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FIRST AMENDMENT TO LEASE AGREEMENT
THIS
FIRST AMENDMENT TO LEASE AGREEMENT {this
"Amendment") is made as of this 30 th day
of August, 2006 (the "Date of Amendment") by and between
CRP HOLDINGS V, L.P., a Delaware limited
partnership ("Landlord"), and CHARYS HOLDING
COMPANY , a Delaware corporation
("Tenant").
WHEREAS, Landlord and Tenant are the lessor and the
lessee, respectively, under the Existing Lease, pursuant to which
Landlord demises to Tenant, and Tenant leases from Landlord, the
Existing Premises in that certain building known as 1117 Perimeter
Center West in Atlanta, Fulton County, Georgia; and
WHEREAS, Landlord and Tenant wish to enter into this
Amendment to provide for the leasing of certain additional space in
the Building by Tenant, to extend the term of the Existing Lease,
and to modify certain of the other terms and conditions of the
Existing Lease, all as more particularly set forth
herein.
NOW, THEREFORE, WITNESSETH, that for and in consideration
of the mutual covenants and agreements herein contained and for
other good and valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant hereby agree
as follows:
The
following defined terms, when and as used in this Amendment,
shall have the meanings herein ascribed to them. To the extent
a defined term is used in this Amendment which is not defined
in this Amendment, it shall have the meaning in this Amendment
which is ascribed to such defined term in the Existing Lease,
to the extent that a meaning for such defined term is set
forth in the Existing Lease.
(a) "Additional
Premises" means all of that space on the fourth (4 th )
floor of the Building adjoining the Existing Premises, as more
particularly described in Exhibit A attached to and
hereby made a part of this Amendment, known as "Suite W-401"
and consisting of approximately 4,463 rentable square feet of
space.
(b) "Additional
Premises Occupancy Date" means that date which is the first (1
st )
business day after the date as of which Landlord, in its sole
and absolute discretion, shall deem the Tenant Improvements
(as defined in Section 7 of this Amendment) to be
Substantially Complete (as defined in Section 7 of this
Amendment). As of the Date of Amendment, Landlord anticipates
that the Additional Premises Occupancy Date shall occur on
November 1, 2006.
(c) "Additional
Premises Occupancy Period" means that period of time
commencing on the Additional Premises Occupancy Date and
ending on October 31, 2011.
(d) "Building"
means that certain building known as 1117 Perimeter Center
West in Atlanta, Fulton County, Georgia.
(e) "Existing
Lease" means that certain Lease Agreement dated March 31, 2004
between Original Landlord, as the lessor, and Original Tenant,
as the lessee, with respect to the Existing Premises, together
with all addenda, exhibits, riders and supplements thereto and
all amendments and modifications thereof (if any) made prior
to the Date of Amendment. All of the right, title and interest
of Original Landlord, as the lessor under and with respect to
the Existing Lease, was assigned and conveyed by Original
Landlord to Landlord prior to the Date of Amendment. All of
the right, title and interest of Original Tenant, as the
lessee under and with respect to the Existing Lease, was
assigned and conveyed by Original Tenant to Tenant prior to
the Date of Amendment.
(f) "Existing
Premises" means all of that space on the fourth (4th) floor of
the Building adjoining the Additional Premises leased by
Landlord to Tenant pursuant to the Existing Lease, as more
particularly described in Exhibit A of
the Existing Lease, known as "Suite N-415" and consisting of
approximately 3,318 rentable square feet of
space.
(g) "Expanded
Premises" means, collectively, the Existing Premises and the
Additional Premises. The
Expanded Premises consists, collectively, of approximately
7,781 rentable square feet of space.
(h) "Lease"
means the Existing Lease, as amended by this
Amendment.
(i) "Original
Landlord" means Pericen Limited Partnership, a Delaware
limited partnership.
(j) "Original
Tenant" means Barrow Group, LLC, a Georgia limited liability
company.
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Section 2.
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Extension of Original Term of Existing
Lease.
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The
original Term (as expiring on March 31, 2009) is hereby
extended through 11:59 p.m., local time, on October 31, 2011.
That portion of the original Term, as so further extended,
commencing on April 1, 2009 and ending on October 31, 2011 is
hereinafter sometimes called the "Extended Term." That portion
of the original Term occurring prior to April 1, 2009 is
hereinafter sometimes referred to as the "Initial Term." From
and after the Date of Amendment, the Term shall be deemed to
be comprised of the Initial Term and the Extended Term,
together with all renewals or extensions thereof becoming
effective subsequent to the Date of Amendment pursuant to any
amendments to the Lease made subsequent to the Date of
Amendment between Landlord and Tenant.
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Section 3.
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Leasing of Additional Premises.
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Commencing
on the Additional Premises Occupancy Date, Landlord shall
lease the Additional Premises to Tenant, and Tenant shall rent
the Additional Premises from Landlord, all in accordance with
the terms and conditions of the Lease. From and after the
Additional Premises Occupancy Date, the defined term
"Premises", as such defined term is defined and used in the
Lease, shall for all intents and purposes mean and refer to
the Expanded Premises. For all intents and purposes of the
Lease, as the context shall require, the defined term
"Premises", as such defined term is defined and used in the
Lease with respect to all portions of the Term occurring prior
to the Additional Premises Occupancy Date, shall refer only to
the Existing Premises.
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Section
4.
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Annual Basic
Rent Payable for Additional Premises with respect to Portion
of Additional Premises
Occupancy Period Occurring Prior to Extended Term
.
