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EXHIBIT 10.21(b)
FIRST AMENDMENT TO LEASE
THIS AMENDMENT, dated this 6th day of July, 1998, between TCB #4,
L.L.C. a Delaware limited liability company ("Landlord") and INTERLAND, INC.
("Tenant"), for the premises located in the City of Atlanta, County of Xxxxxx,
State of Georgia, commonly known as 34 Peachtree, Xxxxx 0000, 00 Xxxxxxxxx
Xxxxxx (the "Premises") as shown and identified on the floor plan attached to
this Amendment as Exhibit "A1".
WITNESSETH:
WHEREAS, Landlord's predecessor, 34 Peachtree Associates, L.P. and
Tenant, entered into that certain Lease dated November 19, 1997, (hereinafter
collectively referred to as the "Lease"); and
WHEREAS, Landlord and Tenant desire to amend the Lease as more fully
set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions. Unless otherwise specifically set forth herein, all
capitalized terms herein shall have the same meaning as set forth in
the Lease.
2. Premises - Paragraph 1: the Lease is hereby amended to include the
Expansion Premises consisting of approximately 6,031 rentable square
feet, making the total rentable square footage approximately 11,042.
3. Paragraph 3.A.(a) of the Lease is hereby amended to read as follows:
Rental of one hundred thirty-four thousand seven hundred twelve &
36/100 Dollars ($134,712.36) per year ("Base Rent"), payable in equal
monthly installments of eleven thousand two hundred and twenty-six &
03/100 Dollars ($11,226.03), in advance on the first day of each
calendar month during the Term, beginning upon the earlier of
substantial completion of the Expansion Premises or September 15, 1998;
4. Paragraph 38.I. of the Lease is hereby deleted in its entirety;
5. Paragraph 35. of the Lease is hereby amended to increase "Deposit" with
Landlord as security for the performance of Tenants obligations from
$5,094.52 to a sum of $11,226.03.
6. Landlord, at its expense, shall provide up to $75,289.50 to be applied
towards leasehold improvements below finished ceiling, to include
construction drawings, contractors supervision to build out the
Expansion Premises on the fourteenth floor in accordance
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with the attached Exhibit "B-1". Any costs in excess of said allowance
shall be the sole responsibility of the Tenant.
7. Incorporation. Except as modified herein, all other terms and
conditions of the Lease between the parties above described, as
attached hereto, shall continue in full force and effect.
8. Limitation of Landlord's Liability. Redress for any claims against
Landlord under this Amendment or under the Lease shall only be made
against Landlord to the extent of Landlord's interest in the property
to which the Premises are a part. The obligations of Landlord under
this Amendment and the Lease shall not be personally binding on, nor
shall any resort be had to the private properties of, any of its
trustees or board of directors and officers, as the case may be, the
general partners thereof or any beneficiaries, stockholders, employees
or agents of Landlord, or its investment manager.
IN WITNESS WHEREOF, Landlord and Tenant have executed the Amendment as
of the day and year first written above.
LANDLORD: TENANT:
TCB #4 L.L.C., a Delaware limited
liability company INTERLAND, INC.
By: RREEF MANAGEMENT COMPANY, a California
corporation
By: /s/ Xxx Xxxxxxxxxx
By: /s/ Xxxx X. Xxxxxxxx ------------------------
--------------------------------------- Xxx Xxxxxxxxxx
Xxxx X. Xxxxxxxx
Title: Vice President
Title: Vice President, District Manager ---------------------
-------------------------------------- Date: July 21, 1998
Date: July 24, 1998 ----------------------
---------------------------------------
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EXHIBIT B-1
EXPANSION ALTERATIONS
1. Landlord's Work. Landlord shall provide design and construction of the
work described in Schedule I to be attached hereto ("Landlord's Work"). As
further provided herein, Tenant shall be responsible for the incremental cost of
Landlord's Work in excess of the Maximum TI Allowance (defined below). The
certificate of Landlord's space planner that the work to be done by Landlord
pursuant to this Exhibit B-1 has been substantially completed shall be adequate
evidence that the Premises has been completed in accordance with the
requirements of the Lease and that possession thereof has been deemed delivered
to Tenant, for all purposes of the Lease, including the commencement of the
payment of rent.
