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EXHIBIT 10.2a
FIFTH AMENDMENT TO LEASE
THIS FIFTH AMENDMENT TO LEASE ("Fifth Amendment") is made this 13 day
March, 2000, by and between THE REALTY ASSOCIATES FUND IV, L.P., a Delaware
limited partnership, successor in interest to Xxxxx Xxxxxxx Co. ("Landlord") and
SUMMIT NATIONAL BANK, a national banking association ("Tenant").
WITNESSETH:
WHEREAS, Xxxxx Xxxxxxx Co., Landlord's predecessor in interest, and
Tenant entered into that certain Lease Agreement dated December 3, 1993 (the
"Lease"), as amended by that certain Amendment #1 dated May 18, 1994 (the "First
Amendment"), as further amended by that certain Amendment #2 dated February 19,
1997 (the "Second Amendment"), as further amended by that certain Amendment #3
dated September 26, 1997 (the "Third Amendment") and as further amended by that
certain Fourth Amendment to Lease Agreement dated December 31, 1998 (the "Fourth
Amendment") (the Lease, the First Amendment, the Second Amendment, the Third
Amendment and the Fourth Amendment shall be known collectively herein as the
"Lease") pursuant to which Tenant leased that certain premises on the first and
third floors of the building located at Plaza Square North, 4360
Xxxxxxxx-Xxxxxxxx Road, Atlanta, Georgia (the "Building") and known as Suites
109, 300, 301 and 302, said premises containing, in the aggregate, Nineteen
Thousand Four Hundred Three (19,403) rentable square feet of office space, which
consists of Eight Thousand Nine Hundred Forty One (8,941) rentable square feet
of office space on the first floor ("First Floor Premises") and Ten Thousand
Four Hundred Sixty Two (10,462) rentable square feet of office space on the
third floor ("Third Floor Premises") (collectively the "Premises");
WHEREAS, Landlord and Tenant desire to amend the Lease to extend the
Term, and to amend certain other terms and conditions of the Lease as herein
provided.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements herein contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant hereby agree to the following:
1. RECITALS. The recitals set forth above are incorporated herein
by this reference with the same force and effect as if fully set forth
hereinafter.
2. CAPITALIZED TERMS. Capitalized terms not otherwise defined
herein shall have the meaning ascribed to them in the Lease.
3. LANDLORD. All references in the Lease to Xxxxx Xxxxxxx Co., as
Landlord, shall now apply to The Realty Associates Fund IV, L.P., which acquired
the Building.
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4. TERM. The Term of the Lease with respect to the First Floor
Premises is hereby extended for ten (10) years, commencing on January 1, 2001
(the "First Floor Premises Renewal Date") through December 31, 2010
(inclusively, the "First Floor Premises Renewal Term"), unless sooner terminated
pursuant to any provision of the Lease or hereof; and the Term of the Lease with
respect to the Third Floor Premises is hereby extended for seven (7) years,
commencing on the First Floor Premises Renewal Date through December 31, 2007
(inclusively, the "Third Floor Premises Renewal Term"), unless sooner terminated
pursuant to any provision of the Lease or hereof.
5. FIXED MINIMUM RENT.
a. Notwithstanding anything to the contrary in the
Lease, Tenant shall pay Fixed Minimum Rent to Landlord with respect to the First
Floor Premises during the First Floor Premises Renewal Term in the manner and at
the times set forth in the first paragraph of Section 3 of the Lease according
to the following schedule:
FIRST FLOOR PREMISES
Annual Fixed Minimum Monthly Fixed
Period Rent Minimum Rent
------------------ -------------------- -------------
1/01/01 - 12/31/01 $156,467.50 $13,038.96
1/01/02 - 12/31/02 $160,401.54 $13,366.80
1/01/03 - 12/31/03 $164,424.99 $13,702.08
1/01/04 - 12/31/04 $168,537.85 $14,044.82
1/01/05 - 12/31/05 $172,740.12 $14,395.01
1/01/06 - 12/31/06 $177,031.80 $14,752.65
1/01/07 - 12/31/07 $181,412.89 $15,117.74
1/01/08 - 12/31/08 $185,972.80 $15,497.73
1/01/09 - 12/31/09 $190,622.12 $15,885.17
1/01/10 - 12/31/10 $195,450.26 $16,287.52
b. Notwithstanding anything to the contrary in the
Lease, Tenant shall pay Fixed Minimum Rent to Landlord with respect to the Third
Floor Premises during the Third Floor Premises Renewal Term in the manner and at
the times set forth in the first paragraph of Section 3 of the Lease according
to the following schedule:
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THIRD FLOOR PREMISES
Annual Fixed Minimum Monthly Fixed
Period Rent Minimum Rent
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1/01/01 - 12/31/01 $183,085.00 $15,257.08
1/01/02 - 12/31/02 $187,688.28 $15,640.69
1/01/03 - 12/31/03 $192,396.18 $16,033.01
1/01/04 - 12/31/04 $197,208.70 $16,434.05
1/01/05 - 12/31/05 $202,125.84 $16,843.82
1/01/06 - 12/31/06 $207,147.60 $17,262.30
1/01/07 - 12/31/07 $212,273.98 $17,689.49
c. As of the First Floor Premises Renewal Date,
Paragraph 2 of the Fourth Amendment is hereby deleted in its entirety
d. As of the First Floor Premises Renewal Date, Section
3(a) of the Lease shall be deleted in its entirety.
