EXHIBIT 10.13
WILDWOOD OFFICE PARK
FINANCIAL SERVICE CORPORATION
FIFTH AMENDMENT TO LEASE
THIS FIFTH AMENDMENT TO LEASE ("Amendment"), is made the 31st day of
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May, 1996, between Wildwood Associates, a Georgia General Partnership comprised
of International Business Machines Corporation, a New York Corporation, and
Cousins Properties Incorporated, a Georgia Corporation, having an office at
Suite 1600, 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000-0000, hereinafter
called "Lessor", and Financial Service Corporation having its principal office
at Suite 1100, 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000, hereinafter
called "Lessee".
W I T N E S S E T H:
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WHEREAS Lessor and Lessee entered into that certain Lease dated March 29,
1990, as amended October 12, 1990, June 1, 1991, September 30, 1993 and December
22, 1993 (herein called the "Lease") with respect to the Demised Premises (as
defined in the Lease) located in Suite 1100 of the Building at 0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxx; and
WHEREAS Lessee and Lessor have mutually agreed to expand the Demised
Premises and extend the Lease Term of the Lease.
NOW, THEREFORE, for and in consideration of the Demised Premises, the
mutual promises contained in this Amendment, and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged by the parties hereto, Lessor and Lessee do hereby agree as
follows:
1. All terms and words of art used herein, as indicated by the initial
capitalization thereof, shall have the same respective meaning designated
for such terms and words of art in the Lease.
2. Certain Definitions. Article 1 is hereby amended as follows:
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(g) Rentable Floor Area of Demised Premises: shall be amended as of the
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Second Expansion Area Rental Commencement Date by deleting "23,676 square
feet" and inserting "35,249 square feet".
(i) Term: shall be amended by deleting "126 months" and inserting "198 months
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(ending December 31, 2006)".
(j) Base Rent Rate: shall be amended by adding the following new
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subparagraphs at the end thereof:
"As of the Second Expansion Area Rental Commencement Date, the initial
Base Rent Rate through December 31, 1996 for the Second Expansion Area
(as hereinafter defined) shall be $15.00 per square foot of Rentable
Floor Area of Second Expansion Area per year; as of the Second Expansion
Area Rental Commencement Date the initial monthly Base Rent for the
entire Demised Premises shall be $37,649.00.
As to the entire Demised Premises; including the Second Expansion Area,
from January 1, 1997 through December 31, 2006 the Base Rent Rate shall
be as follows:
BASE RENT RATE
PER SQUARE FOOT
OF RENTABLE FLOOR
CALENDAR AREA OF DEMISED
YEAR PREMISES PER YEAR
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1997 $ 14.33
1998 $ 14.48
1999 $ 14.63
2000 $ 14.78
2001 $ 16.88
2002 $ 17.39
2003 $ 17.91
2004 $ 18.45
2005 $ 19.00
2006 $ 19.57"
(k) Rental Commencement Date: A new subparagraph shall be added at the end
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thereof as follows:
"As to the Second Expansion Area, the Second Expansion Area Rental
Commencement Date shall be the earlier of (i) September 1, 1996, or (ii)
the date Lessee takes occupancy of the Second Expansion Area for business
purposes ("Second Expansion Area Rental Commencement Date"), provided
that if the Second Expansion Area is not ready for occupancy on the date
set forth in (i) above due to delays not caused by Lessee or its
employees, agents or contractors, then the date set forth in (i) above
shall be postponed to the date on which the Second Expansion Area is
ready for occupancy.."
(l) Construction Allowance: A new subparagraph shall be added:
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"Lessee, at its sole expense, will cause Xxxxxx Associates to prepare the
Second Expansion Area plans and plans modifying the original Demised
Premises dated ___________ (the "Plans"), which must be approved by
Lessor and Lessee (such approval not to be unreasonably withheld,
conditioned or delayed) prior to the
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commencement of any alterations or improvements. Lessor's contractor
shall cause the improvements called for by the Plans to be constructed
within sixty (60) days after such Plans are approved by Lessor and Lessee
(such date extended for delays caused by Lessee or its employees, agents
or contractors). Lessor and Lessee shall bear the cost of the
improvements for the Second Expansion Area and any modification to the
original Demised Premises as follows:
A. Lessor shall provide a construction allowance of $227,212.00 to be
funded by Lessor to Lessor's contractor within fifteen (15) days of
receipt from Contractor of copies of all bills or statements for
expenses incurred with respect to such improvements and alterations.
