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EXHIBIT 10.3
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT (the "Amendment"), entered
into as of the 22nd day of April, 1996, by and between TWO PARK, INC., a Georgia
corporation having LaSalle Partners Management Limited as its duly authorized
agent (hereinafter referred to as the "Landlord"), and E3 ASSOCIATES, LTD., a
Georgia corporation (hereinafter referred to as the "Tenant").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant have entered into that certain Two Parkway
Center Lease Agreement, dated November 8, 1990 (the "Lease"), as amended by
Amendment to Lease, dated August 14, 1995 (the "Lease"), with respect to certain
premises consisting, as of the date hereof, of 24,882 square feet of Rentable
Area and known as Suites 315, 600 and 605, 1800 Parkway Place, Marietta,
Georgia, as more particularly described in the Lease (the "Existing Premises")
upon the terms and conditions more particularly set forth therein; and
WHEREAS, Landlord and Tenant desire to amend the Lease in certain
respects;
NOW, THEREFORE, for and in consideration of the premises and the sum of
TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, Landlord and
Tenant do hereby covenant and agree as follows:
1. DEFINITIONS. The Lease is hereby modified as provided below.
All capitalized terms used in this Amendment which are not defined herein shall
have the meanings ascribed to such terms in the Lease. All references in the
Lease or in this Amendment to "the Lease" or "this Lease" shall be deemed
references to the Lease as amended by this Amendment.
2. EXPANSION. Effective on July 1, 1996 (the "Expansion Date"),
the Premises shall be expanded to include the space consisting of 3,724 square
feet of Rentable Area in Suite 320 on the third (3rd) floor of the Building, as
outlined on the floor plan attached hereto and made a part hereof as Exhibit
"A", and identified thereon as the "New Space" (the "New Space"). From and after
the Expansion Date, the term "Rentable Area of the Premises," as defined in
Paragraph 1.4 of the Lease, shall mean for all purposes, including without
limitation the calculation of Base Rental, 28,606 square feet, and "Tenant's
Percentage Share" shall be 12.6016%. The Expiration Date as to both the Existing
Premises and the New Space shall continue to be February 28, 2001.
3. BASE RENTAL; ADDITIONAL RENT; REIMBURSEMENTS.
(a) Paragraph S.S.2 of the Special Stipulations to the
Lease is hereby amended to provide that the Base Rental for the New
Space, effective on the Expansion Date, shall be $20.65 per square foot
of Rentable Area within the New Space per year, payable monthly as
provided in Paragraph 4.1 of the Lease. The Base Rental for the New
Space shall be subject to increase pursuant to Paragraph 4.2 of the
Lease, commencing with the
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year 1997; provided, however, that such increase shall be determined by
multiplying the Base Rental in force at the end of each calendar year
times forty percent (40%) of the percentage increase in the Index for
the month of December of the immediately preceding calendar year,
subject to a maximum annual increase in the Index of nine percent (9%).
Accordingly, effective on the Expansion Date, Base Rental for the New
Space shall be as follows:
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PERIOD EFFECTIVE $/ RESULTING ANNUAL BASE RESULTING MONTHLY BASE
RSF RENTAL RENTAL
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7/1/96 -
2/28/2001 $20.65 $76,901.00 $6,408.00
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(b) Effective on the Expansion Date, the "Base Year" for
purposes of Paragraphs 1.6(c) and 4.3 of the Lease for the New Space
shall be the year 1996. Accordingly, for each calendar year during the
Lease Term commencing with the year 1997, Tenant shall pay to Landlord,
as additional rent under Paragraph 4.3 of the Lease with respect to the
New Space, an amount equal to Tenant's Percentage Share of the total
dollar increase, if any, in Operating Expenses paid or incurred by
Landlord in such Adjustment Year over the Base Operating Expenses.
Anything to the contrary herein notwithstanding, the Base Rental and
other sums due Landlord under the Lease with respect to the Existing
Premises shall continue to be due and payable in accordance with the
terms of the Lease.
