Tennessee-Memphis-6075 Poplar Avenue Lease [Amendment No. 1] - Crescent Forum Partnership and The Restaurant Co.
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (the "First Amendment") is made and
entered into between Crescent Forum Partnership, an Arkansas general partnership
("Lessor") and The Restaurant Company, a Delaware corporation ("Lessee").
R E C I T A L S:
A. The Crescent Center, Ltd., a Tennessee limited partnership
("Crescent Ltd."), as landlord, and Perkins Restaurants
Operating Company, L.P., a Delaware limited partnership
("Perkins L.P."), as tenant, entered into a certain Standard
Commercial Lease (the "Lease Agreement") dated January 18, 1988,
demising certain premises described in the Lease Agreement and
being located in the office building known as "Crescent Center",
6075 Poplar Avenue, Memphis, Shelby County, Tennessee (the
"Building").
B. The Lease Agreement was amended by Modification and Ratification
of Lease executed by and on behalf of Crescent Ltd. and Perkins
L.P. as of May 17, 1988 ( the "First Modification").
C. All right, title and interest of Crescent Ltd. in, to and under
the Lease Agreement and the First Modification was heretofore
acquired by The Travelers Insurance Company, a Connecticut
corporation ("Travelers"), from Crescent Ltd.
D. The Lease Agreement was further amended by Modification and
Ratification of Lease executed by and on behalf of Travelers and
Perkins L.P. as of December 21, 1992 (the "Second Modification")
and by Modification and Ratification of Lease executed by and on
behalf of Travelers and Perkins L.P. as of August 13, 1993 (the
"Third Modification").
E. All right, title and interest of Travelers in, to and under the
Lease Agreement, the First Modification, the Second
Modification, and the Third Modification was heretofore acquired
by Crescent Center of Delaware Limited Partnership, a Delaware
limited partnership ("Crescent Delaware L.P.").
F. The Lease Agreement was further amended by Modification and
Ratification of Lease executed by and on behalf of Crescent
Delaware L.P. and Perkins L.P. as of August 18, 1994 (the
"Fourth Modification").
G. The Lease Agreement, the First Modification, the Second
Modification, the Third Modification and the Fourth Modification
are hereinafter collectively referred to as the "Lease".
H. All right, title and interest of Crescent Delaware, L.P. in, to
and under the Lease was heretofore acquired by Lessor from
Crescent Delaware L.P.
I. Lessee heretofore succeeded to the interest of Perkins L.P. in,
to and under the Lease.
J. Lessor and Lessee desire to renew and further amend the Lease
and extend the term thereof upon the terms, covenants and
conditions hereinafter set forth.
<PAGE>
Page 2 of 2
Amendment to Lease Agreement
NOW, THEREFORE, for and in consideration of the premises, as set forth
in the Recitals hereinabove, One Dollar ($1.00) cash in hand paid, and other
good and valuable considerations, the receipt and sufficiency of all of which is
hereby acknowledged, Lessor and Lessee agree as follows:
1. CONFIRMATION AND RATIFICATION OF LEASE. Lessor and Lessee hereby confirm
and ratify, except as expressly modified below, all of the terms,
conditions and covenants of the Lease.
2. WARRANTY OF POSSESSION. Lessee warrants that Lessee has accepted and is
now in possession of the leased premises and that the Lease is valid and
presently in full force and effect.
3. LEASED PREMISES. Paragraph 2 of the Fourth Modification is hereby
amended to provide that effective as of June 1, 2003, the leased
premises shall be reduced from 53,340 rentable square feet to 50,423
rentable square feet and shall thereafter be composed of all rentable
square feet of area located on the eighth (8th) floor of the Building
and that portion of the rentable square feet of area located on the
seventh (7th) floor of the Building which is shown on the floor plan
which is attached as Exhibit "A" hereto and made a part hereof for all
purposes.
4. TERM. Lessor and Lessee agree that the term of this Lease shall be
extended for one hundred-twenty (120) months so that the expiration date
shall be changed from May 31, 2003 to May 31, 2013. Paragraph 1 of the
Second Modification is hereby amended accordingly.
