Exhibit 10.1
FOURTH AMENDMENT TO OFFICE
LEASE
THIS FOURTH AMENDMENT TO OFFICE
LEASE (hereinafter referred to as this “Fourth
Amendment”) is effective as of January 1, 2005 (the
“Effective Date”), by and between CALIFORNIA STATE
TEACHERS RETIREMENT SYSTEM, a public entity created pursuant to the
laws of the State of California (hereinafter referred to as
“Landlord”), and EARTHLINK, INC., a Delaware
corporation (hereinafter referred to as
“Tenant”).
W I T N E S S E T H:
WHEREAS, Kingston Atlanta Partners,
L.P., a Delaware limited partnership (“Kingston”), and
Mindspring Enterprises, Inc., a Delaware corporation (as the
predecessor-in-interest to Tenant) entered into that certain Office
Lease, dated November 16, 1999 (the “Original
Lease”); as amended by that certain First Amendment of Office
Lease Agreement (the “First Amendment”), dated May 15,
2000; as further amended by that certain Second Amendment of Office
Lease Agreement (the “Second Amendment”), dated
December 21, 2000 (the “Second Amendment”), as
further amended by that certain Third Amendment of Office Lease
Agreement (“Third Amendment”), dated on or about
September 25, 2001, and that certain letter agreement dated
December 11, 2002 (“Agreement”), for those certain
premises (the “Premises”) located at 1375 Peachtree
Street, Atlanta, Georgia (the “Building”) currently
known as Pershing Point Plaza. The Original Lease, as amended
by the First Amendment, the Second Amendment, the Third Amendment
and the Agreement, is hereinafter referred to collectively as the
“Lease.”
WHEREAS, Landlord is the
successor-in-interest to Kingston and has acquired all of
Kingston’s right, title and interest in, to and under the
Lease; and
WHEREAS, Landlord and Tenant desire
to further amend the Lease to extend the term of Lease, and to
provide for such other related matters as are hereinafter set
forth;
NOW, THEREFORE, for and in
consideration of the Premises and the mutual covenants contained
herein and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged and
confessed, Landlord and Tenant hereby covenant and agree as
follows:
1.
Defined
Terms . Capitalized terms
used herein, unless otherwise defined herein, shall have the
meanings given such terms in the Lease.
2.
The
Premises . Landlord and Tenant
hereby agree that Landlord currently leases to Tenant and Tenant
currently leases from Landlord that certain space in the Building
containing 327,810 rentable square feet, as more particularly
described on Exhibit A to the Third Amendment (the
“Premises”).
3.
Extension of
Lease Term . Landlord and Tenant
acknowledges that the current Expiration Date under the Lease is
October 1, 2007. As of the Effective Date, Landlord and
Tenant hereby extend the Lease Term for an additional one hundred
seventeen (117) month period (the “Extension Term”),
commencing on the Effective Date, and terminating on
September 30, 2014 (“New Expiration
Date”). Tenant shall continue to lease the
Premises during the Extension Term on the same terms and conditions
as the original Lease Term, except as otherwise set forth herein to
the contrary.
4.
Base
Rental . Notwithstanding
anything to the contrary in the Lease, during the Extension Term,
Tenant shall pay Monthly Base Rental for the Premises in accordance
with the Base Rental Schedule attached hereto and made part
hereof as Exhibit A . Accordingly, the Base Rental
Schedules set forth in the Lease are of no further force and
effect.
5.
Additional
Rental - Operating Expenses and Property Taxes
. Tenant
shall continue to pay all additional rental under the Lease during
the Extension Term. Landlord and Tenant hereby acknowledge
and confirm that Tenant’s Percentage Share of Operating
Expenses and Property Taxes shall be 83.83% and Tenant’s
Percentage Share of actual Building utility expenses shall be
87.04% during the Extension Term, so long as the Premises continues
to consist of 327,810 rentable square feet. Landlord and
Tenant further acknowledge and confirm that for purposes hereof,
the Building consists of 410,357 rentable square feet (but shall be
deemed to contain 411,634 rentable square feet for purposes of
Tenant’s Percentage Share).
6.
