SECOND AMENDMENT TO LEASE
SECOND
AMENDMENT TO LEASE
THIS
SECOND AMENDMENT TO LEASE (this “Second Amendment”), is made effective as of the
6th
day of October, 2006, by TEACHERS
CONCOURSE, LLC,
a Delaware limited liability company, successor in interest to Concourse
I, Ltd.
(as “Landlord”), and XXXXXXX
BEDDING COMPANY, a
Delaware corporation, formerly known as Xxxxxxx Company (as
“Tenant”).
W
I T N E S S E T H:
WHEREAS,
Landlord and Tenant entered into that certain Lease Agreement, dated as of
April
20, 2000, as amended by that certain First Amendment to Lease, dated July
20,
2000 (as amended, the “Lease”), for approximately 37,360 rentable square feet of
space known as Suite 800 and approximately 11,685 rentable square feet of
space
known as Suite 770, for a total of approximately 49,045 rentable square of
space
(the “Premises”) in that certain building known as Concourse Corporate Center I
(the “Building”), as such space is more particularly described in the Lease; and
WHEREAS,
Landlord and Tenant desire to modify and amend the Lease to exercise Tenant’s
right of first offer for the First Offer Space (as defined below), thereby
expanding the Premises, and for the other purposes herein set
forth.
NOW,
THEREFORE, for and in consideration of the mutual promises, and for Ten and
No/100 Dollars ($10.00) and other good and valuable consideration, paid by
the
parties hereto to one another, the receipt and sufficiency of which are
acknowledged by the parties hereto, the parties hereto hereby covenant and
agree
as follows:
1. Defined
Terms.
All capitalized terms not defined in this Second Amendment shall have the
same
meaning as set forth in the Lease.
2. Exercise
of Right of First Offer.
From and after the earlier to occur of (i) the date the Tenant Improvements
have
been Substantially Complete for the First Offer Space (as hereinafter defined)
or the date the Tenant Improvements would have been Substantially Complete
in
the absence of Tenant Delay, or (ii) the date Tenant occupies the First Offer
Space or any portion thereof for the purpose of conducting business therefrom
(the “Expansion Date”), the Premises shall be expanded to include an additional
8,946 rentable square feet of space, currently known as Suite 700 (the “First
Offer Space”) for a total of approximately 57,991 rentable square feet of space,
which for all purposes of the Lease, shall constitute the Premises. As of
the
Expansion Date, Exhibit
“A”
to the Lease shall be supplemented by Exhibit
“A-1”
attached hereto.
3. Monthly
Rental.
As of the Expansion Date, Section 2(a) of the Lease shall be deleted in its
entirety and replaced by the following:
“(a)
Tenant shall pay to Landlord at the address of Landlord indicated herein,
or at
such
other
place Landlord designates without demand, deduction or setoff, “Monthly Rental”
in
advance
the amounts set forth below:
|
Period
|
Monthly
Rental Per Rentable Square
Foot
|
Annual
Rental
(Annualized Basis)
|
Monthly
Rental
|
|
Expansion
Date - 9/30/07
|
$28.13
|
$1,631,286.80
|
$135,940.56
|
|
10/1/07
- 9/30/08
|
$29.42
|
$1,706,095.20
|
$142,174.60
|
|
10/1/08
- 9/30/09
|
$30.78
|
$1,784,962.90
|
$148,746.90
|
|
10/1/09
- 9/30/10
|
$32.19
|
$1,866,730.20
|
$155,560.85
|
|
10/1/10
- 9/30/11
|
$33.67
|
$1,952,556.90
|
$162,713.07
|
4. First
Offer Allowance.
Landlord shall provide Tenant with a First Offer Allowance equal to $103,362.30
($11.55 per rentable square foot in the First Offer Space). Tenant shall
apply
such First Offer Allowance to the cost of updating the First Offer Space;
provided, however, the First Offer Allowance shall not apply to any of the
improvement work in the First Offer Space described in Exhibit
“C-1”
attached hereto (“Landlord’s Work”), as Landlord’s Work shall be completed at
Landlord’s sole cost and expense. The provisions to Exhibit
“C”
to the Lease, as applicable to such update work, shall apply with respect
to all
improvements in the First Offer Space, except as expressly modified herein.
Tenant shall pay Landlord promptly within thirty (30) days of being invoiced
for
the cost of any such improvements, excluding the cost of Landlord’s Work, less
the amount of such First Offer Allowance, provided Landlord submits its invoice
to Tenant on or before the tenth (10th)
day of the month; otherwise, Tenant shall reimburse Landlord no later than
fifty
(50) calendar days following its receipt of Landlord’s invoice.
