EXHIBIT 10.14.6
FIFTH AMENDMENT TO LEASE AGREEMENT
This Fifth Amendment To Lease Agreement (this "Fifth Amendment"), made
and dated this 23rd day of December, 2003, by and between COUSINS LORET
VENTURE, L.L.C., a Georgia limited liability company (the "Landlord") and
LODGIAN, INC., a Delaware corporation (the "Tenant"), is effective December 22,
2003 (the "Effective Date").
RECITALS:
WHEREAS, CSB as predecessor-in-interest to Landlord and IMPAC HOTEL
GROUP, L.L.C., as predecessor-in-interest to Tenant entered into that certain
Lease Agreement dated April 7, 1997 (the "Lease"), for that certain office
space consisting of 21,817 square feet of net rentable area, located on the 7th
floor at the Building known as Two Live Oak, 3445 Peachtree Road NE, Atlanta,
Georgia 30326 (the "Leased Premises"), with a Lease Term beginning on July 7,
1997 and ending at midnight on June 30, 2003;
WHEREAS, the Lease was amended by First Amendment to Lease Agreement
dated May 8, 1998 (the "First Amendment"), whereby 7,597 square feet of net
rentable area, located on the 3rd floor of the Building, was added to the
Leased Premises, thereby increasing the net rentable area of the Leased
Premises form 21,817 square feet to 29,414 square feet;
WHEREAS, the Lease was amended by Second Amendment to Lease Agreement
dated June 7, 2000 (the "Second Amendment"), whereby 4,910 square feet of net
rentable area, located on the 3rd floor of the Building, was added to the
Leased Premises, thereby increasing the net rentable area of the Leased
Premises from 29,414 square feet to 34,324 square feet;
WHEREAS, the Lease was amended by Third Amendment to Lease Agreement
dated April 1, 2002, whereby 12,507 square feet of net rentable area, on the
3rd floor of the Building, was withdrawn from to the Leased Premises, thereby
reducing the net rentable area from 34,324 square feet to 21,817 square feet;
WHEREAS, the Lease was amended by Forth Amendment to Lease Agreement
dated April 28, 2003, whereby the Lease Term was extended to expire at midnight
on August 31, 2005;
WHEREAS, Landlord and Tenant wish to include within the Leased
Premises, certain temporary storage area; and
AGREEMENT:
NOW THEREFORE, in consideration of the mutual promises contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant hereby agree that, effective on
the Effective Date:
1. Storage. Suite 355 containing 979 square feet of net rentable
area, located on the 3rd floor of the Building and shown on Exhibit "A"
attached hereto and incorporated herein by reference (the "Storage Space"),
shall be added to the Leased Premises, on a month-to-month basis.
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2. Operating Expenses. Tenant's Percentage Share for the payment
of Additional Rental does not include the Storage Space.
3. Net Rental. The annual net rental rate for the Storage Space
shall be $18.50 per square foot of net rentable area of the Storage Space; or
$1,509.30 per month.
4. Construction. Tenant agrees to accept the Storage Space in
its then existing condition (on an "as-is" basis and Tenant shall not make, or
suffer to be made, any alterations, additions or improvements, including, but
not limited to the attachment of any fixtures or equipment in, or to the
Storage Space or any part thereof, without the prior written consent of
Landlord. Landlord is under no obligation, whatsoever, to provide or control
heated or cooled air or ventilation, within the Storage Space.
5. Parking. Tenant shall have no rights to parking permits in
connection with or as a part of the lease of the Storage Space.
6. Relocation. Landlord reserves the right at any time or from
time to time, at its option and upon giving at least thirty (30) days prior
written notice to Tenant, to transfer and remove Tenant from the Storage Space
to any other available area of substantially equal size within the Building and
at an equivalent annual net rental, subject to adjustments set forth herein.
7. Cancellation. Landlord or Tenant shall have the right to
terminate the Lease Term for the Storage Space, for any reason, effective at
any time, by delivering written notice of such election to the other party, at
least thirty (30) days prior to the effective date of the termination.
8. Broker. The parties hereto acknowledge and agree and warrant
to the other party that, neither party has employed or dealt with any broker,
agent of finder in the negotiations of this Fifth Amendment and each party
shall indemnify and hold the other party harmless from and against any
liability, claim, damage, cost or expense in the event of the inaccuracy of
such representation and warranties.
9. Assignment or Sublease. Tenant shall not sublet or assign the
Storage Space, in whole or in part, without the prior written consent of
Landlord.
10. Use. Tenant shall use the Storage Space for the storage of
non-Hazardous Substances and for no other purpose. "Hazardous Substances" shall
mean and include those elements of compounds which are contained in the list of
Hazardous Substances adopted by the United States Environmental Protection
Agency (EPA) or in any list of toxic pollutants designated by Congress or the
EPA or which are defined as hazardous, toxic, pollutant, infectious or
radioactive by any other federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating to or imposing liability
(including, without limitation, strict liability) or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or material, as
now or at any time hereinafter in effect (collectively, "Environmental Laws").
11. Indemnification. Tenant hereby indemnifies and holds Landlord
harmless from and against any all claims, including but not limited to, loss or
theft of or injury and damage to Tenant's property located within the Storage
Space.
Except as modified herein, all other terms and conditions of the
Lease, as the same may have been previously modified from time to time, between
the parties above described, shall continue in full force and effect.
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The undersigned officers and representatives of the parties executing
this Fifth Amendment represent and warrant that they are officers of the
parties with authority to execute this Fifth Amendment on behalf of the
parties.
All capitalized terms used herein, and not otherwise defined herein,
shall have the meanings ascribed to them in the Lease.
IN WITNESS WHEREOF, the parties have executed this Fifth Amendment as
of the date and year first above written.
LANDLORD:
COUSINS LORET VENTURE, L.L.C.,
a Georgia limited liability company
By: COUSINS PROPERTIES INCORPORATED,
a Georgia corporation, member
By: /s/ Jack A. LaHue
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Jack A. LaHue
- --------------------------------------------------------- (print or type name)
Its: Senior Vice President
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[Corporate Seal]
By: LORET HOLDINGS, L.L.L.P.,
a Georgia limited liability limited partnership,
member
By: PEACHTREE INVESTORS, L.P.,
a Pennsylvania limited partnership,
general partner
By: /s/ Douglas M. Firstenberg
------------------------------------------------------
Name: Douglas M. Firstenberg
Its: General Partner
[Corporate Seal]
[signatures continue on the next page]
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TENANT:
LODGIAN, INC.,
a Delaware corporation
By: /s/ Daniel Ellis
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Daniel Ellis
- ----------------------------------------------------- (print or type name)
Its: Vice President
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[Corporate Seal]
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[Architectural Design of Floor Space]
979 Rentable Square Feet
EXISTING THIRD FLOOR PLAN
TEMPORARY STORAGE AREA
TWO LIVE OAK, SUITE 350
ATLANTA, GEORGIA 30326
A Development of Cousins Properties
Joel Laseter Architect PC 12-19-03
This floor plan is intended only to show that the general layout of the
property or a part thereof. Landlord reserves the right to alter, vary, add to
or omit in whole or in part, any structures, and/or improvements, and/or common
areas shown on this plan. This plan is not to scale and all measurements and
distances are approximate.
EXHIBIT "A"
Storage Space
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