4. TENANT IMPROVEMENTS.
(a) Tenant takes and accepts the New Space from Landlord
in its present as-is condition and as suited for the use intended by
Tenant, except for such improvements as may be expressly provided for
in the Tenant Improvement Agreement attached hereto and made a part
hereof as Exhibit "B". If, for any reason whatsoever, the New Space is
not substantially completed by July 1, 1996 or if Landlord, for any
reason whatsoever, cannot deliver possession of the New Space to Tenant
by July 1, 1996, the Lease (including this Amendment) shall not be void
or voidable, nor shall Landlord be liable to Tenant for any resulting
loss or damages resulting therefrom. However, if Landlord is unable to
complete the Tenant Improvements to be completed within the New Space
by July 1, 1996 due to delays other than delays caused by Tenant, then
the Expiration Date, as defined in this Amendment, with respect to both
the New Space and the Existing Premises, and the effective date for the
commencement of Base Rental with respect to the New Space set forth in
Paragraph 3(a) above, shall be postponed for a like period of time
equal to the number of days of such delay. No delay in delivery of
possession of the New Space or postponement of the Expansion Date shall
operate to relieve Tenant of Tenant's obligations to Landlord as
provided in the Lease, including, without limitation, the obligation to
pay Base Rental, except as hereinabove set forth. All Tenant
Improvements shall be constructed by Landlord's Contractor who shall be
selected by Landlord pursuant
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to a bid process whereby at least three (3) contractors selected by
Landlord will bid upon the work with Landlord selecting the successful
bidder. Landlord and Tenant agree to execute a Tenant Acceptance
Agreement, as described in Paragraph 2.5 of the Lease, setting forth
the Expansion Date and Expiration Date with respect to the New Space
within twenty (20) days after Tenant takes occupancy of the New Space.
(b) Landlord agrees to construct or install in the New
Space the "Tenant Improvements," as defined in and to be constructed or
installed pursuant to the provisions of the Tenant Improvement
Agreement which is attached hereto as Exhibit "B". Tenant agrees to
comply with all the terms and provisions of the Tenant Improvement
Agreement, including, without limitation, the obligation to pay, as
additional rent, all amounts due Landlord under Paragraph 3 thereof
according to the payment provisions contained in said Paragraph 3.
5. BROKER. Tenant represents and warrants to Landlord that no
broker, agent, commissioned salesman, or other person has represented Tenant in
the negotiations for and procurement of this Amendment and that no commissions,
fees, or compensation of any kind are due and payable in connection herewith to
any broker, agent, commissioned salesman, or other person. Tenant agrees to
indemnify and hold Landlord harmless from any and all claims, suits, or
judgments (including, without limitation, reasonable attorneys' fees and court
costs incurred in connection with any such claims, suits, or judgments) for any
fees, commissions or compensation or any kind which arise out of or are in any
way connected with any claimed agency relationship with Tenant. Landlord
represents and warrants to Tenant that no broker, agent, commissioned salesman,
or other person has represented Landlord in the negotiations for and procurement
of this Amendment and that no commissions, fees, or compensation of any kind are
due and payable in connection herewith to any broker, agent, commissioned
salesman or other person. Landlord agrees to indemnify and hold Tenant harmless
from any and all claims, suits or judgments (including, without limitation,
reasonable attorneys' fees and court costs incurred in connection with any such
claims, suits or judgments) for any fees, commissions, or compensation of any
kind which arise out of or are in any way connected with any claimed agency
relationship with Landlord.
6. MISCELLANEOUS. Except as expressly modified herein, the Lease
shall remain in full force and effect and Landlord and Tenant to hereby ratify
and confirm the terms and conditions of the Lease, as amended by this Amendment.
This Amendment shall be binding upon the executors, administrators, heirs,
successors and assigns of Landlord and Tenant, to the extent permitted under the
Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to
be executed under seal by their duly authorized officers or representatives as
of the day and year first above written.
"TENANT"
E3 ASSOCIATES, LTD.
By: /s/ Frank K. Schuster
Print Name: Frank K. Schuster
Title: C.F.O./Exec. V.P.
Attest: /s/ Daniel J. Craddock
Print Name: Daniel J. Craddock
Title: President
(SEAL)
"LANDLORD"
TWO PARK, INC.
By: LaSalle Partners Management Limited,
Its authorized agent
By: /s/ Stephen P. Vale
Title: Vice President
(SEAL)
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EXHIBIT A
[DESCRIPTION OF PREMISES]
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EXHIBIT B
TENANT IMPROVEMENT AGREEMENT
WHEREAS, the undersigned Landlord and Tenant have executed, sealed and
delivered a certain Second Amendment to Lease Agreement to which this Agreement
is attached, and into which this Agreement is fully incorporated by reference,
as Exhibit B;
WHEREAS, said Amendment amends and modifies that certain Two Parkway
Center Lease Agreement between Landlord and Tenant dated November 8, 1990, as
amended by instrument dated August 14, 1995 (the "Lease"), which Lease, amended
as aforesaid, provides for the letting of space (the "Premises") within 1800
Parkway Place located at Two Parkway Center, Marietta, Georgia (the "Building");
WHEREAS, the terms "Landlord" and "Tenant," "Premises," "Existing
Premises," "New Space," "Usable Area," and "Building" as used herein shall have
the same meanings ascribed thereto as set forth in the Lease, as amended by said
Amendment; and
WHEREAS, Landlord and Tenant desire to set forth herein their
respective agreements regarding the improvement of the Premises;
NOW, THEREFORE, in consideration of the premises, the execution and
delivery of the Lease by the parties hereto, the mutual covenants contained
herein, and other good and valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant, intending to be legally
bound, hereby agree as follows:
Section 1. Tenant Improvements.
