FOURTH AMENDMENT TO LEASE AGREEMENT
Exhibit
10.13
FOURTH
AMENDMENT TO LEASE AGREEMENT
THIS
FOURTH
AMENDMENT TO LEASE AGREEMENT
(this
“Amendment”), made and entered into as of the 17th day of March, 2005, by and
between CRESCENT
BROOKDALE ASSOCIATES, LLC,
a
Georgia limited liability company (“Landlord”), and OUTBACK
STEAKHOUSE, INC.,
a
Delaware corporation (“Tenant”);
W
I T N E S S E T H T H AT:
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 (the “First Amendment”),
as further amended 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 (the “Second Amendment”), and 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”) (collectively, the “Lease”), for certain
premises in the building known as Corporate Center One at International Plaza
and located at 0000 Xxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx (the “Building”), consisting
of 16,498 square feet of Premises Net Rentable Area is located on the third
(3)
floor known as Suite 380 (the “3rd Floor Space”) of the Building, 24,856 square
feet of Premises Net Rentable Area is 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 is located on the fifth (5th) floor known as Suite
500 (the “5th Floor Space”) of the Building and 31,601 square feet of Premises
Net Rentable Area is located on the sixth (6th) floor known as Suite 600 (the
“Existing 6th Floor Space”) of the Building (collectively, the “Premises”);
WHEREAS,
Landlord is the successor-in-interest to Original Landlord;
WHEREAS,
Landlord and Tenant have agreed to an expansion of the Premises to include
37,139 square feet of Net Rentable Area on the sixth (6th) floor as more
particularly described on Exhibit
A
attached
hereto (the “6th Floor Additional Expansion Space”);
WHEREAS,
Tenant
and Landlord have also agreed to a short-term extension of the Lease Term with
respect to the 3rd Floor Space; and
WHEREAS,
Landlord and Tenant desire to evidence such expansion of the Premises and the
extension of the Lease Term with respect to the 3rd Floor Space 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:
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1. Grant of 6th Floor Additional Expansion Space. As of the 6th Floor Additional Expansion Space Effective Date (as defined below), Landlord agrees to lease to Tenant and Tenant agrees to lease from Landlord the 6th Floor Additional Expansion Space. As of the Floor Additional Expansion Space Effective Date, the 6th Floor Additional 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 6th Floor Additional Expansion Space. As of the 6th Floor Additional Expansion Space Effective Date, any space on the 6th Floor shall be deleted from the definition of First Offer Space (as defined in section 5 of the Third Amendment). |
| 2. Terms of 6th Floor Additional Expansion. The Lease is hereby amended by adding the 6th Floor Additional Expansion Space as part of the Premises, subject to the following terms and conditions: |
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a.
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6th
Floor Additional Expansion Space Term.
The 6th Floor Additional Expansion Space shall be added as part
of the
Premises for all purposes, except as set forth herein, effective
as of the
earlier to occur of: (i) sixty (60) days after the 6th Floor Additional
Expansion Space Tender Date (as hereinafter defined) which is anticipated
to be July 1, 2008 or (ii) the date Tenant commences beneficial
occupancy
of the 6 Floor Additional Expansion Space (the “6th Floor
Additional Expansion Space Effective Date”) and the Lease Term with
respect to the 6th Floor Additional Expansion Space shall be coterminous
with that of the 4th Floor Space, the 5th Floor Space, and the
Existing
6th Floor Space and shall therefore expire on March 31,
2014.
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b.
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6th
Floor Additional Expansion Space Rent.
From and after the 6th Floor Additional Expansion Space Effective
Date,
Base Rental with respect to the 6th Floor Additional 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:
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Base
Rental Per
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Month
of
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Rentable
Square
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Annual
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Monthly
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Lease
Term
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Foot
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Base
Rental
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Base
Rental
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6th
Floor Additional
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$26.79
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N/A
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$82,912.82
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Expansion
Space
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Effective
Date -
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12/31/08
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1/01/09
- 12/31/09
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$27.46
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$1,019,836.90
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$84,986.41
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1/01/10
- 12/31/10
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$28.15
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$1,045,462.80
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$87,121.90
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1/01/11
- 12/31/11
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$28.85
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$1,071,460.10
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$89,288.34
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1/01/12
- 12/31/12
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$29.57
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$1,098,200.20
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$91,516.68
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1/01/13
- 12/31/13
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$30.31
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$1,125,683.00
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$93,806.92
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2
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1/01/14
- 03/31/14
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$31.07
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$288,477.18
(3 months)
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$96,159.06
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c.
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6th
Floor Additional Expansion Space Basic Costs.
As of the 6th Floor Additional 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
6th Floor Additional 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 6th Floor Additional Expansion
Space
Effective Date, the Basic Costs Expense Stop and the Real Estate
Tax
Expense Stop for the 6th
Floor Additional Expansion Space only shall be the actual Basic
Costs and
Real Estate Taxes incurred during calendar year 2005. Tenant’s payment of
Excess Basic Costs for the 6th Floor Additional Expansion Space
as
provided in Paragraph 7 of the Lease shall commence in calendar
year 2008
and shall be prorated for the calendar year commencing on the 6th
Floor
Additional 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 6th
Floor Additional Expansion Space, shall remain as set forth in
the
Lease.
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d.
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6th
Floor Additional Expansion Space Improvements.
