SECOND AMENDMENT TO LEASE AGREEMENT
EXHIBIT 10.7
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT (this “Second Amendment”), made and entered into as
of the 27th day of February, 2007, by and between 0000 XXXXX XXXXX XXXXXXX INVESTORS
LLC, a Delaware limited liability company (“Landlord”), and MANHATTAN ASSOCIATES, INC., a Georgia
corporation (“Tenant”);
WHEREAS, Wildwood Associates, a Georgia general partnership (“Original Landlord”) and Tenant
entered into that certain Lease Agreement June 25, 2001, as amended by that certain First Amendment
to Lease Agreement (the “First Amendment”) dated June 10, 2002 (collectively, as amended, the
"Lease”), for certain premises in the building located at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxx 00000 (the “Building”), consisting of approximately 137,868 square feet of Rentable Floor
Area in the Building being Floor 1 North (22,719 rsf), Floor 3 North (23,776 rsf), Floor 3 South
(9,021 rsf), Floor 6 South (13,608 rsf), Floor 7 (63,296 rsf), and Floor 8 (5,448 rsf)
(collectively, the “Original Demised Premises”);
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In addition to the foregoing, the parties acknowledge that International Paper (“IP”) is
currently leasing approximately 9,133 rentable square feet of space being Suite 850 North (the “IP
Premises”) in the Building, the lease for which expires June 30, 2007. Tenant hereby covenants
that it will lease a portion of the IP Premises, which portion will be determined during the space
planning process. That portion of the IP Premises that is leased by Tenant will be deemed a part
of the Second Expansion Space for all purposes under this Amendment and the Lease. Tenant’s
payment of Base Rental for the IP Premises, or portion thereof, will commence ninety (90) days
after the IP Premises or portion thereof leased by Tenant is delivered to Tenant for Tenant to
commence construction therein. Landlord agrees to give Tenant at least ten (10) business days
prior written notice of the date that the portion of the IP Premises leased by Tenant will be
delivered to Tenant.
Subject to the foregoing paragraph, Tenant acknowledges that its obligations with respect to
the Demised Premises will commence on the Effective Date and that Tenant will use its best efforts
to vacate and surrender the Surrendered Premises in accordance with the terms of the Lease no later
than the Effective Date. Notwithstanding the foregoing, if, due to construction matters, Tenant is
unable to completely vacate and surrender the Surrendered Premises by the Effective Date, it will
be permitted to remain in the Surrendered Premises or portions thereof and continue to pay Base
Rental and Additional Rental at the then existing rate under the Lease for the portion it continues
to occupy until such time as it does vacate and surrender same. In any event, Tenant covenants
that it will vacate and surrender the Surrendered Space no later than August 31, 2007 so that
Landlord may manage and coordinate the re-leasing of same.
After the Rentable Floor Area of the Demised Premises has been determined and agreed to by
Landlord and Tenant, Landlord will deliver a Second Amendment Memorandum to Tenant. Within ten
(10) days after receipt of same, Tenant agrees to execute the Second Amendment Memorandum (the
"Memorandum”) confirming the Effective Date, the Expiration Date, the exact number of square feet
of Rentable Floor Area within the Demised Premises and the locations thereof, and Tenant’s
proportionate share of the Building. Such Memorandum shall be in the form attached hereto as
Exhibit A and by this reference incorporated herein. Upon full execution of the Memorandum
by both parties, Landlord will deliver the Second Expansion Space (other than Floor 9, Floor 10,
and the IP Premises) to Tenant for purposes of performing Tenant’s Work (as defined in Section 6
herein) therein. Landlord agrees to deliver Floor 9 and Floor 10 to Tenant upon full execution by
both parties hereto of a mutually agreeable indemnity letter pertaining to Tenant’s demolition work
to be performed within Floor 9 and Floor 10.
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Tenant’s
Additional Rental shall be revised to reflect the Rentable Floor Area of the Demised Premises as
revised herein.