Section 1.01 Definition.
The term "Tenant Improvements" shall mean all improvements constructed or
installed in or on the New Space in accordance with the Drawings and
Specifications, as hereinafter defined.
Section 1.02 Base Building Condition.
The term "Base Building Condition" shall mean the condition of the New Space
prior to commencement of the work of constructing and installing the Tenant
Improvements.
Section 2. Drawings and Specifications.
Section 2.01 Definition.
The term "Drawings and Specification" shall mean the final drawings,
specifications and finish schedules for the Tenant Improvements which shall be
prepared and approved by Landlord and Tenant in accordance with the following
procedure:
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(a) Tenant desires to use Landlord's Architect
to prepare final working drawings, specifications,
finish schedules, and the like necessary to commence
construction of the Tenant Improvements. As provided
in Section 3.01 hereof, the cost of preparing the
drawings, specifications, finish schedules and the
like as set forth in this Section 2.01 shall be paid
by Landlord and shall not be a part of Tenant's
Costs.
(b) On or before the fifth (5th) day following
receipt of the Drawings and Specifications, Landlord
shall obtain from Landlord's Contractor a price
schedule for the Tenant Improvements and shall submit
the same to Tenant for its approval. If Tenant
disapproves such price schedule, Tenant agrees to
work promptly with Landlord's Architect and
Landlord's Contractor to alter the Drawings and
Specifications as necessary to cause the price
quotation based thereon to be acceptable to Tenant.
The aggregate cost the Tenant Improvements, once
approved by Tenant, shall hereinafter be referred to
as "Tenant Improvement Costs." Upon determination of
the Tenant Improvement Costs, Tenant shall be deemed
to have given final approval to the Drawings and
Specifications and Landlord shall be deemed to have
been authorized to proceed, through Landlord's
Contractor, with the work of constructing and
installing the Tenant Improvements in accordance with
the Drawings and Specifications.
Section 3. Payment of Costs.
Section 3.01 Landlord's Costs for Preliminary Drawings.
Landlord shall bear the cost of preparing the drawings, specifications and
finish schedules in Section 2.01 above.
Section 3.02 Landlord's Allowance for Tenant Improvement Costs.
Landlord shall pay the Tenant Improvement Costs up to $10.50 per square foot of
Rentable Area in the New Space, or $39,102.00 based upon 3,724 square feet of
Rentable Area in the New Space ("Landlord's Allowance for Tenant Improvement
Costs"). The Landlord's Allowance for Tenant Improvement Costs must be expended
on permanent and semi-permanent finishes and improvements (not eligible are
items such as furniture, telecommunications and/or computer wiring or equipment,
moving expenses etc.). All improvements made from concrete slab to concrete deck
shall be deducted from this allowance. Tenant shall have no claim to the unused
portion of the Landlord's Allowance for Tenant Improvement Costs.
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Section 3.03 Tenant's Costs.
The aggregate of all costs described in the following subparagraphs (a) through
(c) of this Section 3.03 are hereinafter referred to collectively as "Tenant
Costs."
(a) The Tenant Improvement Costs over and above the
Landlord's Allowance for Tenant Improvement Costs;
(b) Fees for architects, engineers, interior designers,
and other professionals and design specialists incurred by Tenant in
connection with the Tenant Improvements; and
(c) The cost of making any and all changes in and to the
Drawings and Specifications and any and all increased costs in the
Tenant Improvement Costs resulting therefrom; and in the event the
aggregate of Tenant Costs, as defined above, exceeds Landlord's
Allowance for Tenant Improvements Costs, as specified in Section 3.02
above, then Tenant shall promptly pay the excess to landlord as
additional rent, as set forth in Section 3.04.
Section 3.04 Payment Schedule for Tenant's Costs.
Tenant shall pay to Landlord the Tenant's Costs as follows:
(a) Fifty percent (50%) of the amount of Tenant's Costs
then known to Landlord and Tenant shall be paid prior to the
commencement of any work of constructing and installing the Tenant
Improvements;
(b) Forty percent (40%) of the amount of Tenant's Costs
then known to Landlord and Tenant shall be paid within thirty (30)
calendar days after the commencement of the work of constructing and
installing the Tenant Improvements; and
(c) The balance of Tenant's Costs shall be paid
immediately upon Landlord's notification to Tenant that the work of
constructing and installing the Tenant Improvements has been
substantially completed.
Section 3.05 Changes in Drawings and Specifications.