5. BASE RENT. Effective June 1, 2003 the base rent for the leased premises
shall be payable by Lessee to Lessor in accordance with the following
schedule:
<TABLE>
<CAPTION>
LEASE YEARS MONTHLY BASE RENT ANNUAL BASE RENT
----------- ----------------- ----------------
<S> <C> <C>
June 1, 2003 - May 31, 2004 $ 88,240.25 per month $1,058,883.00 per year
June 1, 2004 - May 31, 2005 $ 90,005.05 per month $1,080,060.60 per year
June 1, 2005 - May 31, 2006 $ 91,811.88 per month $1,101,742.56 per year
June 1, 2006 - May 31, 2007 $ 93,660.72 per month $1,123,928.64 per year
June 1, 2007 - May 31, 2008 $ 95,551.58 per month $1,146,618.96 per year
June 1, 2008 - May 31, 2009 $ 97,442.44 per month $1,169,309.28 per year
June 1, 2009 - May 31, 2010 $ 99,375.33 per month $1,192,503.96 per year
June 1, 2010 - May 31, 2011 $101,350.22 per month $1,216,202.64 per year
June 1, 2011 - May 31, 2012 $103,367.15 per month $1,240,405.80 per year
June 1, 2012 - May 21, 1013 $105,426.08 per month $1,265,112.96 per year
</TABLE>
6. OPERATING EXPENSES. Effective June 1, 2003, the Lease is modified by
deleting Paragraph 6 of the Second Modification and the first sentence
of Section 2.02 Operating Expenses and substituting in lieu thereof the
following:
In the event Lessor's operating expenses for the Building and/or
project of which the leased premises are a part shall, in any
calendar year during the term of this Lease exceed, the operating
expenses paid in calendar year 2003, Lessee agrees to pay as
additional rent Lessee's pro rata share of such excess operating
expenses.
Lessor hereby agrees that Lessee shall not be required to pay its
prorata share of increases in operating expenses which exceed ten
percent (10%) per annum compounded annually during the term of
this Lease.
7. TENANT IMPROVEMENTS. Lessor agrees to provide Lessee with a tenant
improvement allowance (the "Allowance") of $7.00 per rentable square
foot to be applied to the cost of constructing
<PAGE>
Page 3 of 3
Amendment to Lease Agreement
tenant improvements (the "Tenant Improvements") during the first year of
the renewal term of this Lease. Any unused portion of the Allowance may
be applied as a credit toward Tenant's rent. All costs of the Tenant
Improvements that exceed the Allowance shall be the responsibility of
Lessee and shall be paid directly to Lessor within thirty (30) days
after completion of such Tenant Improvements. Any such amounts payable
by Lessee which are not paid within thirty (30) days after the due date
will have interest added to the unpaid principal balance at the rate of
one and one-half percent (1 1/2%) per month until payment, including any
added interest, is received in full by Lessor. Any such Tenant
Improvements shall be constructed by contractors and subcontractors
approved in writing by Lessor and in accordance with plans and
specifications to be provided by Lessee and to be approved in writing by
Lessor prior to commencement of construction of such Tenant
Improvements. Notwithstanding the foregoing, only one-half (1/2) of the
cost of constructing a new demising wall (exclusive of wall finishes) on
the seventh (7th) floor of the Building (the "New Demising Wall"), as a
part of the Tenant Improvements and in connection with the reduction in
the number of rentable square feet of the leased premises as described
in Paragraph 3 hereinabove, shall be paid from the Allowance. The other
one-half of the cost of constructing the New Demising Wall (exclusive of
wall finishes) shall be paid by Lessor. The cost of wall finishes on the
New Demising Wall shall be borne solely by Lessee. Lessor shall, at
Lessor's sole cost and expense, remodel the restrooms located on the
eighth (8th) floor of the Building in a manner consistent with the
remodeling of the other restrooms located within the common areas of the
Building (the "Lessor Improvements"). The Lessor Improvements shall not
be included as a part of the Tenant Improvements, and no portion of the
Allowance shall be applied to the cost of constructing the Lessor
Improvements. The Lessor at its sole expense shall replace the existing
sign in front of the Building that identifies the Lessee as a tenant of
the Building with new identification of similar size containing the name
of Lessee and its business logo. Lessee shall provide Lessor with all
necessary artwork and shall have the right to approve the final drawings
for such sign.