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expansion space Tenant may lease under this Paragraph 4(a) or otherwise must be less than
22,000 rsf). In addition to the foregoing, if the 20% Threshold has not been met and the
commencement date of the lease for the First Offer Space will occur between July 1, 2010 and June
30, 2012, then the lease of the First Offer Space will be on all of the same terms and conditions
as then exist for the Demised Premises, including without limitation, the then current per square
foot rate of Base Rental, and shall be coterminous with the lease for the Demised Premises (i.e.,
will expire on the Expiration Date), except that the allowance for improvements will be $35.00 per
rentable square foot only and there shall be no Discretionary Allowance, as defined in Section 6
below. Any allowance for improvements or rental concession provided to Tenant under this
subsection (a) shall be an amount equal to the product of multiplying such allowance or rental
concession, if any, times a fraction, the numerator of which is the number of full calendar months
remaining in the Extension Term as of the commencement date of Tenant’s lease of the First Offer
Space and the denominator of which is 135 but in no event will such fraction exceed 1; or
(d)
Defined Terms.
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(i) “Expansion Market Rate” shall mean a rental rate equal to the effective rental rate on
transactions being executed by landlords with tenants desiring to lease comparable space of
comparable height and view that is the size of or comparable to the First Offer Space then subject
to the Right of First Offer, in other comparable first-class buildings with comparable amenities
and facilities in the area of the Building, taking into account any abatements, costs, allowances,
commissions or other concessions then being offered to such comparable tenants, seeking comparable
space, and any rights, privileges and allowances Tenant has with respect to the term for the First
Offer Space under, pursuant to or in connection with the Lease, as amended herein. If the parties
cannot agree upon the Expansion Market Rate, then such rate will be determined in accordance with
the procedure set forth in paragraph (c) of Special Stipulation No. 1 in Exhibit “G” attached to
the Lease.
(ii) “Available” space means that no other third-party is in occupancy of such space or has
any rights therein or thereto, including, but not limited to, rights of expansion, rights of first
offer, rights of first refusal, right of extension, renewal or other option or right.
Notwithstanding anything contained herein to the contrary, the Surrendered Premises will not be
subject to this Right of First Offer until July 1, 2008.
Section 8A. and Section 8B. of Exhibit “D” are hereby deleted in their entirety and replaced
with the following new Section 8A.:
“A. | In lieu of funding the Construction Allowance directly to Tenant, Landlord agrees to pay Tenant’s general contractor and other contractors and vendors out of the Construction Allowance directly in accordance with the following procedures: No more often than once per month, Tenant may request a draw from the Construction Allowance by providing Landlord (i) a letter containing each invoice number, invoice date, vendor name, and dollar |
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amount of each invoice, the total amount being requested in such draw, whether such payments are to be paid from the TI Allowance or the Discretionary Allowance, and the total amount as of such date that has been requested and paid from the TI Allowance and Discretionary Allowance, (ii) a copy of each invoice, (iii) partial lien waivers from each contractor or vendor for which payment is requested and (iv) such other information or documentation as Landlord may reasonably request. The final draw request must also be accompanied by final lien waivers from all of Tenant’s contractors and vendors. Landlord will pay such invoices within thirty (30) days of its receipt of the draw request containing all of the foregoing required documentation. Landlord will provide a copy of the checks therefore to Tenant as proof of payment. If Tenant requests Landlord to process more than four (4) checks in any month, then each additional check beyond the initial four (4) checks in such month written by Landlord through this process will be subject to a $100 administrative charge, the total charges for which will be billed to Tenant after completion of construction. | |||
With respect to the Discretionary Allowance, Tenant may draw down any remaining balance of the Discretionary Allowance in up to three (3) draws, at any time from and after the date of the Second Amendment to Lease Agreement, but before December 31, 2007. | |||
Tenant agrees that costs not covered by the Construction Allowance shall be paid directly by Tenant.” |
Section 8C. of Exhibit “D” is hereby amended by deleting such section in its entirety and
replacing it with the following new section 8B.:
“B. | Landlord’s property manager will be entitled to receive a construction management or oversight fee of ten cents (10¢) per square foot of Rentable Floor Area of the Demised Premises for the services it will be providing to Landlord and Tenant during the design and construction of Tenant’s Work. Such fee will be paid by Landlord out of the Construction Allowance.” |
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Building (the “Wire Closet”) as a part of the Demised
Premises if it elects to otherwise vacate the 7th floor. If Tenant elects to do so, and
if such relocation causes Landlord (due to Building life safety or other code requirements) to
install additional corridors on the 7th floor of the Building in order to provide two
(2) means of egress from Tenant’s space in the event Landlord leases the 7th floor to a
full floor tenant, Landlord will allow Tenant to retain the Wire Closet provided that Tenant’s
square feet of Rentable Floor Area for the Demised Premises will include a combination of the
square feet of Rentable Floor Area for the Wire Closet and the square feet of Rentable Floor Area
in any corridors that Landlord is required to build specifically in order to maintain code if
Landlord leases the 7th floor to another full floor tenant. The square feet of Rentable
Floor Area in that case will be calculated with a single tenant add-on factor. If Landlord leases
the 7th floor in a multi-tenant configuration and no additional corridors are required
to be built as a result of Tenant retaining at least the Wire Closet on the 7th floor,
then Tenant will be required to pay only for the square feet of Rentable Floor Area of the Wire
Closet that it retains, calculated with a multi-tenant add-on factor.
