|
EXHIBIT 10.7
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE
AGREEMENT (this " Second Amendment "), made and entered
into as of the 27 th day of February, 2007, by and between 2300 WINDY RIDGE
PARKWAY INVESTORS LLC , a Delaware limited liability company ("
Landlord "), and MANHATTAN ASSOCIATES, INC. , a
Georgia corporation (" Tenant ");
W I T N E S S E T
H T H A T:
WHEREAS , Wildwood
Associates, a Georgia general partnership (" Original
Landlord ") and Tenant entered into that certain Lease
Agreement June 25, 2001, as amended by that certain First
Amendment to Lease Agreement (the " First Amendment ") dated
June 10, 2002 (collectively, as amended, the " Lease
"), for certain premises in the building located at 2300 Windy
Ridge Parkway, Atlanta, Georgia 30339 (the " Building "),
consisting of approximately 137,868 square feet of Rentable Floor
Area in the Building being Floor 1 North (22,719 rsf), Floor 3
North (23,776 rsf), Floor 3 South (9,021 rsf), Floor 6 South
(13,608 rsf), Floor 7 (63,296 rsf), and Floor 8 (5,448 rsf)
(collectively, the " Original Demised Premises ");
WHEREAS , Landlord
acquired all of the right, title and interest of Original Landlord,
in and to the Lease;
WHEREAS , Landlord and
Tenant have agreed that Tenant will surrender a portion of the
Original Demised Premises and then lease additional premises in the
Building and, in connection therewith, extend the Lease Term by one
hundred thirty five (135) months; and
WHEREAS , Landlord and
Tenant desire to evidence such reconfiguration of the Original
Demised Premises and extension of the Lease Term and to amend
certain other terms and conditions of the Lease and evidence their
agreements and other matters by means of this Second Amendment;
NOW THEREFORE , in
consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the Lease is hereby
amended and the parties hereto do hereby agree as follows:
1. Relocation and
Expansion of Original Demised Premises . As of July 1,
2007 (the " Effective Date "), Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord certain new premises
in the Building, the exact location and Rentable Floor Area of
which shall be determined during space planning (all of such space,
when determined, shall be known as the " Second Expansion
Space "). As of the Effective Date, the Second Expansion Space
will be subject to all the terms and conditions of the Lease, as
amended herein. In connection with such expansion, Tenant will also
retain certain portions of the Original Demised Premises, the exact
location and Rentable Floor Area of which shall be determined
during space planning (collectively, the " Retained Premises
"). Further and in conjunction with such expansion and as of the
Effective Date, Tenant will surrender, remise and release unto
Landlord certain portions of the Original Demised Premises, which
portions will also be determined during space planning
(collectively, the " Surrendered Premises "). As of the
Effective Date, all references in the Lease and this Second
Amendment to the "Demised Premises" shall be deemed to mean the
Second Expansion Space and the Retained Premises and shall consist
of approximately 160,000 square feet of Rentable Floor Area, which
square footage may increase or decrease by up to ten percent (10%)
during the space planning process.
- 1 -
In addition to the foregoing, the
parties acknowledge that International Paper (" IP ") is
currently leasing approximately 9,133 rentable square feet of space
being Suite 850 North (the " IP Premises ") in the
Building, the lease for which expires June 30, 2007. Tenant
hereby covenants that it will lease a portion of the IP Premises,
which portion will be determined during the space planning process.
That portion of the IP Premises that is leased by Tenant will be
deemed a part of the Second Expansion Space for all purposes under
this Amendment and the Lease. Tenant’s payment of Base Rental
for the IP Premises, or portion thereof, will commence ninety
(90) days after the IP Premises or portion thereof leased by
Tenant is delivered to Tenant for Tenant to commence construction
therein. Landlord agrees to give Tenant at least ten
(10) business days prior written notice of the date that the
portion of the IP Premises leased by Tenant will be delivered to
Tenant.
Subject to the foregoing
paragraph, Tenant acknowledges that its obligations with respect to
the Demised Premises will commence on the Effective Date and that
Tenant will use its best efforts to vacate and surrender the
Surrendered Premises in accordance with the terms of the Lease no
later than the Effective Date. Notwithstanding the foregoing, if,
due to construction matters, Tenant is unable to completely vacate
and surrender the Surrendered Premises by the Effective Date, it
will be permitted to remain in the Surrendered Premises or portions
thereof and continue to pay Base Rental and Additional Rental at
the then existing rate under the Lease for the portion it continues
to occupy until such time as it does vacate and surrender same. In
any event, Tenant covenants that it will vacate and surrender the
Surrendered Space no later than August 31, 2007 so that
Landlord may manage and coordinate the re-leasing of same.
