SIXTH AMENDMENT TO LEASE AGREEMENT
Exhibit
10.57
SIXTH
AMENDMENT TO LEASE AGREEMENT
THIS
SIXTH AMENDMENT TO
LEASE AGREEMENT
(this
“Amendment”), made and entered into as of the 9 day of January, 2006, by and
between CORPORATE
CENTER ONE OWNER LLC,
a
Delaware limited liability company (“Landlord”), and OUTBACK
STEAKHOUSE, INC.,
a
Delaware corporation (“Tenant”);
W
I T N E S S E T H T H A T:
WHEREAS,
Crescent Resources, Inc. (“Original Landlord”) and Tenant entered into that
certain Lease Agreement dated September 10, 1998, as amended by that certain
First Amendment to Lease Agreement dated June 14, 1999 (collectively, the
“Original Lease”);
WHEREAS,
Crescent Brookdale Associates, LLC (“Crescent Brookdale”), as the
successor-in-interest to the Original Landlord, and Tenant amended the Original
Lease by that certain Second Amendment to Lease dated October 19, 2001, as
further amended by that certain Addendum to Second Amendment to Lease dated
October 31, 2001, as further amended by that certain Third Amendment to Lease
Agreement dated December 31, 2003, as further amended by that certain Addendum
to the Third Amendment to Lease Agreement dated March 24, 2004 (the “Third
Amendment”), and as further amended by that certain Fourth Amendment to Lease
Agreement dated March 17, 2005 (the “Fourth Amendment”), and as further amended
by that certain Fifth Amendment to Lease Agreement dated June 23, 2005 (the
“Fifth Amendment”)(the Original Lease as modified by all of the aforementioned
amendments and addendum are hereinafter referred to collectively as the
“Lease”), for certain premises in the building known as Corporate Center One at
International Plaza and located at 0000 Xxxxx Xxxx Xxxxx Xxxxxxxxx, Xxxxx,
Xxxxxxx (the “Building”), consisting of 16,498 square feet of Premises Net
Rentable Area located on the third (3rd)
floor
known as Suite 380 (the “3rd
Floor
Space”) of the Building, 24,856 square feet of Premises Net Rentable Area
located on the fourth (4th)
floor
known as Suite 470 (the “4th
Floor
Space”) of the Building, 68,342 square feet of Premises Net Rentable Area
located on the fifth (5th)
floor
known as Suite 500 (the “5th
Floor
Space”) of the Building, 31,601 square feet of Premises Net Rentable Area
located on the sixth (6th)
floor
known as Suite 650 (the “6th
Floor
Space”) of the Building, and pursuant to the provisions of the Fourth Amendment,
a commitment for 37,139 square feet of Premises Net Rentable Area located on
the
sixth (6th)
floor
known as Suite 600 (collectively, the “Premises”);
WHEREAS,
Landlord is the successor-in-interest to Crescent Brookdale;
WHEREAS,
pursuant to the Fifth Amendment, Landlord and Tenant agreed to a future
expansion of the Premises to include 11,163 square feet of Net Rentable Area
on
the fourth (4th)
floor
as more particularly described on Exhibit
A-1
attached
hereto (the “44h
Floor
Expansion Space”);
WHEREAS,
Landlord and Tenant have agreed to lease the 4th
Floor
Expansion Space earlier than as set forth in the Fifth Amendment, with Tenant
to
lease a portion of the 4th
Floor
Expansion Space consisting of 5,163 square feet of Net Rentable Area as more
particularly described on Exhibit
A-2
attached
hereto (the “4th
Floor
Immediate Expansion Space”) on the 4th
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Floor
Immediate Expansion Space Effective Date (as defined herein) and the remaining
portion of the 4th
Floor
Expansion Space consisting of 6,000 square feet of Net Rentable Area as more
particularly described on Exhibit
A-2
attached
hereto (the “4th
Floor
Future Expansion Space”) on the 4th
Floor
Future Expansion Effective Date (as defined herein); and
WHEREAS,
Landlord and Tenant desire to evidence such revised expansion of the Premises
and to amend certain other terms and conditions of the Lease and evidence their
agreements and other matters by means of this Amendment;
NOW
THEREFORE,
in
consideration of the mutual covenants contained herein, and other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the Lease is hereby amended and the parties hereto do
hereby agree as follows:
| 1. |
Grant
of 4th Floor Immediate Expansion Space.