As a condition precedent to any termination of the Lease pursuant to the provisions of this
Paragraph 11, Tenant must have delivered to Landlord within thirty (30) days after Landlord advises
Tenant in writing of the calculation of the Termination Fee (defined below) an amount as a
termination fee equal to the sum of (i) six (6) months of Base Rental and Tenant’s Additional
Rental in the amounts that would have been paid for the next six (6) months of the Extension Term
following the Termination Date had the Termination Option not been exercised, plus an amount equal
to the unamortized portion (amortized on a straight-line basis at ten percent (10%) per annum) of
the Construction Allowance, free rent and leasing commissions (the “Termination Fee”). It is
hereby acknowledged that any such amount required to be paid by Tenant in connection with such
early termination is not a penalty but a reasonable pre-estimate of the damages which would be
incurred by Landlord as a result of such early termination of the Lease (which damages are
impossible to calculate more precisely) and, in that regard, constitutes liquidated damages with
respect to such loss and shall be paid to Landlord as Additional Rent. Tenant shall continue to be
liable for its obligations under the Lease to and through the Termination Date, including, without
limitation, Tenant’s Additional Rental that accrues pursuant to the terms of the Lease, with all of
such obligations surviving the early termination of the Lease. The rights granted to Tenant under
this Paragraph 11 are personal to Tenant, and in the event of any assignment of the Lease by Tenant
prior to the Termination Notice Deadline, the Termination Option shall thenceforth be void and of
no further force or effect.
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who represented Landlord and CB Xxxxxxx Xxxxx, Inc. who represented Tenant
in the negotiating or making of this Second Amendment, and each party agrees to indemnify and hold
the other party, its agents, employees, partners, directors, shareholders and independent
contractors harmless from all liabilities, costs, demands, judgments, settlements, claims, and
losses, including reasonable attorneys’ fees and costs, incurred by the other party in conjunction
with any such claim or claims of any other broker or brokers purportedly acting on behalf of the
indemnifying party claiming to have interested Tenant in the Building or the Demised Premises, or
claiming to have caused such party to enter into this Second Amendment. Landlord will pay CB
Xxxxxxx Xxxxx, Inc. a separate commission pursuant to the commission agreement attached hereto as
Exhibit B and incorporated herein by this reference.
(a) Notices to Landlord (other than rent payments):
0000 Xxxxx Xxxxx Xxxxxxx Investors LLC
c/o UBS Realty Investors LLC
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: General Counsel
c/o UBS Realty Investors LLC
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: General Counsel
and
Cousins Properties
Wildwood Office Park
Management Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 00
Xxxxxxx, Xxxxxxx 00000
Attention: Property Manager
Wildwood Office Park
Management Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 00
Xxxxxxx, Xxxxxxx 00000
Attention: Property Manager
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(b) Rent Payments:
0000 Xxxxx Xxxxx Xxxxxxx Investors LLC
c/o Cousins Properties Incorporated,
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Treasury Department
c/o Cousins Properties Incorporated,
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Treasury Department
EXCEPT AS expressly amended and modified hereby, the Lease shall otherwise remain in full
force and effect, the parties hereto hereby ratifying and confirming the same. To the extent of
any inconsistency between the Lease and this Second Amendment, the terms of this Second Amendment
shall control.