8. RIGHT OF FIRST REFUSAL SPACE. If Lessee is not in default of any terms,
covenants or conditions of this Lease, then Lessee, but not any assignee
or sublessee of Lessee, shall have a right of first refusal to lease any
space located on the sixth (6th), seventh (7th), or ninth (9th) floors
of the Building (the "ROFR Space"), if and as such space becomes vacant
and available for lease from time to time, only upon the following terms
and conditions:
(a) The period of this right of first refusal shall begin on June 1,
2003, and shall expire on May 31, 2013, except to the extent that this
right of first refusal is terminated earlier in accordance with the
provisions of this Paragraph 8;
(b) During the aforedescribed period of this right of first refusal,
Lessor shall have the right to market the ROFR Space and solicit offers
from third-parties to lease all or any part of the ROFR Space for such a
term and upon such other terms and conditions as may be satisfactory to
the Lessor;
(c) If Lessor receives an offer from a third-party to lease all or any
part of the ROFR Space, Lessor shall give a written notice ("Offer
Notice") of such offer to Lessee specifying in reasonable detail the
material terms and conditions of such third-party's offer, including a
description of the particular ROFR Space proposed to be leased, the base
rental rate (on a rentable per square foot basis), the operating expense
stop, the dollar amount of any free rent or any other rent concessions,
the dollar amount of any allowance for construction of leasehold
improvements and tenant finish, and any other terms and conditions of
such offer deemed by Lessor to be material. The Offer Notice shall be
substantially similar to the form of Offer Notice attached hereto as
Exhibit "D". Within ten (10) business days after receipt of such Offer
Notice, Lessee
<PAGE>
Page 4 of 4
Amendment to Lease Agreement
shall notify Lessor in writing if Lessee wishes to exercise the right so
first refusal granted by this Paragraph 8. If Lessee does not exercise
its right of first refusal by giving such notice within said ten (10)
business day period, then the right of first refusal as to the ROFR
Space described in the Offer Notice shall terminate and Lessor may lease
such ROFR Space to such third-party upon the terms and conditions
specified in the Offer Notice. If Lessee exercises its right of first
refusal by giving of written notice to Lessor within said ten (10)
business day period, Lessee shall within fourteen (14) business days
after the giving of such notice, execute and deliver to Lessor either an
amendment of this Lease to include the ROFR Space, as described in the
Offer Notice, as part of the leased premises, or a new lease on Lessor's
then standard office lease form for the same term, at the same base
rental rate, and upon the other material terms and conditions of the
third-party's offer, as set forth in the Offer Notice. If Lessee does
not execute and deliver such amendment of this Lease or such new lease
within said fourteen (14) business day period, Lessee's right of first
refusal shall terminate (not subject to any right of reinstatement) and
Lessor may lease such ROFR Space to any third party upon such terms as
may be acceptable to Lessor in its sole and absolute discretion;
(d) Notwithstanding the provisions of the fourth sentence of
Subparagraph 8 (c) hereinabove, in the event the ROFR Space described in
the Offer Notice is not leased to such third-party, on the material
terms and conditions as were contained in the Offer Notice, within sixty
(60) days after expiration of the ten (10) business day period for
Lessee's exercise of the right of first refusal, the right of first
refusal shall be automatically reinstated upon the same terms and
conditions as set forth in this Paragraph 8; provided, however, Lessee
shall have no right to reinstatement of its right of first refusal if
such right has terminated because Lessee has failed to execute an
amendment of this Lease or a new lease within the fourteen (14) business
day period (as described in Subparagraph 8 (c) hereinabove, without
regard to when such termination has occurred during the term of this
Lease;
(e) Anything herein contained to the contrary notwithstanding, the ROFR
Space shall not include any space which is subject to any renewal
option, expansion option, right of first refusal, right of first offer,
or similar right of any tenant of space of the sixth (6th), seventh
(7th), or ninth (9th) floors of the Building (i) under any lease
existing as of the date of this First Amendment, or (ii) under any lease
executed after the date of this First Amendment with regard to space for
which Lessee's right of first refusal terminated in accordance with the
provisions of Paragraph 8 (c) hereinabove.
9. BROKERAGE. Lessor and Lessee each warrants to the other that it has not
dealt with any broker or agent in connection with the negotiation or
execution of this First Amendment to Lease other than CB Richard Ellis
pursuant to a separate agreement. Lessee shall indemnify Lessor against
all costs, expenses, attorney's fees, and other liability for
commissions or other compensation claimed by any broker or agent
claiming the same by, through, or under Lessee.
10. RATIFICATION; DEFINITION OF TERMS. Lessee hereby ratifies and confirms
its obligations under the Lease and represents and warrants to Lessor
that it has no defenses thereto. Additionally, Lessee further confirms
and ratifies that, as extended hereby, (a) the Lease is and shall remain
in good standing and in full force and effect and (b) Lessee has no
claims, counterclaims, set-offs or defenses against Lessor arising out
of the Lease or in any way relating thereto or arising out of any other
transaction between Lessor or Lessee. Any terms not expressly herein
defined shall be given the meanings assigned to them in the Lease.
11. BINDING EFFECT; GOVERNING LAW. Except as expressly modified hereby, the
Lease shall govern Lessee's lease of the leased premises. This First
Amendment shall be binding upon Lessor and
<PAGE>
Page 5 of 5
Amendment to Lease Agreement
Lessee and their respective successors and assigns. If any inconsistency
exists or arises between the terms of and the terms of the Lease, the
terms of this First Amendment shall prevail. The laws of the State in
which the leased premises are located shall govern this First Amendment.