As of the 4th Floor Immediate Expansion Space Effective Date (as
defined
below), Landlord agrees to lease to Tenant and Tenant agrees to lease
from
Landlord the 4th Floor Immediate Expansion Space. As of the 4th Floor
Immediate Expansion Space Effective Date, the 4th Floor Immediate
Expansion Space shall be subject to all the terms and conditions
of the
Lease, as amended hereby, and all references in the Lease to the
“Premises” shall be deemed to include the 4th Floor Immediate Expansion
Space.
|
| 2. |
Terms
of 4th
Floor Immediate Expansion Space.
The Lease is hereby amended by adding the 4th Floor Immediate Expansion
Space as part of the Premises, subject to the following terms and
conditions:
|
|
a.
|
4th
Floor Immediate Expansion Space Term.
The 4th Floor Immediate Expansion Space shall be added as part of
the
Premises for all purposes, except as expressly otherwise set forth
herein,
effective as of the earlier to occur of: (i) March 1, 2006, or (ii)
the
date Tenant commences beneficial occupancy of the 4th Floor Immediate
Expansion Space (the “4th Floor Immediate Expansion Space Effective
Date”). The Lease Term with respect to the 4th Floor Immediate Expansion
Space shall be coterminous with that of the Lease Term for the
4th
Floor Space, the 5th
Floor Space and the 6th
Floor Space and shall therefore expire on March 31, 2014.
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|
b.
|
4th
Floor Immediate Expansion Space Basic Costs.
As of the 4th Floor Immediate Expansion Space Effective Date and
continuing thereafter through March 31, 2014, Tenant shall pay all
Additional Rent and any other sums due and payable under the Lease
for the
4th Floor Immediate Expansion Space, including, without limitation,
Tenant’s Proportionate Share of Basic Costs in accordance with Paragraph
7
of the Lease, except that as of the 4th Floor Immediate Expansion
Space
Effective Date, the Basic Costs Expense Stop and the Real Estate
Tax
Expense Stop for the 4th Floor Immediate Expansion Space only shall
be the
actual Basic Costs and Real Estate Taxes incurred during calendar
year
2005 for the 4th Floor Expansion Space multiplied by that percentage
obtained by dividing the Net Rentable Area of the 4th Floor Immediate
Expansion Space by xxx 0xx
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000000 x0
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0
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Xxxxx
Expansion Space. Tenant’s payment of Excess Basic Costs for the 4th Floor
Immediate Expansion Space as provided in Paragraph 7 of the Lease
shall
commence in calendar year 2006 and shall be prorated for the calendar
year
commencing on the 4th Floor Immediate Expansion Space Effective Date.
Tenant acknowledges that the Premises Electrical Expense Stop is
seventy
cents ($0.70) per square foot of Net Rentable Area is a component
of the
Basic Costs Expense Stop and that Tenant is obligated to pay electrical
expenses exceeding the Premises Electrical Expense Stop pursuant
to
Paragraph 14 of the Lease. The Basic Costs Expense Stop, including
the
Real Estate Tax Expense Stop, for the Premises, excluding the 4th
Floor
Immediate Expansion Space, shall remain as set forth in the
Lease.
|
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c.
|
4th
Floor Immediate Expansion Space Improvements.
As of January 1, 2006, Tenant hereby accepts the 4th Floor Immediate
Expansion Space “AS IS” and acknowledges and agrees Landlord shall have no
obligation to construct any tenant improvements to the 4th Floor
Immediate
Expansion Space or make any alterations or additions thereto.