6. OPERATING EXPENSE INCREASES AND REAL AND PERSONAL PROPERTY
TAXES. As of the First Floor Premises Renewal Date, Section 3 of the Lease is
hereby modified by adding the following sub-sections (f), (g) and (h) to the end
thereof:
"(F) OPERATING EXPENSE INCREASES. Tenant shall pay to Landlord
during the Term hereof, in addition to the Fixed Minimum Rent, Tenant's
Share of the amount by which all Operating Expenses for each Comparison
Year (as defined in Section (f)2) herein below) exceeds the amount of
all Operating Expenses (as defined in Section (f)3) herein below) for
the Base Year (as defined in Section (f)10) herein below). If less than
95% of the rentable square feet in the Building is occupied by tenants
or Landlord is not supplying services to 95% of the rentable square
feet of the Building at any time during any calendar year (including
the Base Year), Operating Expenses for such calendar year shall be an
amount equal to the Operating Expenses which would normally be expected
to be incurred had 95% of the Building's rentable square feet been
occupied and had Landlord been supplying services to 95% of the
Building's rentable square feet throughout such calendar year
(hereinafter the "Grossed Up Operating Expenses"). Landlord's good
faith estimate of Grossed Up Operating Expenses shall not be subject to
challenge or recalculation by Tenant. Tenant's Share of Operating
Expense increases shall be determined in accordance with the following
provisions:
1) "TENANT'S SHARE" is defined as the percentage set forth in
Section (f)9), which percentage has been determined by dividing the
number of rentable square feet in the Premises by the total number of
rentable square
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feet in the Building. In the event that the number of rentable square
feet in the Building or the Premises changes, Tenant's Share shall be
adjusted in the year the change occurs, and Tenant's Share for such
year shall be determined on the basis of the days during such year that
each Tenant's Share was in effect.
2) "COMPARISON YEAR" is defined as each calendar year during
the Term of this Lease after the Base Year. Tenant's Share of the
Operating Expense increases for the last Comparison Year of the Term of
this Lease shall be prorated according to that portion of such
Comparison Year as to which Tenant is responsible for a share of such
increase.
3) "OPERATING EXPENSES" shall include all costs, expenses and
fees incurred by Landlord in connection with or attributable to the
Building, including but not limited to, the following items: (i) all
costs, expenses and fees associated with or attributable to the
ownership, management, operation, repair, maintenance, improvement,
alteration and replacement of the Building, or any part thereof,
including but not limited to, the following: (A) all surfaces,
coverings, decorative items, carpets, drapes, window coverings, parking
areas, loading and unloading areas, trash areas, roadways, sidewalks,
stairways, walls, structural elements, landscaped areas, striping,
bumpers, irrigation systems, lighting facilities, building exteriors
and roofs, fences and gates; (B) all heating, ventilating and air
conditioning equipment ("HVAC") (including, but not limited to, the
cost of replacing or retrofitting HVAC equipment to comply with laws
regulating or prohibiting the use or release of chlorofluorocarbons or
hydrochlorofluorocarbons), plumbing, mechanical, electrical systems,
life safety systems and equipment, telecommunication equipment,
elevators, escalators, tenant directories, fire detection systems
including sprinkler system maintenance and repair; (ii) the cost of
trash disposal, janitorial services and security services and systems;
(iii) the cost of all insurance purchased by Landlord and enumerated in
Section 7 of this Lease, including any deductibles; (iv) the cost of
water, sewer, gas, electricity, and other utilities available at the
Building and paid by Landlord; (v) the cost of labor, salaries and
applicable fringe benefits incurred by Landlord; (vi) the cost of
materials, supplies and tools used in managing, maintaining and/or
cleaning the Building; (vii) the reasonable cost of accounting fees,
management fees, legal fees and consulting fees attributable to the
ownership, operation, management, maintenance and repair of the
Building plus the cost of any space occupied by the property manager
and leasing agent (if Landlord is the property manager, Landlord shall
be entitled to receive a fair market management fee); (viii) the cost
of operating, replacing, modifying and/or adding improvements or
equipment mandated by any law, statute, regulation or directive of any
governmental agency and any repairs or removals necessitated thereby
(including, but not limited to, the cost of complying with the
Americans With Disabilities Act and regulations of the Occupational
Safety and Health Administration); (ix) payments made by Landlord under
any easement, license, operating agreement, declaration, restrictive
covenant, or instrument pertaining to the payment or sharing of costs
among property owners; (x) any business property taxes or personal
property taxes imposed upon the fixtures, machinery, equipment,
furniture and personal property used in connection
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with the operation of the Building; (xi) the cost of all business
licenses, including Business Professional and Occupational License Tax
and Business Improvements Districts Tax, any gross receipt taxes based
on rental income or other payments received by Landlord, commercial
rental taxes or any similar taxes or fees; (xii) transportation taxes,
fees or assessments, including but not limited to, mass transportation
fees, metrorail fees, trip fees, regional and transportation district
fees; (xiii) all costs and expenses associated with or related to the
implementation by Landlord of any transportation demand management
program or similar program; (xiv) fees assessed by any air quality
management district or other governmental or quasi-governmental entity
regulating pollution; (xv) the cost of installing intrabuilding network
cabling ("INC") and maintaining, repairing, securing and replacing
existing INC; (xvi) vault rentals; and (xvii) the cost of any other
service provided by Landlord or any cost that is elsewhere stated in
this Lease to be an "Operating Expense". Real Property Taxes (as
defined in Section (g) hereof) shall be paid in accordance with Section
(g) below and shall not be included in Operating Expenses.
