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EXHIBIT 10-2b
SIXTH AMENDMENT TO LEASE
THIS SIXTH AMENDMENT TO LEASE ("Sixth Amendment") is made this 4th day
of January 2001 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"), as further amended by that
certain Fourth Amendment to Lease Agreement dated December 31, 1998 (the "Fourth
Amendment") and as further amended by that certain Fifth Amendment to Lease
Agreement dated March 13, 2000 (the "Fifth Amendment") (the Lease, the First
Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment and
the Fifth 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, 302 and
315, said premises containing, in the aggregate, Twenty One Thousand Seven
Hundred Twenty Nine (21,729) 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 Twelve Thousand
Seven Hundred Eighty Eight (12,788) rentable square feet of office space on the
third floor ("Third Floor Premises") (collectively the "Original Premises");
WHEREAS, Landlord and Tenant desire to amend the Lease to (i) increase
the size of the Premises and (ii) amend and modify certain terms and conditions
of the Lease as hereinafter 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.
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3. PREMISES.
a. Effective on January 1, 2001 (the "Additional
Premises Commencement Date"), the Original Premises shall be increased by Four
Thousand Seventy Two (4,072) rentable square feet of space on the third (3rd)
floor as shown on Exhibit A-3 attached hereto and made a part hereof (the
"Additional Premises") to Twenty Five Thousand Eight Hundred One (25,801)
rentable square feet.
b. After the Additional Premises Commencement Date has
occurred, Tenant shall, within five (5) days after Landlord's request, complete
and execute the letter attached hereto as Exhibit "B-3" and deliver it to
Landlord.
c. As of the Additional Premises Commencement Date,
Section 1 of the Lease shall be amended to reflect the rentable square footage
of the Premises, as Twenty Five Thousand Eight Hundred One (25,801) which shall
consist of Twenty One Thousand Seven Hundred Twenty Nine (21,729) rentable
square feet with respect to the Original Premises and Four Thousand Seventy Two
(4,072) with respect to the Additional Premises.
d. From and after the Additional Premises Commencement
Date, except as otherwise provided herein, all references in the Lease to
Premises shall refer collectively to the Original Premises and the Additional
Premises.
4. TERM. The Term of the Lease with respect to the Additional
Premises shall be seven (7) years commencing on January 1, 2001 and expiring on
December 31, 2007 (inclusively, the "Additional Premises Term") unless
terminated sooner pursuant to the provisions thereof or hereof.
5. FIXED MINIMUM RENT. Notwithstanding anything to the contrary
in the Lease, Tenant shall pay Fixed Minimum Rent to Landlord with respect to
the Additional Premises during the Additional Premises 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:
ADDITIONAL PREMISES
Period Annual Fixed Minimum Monthly Fixed
------------------- -------------------- -------------
Rent Minimum Rent
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01/01/01 - 12/31/01 $78,386.04 $6,532.17
01/01/02 - 12/31/02 $80,737.68 $6,728.14
01/01/03 - 12/31/03 $83,159.76 $6,929.98
01/01/04 - 12/31/04 $85,654.56 $7,137.88
01/01/05 - 12/31/05 $88,224.24 $7,352.02
01/01/06 - 12/31/06 $90,870.96 $7,572.58
01/01/07 - 12/31/07 $93,597.12 $7,799.76
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6. OPERATING EXPENSE INCREASES AND REAL AND PERSONAL PROPERTY
TAXES. As of the Additional Premises Commencement Date, Section 3(f) of the
Lease is hereby amended by adding the following sub-section 12):
12) Tenant's Share with respect to the Additional
Premises only is equal to 4.01%.
7. IMPROVEMENTS.
a. Landlord shall construct improvements
("Improvements") for the Additional 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 Fifty Two Thousand Seven
Hundred Fifty and 00/100 Dollars ($52,750.00), 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.
b. Tenant hereby acknowledges that the Improvements
shall be constructed in accordance with Paragraph 7a. hereinabove, while Tenant
is in occupancy of the Additional Premises, and Landlord's actions in connection
with the construction of 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.
8. Broker. Tenant represents and warrants to Landlord that Tenant
has not dealt with any realtor, broker, agent or finder in connection with this
Sixth 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 Sixth Amendment.
9. 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.
10. 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
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and perform this Sixth Amendment, and (iii) has taken all action necessary to
authorize the execution and performance of this Sixth Amendment.
11. Counterpart Copies. This Sixth 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 Sixth Amendment.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Sixth
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
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Its: Exec. V.P.