Notwithstanding the foregoing, Landlord agrees to provide Tenant
with a
tenant improvement allowance of Eight and 00/100 Dollars ($8.00)
per
square foot of Net Rentable Area of the 4th Floor Immediate Expansion
Space (i.e., $8.00 x 5,163 rsf = $41,304.00) (the “4th Floor Immediate
Space Allowance”) to use towards the costs of Tenant’s improvements
hereunder, which 4th Floor Immediate Space Allowance shall be paid
within
thirty (30) days of the 4th Floor Immediate Expansion Space Effective
Date. Any construction performed by Tenant under this Amendment shall
be
performed in accordance with Exhibit
B
attached hereto and incorporated herein by this reference. Any Excess
Costs (as defined in Paragraph 9 of the Lease) with respect to
construction of the tenant improvements to the 4th Floor Immediate
Expansion Space shall be the sole responsibility of
Tenant.
|
|
d.
|
4th
Floor Immediate Expansion Space Rent.
Base Rental for the 4th Floor Immediate Expansion Space is set forth
in
Section 5 of this Amendment and is hereby incorporated into this
subsection.
|
| 3. |
Grant
of 4th Floor Future Expansion Space.
As of the 4th Floor Future Expansion Space Effective Date (as defined
below), Landlord agrees to lease to Tenant and Tenant agrees to lease
from
Landlord the 4th Floor Future Expansion Space. As of the 4th Floor
Future
Expansion Space Effective Date, the 4th Floor Future Expansion Space
shall
be subject to all the terms and conditions of the Lease, as amended
hereby, and all references in the Lease to the “Premises” shall be deemed
to include the 4th Floor Future Expansion
Space.
|
| 4. |
Terms
of 4th
Floor Future Expansion Space.
The Lease is hereby amended by adding the 4th Floor Future Expansion
Space
as part of the Premises, subject to the following terms and
conditions:
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a.
|
4th
Floor Future Expansion Space Term.
The 4th Floor Future Expansion Space shall be added as part of the
Premises for all purposes, except as expressly otherwise set forth
herein,
effective as of the earlier to occur of: (i) October 1, 2006, or
(ii) the
date Tenant commences beneficial occupancy of the 4th Floor Future
Expansion Space (the “4th Floor Future Expansion Space Effective Date”).
The Lease Term with respect to the 4th Floor Future Expansion Space
shall
be coterminous with that of the Lease Term for the 4th
Floor Space, the 5th
Floor Space and the 6th
Floor Space and shall therefore expire on March 31, 2014.
|
|
b.
|
4th
Floor Future Expansion Space Basic Costs.
As of the 4th Floor Future Expansion Space Effective Date and continuing
thereafter through March 31, 2014, Tenant shall pay all Additional
Rent
and any other sums due and payable under the Lease for the 4th Floor
Future Expansion Space, including, without limitation, Tenant’s
Proportionate Share of Basic Costs in accordance with Paragraph 7
of the
Lease, except that as of the 4th Floor Future Expansion Space Effective
Date, the Basic Costs Expense Stop and the Real Estate Tax Expense
Stop
for the 4th Floor Future Expansion Space only shall be the actual
Basic
Costs and Real Estate Taxes incurred during calendar year 2005 for
the 4th
Floor Expansion Space multiplied by that percentage obtained by dividing
the Net Rentable Area of the 4th Floor Future Expansion Space by
the 4th
Floor Expansion Space. Tenant’s payment of Excess Basic Costs for the 4th
Floor Future Expansion Space as provided in Paragraph 7 of the Lease
shall
commence in calendar year 2006 and shall be prorated for the calendar
year
commencing on the 4th Floor Future Expansion Space Effective Date.
