EXHIBIT 10.16(a)
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (this "First Amendment") is entered
into this ______ day of _____________, 1999, by and between AMLI LAND
DEVELOPMENT - I LIMITED PARTNERSHIP, an Illinois limited partnership, whose
address is in care of AMLI REALTY CO., 1945 Vaughn Road, Kennesaw, Georgia
30144, (together with its successors and assigns "Amli") and CRYOLIFE, INC., a
Florida corporation, whose address is 1655 Roberts Boulevard, Kennesaw, Georgia
30144 (together with its permitted assigns "Tenant").
W I T N E S S E T H :
WHEREAS, Amli and Tenant entered into that certain Lease Agreement dated as
of April 14, 1995, ("Lease") dealing with and surrounding the leasing of a
certain building and other improvements and appurtenances thereto as described
in the Lease ("Cryolife Phase I");
WHEREAS, Amli has agreed to the construction of an additional two-story
office/R&D/warehouse/light manufacturing building and other improvements and
appurtenances, including an interconnection between Cryolife Phase I and
Cryolife Phase II (as that term is hereinafter defined) thereby adjoining
Cryolife Phase I and Cryolife Phase II;
WHEREAS, for the purposes herein, the new additional two-story office/R&D
building, other improvements and appurtenances, including the interconnection,
shall hereinafter be referred to as "Cryolife Phase II".
WHEREAS, Amli and Cryolife desire to enter into this First Amendment to
amend the Lease.
NOW, THEREFORE, in consideration of TEN and NO/100 ($10.00) DOLLARS, the
premises, and other good and valuable consideration and the mutual benefits that
will be derived by the parties hereto, Amli and Tenant hereby agree as follows:
The recitals hereinabove set forth are incorporated
herein by reference as if totally set forth herein.
The Cryolife Phase II shall be and is hereby covered
and governed by the Lease as hereinafter amended.
The Lease is hereby amended whereby any and all
references to the Pre-Occupancy and Construction Agreement in
the Lease shall only refer to and apply to Cryolife Phase II.
The Lease is hereby amended whereby any and all
reference to the address of Amli shall mean 1945 Vaughn Road,
Kennesaw, Georgia 30144, and any and all reference to the
address of the Tenant shall mean 1655 Roberts Boulevard,
Kennesaw, Georgia 30144.
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The Lease is further hereby amended as follows:
1. In Paragraph 1, styled Architect, on Page 1 strike "Masterson, Fowler
Associates, Ltd." and substitute in lieu therefor: "An architect
selected by Tenant ("Tenant Architect"), subject to Landlord's
reasonable approval, and an architect selected by Landlord, i.e.
Fowler & Associates, Inc. The Tenant Architect and Landlord Architect
shall cooperate and work in conjunction with each other in their
respective designs and preparations of the respective plans and
specifications ".
2. In Paragraph 1, styled Gross Building Area, on Page 3, is hereby
deleted in its entirety and the following substitute in lieu therefor:
"Gross Building Area: The entire area within the exterior
base walls on each floor of Cryolife Phase I. Unless otherwise
expressly stated to the contrary, all reference in this Lease in
"square feet" shall mean the square feet of the Gross Building
Area of Cryolife Phase I and Cryolife Phase II. Landlord and
Tenant hereby agree that the Gross Building Area of Cryolife
Phase I, as shown on the Plans, is 98,268 sq. ft, and such total
shall be deemed to Gross Building Area of Cryolife Phase I for
all purposes under this Lease.
The Landlord and Tenant hereby agree that the Gross Building
Area of Cryolife Phase II, as shown on the Plans, is 98,268
sq.ft. (plus an area to be determined and agreed to by Landlord
and Tenant for the interconnection between Cryolife Phase I and
Cryolife Phase II once the plans and specifications for the
interconnection are agreed to and approved by Landlord and
Tenant) and such total shall be deemed the Gross Building Area of
Cryolife Phase II for all purposes under this Lease."