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(a)
Tenant shall pay
annual Basic Rent to Landlord for the Additional Premises with
respect to that portion of the Additional
Premises Occupancy Period occurring prior to the Extended Term as
follows:
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Annual Basic Rent Per Rentable Square Foot
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Monthly Installments of Annual Basic Rent
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Additional
Premises Occupancy Date to March 31, 2007
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April
1, 2007 to March 31, 2008
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April
1, 2008 to March 31, 2009
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(b)
The monthly
installments of annual Basic Rent required to be paid by Tenant to
Landlord for the Additional Premises with
respect to that portion of the Additional Premises Occupancy Period
occurring prior to the Extended Term described in Section 4(a) of
this Amendment shall be payable by Tenant to Landlord in addition
to all of the installments of annual Basic Rent required to be paid
by Tenant to Landlord (i) with respect to the Existing Premises
pursuant to the Existing Lease and (ii) with respect to the Expanded
Premises pursuant to Section 5 of this
Amendment.
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Section 5.
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Annual Basic Rent Payable for Expanded Premises with respect to
Extended Term.
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(a)
Tenant shall pay
annual Basic Rent to Landlord for the Expanded Premises with
respect to the Extended Term as
follows:
Period of Time During Extended Term
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Annual Basic Rent Per Rentable Square Foot
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April
1, 2009 to March 31, 2010
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April
1, 2010 to March 31, 2011
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April
1, 2011 to October 31, 2011
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(b)
The monthly
installments of annual Basic Rent required to be paid by Tenant to
Landlord for the Expanded Premises with respect
to the Extended Term described in Section 5(a) of this Amendment
shall be payable by Tenant to Landlord in addition to all of the
monthly installments of annual Basic Rent required to be paid by
Tenant to Landlord with respect to (i) the Existing Premises pursuant
to the Existing Lease and (ii) Section 4 of this Amendment for the
Additional Premises with respect to that portion of the Additional
Premises Occupancy Period occurring prior to the Extended
Term.
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Section 6.
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Additional Rent.
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(a) For
purposes of this Amendment, effective as of the Additional
Premises Occupancy Date, "Tenant's Proportionate Share" (as
such defined term is defined in the Existing Lease) shall be
increased to be 1.99%. Notwithstanding the foregoing, for and
with respect to all periods of time during the Term prior to
the Additional Premises Occupancy Date, Tenant's Proportionate
Share shall continue to have the meaning and value assigned to
such defined term in the Existing Lease.
(b) Subject
to the foregoing terms and conditions of Section 6 of this
Amendment, all of the terms and conditions of the Existing
Lease governing the payment of Additional Rent by Tenant to
Landlord for the Existing Premises with respect to the Initial
Term shall continue to be applicable to (i) the leasing of the
Additional Premises by Landlord to Tenant with respect to that
portion of the Additional Premises Occupancy Period occurring
prior to the Extended Term and (ii) the leasing of the
Expanded Premises by Landlord to Tenant with respect to the
Extended Term.
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Section 7.
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Tenant Improvements.
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(a) For
purposes of this Amendment, "Tenant Improvements" means,
collectively, the alterations and improvements to the Expanded
Premises to be constructed and/or installed by Landlord in
accordance with the terms and conditions of Section 7 of this
Amendment, as more particularly described in Exhibit B
attached to and hereby made a part of this
Amendment.
(b) Landlord
shall use commercially reasonable efforts to Substantially
Complete (herein defined) the Tenant Improvements not later
than October 31, 2006. For purposes of this Amendment, the
Tenant Improvements shall be deemed to be "Substantially
Complete" as of the date on which Landlord shall certify in
writing to Tenant that: (i) The Tenant Improvements have been
substantially completed in all material respects and in
substantial accordance with the approved plans and
specifications therefor (if any); and (ii) To the extent
deemed necessary by Landlord, in Landlord's sole and absolute
discretion, a temporary or permanent certificate of occupancy
shall have been issued by the governmental authority having
jurisdiction with respect to the Tenant Improvements or the
governmental authority having jurisdiction with respect to the
Tenant Improvements shall have otherwise evidenced its
approval of the Tenant Improvements. In the event that
Landlord is unable for any reason whatsoever to Substantially
Complete the Tenant Improvements on or before October 31,
2006, then and in such event, Landlord shall have no liability
whatsoever (including, without limitation, for any damages
that Tenant may suffer) to Tenant in connection therewith or
as a result thereof and none of the obligations of Tenant to
Landlord set forth in this Amendment shall be affected
thereby; provided, however, that Landlord shall use
commercially reasonable efforts to Substantially Complete the
Tenant Improvements as soon as reasonably possible thereafter.
Landlord shall use commercially reasonable efforts to complete
any portions or aspects of the Tenant Improvements which shall
be incomplete as of the date of Substantial Completion of the
Tenant Improvements as soon as possible thereafter.
Notwithstanding the foregoing terms and conditions of this
paragraph, in the event that the Tenant Improvements shall not
be Substantially Complete on or before October 31, 2006 as a
result of any default or delay on the part of Tenant with
respect to the obligations of Tenant set forth in the Lease,
then and in such event, (A) for all intents and purposes of
the Lease the Tenant Improvements shall be deemed to have been
Substantially Complete as of the date Landlord shall
determine, in the sole but reasonable opinion of Landlord,
that Landlord would have Substantially Completed the Tenant
Improvements but for such default or delay on the part of
Tenant, and (B) not later than ten (10) days after written
demand shall be made therefor by Landlord of Tenant, Tenant
shall reimburse Landlord for all additional costs and/or
expenses (if any) that Landlord shall incur as a result
thereof in connection with the construction and/or
installation of the Tenant Improvements.
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