Tenant
Improvement Allowance . In consideration of
Tenant entering into this Fourth Amendment, Landlord agrees to
provide to Tenant a tenant improvement allowance equal to Seven
Million Three Hundred Seventy-Five Thousand Seven Hundred Twenty
Five and 00/100 Dollars ($7,375,725.00), which amount is based on
Twenty-Two and 50/100 Dollars ($22.50) per rentable square foot of
the Premises (the “Renewal Allowance”). The
Renewal Allowance may be used in Tenant’s sole discretion,
including to offset and abate Tenant’s obligation to pay Base
Rental during the Extension Term. Notwithstanding the
foregoing, the parties agree that at least Two Million Four Hundred
Fifty Eight Thousand Five Hundred Seventy Five and 00/100 Dollars
($2,458,575.00), based on Seven and 50/100 Dollars ($7.50) per
rentable square foot of the Premises, shall be used, on or before
the New Expiration Date, for costs relating to the construction of
improvements to the Premises and the relocation, repair or
replacement of any and all furniture, fixtures and equipment
located in the Premises (collectively, the
“Improvements”). At Tenant’s election on or
before January 15, 2005, and further provided that Tenant is
not in Default under the Lease, Landlord shall credit the Renewal
Allowance against Tenant’s future obligations to pay Monthly
Base Rental, additional rental, or any other charges due and owing
by Tenant under the Lease, provided, however, if Tenant fails to
provide Landlord notice of such election on or before
January 15, 2005, Landlord shall pay the Renewal Allowance to
Tenant via check or wire transfer on or before January 28,
2005. At any time after such payment of the Renewal
Allowance, but no later than the New Expiration Date, Tenant shall
furnish to Landlord evidence reasonably satisfactory to Landlord,
including such invoices, certifications, lien releases, and other
documentation as Landlord may reasonably request, to be assured, to
Landlord’s reasonable satisfaction, that the Improvements
have been completed in compliance with the terms of this
Section and the terms of the Lease. In addition to the
foregoing, Landlord acknowledges that Tenant is still entitled to
use of that certain tenant improvement allowance equal to Eighteen
and No/100 Dollars ($18.00) per rentable square foot
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for that portion of the
Premises known as Floor 5 North comprising 26,830 rentable square
feet (“Five North”). The Five North allowance
shall be used by Tenant in accordance with the terms of the Lease
prior to the Expiration Date, and solely for costs related to the
construction of improvements to Five North and the installation of
furniture, fixtures and equipment to be located in Five
North. Tenant shall have no further right to the Five North
allowance after September 30, 2007. The rights contained
in this Section shall be personal to the original Tenant
signing this Fourth Amendment and shall not be
transferable.
7.
Right of First
Refusal.
(a)
Provided that the
Lease is in full force and effect and there exist no Defaults by
Tenant under the Lease , Tenant shall have a right of first refusal
(the “Right of First Refusal”) to lease all of the
office space on the third (3 rd ) floor and fourth (4
th ) floor of the North Tower (hereinafter the
“First Refusal Space”), as demarcated on Exhibit
B hereto, in accordance with the terms and conditions contained
herein. In the event Landlord obtains a bona fide written
offer from a prospective tenant to lease all or any portion of the
First Refusal Space on or before December 31, 2006, and
Landlord desires to accept such offer, then Landlord shall submit
to Tenant in writing all of the material terms and conditions of
such proposed offer to lease (hereinafter referred to as the
“Offer”) and Tenant shall have the right and option to
lease that portion of the First Refusal Space covered by the Offer
upon the same monetary terms and conditions as contained in the
Lease as modified by this Fourth Amendment, including a tenant
improvement allowance in the amount of Twenty-Two and 50/100
Dollars ($22.50) per square foot for such portion of the First
Refusal Space, such allowance to be reduced on a prorated basis
based on the remaining number of months in the Extension
Term. In the event Landlord wishes to accept an Offer
received after December 31, 2006, Tenant shall have the right
and option to lease that portion of the First Refusal Space covered
by the Offer upon the same monetary terms and conditions contained
in that Offer, including any offer of free rent and tenant
improvement allowances, as embodied in the copy of such Offer, but
otherwise upon the same terms and conditions as the Lease, as
hereby amended. If Tenant shall elect to exercise its right
to lease that portion of the First Refusal Space covered by the
Offer, written notice of such election shall be given to Landlord
within ten (10) days from the time that Tenant first received a
copy of the Offer from Landlord (hereinafter referred to as the
“Offer Period”). If Tenant fails to timely give
an unqualified acceptance of the Offer within the Offer Period,
Landlord may proceed with the lease of the First Refusal Space.