After the Rentable Floor Area of
the Demised Premises has been determined and agreed to by Landlord
and Tenant, Landlord will deliver a Second Amendment Memorandum to
Tenant. Within ten (10) days after receipt of same, Tenant
agrees to execute the Second Amendment Memorandum (the "
Memorandum ") confirming the Effective Date, the Expiration
Date, the exact number of square feet of Rentable Floor Area within
the Demised Premises and the locations thereof, and Tenant’s
proportionate share of the Building. Such Memorandum shall be in
the form attached hereto as Exhibit A and by this
reference incorporated herein. Upon full execution of the
Memorandum by both parties, Landlord will deliver the Second
Expansion Space (other than Floor 9, Floor 10, and the IP Premises)
to Tenant for purposes of performing Tenant’s Work (as
defined in Section 6 herein) therein. Landlord agrees to
deliver Floor 9 and Floor 10 to Tenant upon full execution by both
parties hereto of a mutually agreeable indemnity letter pertaining
to Tenant’s demolition work to be performed within Floor 9
and Floor 10.
2. Extension of Lease
Term . Notwithstanding that the Lease Term expires
March 31, 2008, the parties desire to extend the Lease Term
early; therefore, the Lease Term is hereby extended for a period of
one hundred thirty-five (135) months (the " Extension
Term ") commencing on the Effective Date and expiring on
September 30, 2018 (the " Expiration Date "). Tenant
shall remain subject to all terms and conditions of the Lease, as
amended herein, during the Extension Term.
3. Base Rental and
Abatement; Tenant’s Additional Rental .
(a) Base Rental . During
the Extension Term, Base Rental for the Demised Premises shall be
paid on a monthly basis in accordance with the Lease at the initial
rate during the first Lease Year (which shall mean for purposes of
this Second Amendment, the twelve [12] month period commencing on
the Effective Date and each successive twelve month period
thereafter during the Extension Term) of the Extension Term of
$22.50 per square foot of Rentable Floor Area times the final
determination of the total Rentable Floor Area of the Demised
Premises. Thereafter, commencing on the first day of the second
Lease Year of the Extension Term and each anniversary thereafter
through the remainder of the Extension Term, Base Rental for the
Demised Premises shall escalate at the rate of 1.475% per year and
shall no longer be based on any increases in CPI as previously
provided in Section 7 of the Lease. The Base Rental shall be
due and payable by Tenant in accordance with the terms of the
Lease. Notwithstanding the foregoing, Tenant shall be entitled to
an abatement of Base Rental for the entire Demised Premises for the
six (6) month period from April 1, 2008 through
September 30, 2008. Tenant’s proportionate share for the
payment of
- 2 -
Tenant’s Additional Rental shall be revised to reflect the
Rentable Floor Area of the Demised Premises as revised herein.
(b) Additional Rental
. Section 8 (Additional Rental) of the Lease is hereby amended
to reflect that during the Extension Term and commencing in
calendar year 2008, Tenant will pay its proportionate share of
Tenant’s Additional Rental based on the excess of
Landlord’s projected Operating Expenses in each calendar year
over the Base Year Operating Expenses. For purposes of this Second
Amendment, the "Base Year" shall mean calendar year 2007. In the
event the average occupancy level of the Building or the Project
for any calendar year, including the Base Year, is not ninety-five
percent (95%) or more of full occupancy, then the Operating
Expenses for such year shall be apportioned among the tenants by
the Landlord to reflect those costs which would have occurred had
the Building or the Project, as applicable, been ninety-five
percent (95%) occupied during such year. For each calendar year
after the Base Year, Landlord shall provide Tenant with a
comparison of the Base Year Operating Expenses and the projected
Operating Expenses for such current calendar year. Such projected
increase in Operating Expenses shall be payable in advance on a
monthly basis by paying one-twelfth (1/12th) of such projected
increase during each month of such respective calendar year. If
Landlord has not furnished Tenant such comparison by January 1 of a
calendar year, Tenant shall continue to pay on the basis of the
prior year’s estimate until the month after such comparison
is given. The statement provided by Landlord to Tenant as set forth
in Section 8(c) of the Lease shall set forth such year’s
actual Operating Expenses compared to Base Year Operating Expenses
and a statement comparing Tenant’s proportionate share of
projected increases in Operating Expenses which Tenant paid
throughout such calendar year with Tenant’s proportionate
share of actual Operating Expense increases (the "Final Annual
Statement of Operating Expenses"). If Tenant’s proportionate
share of increases in actual Operating Expenses are greater than as
shown in the statement delivered pursuant to Section 8(c) or
greater than the amount of Tenant’s Additional Rental
actually paid by Tenant pursuant thereto, Tenant shall pay
Landlord, within thirty (30) days of such statement’s
receipt, such additional sum owed by Tenant. If the amount of
Tenant’s Additional Rental actually paid by Tenant pursuant
to Landlord’s estimate of Tenant’s proportionate share
of increases in Operating Expenses is greater than Tenant’s
share of increases in actual Operating Expenses as shown on the
Final Annual Statement of Operating Expenses, Landlord shall credit
Tenant, within thirty (30) days of such statement issuance,
such overpaid amount, or if the Lease has expired, will issue a
check to Tenant for such overpaid amount within thirty
(30) days of such statement issuance.