4) Operating Expenses shall not include any expenses paid by
any tenant directly to third parties, or as to which Landlord is
otherwise reimbursed by any third party or by insurance proceeds.
5) If the cost incurred in making an improvement or replacing
any equipment is not fully deductible as an expense in the year
incurred in accordance with generally accepted accounting principles,
the cost shall be amortized over the useful life of the improvement or
equipment, as reasonably determined by Landlord, together with an
interest factor on the unamortized cost of such item equal to the
lesser of (i) twelve percent (12%) per annum, or (ii) the maximum rate
of interest permitted by applicable law.
6) Tenant's Share of Operating Expense increases shall be
payable by Tenant within ten (110) days after a reasonably detailed
statement of actual expenses is presented to Tenant by Landlord. At
Landlord's option, however, Landlord may, from time to time, estimate
what Tenant's Share of Operating Expense increases will be, and the
same shall be payable by Tenant monthly during each Comparison Year of
the Term of the Lease, on the same day as the Fixed Minimum Rent is due
hereunder. In the event that Tenant pays Landlord's estimate of
Tenant's Share of Operating Expense increases, Landlord shall use its
best efforts to deliver to Tenant within one hundred eighty (180) days
after the expiration of each Comparison Year a reasonably detailed
statement (the "Statement") showing Tenant's Share of the actual
Operating Expense increases incurred during such year. Landlord's
failure to deliver the Statement to Tenant within said period shall not
constitute Landlord's waiver of its right to collect said amounts or
otherwise prejudice Landlord's rights hereunder. If Tenant's payments
under this Section 3(f)6) during said Comparison Year exceed Tenant's
Share as indicated on the Statement, Tenant shall be entitled to credit
the amount of such overpayment against Tenant's Share of Operating
Expense increases next failing due. If Tenant's payments under this
Section 3(f)6) during said Comparison Year were less than Tenant's
Share as indicated on the Statement, Tenant shall pay to Landlord the
amount of the deficiency within thirty (30) days after
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delivery by Landlord to Tenant of the Statement. Landlord and Tenant
shall forthwith adjust between them by cash payment any balance
determined to exist with respect to that portion of the last Comparison
Year for which Tenant is responsible for Operating Expense increases,
notwithstanding that the Term of the Lease may have terminated before
the end of such Comparison Year; and this provision shall survive the
expiration or earlier termination of the Lease.
7) The computation of Tenant's Share of Operating Expense
increases is intended to provide a formula for the sharing of costs by
Landlord and Tenant and will not necessarily result in the
reimbursement to Landlord of the exact costs it has incurred.
8) If Tenant disputes the amount set forth in the Statement,
Tenant shall have the right, at Tenant's sole expense, not later than
sixty (60) days following receipt of such Statement, to cause
Landlord's books and records in respect to the calendar year which is
the subject of the Statement to be audited by a certified public
accountant mutually acceptable to Landlord and Tenant. The audit shall
take place at the offices of Landlord where its books and records are
located at a mutually convenient time during Landlord's regular
business hours. Tenant's Share of Operating Expenses shall be
appropriately adjusted based upon the results of such audit, and the
results of such audit shall be final and binding upon Landlord and
Tenant. Tenant shall have no right to conduct an audit or to give
Landlord notice that it desires to conduct an audit at any time Tenant
is in default under the Lease. The accountant conducting the audit
shall be compensated on an hourly basis and shall not be compensated
based upon a percentage of overcharges it discovers. No subtenant shall
have any right to conduct an audit, and no assignee shall conduct an
audit for any period during which such assignee was not in possession
of the Premises. Tenant's right to undertake an audit with respect to
any calendar year shall expire sixty (60) days after Tenant's receipt
of the Statement for such calendar year, and such Statement shall be
final and binding upon Tenant and shall, as between the parties, be
conclusively deemed correct, at the end of such sixty (60) day period,
unless prior thereto Tenant shall have given Landlord written notice of
its intention to audit Operating Expenses for the calendar year which
is the subject of the Statement. If Tenant gives Landlord notice of its
intention to audit Operating Expenses, it must commence such audit
within sixty (60) days after such notice is delivered to Landlord, and
the audit must be completed within one hundred twenty (120) days after
such notice is delivered to Landlord. If Tenant does not commence and
complete the audit within such periods, the Statement which Tenant
elected to audit shall be deemed final and binding upon Tenant and
shall, as between the parties, be conclusively deemed correct. Tenant
agrees that the results of any Operating Expenses audit shall be kept
strictly confidential by Tenant and shall not be disclosed to any other
person or entity.
9) Tenant's Share with respect to the Premises is equal to
19.10%.
10) Tenant's Share with respect to the Third Floor Premises
only is equal to 10.30%
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11) The Base Year is the calendar year 2001.
(g) REAL AND PERSONAL PROPERTY TAXES.