Tenant shall commence payment of rent for the First Refusal Space
and the term of the First Refusal Space shall commence upon the
date set forth in the Offer. The Lease Term for the First
Refusal Space shall be coterminous with Tenant’s lease of the
initial Premises, provided, however, that in no event shall the
Lease Term for the First Refusal Space be less than eighty percent
(80%) of the term for the First Refusal Space as stated in the
Offer, and provided further that any tenant improvement allowance,
free rent and/or any other economic incentive embodied in the Offer
shall be reduced on a prorated basis based on the number of months
in such shortened Lease Term for the First Refusal
Space.
(b)
Upon the exercise
of its right to lease the First Refusal Space covered by the Offer,
Landlord and Tenant shall enter into a written agreement modifying
and supplementing the Lease and specifying that the First Refusal
Space is a part of the Premises under the Lease and containing
other appropriate terms and provisions relating to the addition of
such area to the Lease, including, without limitation, increasing,
adjusting or augmenting
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Monthly Base Rental as a
result of the addition of such space. Notwithstanding
anything to the contrary contained herein, Tenant must elect to
exercise its Right of First Refusal, if at all, with respect to all
of the space offered by Landlord to Tenant at any particular time,
and Tenant may not elect to lease only a portion
thereof.
(c)
If a right to
lease pursuant to this Section shall not be exercised within
the Offer Period or shall be waived (no notice is deemed to be a
waiver of such right), then Landlord shall have the right to offer
such space to the prospective tenant, and if such transaction is
consummated, Tenant’s rights under this Section shall
automatically terminate and be of no further force or effect as to
such portion of the First Refusal Space. If a right to lease
pursuant to this Section shall not be exercised within the
Offer Period or shall be waived (no notice is deemed to be a waiver
of such right), and Landlord fails to lease the space covered by
the Offer within nine (9) months after Landlord’s submission
of a copy of the Offer to Tenant, then this Section shall be
applicable to any subsequent offer to lease such portion of the
First Refusal Space.
(d)
Tenant shall take
the First Refusal Space in its “as-is” condition, and
Tenant shall be entitled to construct improvements in the First
Refusal Space in accordance with the provisions of Article 4
of the Lease. In the event the First Refusal Space is
determined to contain any hazardous materials in a manner or
quantity prohibited by federal or State of Georgia laws or
regulations including any hazardous materials which were not in
violation of such laws or regulations at the time they were placed
in the First Refusal Space, and the federal government or the
State of Georgia requires the removal or encapsulation of such
hazardous materials, Landlord agrees that it shall, at its sole
cost and expense, cause such remedial measures to be taken as are
necessary either to remove or (if permitted by applicable law)
encapsulate such hazardous materials.
(e)
Notwithstanding
anything to the contrary in this Section 7, the Right of First
Refusal herein granted shall be void if less than thirty-six (36)
months remain in the Extension Term.
(f)
The rights
contained in this Section may only be exercised by the
Original Tenant or any Affiliate thereof (and not any other
assignee, sublessee or other transferee of the Original
Tenant’s interest in the Lease) if Tenant or any Affiliate
occupies at least fifty percent (50%) of the Premises as of the
date of the First Refusal Notice. Tenant shall not have the
right to lease First Refusal Space as provided in this
Section if, as of the date of the First Refusal Notice, or, at
Landlord’s option, as of the scheduled date of delivery of
such First Refusal Space to Tenant, Tenant is in Default under the
Lease.
8.
Right of First
Offer .