4. Right of First
Offer . Subject to the rights of existing tenants in the
Building, Landlord hereby grants Tenant a right of first offer ("
Right of First Offer ") on any available space in the
Building, the Rentable Floor Area of which is at least 15,000
square feet if such space is not contiguous to the Demised Premises
(the " First Offer Space ") (i.e., if the space is
contiguous to the Demised Premises [on the same floor], then such
space may be less than 15,000 square feet of Rentable Floor Area).
When the First Offer Space, or portion thereof is to become
available and so long as Tenant is not then in default under the
Lease and has not been in default under the Lease during the prior
12-month period, in either event beyond any applicable notice and
cure periods, Landlord will notify Tenant (" Landlord’s
Notice ") of the terms and conditions upon which it would be
willing to lease the First Offer Space to Tenant. The terms shall
be as follows:
(a) On Then Existing
Terms . The lease of the First Offer Space will be on all of
the same terms and conditions as then exist for the Demised
Premises, including without limitation, the then current per square
foot rate of Base Rental and shall be coterminous with the lease
for the Demised Premises (i.e., will expire on the Expiration
Date), if either (i) the commencement date of the lease of the
First Offer Space will occur prior to June 30, 2010, or
(ii) the Rentable Floor Area of the First Offer Space then
subject to the Right of First Offer when combined with any other
First Offer Space previously leased by Tenant pursuant to this
Paragraph 4 and any other expansion space leased to Tenant
after the Effective Date, is less than twenty percent (20%) of the
total Rentable Floor Area of the Second Expansion Space and the
Retained Premises (the " 20% Threshold ") (i.e., if Tenant
has previously leased 10,000 rsf pursuant to this Right of First
Offer and the total rsf of the Second Expansion Space and the
Retained Premises is 160,000 rsf, then the remaining
- 3 -
expansion space Tenant may lease under this Paragraph 4(a) or
otherwise must be less than 22,000 rsf). In addition to the
foregoing, if the 20% Threshold has not been met and the
commencement date of the lease for the First Offer Space will occur
between July 1, 2010 and June 30, 2012, then the lease of the
First Offer Space will be on all of the same terms and conditions
as then exist for the Demised Premises, including without
limitation, the then current per square foot rate of Base Rental,
and shall be coterminous with the lease for the Demised Premises
(i.e., will expire on the Expiration Date), except that the
allowance for improvements will be $35.00 per rentable square foot
only and there shall be no Discretionary Allowance, as defined in
Section 6 below. Any allowance for improvements or rental
concession provided to Tenant under this subsection (a) shall
be an amount equal to the product of multiplying such allowance or
rental concession, if any, times a fraction, the numerator of which
is the number of full calendar months remaining in the Extension
Term as of the commencement date of Tenant’s lease of the
First Offer Space and the denominator of which is 135 but in no
event will such fraction exceed 1; or
(b) On Market Terms .
