space
available in the Building, or mutually agree with Landlord to modify the Fourth
Amendment to reflect the square footage Tenant occupies.
4. ESCALATION. Landlord and Tenant agree that the Base Rental set forth in
Paragraph 3 above shall be increased annually by four percent (4%) on each
anniversary date of the commencement date.
5. RELOCATION OF EXISTING TENANT. Landlord and Tenant acknowledge the existing
tenants in Suites 503, 504, 506, 508, and 512 will be required to relocate to
accommodate this fourth expansion of Tenant's Premises. Tenant acknowledges it
will be responsible to pay all relocation costs associated with relocating the
existing tenants located on the fifth floor listed above, exclusive of any
Tenant Improvement costs associated with the existing tenants' new premises.
It is assumed that an average relocation cost will be $3.00 per rentable square
foot. If the actual relocation is more than $3.00 per rentable square foot,
Tenant will have the option to direct Landlord not to relocate the existing
tenant, and Landlord and Tenant agree to modify the Fourth Amendment to reflect
the square footage Tenant occupies, as above described in Article 3.
Landlord also agrees that provided funds are available in Tenant's Tenant
Improvement Allowance, that these funds may be used to fund existing tenant's
relocation costs.
6. TENANT IMPROVEMENT. Landlord agrees to furnish Tenant a Tenant Improvement
Allowance of $3.00 per occupied rentable square foot. Should Tenant occupy any
available space in the Building with less than forty-eight (48) months of Term
remaining, the Tenant Improvement Allowance shall be prorated to reflect the
shortened term.
7. PARKING. Xxxxxxxxx #00, Xxx-Xxxxxxxxx J of the original Lease Agreement
dated August 11, 1995, and Paragraph #6 of the First Amendment dated February 6,
1996, and Paragraph #5 of the Second Amendment dated September 25, 1996, are
hereby deleted in their entirety and replaced with the following:
Landlord will provide Tenant with a parking ratio of two parking permits per
1,000 rentable square feet of space occupied by Tenant at the Building. Tenant
shall pay Landlord the sum of Thirty and 00/100 Dollars ($30.00) per parking
permit per month for use of said permits. Landlord may raise the cost of said
permits if the owners of comparable parking lots raise the costs of their
permits above $30.00 per
permit per month.
8. EXPANSION AND CANCELLATION OPTION. Paragraph #35E of the original Lease
Agreement dated August 11, 1995, and Paragraph #9 of the First Amendment dated
February 6, 1996 and Paragraph #7 of the Second Amendment dated September 25,
1996 and Paragraph #6 of the Third Amendment dated February 10, 1997 are hereby
deleted in their entirety.
9. RIGHT OF REFUSAL. Paragraph #35, Sub-Paragraph A of the original Lease
Agreement dated August 11, 1995, is hereby amended to include any portion of the
available space on the sixth floor of the Building (the "Option Area").
10. CAPITAL IMPROVEMENTS. The following list of' improvements are scheduled to
be completed within twelve (12) months of Mindspring occupying their fourth
expansion space. Should these items not be completed in the twelve (12) month
time period, Mindspring will have a right to deduct five percent (5%) from the
Fourth Expansion Premises monthly rental for each item, until such time each
item is completed.
HVAC: Auto change-over HVAC controls.
Security: Installation of a card key access system for the building.
Elevators: Elevators to be brought up to substantial code compliance with
respect to life safety and ADA compliance.
11. When the Premises as defined in the original Lease Agreement dated August
11, 1995, amended February 6, 1996 ("The First Amendment"), amended September
25, 1996 ("The Second Amendment"), amended February 10, 1997 ("The Third
Amendment"), is relinquished to Landlord on March 31, 2001, Landlord
acknowledges and agrees that Tenant's remaining 17,998 square feet of Premises
shall be contiguous and that the Premises described in the Fourth Amendment
shall need to be redefined by mutual agreement between Landlord and Tenant.
12. Landlord and Tenant acknowledge Tenant's notification of its renewal
according to Paragraph 34 of the Lease, Paragraph 8 of the First Amendment,
Paragraph 6 of the Second Amendment, and Paragraph 5 of the Third Amendment.
EXCEPT as herein specifically provided all terms and conditions of the
original Lease dated August 11, 1995, amended February 6, 1996, amended
September 25, 1996, amended February 10, 1997, shall remain the same.
IN WITNESS WHEREOF, the parties hereto have set their hands and seal
the day and year first above written.
Signed, Scaled and Delivered in the Presence of
LANDLORD: 1430 L.L.C.
/s/ [signature illegible] By: /s/ [signature illegible] CEO
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Witness
/s/ [signature illegible]
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Notary Public
TENANT: MINDSPRING ENTERPRISES,
INC.
/s/ Xxxxxxxx Xxxxxxx By: /s/ [signature illegible]
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Manager, Facilities & Vice President, Human Resources
Admin. Services
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Notary Public