B. Lessee shall pay for all costs in excess of the above allowance.
C. Lessee shall pay Lessor's designated agent a construction
coordination fee of five percent (5%) of the cost of improvements in
the Second Expansion Area and Demised Premises. Such fee will be
deducted from the allowance provided by Lessor."
(p)A new subparagraph entitled (p) Second Expansion Area shall be added as
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follows:
"The Second Expansion Area shall be defined as the additional 11,573
square feet of Rentable Floor Area being leased by Lessee on the
(eleventh) 11th floor of the Building, as more fully set forth in green
on Exhibit "B-5" attached hereto (the initial Demised Premises as set
forth in yellow). The Second Expansion Area shall be included in the
definition of Demised Premises for all purposes of this Lease including
the requirement to paid Additional Rental."
3. Lease of Premises, Page 2 of the Lease. The original Exhibit "B" shall be
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deleted and a new Exhibit "B-5" shall be inserted in lieu thereof, a copy of
which is attached hereto and made a part hereof, indicating the Demised
Premises of Lessee. The initial Demised Premises is outlined in yellow.
4. Exhibit "G", Special Stipulations, Paragraph 1 "Base Rent Rate" and
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Paragraph 6, "Expansion Options", shall be deleted in their entirety
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commencing with the Second Expansion Area Rental Commencement Date.
5. Exhibit "G", Special Stipulations, Paragraph 7, "Right of First Offer",
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shall be deleted in it entirety and replaced by the following:
"Right of First Offer. Subject to the rights of existing lessees located on
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the eleventh (11th) floor of the building, Lessee shall have an ongoing
right of first offer on any space on the eleventh (11th) floor of the
Building which may become available from time to time. Lessor shall give
Lessee written notice of the availability of such space and its intent to
lease any of such space prior to entering into negotiations with a third
(3rd) party for a lease thereof and
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Lessee shall elect to lease or decline such space within ten (10)
business days after receipt of such notice from Lessor. Failure of Lessee
to respond to such notice shall be deemed a declination of such space. In
the event Lessee elects to exercise its option and lease such space on
the eleventh (11th) floor, Lessor and Lessee shall amend the Lease to
provide that such space on the eleventh (11th) floor shall be added to
the Demised Premises at the then applicable Base Rental Rate and
Additional Rental under this Lease and otherwise on the same terms and
conditions of this Lease. In the event Lessee declines such space, Lessor
shall be free to lease all or any portion of such space to a third party
at any time within six (6) months following delivery of such letter;
provided, however, that if such space or any portion thereof remains
unleased following such period or subsequently becomes again available
for lease, Lessee's right of first offer for the unleased space shall
continue in full force and effect. The lease of such space by Lessee (if
Lessee exercises its right) shall commence (and rentals shall be payable
on the date Lessee first occupies the space so taken for business
purposes (but in any event no later than sixty (60) days after Lessee
exercises its right hereunder to lease such space and Lessor tenders
possession thereof to Lessee) and shall otherwise be co-terminus herewith
and Lessee's right to extend or renew the term of this Lease shall apply
to the Demised Premises initially leased by Lessee and to all space added
through exercise of Lessee's first right of offer set forth hereinabove.
The exercise of the right of first offer shall be subject to the
following provision: Lessee may not exercise its right of first offer (if
Lessee exercises its right) if Lessee has received a notice of default in
the performance of Lessee's covenants under this Lease Agreement and has
not then cured such default.
Any space leased by Lessee under the right of first offer by Lessee (if
Lessee exercises its right) shall be known as "Expansion Space". The
Rentable Floor Area of the Expansion Space shall be based upon the Usable
Area of the Expansion Space plus 16.5% thereof as a common area factor.
Lessee hereby acknowledges and agrees that any Expansion Space which is
leased by Lessee under the right of first offer (as hereinafter defined)
and which was improved to at least building standard condition prior to
the commencement of Lessee's leasing of such Expansion Space shall be
delivered to Lessee for occupancy hereunder in an "as is" condition (but
free of all Lessees and occupants) and shall be accepted as such by
Lessee' provided that Lessor shall furnish Lessee an allowance in an
amount equal to $7.50 per square foot of Rentable Floor Area of such
Expansion space, if such option is exercised prior to December 31, 2000
and otherwise Lessor shall furnish Lessee an allowance of an amount equal
to $0.0625 per square foot of Rentable Floor Area of such Expansion Space
times the full calendar months remaining on the Lease Term as measured
from the Rental Commencement Date of such Expansion Space through
December 31, 2006. All costs and expenses in constructing and installing
the improvements desired by Lessee in the Expansion Space not covered by
Lessor's allowance set forth herein shall be the sole responsibility of
Lessee.
