EXHIBIT 10.82
FIFTH AMENDMENT TO LEASE
AGREEMENT
THIS FIFTH
AMENDMENT TO LEASE AGREEMENT (the “Fifth Amendment”),
is made this 15 th day of October, 2008, by 3280
PEACHTREE I LLC (as “Landlord”) and AMERICAN
TELECONFERENCING SERVICES, LTD. D/B/A PREMIERE GLOBAL SERVICES (as
“Tenant”).
W I T N E S S E T H:
WHEREAS, Landlord
and Tenant did enter into that certain Lease Agreement, dated as of
October 28, 2005 (the “Original Lease”), for space
(consisting of all of the 9 th floor, containing 23,684
square feet of Rentable Floor Area) in that certain building
located at 3280 Peachtree Road, Atlanta, Georgia (the
“Building”), as such space is more particularly
described in the Original Lease.
WHEREAS, Landlord
and Tenant did enter into that certain First Amendment to Lease
Agreement, dated as of July 31, 2006 (the “First
Amendment”).
WHEREAS, Landlord
and Tenant did enter into that certain Second Amendment to Lease
Agreement, dated as of March 15, 2007 (the “Second
Amendment”).
WHEREAS, Landlord
and Tenant did enter into that certain Third Amendment to Lease
Agreement, dated as of June 3, 2008 (the “Third
Amendment”).
WHEREAS, Landlord
and Tenant did enter into that certain Fourth Amendment to Lease
Agreement, dated as of August 27, 2008 (the “Fourth
Amendment”).
WHEREAS, the
Original Lease, as modified by the First Amendment, Second
Amendment Third Amendment and Fourth Amendment, is herein
collectively referred to as the Lease.
WHEREAS, Landlord
and Tenant desire to modify and amend the Lease, in the manner and
for the purposes herein set forth.
NOW, THEREFOR, for
and in consideration of the mutual premises, and for Ten and No/100
Dollars ($10.00) and other good and valuable consideration, paid by
the parties hereto to one another, the receipt and sufficiency of
which are acknowledged by the parties hereto, the parties hereto
hereby covenant and agree as follows:
1.
Defined Terms . All capitalized terms not defined herein
shall have the same meaning as set forth in the Lease.
2.
Expansion Right on 8 th Floor . In lieu of
Tenant's rights to the “Lockton Space” (as defined in
the Third Amendment) as set forth in Sections 8 and 9 of the Third
Amendment, Tenant shall have rights to the Lockton Space as
follows:
(i)
If at any time Lockton (as defined in the Third Amendment) vacates
the Lockton Space, Tenant shall have a right of first offer on the
Lockton Space, on and subject to the following terms and
conditions:
(a)
Landlord shall give written notice to Tenant (the “Lockton
Notice”) of Landlord’s desire to lease the Lockton
Space (or some portion thereof, at Landlord’s option). The
Lockton Notice shall designate the portion of the Lockton Space
that Landlord desires to lease, and such portion is referred to
herein as the “Offered Space.”
(b)
Tenant shall not have the right to exercise the right of first
offer with respect to the Offered Space if less than three (3)
years remain in the Lease Term (including, but not limited to, any
exercised extension or renewal options) at the time that Tenant
receives the Lockton Notice; provided, however, if Tenant notifies
Landlord prior to the expiration of the Lockton Notice Period (as
defined below) that Tenant has elected to exercise any unexercised
extension or renewal option and the remaining Lease Term (taking
into account such exercise) would be at least three (3) years from
the date Tenant receives the Lockton Notice, Tenant shall have the
right to exercise the right of first offer pursuant to the terms
hereof. In connection with any exercise of an extension or renewal
option as contemplated by this Section 2, Tenant shall have the
right to exercise any unexercised Extension Option (as defined in
Section 56 of the Lease) at any time during the Lockton Notice
Period, even if such exercise occurs more than fifteen (15) months
prior to the expiration of the initial Lease Term.