[END OF PAGE]
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LANDLORD: | TENANT: | |||||||||
0000 XXXXX XXXXX XXXXXXX INVESTORS | MANHATTAN ASSOCIATES, INC., | |||||||||
LLC, a Delaware limited liability company | a Georgia corporation | |||||||||
By:
|
UBS Realty Investors LLC, | |||||||||
a Massachusetts limited liability company, | By: | /s/Xxxxx X. Xxxxxxxxxx
|
||||||||
Its Manager | Print Name: Xxxxx X. Xxxxxxxxxx |
|||||||||
Its: President & CEO |
By: /s/ Xxxxx X. Xxxxxxx | ||||||||||
Print Name: Xxxxx X. Xxxxxxx | (CORPORATE SEAL) | |||||||||
Title: Executive Director |
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EXHIBIT A
SECOND AMENDMENT MEMORANDUM
LANDLORD:
|
0000 XXXXX XXXXX XXXXXXX INVESTORS LLC |
|
TENANT:
|
MANHATTAN ASSOCIATES, INC. | |
SECOND AMENDMENT TO LEASE AGREEMENT DATE: |
February , 2007 | |
DEMISED PREMISES:
|
Located at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000 |
Tenant hereby accepts the Demised Premises in accordance with the Second Amendment to Lease
Agreement.
The Effective Date as set forth in the Second Amendment to Lease Agreement is hereby
established as July 1, 2007 and the Expiration Date of the Lease is September 30, 2018.
The Demised Premises consists of approximately square feet of Rentable Floor Area
of the Building consisting of the following:
Floor — rsf
Floor — rsf
Floor — rsf
Floor — rsf
Floor — rsf
Floor — rsf
Floor — rsf
Floor — rsf
Floor — rsf
Tenant’s proportionate share of the Building is , subject to adjustment based on
future expansions/contractions of the Demised Premises.
TENANT: | MANHATTAN ASSOCIATES, INC., | |||||||||
a Georgia corporation | ||||||||||
By: | ||||||||||
Print Name: | ||||||||||
Its: | ||||||||||
X-0
X-0
Xxxxxxxx and Agreed:
0000 XXXXX XXXXX XXXXXXX INVESTORS LLC,
a Delaware limited liability company
a Delaware limited liability company
By: | UBS Realty Investors LLC, a Massachusetts limited liability company, Its Manager |
|||||
By: | ||||||
Print Name: | ||||||
Its: | ||||||
A-2
EXHIBIT B
COMMISSION AGREEMENT
February 9, 2007
Xx. Xxx Xxxxxx
Xx. Xxxx Xxxxxxxxxx
CB Xxxxxxx Xxxxx, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Xx. Xxxx Xxxxxxxxxx
CB Xxxxxxx Xxxxx, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Re: | Proposed Second Amendment to Lease Agreement (“Amendment”) which amends that certain Lease Agreement dated June 25, 2001, as amended (the “Lease”) by and between 0000 XXXXX XXXXX XXXXXXX INVESTORS LLC, a Delaware limited liability company (“Owner”), successor to Wildwood Associates, and MANHATTAN ASSOCIATES, INC., a Georgia corporation (“Tenant”) relating to certain premises at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000 (“Property”) |
Gentlemen:
This letter is intended to confirm our agreement (“Agreement”) that in the event of the
execution and consummation of the above Amendment, Owner shall pay you in consideration for your
brokerage services rendered and subject to the other provisions hereof, a commission computed and
payable in accordance as described below. Capitalized terms used but not defined herein shall have
the meanings given to them in the Amendment.
1. Commission Payable. Owner shall pay you a commission equal to a Procurement Fee
(“Procurement Fee") equal to the first full months “gross” rental payable by Tenant under the
Amendment for any additional space leased pursuant to the Amendment and subsequent space leased
prior to the Effective Date that exceeds 137,868 rentable square feet. Landlord shall also pay you
a commission equal to the product of Aggregate Rent (as defined on Attachment I hereto) less the
Procurement Fee payable during the Extension Term, times four percent (4%). Aggregate Rent shall
be calculated in accordance with Attachment I.
2. Time of Payment. The amount payable pursuant to Section 1 above shall be deemed
earned upon execution of the Amendment by both Tenant and Landlord and shall be paid in two
separate installments. Owner shall pay 50% of such amount upon full execution of the Amendment by
Tenant and Owner and receipt by both Tenant and Owner of an original thereof, and the remaining 50%
will be paid within thirty (30) days of the Effective Date. In the event a default by Tenant
occurs under the Lease, as amended, beyond applicable notice and cure periods, such that the Lease
is terminated prior to Tenant taking possession of the Demised Premises and the second installment
of the commission being paid, then you shall forfeit the second half of the commission. If the
default is later cured, you will receive the second half of the commission. Since the exact square
footage of the Second Expansion Space and Retained Premises (as both are defined in the Amendment)
will not be known at the time the first (1st) installment is paid to you, the first
installment will be paid based on an estimate of 160,000 rentable square feet, with such amount
being reconciled at the time the 2nd installment is paid, based then on the exact amount
of square footage of the Second Expansion Space and Retained Premises which will then have been
determined.