As of the 6th Floor Additional Expansion Space Tender Date,
Tenant hereby
accepts the 6th Floor Additional Expansion Space “AS IS” and acknowledges
and agrees Landlord shall have no obligation to construct any
tenant
improvements to the 6th Floor Additional Expansion Space or
make any
alterations or additions thereto. Notwithstanding the foregoing,
Landlord
agrees to provide Tenant with a tenant improvement allowance
of Eighteen
and 00/100 Dollars ($18.00) per square foot of Net Rentable
Area of the
6th Floor Additional Expansion Space (i.e., $18.00 x 37,139
rsf =
$668,502.00) (the “6th
Floor Additional Space Allowance”) to use towards the costs of Tenant’s
improvements to the 6th Floor Additional Expansion Space hereunder,
which
Floor Additional Space Allowance shall be paid within thirty
(30) days of
the 6th
Floor Additional 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 6th Floor Additional Expansion Space
shall be
the sole responsibility of
Tenant.
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e.
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Early
Access to 6th Floor Additional Expansion Space.
Landlord shall deliver possession of the 6th Floor Additional
Expansion
Space to Tenant on or after May 1, 2008, to allow Tenant
to construct its
improvements to the 6th Floor Additional Expansion Space
so long as
Tenant’s early
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occupancy
does not interfere with Landlord, the Building
or other tenants in the
Building. The date that Landlord actually tenders
such space to the Tenant
is referred to herein as the “6th Floor Additional Expansion Space Tender
Date”. Tenant’s early possession of the 6th Floor Additional
Expansion
Space shall be upon all of the terms and conditions
of the Lease, except
Tenant shall pay no rent with respect to such
early possession period
until the 6th Floor Additional Expansion Space
Effective
Date.
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3. Extension of Lease Term for 3 Floor Space. The Lease Term of the Lease for the 3rd Floor Space only is hereby extended for a period of seven (7) months commencing on December 1, 2007 (the “3rd Floor Space Extension Effective Date”) and expiring on the later of (i) June 30, 2008 or (ii) the day immediately preceding the 6th Floor Additional Expansion Space Effective Date (the “3rd Floor Space Extension Term”). Tenant shall remain subject to all terms and conditions of the Lease, as amended hereby, during the 3rd Floor Space Extension Term. |
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a.
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3rd
Floor Space Rent.
From and after the 3rd
Floor Space Extension Effective Date, Base
Rental with respect to the
3rd
Floor Space only
shall be as follows, and which payments shall
also be accompanied by the
applicable sales tax:
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Base
Rental Per
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Monthly
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Month
of Lease Term
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Rentable
Square Foot
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Base
Rental
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12/01/07
- 6/30/08*
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$26.00
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$35,745.67
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*Assuming
June 30, 2008 is the last day of the 3rd Floor Space Extension Term
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b.
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Basic
Costs.
During the 3rd Floor Space Extension Term, Tenant shall continue
to pay
all Additional Rent and any other sums due and payable under the
Lease for
the 3rd Floor Space, including, without limitation, Tenant’s Proportionate
Share of Basic Costs in accordance with Paragraph 7 of the Lease.
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c.
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Acceptance
of 3rd
Floor Space. Tenant
hereby acknowledges and agrees Landlord shall have no obligation
to
construct any tenant improvements to the 3rd
Floor Space or make any alterations or additions thereto, and Landlord
shall have no obligation to provide any tenant improvement allowance,
rent
abatement, credit, set-off, or other concession to Tenant with respect
to
the extension of the Lease Term for the 3rd
Floor Space.
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d.
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3rd
Floor Space Second Extension Term.
Paragraph 4.d. of the Third Amendment is hereby revised to provide
that
the 3rd Floor Space Second Extension Term shall commence July 1,
2008
(assuming June 30, 2008 is the last day of the 3rd Floor Space Extension
Term) and that Tenant shall exercise such 3rd Floor Space Extension
Option
by written notice to Landlord given no later than September 30, 2007.
All
of the other terms
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and
conditions of the 3rd
Floor Space Extension Option shall remain the same.
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4.
Contingency.
Notwithstanding any terms herein to the contrary, the parties’ rights and
obligations hereunder as they pertain to the 6th Floor Additional
Expansion Space are contingent upon Landlord entering into
an amendment
with Intuit Inc. (“Intuit”) whereby Intuit will lease the 6th
Floor Additional Expansion Space through April 30, 2008. If
such amendment
is not executed on or before March 21, 2005, then the parties’ rights and
obligations hereunder with respect to the 6th
Floor Additional Expansion Space only shall be null and void
and of no
further force or
effect.
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5. 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, 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 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, the
6th
Floor Additional Expansion Space, or the extension of the
Lease Term for
the 3rd
Floor Space or claiming to have caused Tenant to enter
into this
Amendment.
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6. 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.
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7. 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.
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8. Capitalized
Terms.
All capitalized terms used herein
and not otherwise defined herein
shall
have the meanings ascribed to them
in the
Lease.
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9. Headings.
The headings used herein are
provided for convenience only
and are not to
be considered in construing this
Amendment.
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10. 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.
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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 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: | ||||
| Signed, sealed and delivered | CRESCENT BROOKDALE | |||
| in the presence of: | ASSOCIATES, LLC,a Georgia | |||
| limited liability company | ||||
| Print Name: | By: | /s/ Xxxx X. Xxxxxxxx | ||
| /s/ Xxxx Xxxx | Name: | Xxxx X. Xxxxxxxx | ||
| Print Name: | Xxxx Xxxx | Title: | Executive Vice President | |
| TENANT: | ||||
| Signed, sealed and delivered | OUTBACK STEAKHOUSE, INC., | |||
| in the presence of: | a Delaware corporation | |||
| /s/ Xxxxx Xxxxx | ||||
| Print Name: | Xxxxx Xxxxx | By: |
/s/ A. Xxxxxxx Xxxxx, III
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| /s/ Xxxxxxx Xxxxxxx | Name: | A. Xxxxxxx Xxxxx, III | ||
| Print Name: | Xxxxxxx Xxxxxxx | Title: | Chief Executive Officer | |
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