1) PAYMENT OF TAXES. Tenant shall pay to Landlord during the
Term hereof, in addition to Fixed Minimum Rent and Tenant's Share of
Operating Expense increases, Tenant's Share of the amount by which all
"Real Property Taxes" (as defined in Section 3(g)2) below) for each
Comparison Year exceeds the amount of all Real Property Taxes for the
Base Year. Tenant's Share of Real Property Tax increases shall be
payable by Tenant at the same time, in the same manner and under the
same terms and conditions as Tenant pays Tenant's Share of Operating
Expense increases as provided in Section 3(f) of this Lease. Except as
expressly provided in Section 3(g)4 below, if the Real Property Taxes
incurred during any Comparison Year are less that the Real Property
Taxes incurred during the Base Year, Tenant shall not be entitled to
receive any credit, offset, reduction or benefit as a result of said
occurrence.
2) DEFINITION OF "REAL PROPERTY TAX." As used herein, the term
"Real Property Tax" shall include any form of real estate tax or
assessment, general, special, ordinary or extraordinary, improvement
bond or bonds imposed on the Project or any portion thereof by any
authority having the direct or indirect power to tax, including any
city, county, state or federal government, or any school, agricultural,
sanitary, fire, street, drainage or other improvement district thereof,
as against any legal or equitable interest of Landlord in the Project
or in any portion thereof, unless such tax is defined as an Operating
Expense by Section 3(g)3) Real Property Taxes shall not include income,
inheritance and gift taxes.
3) PERSONAL PROPERTY TAXES. Tenant shall pay prior to
delinquency all taxes assessed against and levied upon trade fixtures,
furnishings, equipment and all other personal property of Tenant
contained in the Premises or related to Tenant's use of the Premises.
If any of Tenant's personal property shall be assessed with Landlord's
real or personal property, Tenant shall pay to Landlord the taxes
attributable to Tenant within ten (10) days after receipt of a written
statement from Landlord setting forth the taxes applicable to Tenant's
property.
4) REASSESSMENTS. From time to time Landlord may challenge the
assessed value of the Project as determined by applicable taxing
authorities and/or Landlord may attempt to cause the Real Property
Taxes to be reduced on other grounds. If Landlord is successful in
causing the Real Property Taxes to be reduced or in obtaining a refund,
rebate, credit or similar benefit (hereinafter collectively referred to
as a "reduction"), Landlord shall credit the reduction(s) to Real
Property Taxes for the calendar year to which a reduction applies and
to recalculate the Real Property Taxes owed by Tenant for years after
the year in which the reduction applies based on the reduced Real
Property Taxes (if a reduction applies to Tenant's Base Year, the Base
Year Real Property Taxes shall be reduced by the amount of the
reduction
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and Tenant's Share of Real Property Tax increases shall be recalculated
for all Comparison Years following the year of the reduction based on
the lower Base Year amount). All costs incurred by Landlord in
obtaining the Real Property Tax reductions shall be considered an
Operating Expense. In addition, all accounting and related costs
incurred by Landlord in calculating new Base Years for tenants and in
making all other adjustments shall be an Operating Expense.
(H) CAP ON OPERATING EXPENSE INCREASES. Notwithstanding anything
to the contrary in this Section 3, Tenant shall not be obligated to pay
to Landlord its share of increases in Operating Expenses to the extent
that such increases exceed seven percent (7%) of the previous calendar
year's Operating Expenses provided, however, that there shall be no
limitation on the payment by Tenant of increases in Operating Expenses
that cannot be controlled by Landlord (eq., utility costs, insurance
costs, real property tax increases and any other costs that are beyond
Landlord's reasonable control). The foregoing limitations shall be
applied separately during each year of the Lease Term. If Operating
Expenses have increased by more that seven percent (7%) in a previous
calendar year and by less than seven percent (7%) in a subsequent
calendar year, Landlord shall have the right to pass through to Tenant
the increase Landlord was unable to pass through in the previous
calendar year in the subsequent calendar year provided that Landlord
does not exceed in any year a maximum increase of seven percent (7%).
For example, assume that the Operating Expenses of the Building, other
than utilities, insurance, taxes and any other costs, beyond the
reasonable control of Landlord (the "Controllable Expenses") for the
calendar year 2000 increased by ten percent (10%). Assume further that
said Controllable Expenses in the calendar year 2001 increased by one
percent (1%). In this event, Tenant's Share of Controllable Expenses
increases could be increased by four percent (4%) in 2001.
7. AMERICAN WITH DISABILITIES ACT. As of the First Floor Premises
Renewal Date, Section 17 of the Lease is hereby modified by adding the following
at the end of Section 17:
"Tenant shall, at Tenant's sole expense, comply with all
requirements of the Americans With Disabilities Act that relate to the Premises,
and all federal, state and local laws and regulations governing occupational
safety and health."