3. In Paragraph 1, styled Land, on Page 4, is hereby deleted in its
entirety and the following substitute in lieu therefor:
"Land: An approximately eleven (11) acre parcel of real estate
located in the Park, and legally described in Exhibit A attached
hereto and made a part hereof ("Cryolife Phase I"). An
approximately nine and one-half (9.5) acre parcel of real estate
located in the Park, and legally described in Exhibit A-1
attached hereto and made a part hereof ("Cryolife Phase II")".
a. In Paragraph 1, styled, Net Rentable Area, on Page 5, is hereby
deleted in its entirety and substitute in lieu therefor the following:
"Net Rentable Area: The Gross Building Area of Cryolife Phase I,
less the area of the vertical penetrations for the elevators and
any designated stairwells within the perimeter of the Facility of
Cryolife Phase I (e.g. there being two (2) stairwells in the
initial Facility of Cryolife Phase I). Landlord and Tenant hereby
agree that the Net Rentable Area of the initial Facility of
Cryolife Phase I, as shown on the Plans, is Ninety-Five Thousand
Two Hundred Ten (95,210) sq. ft. and such total shall be deemed
the net rentable area of the Facility of Cryolife Phase I for all
purposes under this Lease.
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Landlord and Tenant hereby agree that the Net Rentable Area
of Cryolife Phase II, as shown on the Plans, is Ninety-Five
Thousand Two Hundred Ten (95,210) sq.ft and such total shall be
deemed the Net Rentable Area of the facility of Cryolife Phase
II, for all purposes under this Lease, and excludes a freight
elevator that may be installed by Tenant at Tenant's sole
expense."
In Paragraph 1, styled Premises, on Page 6 is hereby deleted
in its entirety and substitute in lieu therefor the following:
"Premises: collectively, the Land, the Facility of Cryolife Phase
I and the Facility of Cryolife Phase II, the interconnection
between Cryolife Phase I and Cryolife Phase II (which
interconnection shall be deemed a part of Cryolife Phase II) and
other improvements located on the Land."
b. In Paragraph 2, on Page 7, is hereby deleted in its entirety and the
following is substituted in lieu therefor:
"2. Agreement to Lease. Landlord hereby Leases to Tenant and
Tenant hereby accepts the Land of Cryolife Phase I, located in
Cobb County, Georgia, together with all improvements now and
hereafter located on the Land of Cryolife Phase I, including
without limitation a building of Ninety-Eight Thousand Two
Hundred Sixty-Eight (98,268) sq. ft. of Gross Building Area
constructed thereon in accordance with the Plans (such building
referred to hereinafter as the "Facility of Cryolife Phase I"),
for a term (the "Term") commencing on the Commencement Date and
ending ______________ months after the Commencement Date (the
"Termination Date"); provided, however, that if the Commencement
Date is not the first (1st) day of the calendar month, the Term
shall end ____________ calendar months after the first (1st) day
of the calendar month immediately succeeding the calendar month
in which the Commencement Date occurs, unless sooner terminated
as provided herein, subject to the agreements herein contained.
The parties agree and acknowledge that the Commencement Date for
the Facility of Cryolife Phase I is _____________ and the
Termination Date for Cryolife Phase I will be the termination
date for Cryolife Phase II.
Landlord hereby Leases to Tenant, and Tenant hereby accepts,
the Land of Cryolife Phase II, located in Cobb County, Georgia,
together with all improvements now or hereafter located on the
Land Cryolife Phase II, including without limitation a building
of Ninety-Eight Thousand Two Hundred Sixty-Eight (98,268) sq. ft.
of Gross Building Area to be constructed thereon in accordance
with the Plans pursuant to the Pre-Occupancy Agreement (such
building being referred to herein as the "Facility of Cryolife
Phase II") for a term (the "Term") commencing on the Commencement
Date and ending One Hundred Eighty (180) calendar months from the
Commencement Date (the "Termination Date"); provided, however,
that if the Commencement Date is not the first (1st) date of a
calendar month, the Term shall end One Hundred Eighty (180)
calendar months after the first 1st day of the calendar month
immediately succeeding the calendar month in which the
Commencement Date occurs unless sooner terminated as provided
herein, subject to the agreements herein contained."
