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 the
Arbitrator, each party shall submit to the Arbitrator its
determination of the Market Base Rental Rate, which shall include a
reasonable amou
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