2. Cost and Allowance.
2.1 Prior to commencing any of Landlord's Work, Landlord shall submit
to Tenant for Tenant's approval a written estimate of the cost of Landlord's
Work (an "Estimate"). Landlord may require Tenant to deposit that amount of the
amount of the Estimate which exceeds the Maximum TI Allowance with Landlord
within five (5) days after Landlord's written request therefor. Such deposit
shall be held as security for the payment of, and shall be credited, without
interest, against the sums payable by Tenant under this Lease.
2.2 This Lease and the rental rates provided for herein are premised on
a total cost of Landlord's Work not to exceed $16.50 per square foot, or
$75,289.50 ("Maximum TI Allowance"). The "cost of Landlord's Work" includes,
without limitation:
2.2.1 All costs and expenses actually incurred by Landlord
pertaining to Landlord's Work, including, but not limited to, costs charged by
contractors, subcontractors and general and other conditions costs and expenses
in connection with preparation of the Premises for occupancy;
2.2.2 All costs and expenses of preparation of the plans for such
construction, and site inspection and contract administration of Landlord's
consulting space planners and/or engineers;
2.2.3 All costs of permits, licenses and other approvals required
for the performance of Landlord's Work; and
2.2.4 A construction management fee to Landlord of five percent
(5%) of the total of all such costs under the foregoing Paragraphs 2.2.1, 2.2.2
and 2.2.3.
2.3 If the total cost of Landlord's Work exceeds the Maximum TI
Allowance, the entire amount of such excess shall be borne by Tenant and shall
be paid to Landlord by Tenant upon demand as additional rent under the Lease.
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3. Miscellaneous.
3.1 Except as set forth in this Exhibit B-1, Landlord has no other
agreement with Tenant and has no obligation to do any work with respect to the
Premises. Any other work in the Premises which may be permitted by Landlord
pursuant to the terms and conditions of the Lease shall be done at Tenant's sole
cost and expense and in accordance with the terms and provisions of the Lease.
3.2 All rights and remedies of Landlord herein created or otherwise
existing at law or equity are cumulative, and the exercise of one or more such
rights or remedies shall not be deemed to exclude or waive the right to the
exercise of any other rights or remedies. All such rights and remedies may be
exercised and enforced concurrently and whenever and as often as deemed
desirable.
3.3 This Exhibit B-1 shall not be deemed applicable to any additional
space added to the original Premises at any time or from time to time, whether
by any options under the Lease or otherwise, or to any portion of the original
Premises or any additions thereto in the event of a renewal or extension of the
original term of the Lease, whether by any options under the Lease or otherwise.
4. Recapture of Concessions. Tenant understands and agrees that in
entering into this Lease, Landlord is relying upon receipt of all the base rent
to become due with respect to all of the Leased Premises over the full term of
this Lease for amortization, including an interest factor of ten (10%) per annum
(the "Interest Rate") of the Concession Amount. For purposes hereof, the
"Concession Amount" shall be defined as the aggregate of the Maximum TI
Allowance and the brokers' commissions becoming due by reason of this Lease.
Accordingly, Tenant agrees that if this Lease or Tenant's right to possession of
the Leased Premises leased hereunder shall be terminated as of any date
("Termination Date") prior to the expiration of the full Term hereof by reason
of a default of Tenant, there shall be due and owing to Landlord as of the day
prior to the Termination Date, as rent in addition to all other amounts owed by
Tenant as of such Date, the amount ("Unamortized Amount") of the Concession
Amount determined as set forth below; provided, however, that in the event that
such amounts are recovered by Landlord pursuant to any other provision of this
Lease, Landlord agrees that is shall not attempt to recover such amounts
pursuant to this paragraph.
For the purposes hereof, the Unamortized Amount shall be determined in the same
manner as the remaining principal balance of a mortgage with the Interest Rate
payable in level payments over the same full term of the Lease would be
determined; to illustrate, according to a standard mortgage amortization table
the principal amount outstanding at the end of the fifth year of a loan of
$1,000.000 payable in level payments with interest at 8% over ten years will be
$598.00 assuming all payments to that point are made as due.