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EXHIBIT A-3
ADDITIONAL PREMISES
[MAP]
A-3-1
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EXHIBIT B-3
VERIFICATION LETTER
SUMMIT NATIONAL BANK, a national banking association ("Tenant") hereby
certifies that it has entered into a lease with THE REALTY ASSOCIATES FUND IV,
L.P., a Delaware limited partnership, successor in interest to Xxxxx Xxxxxxx Co.
("Landlord") and verifies the following information as of the 4th day of
January, 2001:
Number of Rentable Square Feet in the Additional Premises: 4,072
Additional Premises Commencement Date: January 4, 2001
Lease Termination Date: December 31, 2007
Tenant's Share: 4.01%
Initial Base Rent: 78,386.04
Federal Tax I.D. No.: 00-0000000
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Tenant acknowledges and agrees that all tenant improvements Landlord is
obligated to make to the Additional Premises, if any, have been completed and
that Tenant has accepted possession of the Additional Premises and that as of
the date hereof, there exist no offsets or defenses to the obligations of Tenant
under the Lease. Tenant acknowledges that it has inspected the Additional
Premises and found them suitable for Tenant's intended commercial purposes.
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:
--------------------------------
By: Realty Associates Fund IV Texas Corporation,
A Texas corporation, general partner
By:
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TENANT:
Summit National Bank, a national banking association
By: /s/ Xxxx XxXxxxx
--------------------------------------------------
Its: Exec. V.P.
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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
Additional 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 Additional 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 Additional 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) business days after the execution
of the Sixth Amendment, Landlord shall submit to Tenant for approval a detailed
space plan ("Space Plan") for the Additional 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) business 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 three
(3) business days following Landlord's receipt of Tenant's disapproval, Landlord
shall submit to Tenant for approval the requested revisions or modifications.
Within three (3) business 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 Additional 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
Additional 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 (including
lighting, switching, telephones, outlets, computer and special electrical
equipment, etc.), 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 rooms, corridors and elevator
vestibules. Landlord shall submit the
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Plans to Tenant for approval within ten (10) business days following Tenant's
approval of the Space Plan, Within three (3) business 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) business days following Landlord's receipt of Tenant's disapproval, Landlord
shall submit to Tenant for approval the requested revisions or modifications.
Within three (3) business 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. After approval of the
Plans by Tenant, no further changes to the Plans shall be made without the prior
written approval of Landlord.
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). Within five (5) business 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 Fifty Two Thousand Seven Hundred Fifty and
00/100 Dollars ($52,750.00), 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) business days of Landlord's notice to Tenant that Landlord
is prepared to commence construction.
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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 ten (10) business 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) business 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 Lease.
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 or delivery of possession of the Additional Premises.
6.3. CONSTRUCTION SUPERVISORY FEE. The cost of the Improvements
shall include a construction supervisory fee for the supervision of the
construction of the Improvements by Landlord.
7. Commencement Date. The Additional Premises Commencement Date and
Tenant's obligation to pay rent under the Sixth Amendment shall be governed by
Paragraphs 3 and 5 of the Sixth Amendment. However, if there shall be a delay
beyond the scheduled Additional Premises Commencement Date in the substantial
completion of the Improvements as a result of:
7.1 Tenant's failure to submit or revise the Space Plan within the
time limits provided herein;
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7.2 Tenant's failure to submit or revise the Plans within the time
limits provided herein;
7.3 Tenant's failure to approve the Cost Breakdown or to pay the
sum specified in Section 5.2 above within the time limits provided herein;
7.4 Tenant's request for Non-Standards, whether as to materials or
installation, that extends the time it takes to obtain necessary building
permits or other governmental authorizations or extends the time for the
construction period;
7.5 Insufficiency of the Plans that extends the time it takes to
obtain necessary building permits or other governmental authorizations or
changes in the Plans required by the applicable governmental regulatory agencies
reviewing the Plans;
7.6 Tenant's changes in the Plans after the approval by Landlord;
7.7 Any other act or omission of Tenant constituting a delay; then
the Additional Premises Commencement Date shall not be accelerated but Tenant
shall pay to Landlord an amount equal to one thirtieth (1/30th) of the Base Rent
due for the first full calendar month of the Term for each day of delay. For
purposes of the foregoing calculation, the Base Rent payable for the first full
calendar month of the Term shall not be reduced by any abated rent,
conditionally waived rent, free rent or similar rental concessions, if any. Upon
substantial completion of the Improvements, Landlord shall notify Tenant of the
date on which the Additional Premises would have been substantially completed
but for delays.
8. INCORPORATION. This Agreement is and shall be incorporated by reference
in the Lease, and all of the terms and conditions of the Lease are and shall be
incorporated herein by this reference.
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