12. DELETED PROVISIONS. Any provisions of the Lease which were applicable to
Lessee's occupancy prior to the renewal of the term herein provided and
which were heretofore fully performed are hereby now deleted from the
Lease. Except as expressly modified hereinabove, all terms, conditions
and covenants of the Lease shall remain unchanged and in full force and
effect.
13. COUNTERPARTS. This First Amendment may be executed in multiple
counterparts, each of which shall constitute an original, but all of
which shall constitute one document.
EXECUTED as of the ______ day of ________________________, 2002
LESSOR: LESSEE:
CRESCENT FORUM PARTNERSHIP, THE RESTAURANT COMPANY,
an Arkansas general partnership a Delaware corporation
BY: Cooper Realty Investments,
Inc., an Arkansas corporation,
its managing partner
By: By:
----------------------------- --------------------------
Name: Name:
----------------------------- --------------------------
Title: Title:
----------------------------- --------------------------
<PAGE>
Page 6 of 6
Amendment to Lease Agreement
EXHIBIT A
PREMISES
<PAGE>
Page 7 of 7
Amendment to Lease Agreement
EXHIBIT B
PLANS
[NONE]
<PAGE>
Page 8 of 8
Amendment to Lease Agreement
EXHIBIT C
ROFR SPACE
[NONE]
<PAGE>
Page 9 of 9
Amendment to Lease Agreement
EXHIBIT D
OFFER NOTICE
[Insert Date of Notice]
BY TELECOPY AND FEDERAL EXPRESS
[TENANT'S ADDRESS]
---------------------------------
---------------------------------
---------------------------------
Re: Lease Agreement (the "Lease") dated _____________, 20___,
between Crescent Forum Partnership, an Arkansas general
partnership ("Landlord"), and _____________________, a
___________________ ("Tenant"). Capitalized terms used herein
but not defined shall be given the meanings assigned to them
in the Lease.
Ladies and Gentlemen:
Pursuant to the Right of First Refusal attached to the Lease, enclosed
please find an Offer Notice on Suite ______. The basic terms and conditions are
as follows:
LOCATION:
-------------------------------------------------
SIZE: rentable square feet
----------
BASIC RENT RATE: $______ per month
TERM:
-----------------------------------------------------
IMPROVEMENTS:
-------------------------------------------------
COMMENCEMENT:
-------------------------------------------------
PARKING TERMS:
-------------------------------------------------
OTHER MATERIAL TERMS:
-------------------------------------------------
Under the terms of the Right of First Refusal, you must exercise your
rights, if at all, as to the ROFR Space on the depiction attached to this Offer
Notice within ______ (____) days after Landlord delivers such Offer Notice.
Accordingly, you have until 5:00 p.m. local time on _______________, [20___] to
exercise your rights under the Right of First Refusal and accept the terms as
contained herein, failing which your rights under the Right of First Refusal
shall terminate and Landlord shall be free to lease the ROFR Space to any third
party. If possible, any earlier response would be appreciated. Please note that
your acceptance of this Offer Notice shall be irrevocable and may not be
rescinded.
Upon receipt of your acceptance herein, Landlord and Tenant shall
execute an amendment to the Lease memorializing the terms of this Offer Notice
including the inclusion of the ROFR Space in the Premises; provided, however,
that the failure by Landlord and Tenant to execute such amendment shall not
affect the inclusion of such ROFR Space in the Premises in accordance with this
Offer Notice.
THE FAILURE TO ACCEPT THIS OFFER NOTICE BY (1) DESIGNATING THE
"ACCEPTED" BOX, AND (2) EXECUTING AND RETURNING THIS OFFER NOTICE TO LANDLORD
WITHOUT MODIFICATION WITHIN SUCH TIME PERIOD SHALL BE DEEMED A WAIVER OF
TENANT'S RIGHTS UNDER THE RIGHT OF FIRST REFUSAL, AND TENANT SHALL HAVE NO
FURTHER RIGHTS TO THE ROFR SPACE. THE FAILURE TO EXECUTE
<PAGE>
Page 10 of 10
Amendment to Lease Agreement
THIS LETTER WITHIN SUCH TIME PERIOD SHALL BE DEEMED A WAIVER OF THIS OFFER
NOTICE.
Should you have any questions, do not hesitate to call.
Sincerely,
--------------------------------
--------------------------------
--------------------------------
[please check appropriate box]
ACCEPTED
------
REJECTED
------
[TENANT'S SIGNATURE BLOCK]
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Date:
--------------------------------------------
Enclosure [attach depiction of ROFR Space]