B-1
3. Renewals, Extensions or Expansions. If the Lease is renewed or extended, whether
pursuant to an option contained in the Lease or Amendment or otherwise, any commission payable to
you in connection with such renewal or extension shall be governed by the terms of a new agreement
between you and Owner, provided Tenant confirms in writing to Owner that you are representing them
with respect to such renewal or extension. If after the Effective Date, the Demised Premises is
expanded, whether pursuant to an option contained in the Lease or Amendment or otherwise, Owner
will pay you a commission provided Tenant confirms in writing to Owner that you are representing
them with respect to such expansion equal to the product of Aggregate Rent (as defined on
Attachment I hereto) payable for the expansion space, times four percent (4%). Aggregate Rent
shall be calculated in accordance with Attachment I. In the event of any such expansion, the
commission shall be deemed earned when the amendment reflecting such expansion is executed and
delivered by both Landlord and Tenant and shall be paid in two separate installments. Owner shall
pay 50% of such amount upon full execution of the amendment by Tenant and Owner and receipt by both
Tenant and Owner of an original thereof, and the remaining 50% will be paid following the
commencement date of such expansion. In the event a default by Tenant occurs under the Lease, as
amended, such that the Lease is terminated prior to Tenant taking possession of the expansion space
and the second installment of the commission being paid, then you shall forfeit the second half of
the commission. If the default is later cured, you will receive the second half of the commission.
4. Exclusive Representation of Tenant; No Other Brokers. By signing this Agreement,
you represent and warrant that (a) you hold a valid real estate broker’s license, (b) you have
caused Tenant to give Owner written notice that it is being represented exclusively by you, and (c)
Tenant has not withdrawn such exclusive representation or notified you that it is being represented
by another broker. In the event that any person makes a claim that any of the foregoing items are
not true or Owner has a reasonable belief that any of such items are not true or if any other
person claims any commission from Owner respecting the Lease or Amendment (other than the Owner’s
leasing broker), Owner may elect to withhold payment of the commission hereunder until presented
with a duly executed valid and binding agreement between you and such other person or with a final,
valid court order setting forth how the commission will be divided or who is entitled to receive
the commission (and you agree that Owner shall be authorized to pay in accordance with the same).
Upon Owner’s payment of the commission owed pursuant to Section 1 above, you shall be responsible
for all other fees or commissions owing to or claimed to be owing by any other broker or other
person for services rendered or claimed to have been rendered to Tenant in connection with the
Lease or Amendment, except for any amounts which may be claimed, or due, pursuant to an agreement
between Owner and Owner’s leasing broker or any other person. You shall indemnify, defend and hold
Owner harmless from any and all claims, losses, demands, judgments, orders, settlements or decrees
(including any and all costs and expenses and reasonable attorneys’ fees and disbursements) arising
as a result of or which are attributable to any misrepresentation or breach of any warranty set
forth in this Section or any breach of your obligations under this Section. This Section shall
survive expiration or termination of this Agreement.
5. Confidentiality. By execution of this Agreement, you agree after the date hereof
not to divulge to any other person or entity any of the terms or conditions of the Lease or
Amendment between Tenant and Owner, except you shall have the right to provide such information (a)
if compelled by law or court order and (b) as and when required in connection with your application
for the Atlanta Board of Realtors “Million Dollar Club” or similar designation and (c) internally
for either audit purposes or for purposes of payment. It is further agreed that all proposals,
discussions, terms and conditions pertaining to Tenant’s potential or actual lease of space in the
Building shall be treated by you in a strictly confidential manner and not disclosed in any fashion
or context to anyone other than Tenant or its designees. Any
material breach of the confidentiality provisions of this Agreement will terminate your rights and
Owner’s obligations under this Agreement.
B-2
7. Owner’s Right to Reject Lease Agreement; No Authority to Represent Owner. Owner,
in its sole and absolute discretion, may withhold its approval or decline to enter into the
Amendment for any reason whatsoever or for no reason, without incurring an obligation to you for
the payment of a commission or any other amounts to you. No binding agreement shall exist unless
and until the Amendment has been approved, executed and delivered by authorized representatives of
Tenant and Owner and all conditions and contingencies have been satisfied. You have no authority to
enter into any agreement on behalf of Owner and you are not authorized to make any representations
on behalf of Owner.