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Lessor shall not be liable for failure to deliver possession to Lessee of
any space covered by the right of first offer by reason of the unlawful
holding over or unlawful retention of possession by any previous lessees
or occupants of same, nor shall such failure impair the validity of this
Lease, nor extend the term hereof. However, Lessor does covenant that it
will use reasonable diligence, including filing dispossessory complaints
as soon as practicable after the date of expiration of the Lease, to
deliver possession to Lessee of all space with respect to which Lessee
has exercised the right of first offer as soon as practicable after
Lessor's receipt of an exercise notice.
Lessee may not assign its right of first offer, except to a permitted
assignee of all of Lessee's rights under this Lease Agreement, but Lessee
may sublease the space covered thereby if and to the extent permitted in
Article 19.
6. Exhibit "G" Special Stipulations, Paragraph 8, entitled "Cancellation
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Options" shall be deleted in its entirety.
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7. Exhibit "G", Special Stipulations, Paragraph 9, "Extension Option",
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shall be deleted in its entirety and replaced by the following:
"9. Extension Option.
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(a) Provided this Lease is then in full force and effect without any
existing uncured default of Lessee hereunder, Lessor hereby grants
unto Lessee the right and option to extend the Lease Term for one
(1) term of five (5) years, with such term to commence on the day
following the expiration date of the initial Lease Term. In order to
exercise such extension option, Lessee shall notify Lessor in
writing no later than January 1, 2006, of Lessee's desire to so
extend the Lease Term. If Lessee exercises its option to extend this
Lease for five (5) years, the Base Rent Rate for the first year for
the five (5) year extension period shall be no less than $21.50 per
square foot of Rentable Floor Area per annum, and no greater than
$24.50 per square foot of Rentable Floor Area per annum and such
Base Rent Rate shall be escalated annually at three percent (3%) per
year during the extension term. If Lessor and Lessee cannot
reasonably agree in good faith on or before April 1, 2006 on the
amount of Base Rent Rate between $21.50 and $24.50 for the Extension
Term, the Extension Option shall be deemed terminated.
(b) During such extension term, all of the terms, conditions and
provisions of this Lease shall remain in effect; provided, however,
there shall be no allowances granted during any such extension
period. In addition to the Base Rent Rate, Lessee shall continue to
pay Additional Rental during the extension term."
8. Exhibit "G", Special Stipulations, Paragraph 11 "Rental Concession", the
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following new subparagraph shall be added at the end thereof as follows:
"For the Second Expansion Area there will be no Rental Concession."
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9. Exhibit "G", Special Stipulations, Paragraph 15, "Temporary Storage
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Area", the following new paragraph shall be added at the end thereof as
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follows:
"15. Temporary Storage Area. Lessee will vacate and remove all files,
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equipment and items stored in the Temporary Storage Area, as outlined in
red on Exhibit "B-5", within fifteen (15) days notice from Lessor that
construction will commence for the Second Expansion Area."
10. Except as expressly modified herein, the Lease Agreement shall remain in
full force and effect and, as hereby modified, is expressly ratified and
confirmed by the parties hereto. This Amendment shall be binding upon and
shall inure to the benefit of Lessor and Lessee and their
representatives, permitted legal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be signed
and their respective seals to be affixed as of the date and year first above
written.
"LESSOR"
WILDWOOD ASSOCIATES,
a Georgia general partnership
By: Cousins Properties Incorporated
Managing General Partner
By: /s/ Xxxx X. XxXxx
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Its: Vice President
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[CORPORATE SEAL]
"LESSEE"
FINANCIAL SERVICE CORPORATION
By: /s/ Xxxxx X. Xxxx
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Its: Chief Financial Officer
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[CORPORATE SEAL]
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[FLOOR PLAN APPEARS HERE]
Exhibit B-5 (Attachment to the Fifth Amendment to the Lease Agreement)
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Floor plan drawing for additional 11,573 square feet of Rentable Floor Area
being leased by Lessee on the (eleventh) 11th floor of the Building.