8. NOTICES. As of the First Floor Premises Renewal Date, The
notice address for Landlord set forth in Section 26 ofthe Lease is hereby
amended as follows:
If to Landlord: The Realty Associates Fund IV, L.P.
c/o Xxxxxxxx Xxxx Company
Five Concourse Parkway, Suite 2000
Xxxxxxx, Xxxxxxx 00000
With a copy to: TA Associates Realty
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxx
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9. IMPROVEMENTS.
a. As of the First Floor Premises Renewal Date, Tenant
hereby accepts the Premises in its "as-is" condition existing on the Renewal
Date. Landlord shall have no obligation to construct any improvements to the
Premises on behalf of Tenant. Tenant acknowledges that all obligations of
Landlord pursuant to 44(j) of the Lease have been met.
b. Landlord shall construct improvements
("Improvements") for the Premises in accordance with the Work Letter Agreement
attached hereto as Schedule 1. In connection thereto, Landlord hereby grants to
Tenant an "Improvement Allowance" of up to Two Hundred Thousand and 00/100
Dollars ($200,000.00), which Improvement Allowance shall be used only for the
items specified in the Cost Breakdown, as that term is defined in the Work
Letter Agreement. The Improvement Allowance may be used towards the costs of
such Improvements throughout the initial five (5) years of the First Floor
Premises Renewal Date, but in no event beyond December 31, 2004.
c. Tenant hereby acknowledges that the Improvements
shall be constructed in accordance with Paragraph 9b. above, while Tenant is in
occupancy of the Premises, and Landlord's actions in connection with
constructing such Improvements shall in no way constitute a constructive
eviction of Tenant or entitle Tenant to any abatement of rent. Landlord shall
have no responsibility or for any reason be liable to Tenant for any direct or
indirect injury to or interference with Tenant's business arising from the
construction of the Improvements, nor shall Tenant be entitled to any
compensation or damages from Landlord for any inconvenience or annoyance
occasioned by the construction of the Improvements or Landlord's actions in
connection with the construction of the Improvements. Notwithstanding the
foregoing, Landlord shall use commercially reasonable efforts to minimize
unreasonable interference with Tenant's use and occupancy of the Premises during
any construction of the Improvements.
10. HAZARDOUS MATERIAL. As of the First Floor Premises Renewal
Date, the Lease is hereby modified by adding the following Section 45:
"45. For purposes of this Lease, the term "Hazardous Material"
means any hazardous substance, hazardous waste, infectious waste, or toxic
substance, material, or waste which becomes regulated or is defined as such by
any local, state or federal governmental authority, Except for small quantities
of ordinary office supplies such as copier toners, liquid paper, glue, ink and
common household cleaning materials, Tenant shall not cause or permit any
Hazardous Material to be brought, kept or used in or about the Premises or the
Building by Tenant, its agents or employees. Tenant hereby agrees to indemnify
Landlord from and against any breach by Tenant of the obligations stated in the
preceding sentence, and agrees to defend and hold Landlord harmless from and
against any and all claims, judgments, damages, penalties, fines, costs,
liabilities, or losses (including, without limitation, diminution in value of
the Building, damages for the loss or restriction of use of rentable space or of
any amenity of the Building, damages arising from any adverse impact on
marketing of space in the Building, sums paid in settlement of claims,
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reasonable attorneys' fees, consultant fees and expert fees) which arise during
or after the current or any renewal term of the Lease as a result of such
breach. This indemnification of Landlord by Tenant includes, without limitation,
costs incurred in connection with any investigation of site conditions and any
cleanup, remedial removal, or restoration work required due to the presence of
Hazardous Material caused by Tenant, its agents or employees. Tenant shall
promptly notify Landlord of any release of a Hazardous Material in the Premises
or at the Building of which Tenant becomes aware, whether caused by Tenant or
any other person or entity. The provisions of this Section 45 shall survive the
termination of the Lease."
11. TERMINATION OPTION. As of the First Floor Premises Renewal
Date, Paragraph 4 of the First Amendment and Paragraph 3 of the Second Amendment
shall be deleted in their entirety.
12. OPTION TO RENEW.
(a) Provided that Tenant is not in default at the time of Tenant's
exercise of either option or at the commencement of either extended term(s),
Tenant shall have one (1) three (3) year option to renew this Lease with respect
to the Third Floor Premises ("Third Floor Option") and one (1) five (5) year
option to renew this Lease with respect to the First Floor Premises ("First
Floor Option"). Tenant shall provide to Landlord on a date which is prior to the
date that the applicable option period would commence (if exercised) by at least
one hundred eighty (180) days and not more than two hundred seventy (270) days,
a written notice of the exercise of such option to extend the Lease for the
respective additional option term(s), time being of the essence. Such notice
shall be given in accordance with Section 26 of the Lease, as amended herein. If
notification of the exercise of either option is not so given and received, all
options granted hereunder shall automatically expire. Fixed Minimum Rent
applicable to the First Floor Premises and the Third Floor Premises for their
respective option term(s) shall be equal to the "Fair Market Rental" as
hereinafter defined. All other terms and conditions of the Lease shall remain
the same.