5. Modifications
to Exhibit "C" to Lease.
(i) Definitions.
The following definitions in Article I of Exhibit
"C"
to the Lease shall be modified as follows:
(a) The
term "First Offer Space" shall be substituted for the term "Premises" wherever
"Premises" is used in Exhibit
"C"
to the Lease.
(b) The
defined term "Ceiling Allowance" shall be deleted from Article I of Exhibit
"C"
to the Lease and throughout Exhibit
"C"
wherever used.
(c) The
following definition shall be substituted for the definition of "Landlord's
Architect" in Article I of Exhibit
"C"
to the Lease:
"Landlord's
Architect
shall mean Xxxxxxxxxx-Xxxx."
(d)
The following definition shall be substituted for the definition of "Tenant's
Architect" in Article I of Exhibit
"C"
to the Lease:
"Tenant's
Architect
shall mean Veenendaal Cave."
(e)
The following definition shall be substituted for the definition of "Tenant
Improvement Allowance" in Article I of Exhibit
"C"
to the Lease:
"Tenant
Improvement Allowance
shall mean Eleven and 55/100 Dollars ($11.55) multiplied by the rentable
square
feet in the First Offer Space."
(ii) Construction
Schedule For First Offer Space.
The following shall be substituted for Subparagraphs 1 - 9 of Section 2.01
of
Exhibit
"C"
to the Lease, thereby replacing and superseding Subparagraphs 1 - 7 of Section
6
of the First Amendment:
|
"1.
|
As
soon as reasonably possible (but in no event later than ten (10)
days
following full execution of this Second Amendment) Tenant shall
provide to
Landlord the Tenant Space Plans.
|
|
2.
|
By
the end of the fifth (5th)
full Working Day after receipt of the Tenant Space Plans, Landlord
shall
review and provide detailed comments to such Tenant Space
Plans.
|
|
3.
|
By
the end of the third (3rd)
full Working Day after receipt of Landlord's comments to the Tenant
Space
Plans, Tenant's Architect shall resubmit to Landlord the Tenant
Space
Plans with such changes or information as requested by
Landlord.
|
|
4.
|
This
process described in Section 2.01(2) and (3) shall continue until
Landlord
has satisfied itself that such proposed Tenant Space Plans are
acceptable.
|
|
5.
|
Within
twenty (20) Working Days after final approval of the Tenant Space
Plans,
Tenant's Architect shall prepare and deliver to Landlord the prepared
Tenant Improvement Construction
Documents.
|
|
6.
|
By
the end of the fifth (5th)
full Working Day after receipt of the Tenant Improvement Construction
Documents, Landlord shall review and resubmit the same to Tenant's
Architect, either with Landlord's consent or comments
thereto.
|
|
7.
|
By
the end of the fifth (5th)
full Working Day after receipt of Landlord's comments to the Tenant
Improvement Construction Documents, Tenant's Architect shall resubmit
to
Landlord the Tenant Improvement Construction Documents with such
changes
or information as requested by
Landlord.
|
|
8.
|
The
process described in Section 2.01(5), (6) and (7) shall continue
until
final approval by Landlord and Tenant and such documents shall
constitute
the final Tenant Improvement Construction
Documents.
|
9. Any
approval or consent by Landlord of any items submitted by Tenant to and/or
reviewed by Landlord pursuant to this Work Letter shall be deemed to be strictly
limited to an acknowledgement of approval or consent by Landlord thereto
and
shall not imply or be deemed to imply any representation or warranty by Landlord
that the design is safe or structurally sound or will comply with any legal
or
governmental requirements. Any deficiency, mistake or error in design (expressly
excluding the engineering drawings), although the same has the consent or
approval of Landlord, shall be the sole responsibility of Tenant, and Tenant
shall be liable for all costs and expenses which may be incurred and all
delays
suffered in connection with or resulting from any such deficiency, mistake
or
error in design."
(iii) Tenant's
Agent.
Xxxx Xxxxx shall be replaced by Xxxxxx Xxxxxxx and Xxxxxxx Xxxxxx, collectively,
as Tenant's authorized representative, as described in Section 6.01 of
Exhibit
"C"
to the Lease, for all purposes under Exhibit
"C"
to the Lease.
6. Tenant’s
Early Termination Right.