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In Paragraph 3, on Page 8 the paragraph is hereby deleted in
its entirety and the following is substituted in lieu
therefor:
" 3. Commencement Date: Except as otherwise expressly provided
for in this Lease or the Pre-Occupancy Agreement, the
"Commencement Date " for Cryolife Phase II shall be One Hundred
Twenty-Two (122) days after the later to occur of (i) the
Substantial Completion Date or (ii) October 31, 2000
("Anticipated Commencement Date"). The parties shall confirm the
date of the Commencement Date of Cryolife Phase II in writing as
provided in Section 17 of the Pre-Occupancy Agreement."
In Paragraph 6.2, add the following as a new paragraph at
the end of the paragraph:
"Landlord represents that the amount of the assessments for the
1999 calendar year is estimated to equal approximately Three
Hundred and no/100 Dollars ($300.00) per acre".
c. In Paragraph 23, Page 41, add the following as a new paragraph at the
end of the paragraph:
"23.8 Casualty Affecting Cryolife Phase I - Crolife Phase II.
Amli and Tenant hereby acknowledge and agree that any Casualty as
described in this Paragraph 24, which only affects either
Cryolife Phase I or Cryolife Phase II and not both Cryolife Phase
I and Cryolife Phase II, Tenant can only exercise its right of
termination of the Lease as it relates only to the phase which is
affected, i.e. either Cryolife Phase I or Cryolife Phase I,
unless both phases, i.e. Cryolife Phase I and Cryolife Phase II,
are effected by such Casualty."
d. In Paragraph 24, Page 46, add the following as a new paragraph at the
end of the paragraph:
"24.7 Condemnation Affecting Cryolife Phase I - Crolife Phase II.
Amli and Tenant hereby acknowledge and agree that any
Condemnation as described in this Paragraph 24, which only
affects Cryolife Phase I or Cryolife Phase II and not both
Cryolife Phase I or Cryolife Phase II, Tenant can only exercise
its right of termination of the Lease as it relates only to the
phase which is affected, i.e. Cryolife Phase I or Cryolife Phase
I, unless both phases, i.e. Cryolife Phase I or Cryolife Phase
II, are effected by such condemnation"
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e. In Paragraph 37(a)(i), Page 57, the first sentence of the subparagraph
is striken in its entirety and the following is substituted in lieu
therefor:
"The initial Base Rent payable during the first year of the
Renewal Term shall be at a rate equal to one hundred two (102%)
percent of the Base Rent applicable to the Nineteenth (19th)
Lease Year for Cryolife Phase I and to the fifteenth (15th) Lease
Year applicable to Cryolife Phase II".
f. In Paragraph 39, Page 59, is hereby deleted in its entirety.
g. In Paragraph 41, Page 60, is hereby deleted in its entirety.
h. In Paragraph 43, Page 61, add the following at the end of the
paragraph:
"The Moving Allowance and Design Allowance described in this
paragraph are applicable to Cryolife Phase I".
Further add at the end of the paragraph the following new
paragraph"
"The Landlord shall pay the Tenant (i) a moving allowance of
Ninety-Five Thousand Two Hundred Ten and no/100 Dollars
($95,210.00) (the "Moving Allowance Cryolife Phase II") and (ii)
a space planning and design allowance of Ninety-Five Thousand Two
Hundred Ten and no/100 Dollars ($95,210.00) (the "Design
Allowance Cryolife Phase II"). The Moving Allowance Cryolife
Phase II and the Design Allowance Cryolife Phase II shall be due
and payable on the date on which Tenant takes occupancy of
Cryolife Phase II. Tenant shall not be required to provide
verification of Tenant's actual moving expenses or space planning
or design expenses in order to be entitled to payment of the
Moving Allowance of Cryolife Phase II and the Design Allowance of
Cryolife Phase II."
The following shall be added as a new paragraph 44:
"44. Tenant Allowance. Landlord shall provide Tenant with a
Tenant Improvement Allowance ("TIA") in accordance with the
Pre-Occupancy Agreement which TIA shall be fully amortized over
the initial fifteen (15) year Term of Cryolife Phase II".