If at any time after the Tenant Improvement Costs are determined Tenant desires
to make changes in the Drawings and Specifications, Tenant shall submit to
Landlord for approval working drawings, specifications, and finish schedules for
any and all such desired changes. The process of finalizing such drawings and
the like shall be as set forth in Section 2 above. Once any and all changes and
modifications are approved, Landlord shall promptly submit the same to
Landlord's Contractor for pricing. The procedure for determining an approved
cost for such changes shall be as set forth in Section 2 above. Once a cost for
such changes has been approved, all references in this Agreement to "Drawings
and Specifications" shall be to the
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Drawings and Specifications adopted pursuant to the procedures of Section 2
above, as changed and modified pursuant to this Section 3.05, and all references
to "Tenant Improvement Costs" shall be deemed to include the aggregate approved
cost for the changes as determined in this Section 3.05. Once the changes and
the costs therefore have been approved, Tenant shall be deemed to have given
full authorization to Landlord to proceed with the work of constructing and
installing the Tenant Improvements in accordance with the Drawings and
Specifications, as changed and modified. Landlord, at its option, can require
Tenant to pay in lump sum to Landlord any and all increases in the Tenant
Improvement Costs which result from approved changes to the Drawings and
Specifications and which also result in the cost being above the Landlord's
Allowance for Tenant Improvement Costs. Any delays in completing the Tenant
Improvements which result from either changes in the Drawings and Specifications
made by Tenant or from the unavailability of materials specified by Tenant,
shall not operate to delay or extend the commencement date under the Lease nor
the payment of the base rental or other charges due under the Lease.
Section 3.06 Failure to Pay Tenant's Costs.
Failure by Tenant to pay Tenant's Costs in accordance with this Section 3 will
constitute a failure by Tenant to pay rent when due under the Lease and shall
therefore constitute an event of default by Tenant under the Lease, and Landlord
shall have all the remedies available to it under this Lease and at law or in
equity for nonpayment of rent.
Section 3.07 Landlord's Disbursement Obligations.
Landlord agrees to disburse the Landlord's Allowance for Tenant Improvement
Costs and the Tenant's Costs (to the extent deposited by Tenant with Landlord)
to pay the Tenant Improvement Costs as and when the same become due and payable.
Landlord shall be entitled to rely on the accuracy of any and all invoices and
fee statements for labor and materials performed on or furnished to the Premises
in connection with the Tenant Improvements and to rely, to the extent submitted,
on any and all certifications as to Tenant Improvement Costs submitted by
Landlord's Contractor and/or Landlord's Architect. Tenant does hereby release
and relieve Landlord from any claims for damages and the like which may result
from Landlord's paying an inaccurate invoice, fee statement, or the like and
does hereby indemnify and agree to hold Landlord harmless and to defend Landlord
from and against any and all claims, damages, liability, or costs (including,
without limitation, attorneys' fees and court costs) which may arise or result
from Landlord's payment of Tenant Improvement Costs or the nonpayment thereof.
Notwithstanding the foregoing, the within release and indemnification of
Landlord by Tenant shall not release any other third parties, nor shall it waive
any and all rights which Tenant may have against other third parties in
connection with the payment or nonpayment of Tenant Improvement Costs.
Section 4. Finish Work in Addition to Tenant Improvements.
All work in or about the Premises which is not within the scope of the work
necessary to construct and install the Tenant Improvements, such as delivering
and installing furniture, telephone equipment, and wiring, and office equipment
and computer wiring, shall be furnished
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and installed by Tenant entirely at Tenant's expenses. Tenant shall adopt a
schedule for performing such additional work consistent with the schedule of
Landlord's Contractor and shall see that such work is conducted in such a manner
as to maintain harmonious labor relations and so as not to interfere
unreasonably with or to delay the work of constructing or installing the Tenant
Improvements. Landlord shall give access and entry to the Premises to Tenant and
its contract parties performing such additional work and reasonably opportunity
and time to enable Tenant and such contract parties to perform and complete such
work. All of such additional work and Tenant's use (and the use by its contract
parties) of the Premises for such purposes shall be entirely in accordance with
the Lease, including without limitation this Agreement.
Section 5. Time is of the Essence.
Time is of the essence of this Agreement. Unless specifically provided
otherwise, all references to days or months shall be construed as references to
calendar days or months, respectively.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement in duplicate, individually or through their respective authorized
officers, partners, agents or attorneys-in-fact, as the case may be, and sealed
this Agreement or caused their respective seals to be affixed hereto, the day
and year set forth below their respective executions, the latest of which is and
shall be deemed to be the date of this Agreement.
"TENANT"
E3 ASSOCIATES, LTD.
By: /s/ Frank K. Schuster
Print Name: Frank K. Schuster
Title: Exec. V.P./C.F.O.
Date: 4/18/96
Attest: /s/ Daniel J. Craddock
Print Name: Daniel J. Craddock
Title: President
Date: 4/18/96
(SEAL)
"LANDLORD"
TWO PARK, INC.
By: LaSalle Partners Management Limited,
Its authorized agent
By: /s/ Stephen P. Vale
Title: Vice President
Date: 4/22/96
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