Tenant
acknowledges that the Premises Electrical Expense Stop is seventy
cents
($0.70) per square foot of Net Rentable Area is a component of the
Basic
Costs Expense Stop and that Tenant is obligated to pay electrical
expenses
exceeding the Premises Electrical Expense Stop pursuant to Paragraph
14 of
the Lease. The Basic Costs Expense Stop, including the Real Estate
Tax
Expense Stop, for the Premises, excluding the 4th Floor Expansion
Space,
shall remain as set forth in the
Lease.
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|
c.
|
4th
Floor Future Expansion Space Improvements.
As of August 1, 2006, Tenant hereby accepts the 4th Floor Future
Expansion
Space “AS IS” and acknowledges and agrees Landlord shall have no
obligation to construct any tenant improvements to the 4th Floor
Future
Expansion Space or make any alterations or additions thereto.
Notwithstanding the foregoing, Landlord agrees to provide Tenant
with a
tenant improvement allowance of Eight and 00/100 Dollars ($8.00)
per
square foot of Net Rentable Area of the 4th Floor Future Expansion
Space
(i.e., $8.00 x 6,000 rsf = $48,000.00) (the “4th Floor Future Space
Allowance”) to use towards the costs of Tenant’s improvements hereunder,
which 4th Floor Future Space Allowance shall be paid within thirty
(30)
days of the 4th Floor Future Expansion Space Effective Date. Any
construction performed by Tenant under this Amendment shall be performed
in accordance with Exhibit
B
attached hereto and incorporated herein by this reference. Any
Excess
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725998 v3
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Costs
(as defined in Paragraph 9 of the Lease) with respect to construction
of
the tenant improvements to the 4th Floor Future Expansion Space shall
be
the sole responsibility of Tenant.
|
|
d.
|
4th
Floor Future Expansion Space Rent.
Base Rental for the 4th Floor Future Expansion Space is set forth
in
Section 5 of this Amendment and is hereby incorporated into this
subsection.
|
| 5. |
4th
Floor Expansion Space Rent.
From and after the 4th Floor Immediate Expansion Space Effective
Date,
Base Rental with respect to the 4th Floor Expansion Space only
shall be as follows, which amounts shall be paid simultaneously
with Tenant’s payment of Base Rental for the remaining Premises and which
payments shall also be accompanied by the applicable sales
tax:
|
|
Month
of
Lease
Term
|
Base
Rental Per
Rentable
Square
Foot
|
Annual
Base
Rental
|
Monthly
Base
Rental
|
|
4th
Floor Immediate Expansion Space Effective Date - 4th
Floor Future Space Effective Date
|
$25.50
|
$131,656.50
|
$10,971.38
|
|
4th
Floor Future Space Effective Date - 12/31/06
|
$25.50
|
$284,656.50
|
$23,721.38
|
|
01/01/07
- 12/31/07
|
$26.14
|
$291,800.82
|
$24,316.74
|
|
01/01/08
- 12/31/08
|
$26.79
|
$299,056.77
|
$24,921.40
|
|
01/01/09
- 12/31/09
|
$27.46
|
$306,535.98
|
$25,544.67
|
|
01/01/10
- 12/31/10
|
$28.15
|
$314,238.45
|
$26,186.54
|
|
01/01/11
- 12/31/11
|
$28.85
|
$322,052.55
|
$26,837.71
|
|
01/01/12
- 12/31/12
|
$29.57
|
$330,089.91
|
$27,507.49
|
|
01/01/13
- 12/31/13
|
$30.31
|
$338,350.53
|
$28,195.88
|
|
01/01/14
- 03/31/14
|
$31.07
|
$86,708.61
(3
months)
|
$28,902.87
|
| 6. |
Fifth
Amendment.
Sections 1, 2 and 3 of the Fifth Amendment are hereby deleted from
the
Lease in their entirety.
|
| 7. |
Right
of First Offer Terminated.
The Right of First Offer set forth in Section 5 of the Third Amendment
is
hereby terminated with respect to the sixth (6th)
floor.
|
| 8. |
Brokers.