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i. Exhibit B is hereby deleted in its entirety and Exhibit B attached
hereto and incorporated herein by reference is substituted in lieu
therefor.
j. Attached hereto as Exhibit B-1 is a Schedule of Base Rent payments for
Cryolife Phase II, which Exhibit B1 is incorporated herein by
reference.
k. In Exhibit C, the form of estoppel letter for Cryolife Phase II shall
refer to the year 2000 and the Premises shall refer to the nine and
one half (9.5) acres together with the Ninety-Eight Thousand Two
Hundred Sixty-Eight (98,268) sq. ft. building (plus the
interconnection) known as Cryolife Phase II Building in Barrett, Cobb
County, Georgia.
l. Exhibit E, the form of Memorandum of Lease for Cryolife Phase II,
shall refer to the year 2000, the First Amendment to Lease as of the
date of __________, 1999, the sq. footage of the Cryolife Phase II
Building shall be Ninety-Eight Thousand Two Hundred Sixty-Eight
(98,268) sq. ft. (plus the square footage within the interconnection)
and the term of the Lease shall be from the Substantial Completion
date or October 31, 2000.
m. The following shall be added as a new paragraph 45:
"45. Base Building and Leasehold Improvements Cryolife Phase II:
Landlord shall design and build the base building shell, which
shall include but is not necessarily limited to the following
features: a two-story block building over a steel frame, with
mirrored glass; sprinklers to meet code (heads turned up);
floor-to-ceiling glass on five-foot centers on four sides of the
building (adjusted for loading area); paving, striping, leased
pole lighting, curb and gutter in the parking lot; parking
commensurate with Cryolife Phase I; landscaping commensurate with
Cryolife Phase I; design specifications for Tenant Improvements;
two (2) hydraulic elevators and entry lobby stairs and
docking/receiving area similar to Cryolife Phase I.
As part of the construction of the base building shell for
Cryolife Phase II, Landlord shall construct an interconnection
between Cryolife Phase I building and Cryolife Phase II building
of approximately seven thousand (7,000) square feet. Landlord
shall be responsible for the cost of the interconnection not to
exceed One Hundred Thousand and no/100 Dollars ($100,000.00) and
any cost over and above the first One Hundred Thousand and no/100
Dollars ($100,000.00) for the construction of the interconnection
shall be borne by the Tenant. Tenant may, at its election, use
Tenant Improvement Allowance up to but not to exceed One Hundred
Seventy-Five Thousand and no/100 Dollars ($175,000.00) for the
payment of the construction cost of the interconnection over and
above the first One Hundred Thousand and no/100 Dollars
($100,000.00).
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The leasehold improvements to be constructed by the Tenant
and for which the Tenant Improvement Allowance has been allocated
and established in the Pre-Occupancy Agreement shall be used for
the construction of Tenant Improvements over and above the base
building shell, including but not limited to: lobby finishes;
tenant build-out; mechanical, electrical, plumbing design cost
beyond the base building; interior design fees including the
preparation of construction drawings for Tenant Improvements;
moving allowance; space planning; restrooms beyond stub-in;
tenant identification signage; installation of all HVAC, plumbing
and electrical systems (beyond minimum required by code in
compliance with mutually accrued locations, specifications and
capacity; construction management by Tenant; and bonding and
insurance for the construction of the Tenant Improvements.
The Tenant shall be responsible for the designing and
constructing all Tenant Improvements, over and above the base
building, and for providing its own construction management
services for the Tenant Improvements to be made by Tenant."
The parties hereto hereby ratify, affirm and confirm the Lease, as amended
hereby, and that the Lease is in full force and effect and that the parties
are bound by the terms and conditions of the Lease as hereby amended.
TENANT:
CRYOLIFE, INC.
a Florida corporation
By:________________________________
Steven G. Anderson
Its Chairman, President & CEO
[CORPORATE SEAL]
Date of Signature _________________, 1999
LANDLORD:
AMLI LAND DEVELOPMENT -
I LIMITED PARTNERSHIP
an Illinois limited partnership
By: AMLI REALTY CO.,
a Delaware corporation, its sole general partner
By: _______________________________
Philip N. Tague
Executive Vice President
[CORPORATE SEAL]
Date of Signature _____________________, 1999