8. Termination of this Agreement; Sale of Property. This Agreement and Owner’s
obligations hereunder shall terminate upon the sale or other transfer of Owner’s interest in the
Property and Owner shall be released automatically from any obligations hereunder so long as Owner
or the transferee has paid you all amounts then due hereunder and has caused the transferee to
assume the obligation to pay any future amounts due hereunder.
9. Owner’s Liability. Owner’s liability under this Agreement shall be limited to
Owner’s interest in the Property, and no personal liability shall at any time be asserted or
enforceable against Owner or its manager, members, partners, officers, directors, shareholders, or
employees or their respective heirs, legal representatives, successors and assigns on account of
this Agreement. In addition, if Owner has entered into this Agreement on behalf of one or more
separate accounts (as such term is defined in Section 3(17) of ERISA), then Owner’s liability shall
be further limited to the assets of such separate account.
10. Miscellaneous. This Agreement is the entire agreement and understanding of the
parties hereto, superseding and canceling all other agreements between the parties, whether written
or oral, relative to the subject matter hereof. This Agreement may not be modified except by
written instrument hereafter executed by the parties hereto. This Agreement shall not be valid or
binding unless and until signed and delivered by all of the parties hereto.
[SIGNATURES COMMENCE ON NEXT PAGE]
B-3
BROKER: | ||||||||||||||||||||
OWNER: | ||||||||||||||||||||
CB XXXXXXX XXXXX, INC. | 0000 XXXXX XXXXX XXXXXXX | |||||||||||||||||||
A Delaware corporation INVESTORS LLC, a Delaware limited | ||||||||||||||||||||
liability company | ||||||||||||||||||||
By: | UBS Realty Investors LLC, | |||||||||||||||||||
By:
|
a Massachusetts limited liability | |||||||||||||||||||
Name:
|
company, its Manager | |||||||||||||||||||
Title:
|
||||||||||||||||||||
By: | ||||||||||||||||||||
Name: | ||||||||||||||||||||
Title: |
B-4
Attachment I
[Definition of Aggregate Rent]
As used herein, the term “Aggregate Rent” shall mean the aggregate base fixed rent plus fixed
stated escalations plus Estimated Operating Expenses as defined hereinafter payable during the
Extension Term; provided, that, no commissions will be paid on, and Aggregate Rent shall not
include:
(i) any percentage rent of any type, kind or character, including, without limitation,
any rent payable based on the tenant’s sales or income;
(ii) implied rent during free rent periods or other periods during which the tenant has
no rent payment obligations;
(iii) rent payable in connection with any future renewal, extension or expansion option
that the tenant may have;
(iv) rent payable during month-to-month, holdover or statutory tenancy periods;
(v) rent payable during portions of the term of the lease that can be cancelled or
terminated by the tenant unless the tenant’s termination option requires tenant to pay the
unamortized leasing commissions as a part of any termination fee;
(vi) any amount payable by the tenant in connection with any cancellation or
termination of the lease or any exercise of any purchase option, right of first refusal to
purchase or similar right;
(vii) reimbursement to Owner for any parking, decorations, improvements, space planning
or moving, or any security deposits;
(viii) amounts payable by the tenant pursuant to the lease that constitute or are
considered in the ordinary course of business to be a payment of anything other than
Aggregate Rent, including, without limitation, payments in the form of warrants or other
equity interests in the tenant;
(ix) any free rent periods or rent concessions, cash credits, payment deferments or
other concession items, and any amounts payable by the tenant to reimburse Owner for amounts
paid by Owner to take-over, buy- out or take-back another lease;
(x) any amounts payable by the tenant (whether denominated as rent or not) that are
attributable to amortizing or defraying the cost of special or above-standard tenant
improvements or special services being provided by Owner to tenant; and
(xi) in that the Amendment effects an early renewal of the Lease term (term currently
expires March 31, 2008), that portion of the Aggregate Rent applicable to the Retained
Premises for the period of July 1, 2007 through March 31, 2008, as a commission has
previously been paid on the Retained Premises in connection with the Lease.
For purposes hereof, the term “Estimated Operating Expenses” shall mean the amount equal to the
operating expenses and taxes that are passed through to tenants generally which Owner reasonably
B-5
estimates would be incurred with respect to the first full calendar year following the Effective
Date under the Amendment if the Property were ninety-five percent (95%) occupied throughout such
calendar year.
B-6