Exhibit 10.104(b)
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (hereinafter referred to as this
"Amendment") made and entered into as of the 27 day of September, 2000, by and
between SUNTRUST PLAZA ASSOCIATES, LLC, a Georgia limited liability company
(hereinafter referred to as "Landlord"), and INTERLAND, INC., a Georgia
corporation (hereinafter referred to as "Tenant");
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain SunTrust Plaza
Garden Offices Lease Agreement dated May 15, 2000, concerning the lease of
certain premises known as Suites 500 and 560 of SunTrust Plaza Garden Offices as
more particularly described therein (hereinafter referred to as the "Lease");
and
WHEREAS, Landlord and Tenant mutually desire to amend the Lease to
reflect the addition to the Premises of certain space on the 4th and 5th Floors
of the Building as provided below;
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and Tenant hereby
agree as follows:
1. Definitions. Defined terms used in this Amendment (as indicated by
the capitalization of the initial letters thereof) shall, if such terms are
defined inn the Lease and are not otherwise defined in this Amendment, be deemed
to have the same definitions as provided in the Lease.
2. Expansion Space.
(a) Premises. The definition of the Premises shall be amended as
of each of the Expansion Effective Dates (as hereinafter defined) to include the
respective areas identified on Exhibit A attached to this Amendment (hereinafter
referred to as the "Expansion Spaces"), constituting (i) 3,760 square feet of
Rentable Area on the 5th Floor of the Building (the "5th Floor Space"), and (ii)
60,321 square feet of Rentable Ara on the 4th Floor of the Building (such as 4th
Floor space being the "Data Center" as provided for in Paragraph 3(a) on Exhibit
E of the Lease). On and after the Expansion Effective Date for the 5th Floor
Space the Premises shall contain 54,623 square feet of Rentable Area and
Tenant's Percentage Share for the Premises shall be 8.394% and on and after the
Expansion Effective Date for the Data Center, the Premises shall contain 114,944
square feet of Rentable Area and Tenant's Percentage Share for the Premises
shall be 17.664%. The Rentable Area will be confirmed in accordance with the
procedure set forth in Section 1(j) of the Lease. Except as provided in this
Amendment, the terms and provisions of the Lease shall apply to the Expansion
Spaces as they become part of the Premises.
(b) Term. The term for each of the Expansion Spaces shall
commence (hereinafter referred to as the "Expansion Effective Date") fifteen
(15) days after the Delivery Date for each such Expansion Space. Unless
terminated earlier as provided in the Lease, the Expansion Spaces shall remain
part of the Premises until the end of the Term of the Lease.
(c) Rent. The Base Rental for th Expansion Spaces shall be an
amount per annum per square foot of Rentable Area of the Expansion Spaces as is
applicable to the Premises in accordance with the Lease, and shall be payable as
provided in the Lease, commencing respectively on the Expansion Effective Date
for each of the Expansion Spaces. If the first or last calendar month of the
term for an Expansion Space is less than a full calendar month, the Base Rental
for such Expansion Space shall be prorated on a daily basis for such partial
month. The Additional Rent for the Data Center shall be calculated as provided
in Paragraph 3(C)(vii) on Exhibit E of the Lease.
(d) Tenant Improvements. Except as otherwise provided in this
Paragraph (d), all improvements to the Expansion Spaces shall be designed,
approved, and constructed in accordance with the terms and conditions of the
Lease, including, without limitation, the provisions of Exhibit C to the Lease,
except that (i) plans and specifications for the Tenant Improvements have been
approved by Landlord; (ii) the target Delivery Date for the 5th Floor Space is
November 1, 2000 and for the Data Center is March 14, 2001; (iii) Landlord shall
not be entitled to a Construction Management Fee; and (iv) Landlord's
Contribution and the Design Fee Allowance shall be in the amounts per square
foot of Rentable Area as provided in the Lease for the Premises. In the event
Landlord's Contribution exceeds the actual costs of such Tenant Improvements,
the excess shall be applied as a credit against Base Rental next coming due
after the Expansion Effective Date for the Data Center. In the event the total
cost of said Tenant Improvements exceeds Landlord's Contribution, said excess
shall be borne solely by Tenant.
(e) Exhibit G. All of the provisions of Exhibit G to the Lease
shall be effective upon the Expansion Effective Date for the Data Center.
3. Fuel Tanks. Item 20 on Exhibit G to the Lease dealing with the Fuel
Vault and Containment is hereby deleted and replaced with the following:
(a) Landlord shall provide Tenant with access to the diesel fuel
oil tanks ("Landlord's Tanks") maintained by Landlord for the Building. Tenant
shall pay for all costs associated with the purchase, installation and
maintenance of fuel-level monitoring equipment acceptable to Landlord which will
be installed to Landlord's Tanks by Landlord's agents and incorporated into the
Building Automation System maintained by Landlord, together with connection to
remote readout gauges in the Building engineer's office. Tenant shall also pay
for all costs associated with the purchase, installation and maintenance of fuel
pumping equipment and a fuel usage meter acceptable to Landlord, to be installed
in a location of the Building approved by Landlord.