(b) If the Tenant exercises the option, the Landlord shall
determine the fair market rental by using its good faith judgment. Landlord
shall provide Tenant with written notice of such amount within fifteen (15) days
after Tenant exercises its option. Tenant shall have fifteen (115) days
("Tenant's Review Period") after receipt of Landlord's notice of the new fixed
minimum rent within which to accept such rental. In the event Tenant fails to
accept in writing such rental proposal by Landlord, then such proposal shall be
deemed rejected and Landlord and Tenant shall attempt to agree upon such fair
market rental, using their best good faith efforts. If Landlord and Tenant fail
to reach agreement within fifteen (15) days following Tenant's Review Period
("Outside Agreement Date") then the parties shall each within ten (10) days
following the Outside Agreement Date appoint a real estate broker who shall be
licensed in the State of Georgia and who specializes in the field of commercial
office space leasing in the metropolitan Atlanta, Georgia market, has at least
five (5) years of experience and is recognized within the field as being
reputable and ethical. If one party does not timely appoint a broker, then the
broker appointed by the other party shall promptly appoint a broker for such
party. Such two individuals shall each determine within ten (10) days after
their appointment such fixed minimum rent. If such individuals do not agree on
fixed minimum rent, then the two individuals shall, within five (5) days, render
separate written reports of their determinations and together appoint a third
similarly qualified
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individual having the qualifications described above. If the two brokers are
unable to agree upon a third broker, the third broker shall be appointed by the
President of the Dekalb County Board of Realtors. In the event the Dekalb County
Board of Realtors is no longer in existence, the third broker shall be appointed
by the President of its successor organization. If no successor organization is
in existence, the third broker shall be appointed by the Chief Judge of the
Circuit Court of Dekalb County, Georgia. The third individual shall within ten
(10) days after his or her appointment make a determination of such fixed
minimum rent. The third individual shall determine which of the determinations
of the first two individuals is closest to his own and the determination that is
closest shall be final and binding upon the parties, and such determination may
be enforced in any court of competent jurisdiction. Landlord and Tenant shall
each bear the cost of its broker and shall share equally the cost of the third
broker. Upon determination of the fixed minimum rent payable pursuant to this
Paragraph 12(b), the parties shall promptly execute an amendment to the Lease
stating the fixed minimum rent so determined.
(c) The term "Fair Market Rental" shall mean the annual amount per
rentable square foot that a willing, comparable renewal tenant would pay and a
willing, comparable landlord of a similar office building would accept at arm's
length for similar space, giving appropriate consideration to the following
matters: (i) annual rental rates per rentable square foot; (ii) the type of
escalation clauses (including, without limitation, operating expenses, real
estate taxes, and CPI) and the extent of liability under the escalation clauses
(i.e., whether determined on a .0net lease" basis or by increases over a
particular base year or base dollar amount); (iii) rent abatement provisions
reflecting free rent and/or no rent during the lease term; (iv) length of lease
term; (v) size and location of premises being leased; and (vi) other generally
applicable terms and conditions of tenancy for similar space. The Fair Market
Rental may also designate periodic rental increases, a new Base Year and similar
economic adjustments. The Fair Market Rental shall be the Fair Market Rental in
effect as of the beginning of the option period, even though the determination
may be made in advance of that date, and the parties may use recent trends in
rental rates in determining the proper Fair Market Rental as of the beginning of
the option period.
13. RIGHT OF FIRST OFFER. Provided Tenant is not in default
hereunder beyond any applicable cure periods at the time of Tenant's exercise of
the option or at the commencement of the option term, and subject to all other
options held by tenants of the Building, Tenant shall have the right of first
offer to lease Three Thousand Four Hundred Nine (3,409) rentable square feet of
office space on the Third (3rd) Floor of the Building and known as Xxxxx 000
("Xxxxx 000") and Two Thousand Three Hundred Twenty Six (2,326) rentable square
feet of office space on the Third (3rd) floor of the Building and known as Xxxxx
000 ("Xxxxx 000") that is vacant or becomes vacant. Prior to leasing either or
both Xxxxx 000 xx Xxxxx 000, Xxxxxxxx shall give Tenant written notice of its
intent to lease either or both Xxxxx 000 xx Xxxxx 000. Tenant may exercise such
right only as to all of the space described in the Landlord's notice, and not to
merely a part of such space. Tenant shall have ten (10) business days in which
to provide Landlord with written notice of its election to exercise such right.
The Fixed Minimum Rent payable for Xxxxx 000 xxx/xx Xxxxx 000 shall be at the
Fair Market Rental of each space which such Fair Market Rent shall take into
consideration the length of the lease term. Additionally, Landlord may require
additional security from Tenant as consideration for leasing the option space to
Tenant. If the parties are unable to agree on Fair Market Rental the
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provisions of Paragraph 12(b) hereinabove shall apply. If Tenant does not give
Landlord written notice of its election to lease either or both Xxxxx 000 xxx
Xxxxx 000, such space within the ten (10) business day period, Landlord shall
thereafter be free to lease such space to a third party on any terms and
conditions that Landlord shall select, with no further obligation to Tenant. In
the event that Landlord offers any space to Tenant pursuant to this right of
first offer, and Tenant elects not to lease the space, the space so offered
shall no longer be subject to this right of first offer, and thereafter Landlord
shall not be obligated to offer said space to Tenant.
14. BROKERS. Tenant represents and warrants to Landlord that
Tenant has not dealt with any realtor, broker, agent or finder in connection
with this Fifth Amendment other than Xxxxxxxx Xxxx Company and ICON Commercial
Interest, L.L.C. (the "Brokers"). Landlord shall pay a commission to the Brokers
in accordance with the terms of a separate agreement between Landlord and the
Brokers. Landlord and Tenant shall indemnify and hold each other harmless from
and against any loss, claim, damage, expense (including costs of suit and
reasonable attorneys' fees) or liability for any compensation, commission or
charges claimed by any other realtor, broker, agent or finder claiming through
or under either party in connection with this Fifth Amendment. The foregoing
notwithstanding, Landlord agrees to indemnify Tenant from and against any claim
for any compensation, commission or charges claimed by Ashwood Properties, Inc.
in connection with this Fifth Amendment.