Tenant represents and warrants to Landlord that neither it nor its
officers or agents nor anyone acting on its behalf has dealt with
any real
estate broker other than Crescent Resources, LLC who represented
Landlord
and CLW Real Estate Services Group, Inc. who represented Tenant in
the
negotiating or making of this Amendment, and Tenant agrees to indemnify
and hold Landlord, its agents,
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725998 v3
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employees,
partners, directors, sharehold-ers and independent contractors harmless
from all liabilities, costs, demands, judgments, settlements, claims,
and
losses, including reasonable attorneys' fees and costs, incurred
by
Landlord in conjunction with any such claim or claims of any other
broker
or brokers claiming to have interested Tenant in the Building, the
Premises or the 4th Floor Expansion Space or claiming to have caused
Tenant to enter into this
Amendment.
|
| 9. |
Ratification
of Lease.
Tenant hereby affirms that as of the date hereof the Lease is in
full
force and effect, that the Lease has not been modified or amended
(except
as provided in this Amendment) and that all of Landlord’s obligations
accrued to date have been performed. Tenant hereby ratifies the provisions
of the Lease on behalf of itself and its successors and assigns and
agrees
to attorn and be bound to Landlord and its successors and assigns
as to
all of the terms, covenants and conditions of the Lease as amended
hereby.
Tenant further agrees to fulfill all of its obligations under the
Lease as
amended hereby to Landlord throughout the remainder of the Lease
Term.
|
| 10. |
No
Defaults.
Tenant hereby agrees that there are, as of the date hereof, regardless
of
the giving of notice or the passage of time, or both, no defaults
or
breaches on the part of Landlord or Tenant under the
Lease.
|
| 11. |
Capitalized
Terms.
All capitalized terms used herein and not otherwise defined herein
shall
have the meanings ascribed to them in the Lease.
|
| 12. |
Headings.
The headings used herein are provided for convenience only and are
not to
be considered in construing this
Amendment.
|
| 13. |
Binding
Effect.
This Amendment shall not be valid and binding on Landlord and Tenant
unless and until it has been completely executed by and delivered
to both
parties.
|
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 Amendment, the
terms of this Amendment shall control.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF,
the
undersigned parties have duly executed this Amendment as of the day and year
first above written.
| LANDLORD: | ||||
| CORPORATE CENTER ONE | ||||
| OWNER, LLC, a Delaware | ||||
| limited liability company | ||||
| Signed, sealed and delivered | ||||
| in the presence of: | By: Corporate Center One Corporation, | |||
| a Delaware corporation | ||||
| /s/ Xxxx X. Xxxxxxxx | ||||
| Print Name: | Xxxx X. Xxxxxxxx | By: | /s/ Xxxx X. Xxxxxx | |
| /s/ Xxxxxxxxx Xxx | Name: | Xxxx X. Xxxxxx | ||
| Print Name: | Xxxxxxxxx Xxx | Title: | Vice President | |
| TENANT: | ||||
| Signed, sealed and delivered | OUTBACK STEAKHOUSE, INC., | |||
| in the presence of: | a Delaware corporation | |||
| /s/ Xxxxx Xxxxxx | ||||
| Print Name: | Xxxxx Xxxxxx | By: |
/s/ Xxxxxxx Xxxxxxxxx
|
|
| /s/ Xxxxxx Xxxxxxx | Name: | Xxxxxxx Xxxxxxxxx | ||
| Print Name: | Xxxxxx Xxxxxxx | Title: | Sr. Vice President | |
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EXHIBIT
B
Work
Letter for 4th Floor Immediate Expansion Space
and
4th Floor Future Expansion Space
Tenant
acknowledges and agrees Landlord shall have no obligation to construct any
tenant improvements to the 4th Floor Immediate Expansion Space, the 4th Floor
Future Expansion Space or make any alterations or additions thereto, except
that
Landlord agrees to provide Tenant the 4th Floor Immediate Space Allowance and
the 4th Floor Future Space Allowance set forth in the Amendment to cover the
costs associated with the buildout of the 4th Floor Immediate Expansion Space
and the 4th Floor Future Expansion Space, respectively.