The lease of the First Offer Space will be as set forth in
Landlord’s Notice, which will be the then Expansion Market
Rate (as defined below), will have a term of at least three
(3) years and will be coterminous with the Lease Term of the
Demised Premises, if (i) the commencement date of the lease of
the First Offer Space will occur after June 30, 2012, or
(ii) the Rentable Floor Area of the First Offer Space then
subject to the Right of First Offer when combined with any other
First Offer Space previously leased by Tenant pursuant to this
Paragraph 4 and any other expansion space leased to Tenant
after the Effective Date, equals or exceeds the 20% Threshold. If
Tenant exercises this Right of First Offer at any time during the
last three (3) Lease Years of the Extension Term, then Tenant
agrees that the Lease Term for the entire Demised Premises will be
further extended so that it will expire coterminously with the term
of the First Offer Space (which will, as aforesaid, have a minimum
3-year term). If the Lease Term is extended as aforesaid, then the
economic terms for the Demised Premises during the extended portion
of the Lease Term shall be at the then Market Rate (as defined and
determined in accordance with Special Stipulation No. 1
[Renewal Option] in Exhibit "G" attached to the Lease).
(c) Tenant’s
Notice. Tenant shall have ten (10) business days after
receipt of Landlord’s Notice, to notify Landlord in writing
(" Tenant’s Notice ") whether Tenant will lease the
First Offer Space in accordance with the terms as set forth above,
as applicable. If Tenant elects to lease the First Offer Space,
Landlord and Tenant will execute an amendment to the Lease adding
the First Offer Space to the Demised Premises within ten
(10) business days after the later of (i) Landlord’s
receipt of Tenant’s Notice or (ii) the date the parties
agree upon the Expansion Market Rate, if applicable, or
(iii) receipt by both parties of a mutually acceptable
amendment. If Tenant does not, within such 10-business day period,
deliver Tenant’s Notice or elects not to lease the First
Offer Space, then this Right of First Offer to lease the First
Offer Space then subject to this Right of First Offer will lapse
and be of no further effect and Landlord will have the right to
lease such First Offer Space to any third party on terms that are
not materially more favorable than those in Landlord’s Notice
without re-submitting such changed terms to Tenant in accordance
with this Right of First Offer in which case Tenant shall have five
(5) business days after its receipt of such resubmitted offer
to exercise the Right of First Offer on such terms as to all of the
space contained in the changed terms (which may be in excess of the
square footage of the First Offer Space). The term "materially more
favorable" shall mean the net effective rental rates and terms,
such as the length of the term and the amount of any concessions
such as the tenant improvement allowance and any free rent, with
respect to such proposal are less than 94% of the net effective
rental rates and terms originally offered to Tenant. If Landlord
has not negotiated a lease or amendment for the First Offer Space
with a third party within one hundred eighty (180) days after
Tenant has elected not to, or has been deemed to have elected not
to, lease the First Offer Space, then this Right of First Offer
will once again apply to the First Offer Space. The right granted
to Tenant under this paragraph is personal to Tenant, and in the
event of any assignment of this Lease or sublease by Tenant, this
Right of First Offer to lease the First Offer Space shall
thenceforth be void and of no further force and effect.
(d) Defined Terms .
- 4 -
(i)
" Expansion Market Rate " shall mean a rental rate equal to
the effective rental rate on transactions being executed by
landlords with tenants desiring to lease comparable space of
comparable height and view that is the size of or comparable to the
First Offer Space then subject to the Right of First Offer, in
other comparable first-class buildings with comparable amenities
and facilities in the area of the Building, taking into account any
abatements, costs, allowances, commissions or other concessions
then being offered to such comparable tenants, seeking comparable
space, and any rights, privileges and allowances Tenant has with
respect to the term for the First Offer Space under, pursuant to or
in connection with the Lease, as amended herein. If the parties
cannot agree upon the Expansion Market Rate, then such rate will be
determined in accordance with the procedure set forth in paragraph
(c) of Special Stipulation No. 1 in Exhibit "G" attached
to the Lease.
(ii)
" Available " space means that no other third-party is in
occupancy of such space or has any rights therein or thereto,
including, but not limited to, rights of expansion, rights of first
offer, rights of first refusal, right of extension, renewal or
other option or right. Notwithstanding anything contained herein to
the contrary, the Surrendered Premises will not be subject to this
Right of First Offer until July 1, 2008.
5. Acceptance of Demised
Premises . Tenant hereby accepts the Demised Premises (other
than Floor 8) "AS IS" as of the date hereof and acknowledges that
Landlord will have no obligation to make any tenant improvements or
alterations to the Demised Premises or to provide any credit,
abatement or adjustment of Rent or other sum payable under the
Lease, as amended herein, except as expressly set forth in this
Second Amendment. Landlord will deliver the Second Expansion Space
to Tenant in accordance with Section 3 of Exhibit "D" to the
Lease. Notwithstanding the foregoing, once the location and
dimensions of th
|