15. REAFFIRMATION OF TERMS. All other terms, covenants and
provisions of the Lease are hereby confirmed and ratified and except as modified
herein, shall remain unchanged and in full force and effect.
16. REPRESENTATIONS. Tenant hereby represents and warrants to
Landlord that Tenant (i) to the best of Tenant's knowledge, is not in default of
any of its obligations under the Lease and that such Lease is valid, binding and
enforceable in accordance with its terms, (ii) has full power and authority to
execute and perform this Fifth Amendment, and (iii) has taken all action
necessary to authorize the execution and performance of this Fifth Amendment.
17. COUNTERPART COPIES. This Fifth Amendment may be executed in
two or more counterpart copies, each of which shall be deemed to be an original
and all of which counterparts shall have the same force and effect as if the
parties hereto had executed a single copy of this Fifth Amendment.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Fifth
Amendment as of the day and year first above written.
LANDLORD:
The Realty Associates Fund IV, L.P., a Delaware limited
partnership
By: Realty Associates Fund IV LLC, a Massachusetts
limited liability company, general partner
By: Realty Associates Advisors LLC, a
Delaware limited liability company, Manager
By: Realty Associates Advisors Trust, a
Massachusetts business trust, sole
member
By: /s/ XXXXXX X. XXXXXX
--------------------------------
By: Realty Associates Fund IV Texas Corporation,
A Texas corporation, general partner
By: /s/ XXXXXX X. XXXXXX
--------------------------------------------------
XXXXXX X. XXXXXX
REGIONAL DIRECTOR
TENANT:
Summit National Bank, a national banking association
By: /s/ Xxxx XxXxxxx
-------------------------------------------------
Its: Exec. Vice President
------------------------------------------------
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SCHEDULE 1
WORK LETTER AGREEMENT
1. Base Building Work. Landlord and Tenant understand and acknowledge that
this Agreement relates only to "non-base building" work in,the Premises. The
"base building work" has been or will be performed by Landlord at Landlord's
sole cost and expense. The term "base building work" means and refers to the
following elements of the Premises: concrete floors (without floor covering);
unfinished perimeter walls; unfinished ceilings (without acoustical ceilings,
ceiling tiles, suspension system, insulation or light fixtures); closets for
telephone and electrical systems (but not the systems themselves); building
systems within the building core only as follows: mechanical (including heating,
ventilating and air conditioning systems), electrical and plumbing systems; and
primary fire sprinkler distribution loop connected to core (secondary branch
distribution to the Premises to accommodate Tenant's specific tenant
improvements shall not be considered base building work).
2. Plans and Specifications.
2.1. Space Plan. Within five (5) days after the execution of the
Fifth Amendment, Landlord shall submit to Tenant for approval a detailed space
plan ("Space Plan") for the Premises prepared by Landlord's architects and
consultants, which shall include without limitation, the location of doors,
partitions, electrical and telephone outlets, plumbing fixtures, heavy floor
loads and other special requirements. If applicable, Landlord reserves the right
to approve Tenant's architect and/or space planner. Tenant agrees to cooperate
with Landlord and its design representatives in connection with the preparation
of the Space Plan. Within five (5) days after receipt by Tenant of the Space
Plan, Tenant (i) shall give its written approval with respect thereto, or (ii)
shall notify Landlord in writing of its disapproval and state with specificity
the grounds for such disapproval and the revisions or modifications necessary in
order for Tenant to give its approval. Within five (5) days following Landlord's
receipt of Tenant's disapproval, Landlord shall submit to Tenant for approval
the requested revisions or modifications. Within three (3) days following
receipt by Tenant of such revisions or modifications, Tenant shall give its
written approval with respect thereto or shall request other revisions or
modifications therein.
2.2. Plans. Based on the approved Space Plan, Landlord shall cause
its architects and engineers to prepare and submit to Tenant for approval
detailed plans, specifications and working drawings ("Plans") for the
construction of Tenant's leasehold improvements to the Premises
("Improvements"). Landlord reserves the right to approve any space planner,
architect or engineer if employed by Tenant. As used herein, the term
"Improvements" shall include all non-base building work to be done in the
Premises pursuant to the Plans, including, but not limited to: demolition work,
partitioning, doors, ceiling, floor coverings, wall finishes (including paint
and wall coverings), window coverings, electrical (excluding the cost of
computer cabling, Tenant's telephone system and wiring, and any other special
electrical or wiring dedicated to the Tenant's operations or business) plumbing,
heating, ventilating and air conditioning, fire protection, cabinets and other
millwork. If Tenant has leased an entire floor, the Improvements shall include
finished toilet
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rooms, corridors and elevator vestibules. Landlord shall submit the Plans to
Tenant for approval within fifteen (15) business days following Tenant's
approval of the Space Plan. Within three (3) days after receipt by Tenant of the
Plans, Tenant (i) shall give its written approval with respect thereto, or (ii)
shall notify Landlord in writing of its disapproval and state with specificity
the grounds for such disapproval and the revisions or modifications necessary in
order for Tenant to give its approval. Within five (5) days following Landlord's
receipt of Tenant's disapproval, Landlord shall submit to Tenant for approval
the requested revisions or modifications. Within three (3) days following
receipt by Tenant of such revisions or modifications, Tenant shall give its
written approval with respect thereto or shall request other revisions or
modifications therein.