Tenant
shall be responsible for all work, construction and installation in the 4th
Floor Immediate Expansion Space and the 4th Floor Future Expansion Space. Such
work shall hereinafter be referred to as “Tenant’s Work,” and shall be at
Tenant’s sole cost and expense, subject to application of the 4th Floor
Immediate Space Allowance and the 4th Floor Future Space Allowance. Prior to
commencing Tenant’s Work, Tenant shall submit drawings and specifications for
Tenant’s Work to Landlord, showing all aspects of such work, to Landlord for
Landlord’s review and approval.
Tenant
shall have the right to retain its own contractor(s) or subcontractor(s) to
perform Tenant’s Work and its telephone, security and cabling within the 4th
Floor Immediate Expansion Space and the 4th Floor Future Expansion
Space.
Tenant
shall be responsible for applying for and obtaining all permits required for
Tenant to perform Tenant’s Work or
to
operate within the
4th
Floor Immediate Expansion Space and the 4th Floor Future Expansion
Space,
including, without limitation, the final certificate of occupancy or completion
or its equivalent, and for obtaining the final fire inspection approval after
installation of its fixtures, furniture and equipment.
Tenant
shall secure, pay for, and maintain, or cause its contractors and subcontractors
to secure, pay for, and maintain, during the continuance of construction and
fixturing work within the 4th Floor Immediate Expansion Space and the 4th Floor
Future Expansion Space, all of the insurance policies required in the amounts
as
set forth herein, together with such insurance as may from time to time be
required by city, county, state or federal laws, codes, regulations or
authorities. Tenant shall not commence, nor may it permit its contractors and
subcontractors to commence any work, until all required insurance has been
obtained, and, if Landlord requests, until Tenant’s certificates of such
insurance have been delivered to Landlord. Tenant’s insurance policies shall
name the Landlord and Landlord’s mortgagee(s) as additional insureds. Tenant’s
certificates of insurance shall provide that no change or cancellation of such
insurance coverage shall be undertaken without thirty (30) days prior written
notice to Landlord. Landlord shall have the right to require Tenant, and Tenant
shall have the duty, to stop work in either the 4th Floor Immediate Expansion
Space or the 4th Floor Future Expansion Space, or both, immediately if any
of
the coverage Tenant is required to carry herein lapses during the course of
the
work, in
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which
event Tenant’s Work may not be resumed until the required insurance is obtained
and satisfactory evidence of same is provided to Landlord.
Tenant
shall purchase, or cause to be purchased, General Contractor’s and
Subcontractor’s Required Minimum Coverages and Limits of Liability as
follows:
| (i) |
Worker’s
Compensation, as required by state law, and Employer’s Liability Insurance
with a limit of not less than $2,000,000.00 (or more if required
by the
law of the State of Florida) and any insurance required by any Employee
Benefit Act or similar statute applicable where the work is to be
performed, as will protect the contractor and subcontractors from
any and
all liability under the aforementioned act(s) or similar
statute.
|
| (ii) |
Commercial
General Liability Insurance (including Contractor’s Protective Liability)
in an amount not less than $2,000,000.00 per occurrence whether involving
personal injury liability (or death resulting therefrom) or property
damage liability or a combination thereof (combined single limit
coverage)
with a minimum aggregate limit of $2,000,000.00.
|
Such
insurance shall include explosion, collapse and underground coverage. Such
insurance shall insure each party’s general contractor against any and all
claims for personal injury, death, and damage to the property of others arising
from its operations under its contract, whether such operations are performed
by
such party’s contractors, subcontractors, or sub-subcontractors, or by anyone
directly or indirectly employed by any of them.
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