(a)
Landlord hereby
grants to Tenant, on the terms and conditions hereof, a right of
first offer on all of the space in the Building that is not, from
time to time, included in the Premises (the “ Remaining
Space ”). This provision shall apply to every
availability of the Remaining Space occurring during the Extension
Term (as such may be extended). Notwithstanding the
foregoing, such first offer right of Tenant shall commence only
following the expiration or earlier termination of any existing
lease pertaining to the Remaining Space,
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including any renewal of
such existing lease regardless of whether any such renewal is
consummated pursuant to a lease amendment or a new
lease. Notwithstanding anything to the contrary
contained herein, Tenant must elect to exercise its right of first
offer, if at all, with respect to at least one full floor of the
space offered by Landlord to Tenant at any particular time (a full
floor deemed to mean one floor of either the North Tower or South
Tower of the Building and not one full floor of both
Towers).
(b)
Should any of the
Remaining Space become available for lease during the Extension
Term (as such may be extended) (such available space, the “
Available Space ”), then Landlord, before endeavoring
to lease any such Available Space to any other party, shall deliver
written notice (the “ Availability Notice ”) to
Tenant notifying Tenant of the availability of the Available Space,
the anticipated date of such availability (the “Anticipated
Delivery Date”) and, if such Available Space becomes
available after December 31, 2006, Landlord’s good faith
determination of the Market Base Rental Rate (as defined
below). Landlord shall deliver such Availability Notice
promptly upon such Available Space becoming available for
lease. Landlord shall not lease the available space to any
other person or entity until the process set forth in this
provision has been fully complied with.
Tenant shall have the right,
but not the obligation, for a period of fifteen (15) business days
following receipt of the Availability Notice from Landlord, to
elect to include such then offered Available Space within the
Premises (if so elected, the “ Additional Space
”). For the lease of any Additional Space that becomes
available on or before December 31, 2006, Tenant’s lease
of the Additional Space shall be at the same per square foot rate
for Base Rental as is then applicable to the Premises under this
Lease and upon the same other terms and conditions as in this Lease
and for the lease of any Additional Space that becomes available
after December 31, 2006, Tenant’s lease of the Available
Space shall be at the Market Base Rental Rate, except that, in
either case: (i) Tenant’s Percentage Share shall be
re-calculated by adding the square footage of any Additional Space
taken by Tenant pursuant hereto to the numerator used to calculate
Tenant’s Percentage Share; and (ii) the Additional Space
shall be delivered to Tenant in accordance with the provisions of
Section 7(d) of this Fourth Amendment. If Tenant desires
to lease any (or all) of the Available Space, then Tenant shall
deliver to Landlord written notice of its desire to exercise its
first offer right (identifying the Available Space that it wishes
to take) within said fifteen (15) business day period (the “
Tenant’s Acceptance ”). In the event
Tenant disagrees with Landlord’s determination of the Market
Base Rental Rate, Landlord and Tenant shall, for a period of ten
(10) days after Tenant’s Acceptance, negotiate in good faith
to reach agreement as to such Market Base Rental Rate. In the
event that, notwithstanding the cooperative efforts of such
parties, Landlord and Tenant are unable to agree upon the Market
Base Rental Rate within such ten (10) day period, then Landlord and
Tenant shall mutually select an arbitrator (the
“Arbitrator”), who shall be a real estate broker who
(i) is licensed in the State of Georgia, and has a SIOR or CCIM
designation, (ii) has been actively and continuously engaged in the
leasing of office space in the submarket in which the Premises are
located during the preceding ten-year period, and (iii)
has represented
neither Landlord nor Tenant during the preceding five-year
period. If the parties cannot agree on the Arbitrator within
five (5) calendar days following the date of Landlord’s
original notice to Tenant stating the Market Base Rental Rate, then
each party shall select a broker who meets the criteria set forth
above by written notice to the other given within thirty-five (35)
days following the date of the Availability Notice, and within five
(5) days after receipt of such selection from both parties, such
brokers shall appoint a third broker; such
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third broker shall be the
Arbitrator. If the two brokers cannot agree on the
appointment of the Arbitrator within said five (5) day period, then
either party shall have the right to apply to the presiding judge
of the applicable court for the State of Georgia for the selection
of the Arbitrator. If either Landlord or Tenant does not
appoint a broker within the thirty-five (35) day period set forth
above, then the single broker selected shall be the
Arbitrator.
Within five (5)
days after the selection of t
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