(c)
Tenant shall have five (5) Business Days after receipt of
Landlord’s notice (such five (5) Business Day period is
referred to as the Lockton Notice Period) to respond as to whether
or not Tenant desires to lease the Offered Space (and Tenant must
lease all of the Offered Space). If Tenant elects not to lease the
Offered Space or fails to respond within the five (5) Business Day
period, then Tenant shall have no further right to lease the
Offered Space (but will continue to have such rights with respect
to the remainder of the Lockton Space); provided, however, if
Landlord has not entered into a written lease with a third party
for the Offered Space within one hundred eighty (180) days after
the expiration of the Lockton Notice Period, then this right of
first offer will once again apply to the Offered Space.
(d)
If Tenant elects to Lease the portion of the Offered Space, Tenant
will notify Landlord whether Tenant elects to be responsible for
Tenant’s fit-up and finish work or whether Tenant elects to
have Landlord be responsible for such fit-up and finish work. If
Tenant elects for Landlord to perform such work, then the terms of
the work letter attached as Exhibit “D” to the Original
Lease shall govern such work, except that the space is delivered as
set forth in Paragraph 2(h) herein. If Tenant elects for Tenant to
perform such work, then the terms of the work letter attached as
Exhibit “A” to the Fourth Amendment shall govern such
work, with a fee due to Landlord or Landlord's designated
representative of 1% of the hard costs of the work involved in the
completion of the renovation to the Offered Space.
(e)
If Tenant elects to lease the Offered Space as set forth above, the
Rent due from Tenant for the Offered Space shall be at a Market
Base Rental Rate of Rent, with such rate defined in and to be
determined and established under the terms of Article 56 of the
Original Lease. To the extent any direct payment is made to Lockton
by any party as a part of a relocation or early termination of the
Lockton Lease (without in any manner implying that such
a
2
payment will or must be made),
then the amount of any such direct payment to Lockton shall not be
considered in determining the Market Base Rental Rate for the
Offered Space, due from Tenant.
(f)
If Tenant elects to be responsible for Tenant’s fit-up and
finish work, the Rent for the Offered Space shall commence on the
earlier to occur of (i) one hundred twenty (120) days after the
later of (aa) Tenant’s notice of election to lease the
Offered Space, or (bb) the date Tenant and Tenant’s
contractors have access to the Offered Space for the purposes of
completing tenant finish work therein; or (ii) the date Tenant
first occupies the Offered Space, for the purpose of conducting its
business therein. Landlord will not unreasonably withhold,
condition or delay its approval of Tenant’s proposed plans
and specifications (or any revisions thereto) for Tenant’s
fit-up and finish work. If Landlord fails to notify Tenant within
ten (10) days after receipt of such plans and specifications (or
any revision thereto) that Landlord has disapproved such plans and
specifications, Landlord shall be deemed to have approved the same
(except that Landlord shall not be deemed to approve any matters
that would violate applicable laws or violate the express terms of
the Lease). If Landlord disapproves such plans and specifications,
such disapproval shall be accompanied by reasons for such
disapproval in reasonable detail. If Tenant elects that Landlord be
responsible for Tenant’s fit-up and finish work, the Rent for
the Offered Space shall commence on the earlier to occur of (i)
fifteen (15) days after the later of (xx) Tenant’s notice of
election to lease the Offered Space, or (yy) the date Landlord has
delivered the Offered Space to Tenant with all such fit-up and
finish work being completed in a good, workmanlike and lien-free
manner in accordance with all applicable laws, codes, regulations
and ordinances and in accordance with plans and specifications
approved by Tenant; or (ii) the date Tenant first occupies the
Offered Space, for the purpose of conducting its business therein.
In such event, Landlord agrees to proceed diligently to complete
all of such fit-up and finish work in a good, workmanlike and
lien-free manner in accordance with such plans and specifications
and in accordance with all applicable laws, codes, regulations and
ordinances.
(g)
If Tenant elects to lease the Offered Space and to cause Landlord
to be responsible for the tenant fit-up and finish work, then
Landlord shall cause the tenant fit-up and finish work in the
Offered Space to be completed in a good, workmanlike and lien-free
manner in accordance with all applicable laws, codes, regulations
and ordinances and in accordance with plans and specifications to
be agreed upon by Landlord and Tenant, in their respective
reasonable judgment. Landlord shall provide an allowance for the
tenant fit-up and finish work in the Offered Space based upon and
as determined as