Landlord and Tenant hereby acknowledge and agree that the Tenant's option
to
terminate the Lease early, which is set forth in Section 6 of the Special
Stipulations, Exhibit
"F"
to the Lease, shall be applicable to the First Offer Space as well as to
the
original Premises. Furthermore, the parties hereby agree that the termination
fee due upon any election by Tenant to terminate Tenant's lease of the First
Offer Space pursuant to such option to terminate shall be equal to (i)
$60,073.24 in the event Tenant elects to terminate the Lease on or by September
9, 2008, or (ii) $42,197.21 in the event Tenant elects to terminate the Lease
on
or by September 9, 2009, or (iii) $22,252.59 in the event Tenant elects to
terminate the Lease on or by September 9, 2010.
7. Notices
and Payment of Rent.
Landlord
has as its address for purposes of notice:
Teachers
Concourse, LLC
c/o
Cousins Properties Services LP
Five
Concourse Parkway
Suite
1200
Atlanta,
Georgia 30328-6111
Tenant
shall pay Rent to Landlord at the following address:
X.X.
Xxx 000000
Xxxxxxx,
Xxxxxxx 00000-0000
8. Patriot
Act. Tenant
(which for this purpose includes its partners, members, principal stockholders
and any other constituent entities (i) has not been designated as a
"specifically designated national and blocked person" on the most current
list
published by the U.S. Treasury Department Office of Foreign Assets Control
at
its official website, <xxxx://xxx.xxxxx.xxx/xxxx/x00xxx.xxx>
or at any replacement website or other replacement official publication of
such
list; (ii) is currently in compliance with and will at all times during the
Term
(including any extension thereof) remain in compliance with the regulations
of
the Office of Foreign Asset Control of the Department of the Treasury and
any
statute, executive order (including the September 24, 2001, Executive Order
Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten
to Commit, or Support Terrorism), or other governmental action relating thereto;
and (iii) has not used and will not use funds from illegal activities for
any
payment made under the Lease.
9. No
Other Modifications.
Except as expressly modified herein, the Lease shall remain in full force
and
effect and, as modified herein, is expressly ratified and confirmed by the
parties hereto. In the event of a conflict between the terms of the Lease
and
the terms of this Second Amendment, the terms of this Second Amendment shall
control.
[SIGNATURES
ON FOLLOWING PAGE]
Xxxxxxx
- First Amendment - 8.9.06
IN
WITNESS WHEREOF, the parties have hereunto set their hands and seals as of
the
day, month and year first above written.
LANDLORD:
TEACHERS
CONCOURSE, LLC,
a
Delaware limited liability company,
successor
in interest to Concourse I, Ltd.
By: /s/
Xxxxxxxxx Xxxxxxx
Xxxxxxxxx
Xxxxxxx
Its:
Assistant
Secretary
TENANT:
XXXXXXX
BEDDING COMPANY,
a
Delaware corporation,
formerly
known as Xxxxxxx Company
By:
/s/
Xxxxxxx X. XxXxxxxx
Xxxxxxx X. XxXxxxxx
Its: Senior
Vice President and General Counsel
By: /s/
Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Its: Executive
Vice President and Chief Financial Officer
Xxxxxxx
- First Amendment - 8.9.06
Exhibit
“A-1”
Space
Plan of 8,946 RSF First Offer Space
[Missing
Graphic Reference]
Xxxxxxx
- First Amendment - 8.9.06
Exhibit
“C-1”
Landlord’s
Work
Landlord,
at Landlord’s cost, will perform the following work in the First Offer
Space.
| 1. |
Demolition
and removal of the existing ceiling tile, HVAC supply/ return grilles,
light fixtures, fire alarm components, and other non standard ceiling
components.
|
| 2. |
Modify
the existing 2’x 4’ ceiling grid to the building standard 2’x 2’ ceiling
grid throughout.
|
| 3. |
Install
and connect new building standard parabolic fluorescent light fixtures
throughout.
|
| 4. |
Install
and connect new HVAC supply/ return grilles
throughout.
|
| 5. |
Supply
new building standard 2’ x 2’ ceiling tile delivered to the First Offer
Space.
|
| 6. |
Demolition
and removal of the preaction fire protection riser and related components
in the new IDF room # 715.
|
| 7. |
Demolition
and removal of the following items in the new Open Area # 714 (previous
tenant’s data center).
|
| a. |
Supplemental
HVAC equipment.
|
| b. |
UPS
equipment.
|
| c. |
Electrical
panels, transformer, and electrical wiring serving the previous data
center equipment.
|
| d. |
Alarm
system.
|
| x. |
Xxxxx,
door, telephone backboard, phone/ data wiring, and other equipment
comprising the existing data center electrical room.
|
| f. |
Raised
floor, glass partition walls, doors, and other related non standard
building components.
|
| g. |
All
phone and data wiring throughout.
|
| h. |
All
non standard fire protection components.
|