3. Specifications for Building Standard Improvements. Specifications and
details for building standard improvements ("Standards") are available in the
office of the Building. Except as specified in Section 4 below, the Space Plan
and Plans shall be consistent with the Standards, and no deviations shall be
permitted from the Standards without Landlord's consent as set forth in Section
4 below.
4. Grounds for Disapproval. Tenant may request deviations from the
Standards for Improvements provided that the deviations ("Non-Standards") shall
not be of lesser quality than the Standards. Landlord shall not be required to
approve any item of the Space Plan, the Plans or the Non-Standards that (a) does
not conform to applicable governmental regulations or is disapproved by any
governmental agency; (b) requires building service (including electrical power)
beyond the level normally provided to other Tenants in the Building; or (c)
overloads the floors.
5. Improvement Cost and Allowance.
5.1. Cost Breakdown. Within a reasonable period following approval
of the Plans, Landlord shall provide Tenant with a breakdown of the estimated
total cost of the Improvements ("Cost Breakdown"), including, without
limitation: construction cost of the Improvements; architectural and engineering
fees relating to the preparation and review of the Space Plan and the Plans
(inclusive of the initial Space Plan and all design work above and below the
ceiling); governmental agency plan check, permit and other fees; sales and use
taxes; testing and inspection costs; and construction fees (including general
contractor's overhead and supervision fees and the construction supervisory fee
referred to in Section 6.3 hereof). Landlord and Tenant shall mutually agree
upon the general contractor who shall provided such Cost Breakdown, and it shall
be deemed reasonable for Landlord to disapprove such general contractor if: (i)
such general contractor's primary business is not the construction of
tenant/interior finish work in commercial office buildings; (ii) such general
contractor is not licensed to do business in Dekalb County, Georgia; and (iii)
such general contractor is a general contractor with whom Landlord or its agent
has had unsatisfactory dealings in the past. Within five (5) days after receipt
by Tenant of the Cost Breakdown, Tenant shall either approve the same in writing
or shall provide Landlord with a detailed list of revisions to the approved
Plans.
5.2. Improvement Allowance. Landlord hereby grants to Tenant an
"Improvement Allowance" of up to Two Hundred Thousand and 00/100 Dollars
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($200,000.00), which Improvement Allowance shall be used only for the items
specified in the Cost Breakdown. In the event that the Cost Breakdown exceeds
the Improvement Allowance, Tenant shall pay to Landlord the sum in excess of the
Improvement Allowance by cashier's check, which payment shall be made within
five (5) days of Landlord's notice to Tenant that Landlord is prepared to
commence construction. The Improvement Allowance may be used towards the costs
of such Improvements throughout the initial five (5) years of the First Floor
Premises Renewal Date, but in no event beyond December 31, 2004.
5.3. Cost Increases. In the event that the cost of the Improvements
increases subsequent to Tenant's approval of the Cost Breakdown due to the
requirements of any governmental agency imposed with respect to the construction
of the Improvements or due to any other unforeseeable circumstances, Tenant
shall pay to Landlord the amount of such increase within five (5) days of
Landlord's written notice; provided, however, that Landlord shall first apply
toward such increase any remaining balance in the Improvement Allowance.
5.4. Change in Plans. In the event that Tenant requests a change in
the Plans subsequent to approval of the Cost Breakdown, Landlord shall advise
Tenant as to any increases in the cost of the Improvements. Tenant shall approve
or disapprove such change within five (5) days of written notice. In the event
that Tenant approves such change, Tenant shall accompany its approval with
payment in the amount of the increase; provided, however, that Landlord shall
first apply toward such increase any remaining balance in the Improvement
Allowance. Landlord shall have the right to decline Tenant's request for a
change in the approved Plans if the change is inconsistent with Sections 2, 3 or
4 above, or if the change would, in Landlord's sole opinion, unreasonably delay
construction of the Improvements.
5.5. No Refund. If the actual cost of the Improvements does not
exceed the Improvement Allowance, the unused portion of the Improvement
Allowance shall not be paid or refunded to Tenant or be available to Tenant as a
credit against any obligations of Tenant under the Fifth Amendment.
6. Construction of Improvements.
6.1. Construction. Within a reasonable period following approval of
the Cost Breakdown by Tenant, and upon payment of any sum required under Section
5.2 above, Landlord shall instruct its contractor to secure a building permit
and commence construction.
6.2. Completion. Landlord shall endeavor to cause the contractor to
substantially complete construction of the Improvements in a diligent manner,
but Landlord shall not be liable for any loss or damage as a result of delays in
construction of the Premises.
6.3. Construction Supervisory Fee. The cost of the Improvements
shall include a construction supervisory fee equal to three percent (3%) of the
total cost
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of the Improvements for the supervision of the construction of the Improvements
by Landlord.
7. Incorporation. This Agreement is and shall be incorporated by reference
in the Fifth Amendment, and all of the terms and conditions of the Fifth
Amendment are and shall be incorporated herein by this reference.
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