(b) Tenant shall install a fuel filtering system or systems
acceptable to Landlord at the point of intersection between Landlord's Tanks and
Tenant's fuel pumping equipment and sufficient to remove any impurities or
contaminants from any fuel supplied to
Tenant or returned from Tenant's fuel pumping equipment to Landlord's Tanks.
Tenant shall indemnify and hold Landlord harmless as provided in Exhibit G to
the Lease for any damage or liability resulting from any impurities or
contaminants being introduced into Landlord's Tanks from Tenant's fuel pumping
equipment.
(c) Tenant shall pay Landlord for all fuel taken by Tenant from
Landlord's Tanks in an amount equal to 1.20 multiplied by the cost of such fuel
to Landlord.
(d) Landlord shall use its best efforts to maintain at all times
a minimum of 4,800 gallons of fuel in Landlord's Tanks for use by Tenant, which
amount will be over and above the amount maintained by Landlord for Building
life safety and peak shaving activities.
(e) Landlord shall have Landlord's Tanks tested for the presence
of water once each calendar year. Landlord shall have Landlord's Tanks tested
for the presence of water more often than once each calendar year upon Tenant's
written request and at Tenant's expense.
4. Security Deposit. As of the Expansion Effective Date for the 5th
Floor Space, the Security Deposit requirements set forth in the Basic Lease
Information shall be amended as follows:
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Beginning of Lease
Year Security Deposit
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Year 1 $2,202,921
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2 1,927,556
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3 1,597,118
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4 1,266,679
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5 991,314
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6&7 660,876
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8&9 440,584
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10 220,292
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The amounts set forth in the Security Deposit column above will each be reduced
to the greater of (i) seventy-five (75%) percent of the indicated amounts, or
(ii) the greatest amount of Rental payable during any month of the indicated
Lease Year, upon receipt by Landlord of written notice from Tenant, together
with all necessary supporting documentation reasonably requested by Landlord,
that the following events have occurred:
(a) For a period of six (6) consecutive quarters Tenant has
cumulatively had a positive net income, determined in accordance with generally
accepted accounting principals ("GAAP"), and as reflected on Tenant's 10-Q's,
and for four (4) of those quarters Tenant has had a positive net income
determined in accordance with GAAP; and
(b) At the end of each of the six (6) quarters provided for in
subparagraph (a), Tenant has had at least $40 million in cash or cash
equivalents.
5. Broker Representation. Landlord represents and warrants that it has
been represented in the negotiation of this Amendment by Portman Management
Company, that no other broker, agent or commissioned salesperson has represented
Landlord in connection with this transaction, and that Portman Management
Company shall be compensated by Landlord for its services in connection with
this transaction. Tenant represents and warrants that it has not been
represented by any broker, agent or other commissioned salesperson in connection
with the negotiation of this Amendment other than The Staubach Company --
Southeast, Inc. ("Staubach"). Tenant agrees to indemnify and hold Landlord
harmless from all loss, cost and damage (including reasonable attorneys' fees
and court costs) suffered or incurred by Landlord as a result of a breach by
Tenant of the representation and warranty contained in the immediately preceding
sentence or as a result of Tenant's failure to pay commissions, fees or
compensation due to any broker who represented Tenant, whether or not disclosed,
other than Staubach. Landlord shall be responsible for the payment of a
commission to Staubach pursuant to the terms of a separate agreement between
Landlord and Staubach.
6. General Provisions. To the extent of any conflict between the terms
and conditions of this Amendment and the terms and conditions of the remainder
of the Lease, the terms and conditions of this Amendment shall control. The
Lease (as amended and modified by this Amendment) shall continue in full force
and effect and is hereby ratified and confirmed by the parties. This Amendment
may be executed in two or more counterparts, any of which shall be deemed an
original, and all of which shall be deemed to constitute a single instrument.
This Amendment shall be binding upon and shall inure to the benefit of each
party hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the date and year first above written.
LANDLORD:
SUNTRUST PLAZA ASSOCIATES, LLC.,
a Georgia limited liability company
BY: SUNTRUST BANKS, INC.,
its sole manager
By: /s/ Xxxxx X. Xxxxxxxxx
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Title: First Vice President
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[CORPORATE SEAL]
TENANT:
INTERLAND, INC.,
a Georgia corporation
By: /s/ Xxx Xxxxxxxxxx
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Title: President
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Attest: X.X. Xxxxxxxxx
---------------------------------
Title: Secretary
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[CORPORATE SEAL]
