EXHIBIT 10.14.5
FOURTH AMENDMENT TO LEASE AGREEMENT
This Fourth Amendment to Lease Agreement (the "Fourth Amendment"), made
and dated this 28 day of April, 2003, by and between COUSINS LORET VENTURE,
L.L.C., a Georgia limited liability company, as successor-in-interest to
CSB-GEORGIA LIMITED PARTNERSHIP, a Georgia limited partnership ("CSB") (the
"Landlord") and LODGIAN, INC., a Delaware corporation, as successor-in-interest
to IMPAC HOTEL GROUP, L.L.C. (the "Tenant"), is effective July 1, 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 from
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floor of the Building, was withdrawn from the Leased Premises, thereby reducing
the net rentable area from 34,324 square feet to 21,817 square feet;
WHEREAS, Landlord and Tenant wish to extend the Lease Term; 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. The Lease Term shall be extended for a period of twenty-six (26)
months, so that the Lease is now scheduled to expire at midnight on August 31,
2005 (the "Extension Term").
1
2. Net Rental for the Leased Premises, during the Extension Term, is
set forth below:
Annual Net
Square Feet Rental Rate
of Net Per Square
Rentable Foot of Net
From Through Area Rentable Area
----------------------------------------------------------------------------
07-01-03 07-31-04 21,817 $18.50
08-01-04 08-31-05 21,817 $19.50
3. a) Notwithstanding anything contained in this Fourth
Amendment to the contrary, Tenant shall not be obligated to pay the Net Rental
under the Lease, (the "Abated Rent"), for calendar months January, 2004 and
January 2005 (the "Abatement Period"), provided Tenant is not then in default
under any of the terms and conditions of the Lease at any time during the
Abatement Period.
b) Upon the occurrence of any of event of material
default, and in addition to any other remedies provided to Landlord under the
Lease, Landlord shall be entitled to recover as damages, without limitation, the
total amount of such Abated Rent, without any notice or demand whatsoever.
4. a) Landlord agrees to contribute an allowance of
forty-three thousand six hundred thirty-four dollars ($43,634.00) (the
"Extension Construction Allowance") for the plans and construction of the
improvements, to be constructed by Landlord, within the Leased Premises (the
"Tenant Improvements"). Any costs that exceed the Extension Construction
Allowance ("Tenant's Cost") shall be paid to Landlord by Tenant, upon demand.
b) Notwithstanding anything contained in the Lease to the
contrary, if the total cost of the Tenant Improvements shall be less than the
sum of the Extension Construction Allowance and any payment previously made to
Landlord with respect thereto, Landlord and Tenant understand and agree that the
Leased Premises shall receive the benefit of such excess Extension Construction
Allowance, that such excess shall not be used for any other purpose and,
further, in no event shall Landlord be obligated to disburse any portion of the
Extension Construction Allowance at any time following the last day of the
twelfth (12th) month from the Effective Date.
c) Tenant agrees to pay to Landlord, or Landlord's
designated agent, a fee for program management of the construction of the Tenant
Improvements, in an amount equal to three and one half percent (3-1/2%) of the
total costs of the plans and the Tenant Improvements, which shall be deducted
from the Extension Construction Allowance.
d) Tenant shall not make any alterations, additions or
improvements in or to the Leased Premises without Landlord's prior written
consent, which consent shall not be unreasonably withheld. Tenant shall not make
any alterations, additions or improvements to any common areas without
Landlord's prior written consent, which consent may be granted or withheld in
Landlord's sole discretion. Any alterations, additions or improvements requested
by Tenant and approved by Landlord shall be performed (i) by Landlord's
contractor or another contractor approved by Landlord, (ii) in a good and
workmanlike manner, and (iii) in accordance with all applicable codes, laws,
ordinances, rules and regulations of governmental authorities having
jurisdiction over the Demised Premises, including OSHA Regulations.
e) Other than set forth above, Tenant agrees to accept the
Leased Premises in its then existing condition (on an "as-is" basis).
2
5. Exhibit "H" (Renewal Option) of the Lease shall be deleted
entirely.
6. Tenant shall not be obligated or required to pay Additional
Rental, as set forth in Article 2.03 of the Lease, during the Extension Term or
the "Renewal Term," as defined below.
7. a) Provided Tenant is not in default under any of the terms
and conditions of the Lease, Tenant may extend the Term of the Lease for a
period of one (1) year (the "Renewal Term") by giving written notice to Landlord
at least six (6) months prior to the expiration of the Extension Term.
Notwithstanding the foregoing, Tenant shall have no right to exercise such
option to renew unless Tenant is not in default on the date Tenant exercises
such option and on the last day of the Extension Term.
b) If Tenant exercises its option to renew, the Net
Rental shall be calculated at the annual rate of $20.50 per square foot of net
rentable area.
c) If Tenant shall fail to exercise its option for the
Renewal Term, or if all conditions set forth above are not entirely satisfied,
the Lease shall expire at the expiration of the Extension Term and Tenant shall
have no further right thereafter to renew the Lease or to require any interest
whatsoever in the Leased Premises.
d) This option to renew is not transferable and shall be
"personal" to Tenant as set forth above and that, in no event, will any assignee
or sublessee have any rights to exercise the aforesaid option to renew.
8. The parties hereto acknowledge that in this transaction,
Cousins Properties Incorporated, a Georgia corporation, has acted as agent for
Landlord and shall be paid a commission by Landlord for representation, pursuant
to a separate agreement. No one has acted as agent for Tenant. Landlord and
Tenant each represent and warrant to the other that, except as provided herein,
neither of them has employed or dealt with any broker, agent or finder in the
negotiations of this Fourth 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 representations and warranty.
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.
The undersigned officers and representatives of the parties executing
this Fourth Amendment represent and warrant that they are officers of the
parties with authority to execute this Fourth 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.
3
IN WITNESS WHEREOF, the parties have executed this Fourth 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
--------------------------------------------
Jack A. LaHue (print or type name)
---------------------------------------------
Its: Senior Vice President
---------------------------------------------
[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
--------------------------------------------
Douglas M. Firstenberg
Its: General Partner
[Corporate Seal]
TENANT:
LODGIAN, INC.,
a Delaware corporation
By: /s/ Daniel E. Ellis
---------------------------------------------
Daniel E. Ellis (print or type name)
---------------------------------------------
Its: Senior Vice President
---------------------------------------------
[Corporate Seal]
4