FIRST AMENDMENT TO THE LEASE AGREEMENT

EX-10.1 3 g85911exv10w1.txt FIRST AMENDMENT TO THE LEASE AGREEMENT EXHIBIT 10.1 FIRST AMENDMENT TO LEASE THIS FIRST AMENDMENT TO LEASE (this "AMENDMENT") is made as of the 14th day of July, 2003, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation, on behalf of a commingled separate account ("LANDLORD"), and GLOBAL PREFERRED HOLDINGS, INC., a Delaware corporation ("TENANT"). WITNESSETH: WHEREAS, Landlord and Tenant entered into that certain lease dated September 4, 2002 (the "Lease") for certain premises in the building located at 6455 East Johns Crossing, Duluth, Georgia 30097 (the "Building"), consisting of approximately 6,162 rentable square feet of space (the "Premises"); WHEREAS, Tenant desires and Landlord agrees to extend the Initial Term of the Lease; and WHEREAS, Landlord and Tenant desire to evidence the term of such extension and to amend certain other terms and conditions of the Lease and evidence their agreements and other matters by means of this Amendment; NOW, THEREFORE, in consideration of the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant hereby amend the Lease as follows: 1. DEFINITIONS. Unless the context otherwise requires, any capitalized term used herein shall have its respective meaning as set forth in the Lease. 2. INTEGRATION OF AMENDMENT AND LEASE. This Amendment and the Lease shall be deemed to be, for all purposes, one instrument. In the event of any conflict between the terms and provisions of this Amendment and the terms and provisions of the Lease, the terms and provisions of this Amendment shall, in all instances, control and prevail. 3. EXTENSION OF INITIAL TERM. The Initial Term of the Lease (as defined in Article 1 thereof) is hereby extended for a period of twelve (12) months (the "Extension Period") commencing October 14, 2003 (the "Extension Commencement Date"), and ending October 13, 2004, unless sooner terminated or extended in accordance with the terms of the Lease as amended hereby. 4. CERTAIN DEFINED TERMS. For purposes of the Lease as amended by this Amendment: (i) the Initial Term of the Lease (as defined in Article 1 and as described in Section 2.2(a) of the Lease) shall mean that period commencing on October 14, 2002 and continuing through October 13, 2004 and (ii) the Extended Term of the Lease (as defined in Article 1 and as described in Section 2.2(a) of the Lease) shall mean the thirty-nine (39) months following the Initial Term (as such Initial Term is amended herein) and shall expire on January 13, 2008. 5. FIXED RENT. Effective as of the Extension Commencement Date, Fixed Rent for the Premises shall be $10,181.43 per month, $122,177.16 per annum for the Extension Period. Fixed Rent shall be payable in accordance with the provisions of Section 2 of the Lease. In Article I of the Lease those certain sections defined as "Fixed Rent" and "Monthly Fixed Rent" shall be deleted in their entirety and replaced with the following: FIXED RENT: Initial Term: Months 1 - 12 - $118,618.56 per annum Months 13 - 24 - $122,177.16 per annum Extended Term: Months 25 - 36 - $125,842.44 per annum* Months 37 - 48 - $129,617.76 per annum Months 49 - 60 - $133,506.24 per annum Months 61 - 63 - $137,511.48 per annum MONTHLY FIXED RENT: Initial Term: Months 1 - 12 - $9,884.88 per month Months 13 - 24 - $10,181.43 per month Extended Term: Months 25 - 36 - $10,486.87 per month* Months 37 - 48 - $10,801.48 per month Months 49 - 60 - $11,125.52 per month Months 61 - 63 - $11,459.29 per month *Fixed Rent for the first three (3) months of the Extended Term shall be abated. 6. CONDITION OF PREMISES; LANDLORD'S ADDITIONAL WORK. Tenant is in possession of the Premises and accepts the same "as is". No agreement of Landlord to alter, remodel, decorate, clean or improve the Premises or the Building (or to provide Tenant with any credit or allowance for the same), and no representation regarding the condition of the Premises or the Building, have been made by or on behalf of Landlord or relied upon by Tenant, except as otherwise expressly provided with respect to Landlord's Additional Work as described in Section 5.1(d) of the Lease. The parties agree that the reference to "December 1, 2003" in the last -2- sentence of Section 5.1(d) of the Lease shall be revised to read: "the forty-fifth (45th) calendar day of the Extended Term." 7. BROKERS. Landlord and Tenant each warrant to the other that it has had no dealings with any broker, agent or any other person in connection with the negotiation or execution of this Amendment other than Technology Park/Atlanta, Inc. and The Miller Group, LLC. Landlord and Tenant each agree to indemnify and hold harmless the other party from and against any and all cost, expense, or liability for commissions or other compensation and charges claimed by any broker or agent (other than the broker(s) identified in the foregoing sentence) with respect to this Amendment on account of the indemnifying party's acts. 8. TENANT REPRESENTATIONS. Tenant represents and warrants to Landlord that (a) Tenant is not in default under any of the terms and provisions of the Lease, (b) to Tenant's actual knowledge, Landlord is not in default in the performance of any of its obligations under the Lease, and (c) Tenant is unaware of any condition or circumstance which, with the giving of notice or the passage of time or both, would constitute a default by Landlord under the Lease. Tenant further acknowledges that Tenant has no defense, offset, lien, claim or counterclaim against Landlord under the Lease or against the obligations of Tenant under the Lease (including, without limitation, any rentals or other charges due or to become due under the Lease). 9. LEASE IN FULL FORCE AND EFFECT. Except as expressly provided herein, all of the terms and provisions of the Lease shall remain in full force and effect. Without limiting the generality or the effect of the foregoing, Tenant acknowledges that Landlord's liability under the Lease, as amended hereby, is limited as provided under Section 24.10 of the Lease. This Amendment shall not be valid and binding on Landlord and Tenant unless and until it has been completely executed by and delivered to both parties. -3- This Amendment is executed by the undersigned as of the date first above written. LANDLORD TENANT METROPOLITAN LIFE INSURANCE GLOBAL PREFERRED HOLDINGS, INC., COMPANY (on behalf of a commingled a Delaware corporation separate account) By: SSR REALTY ADVISORS, INC., its investment advisor By: /s/ Edward F. McKernan ----------------------- By: /s/ John F. Loehr Name: Edward F. McKernan -------------------------- Title: President & CEO Name: John F. Loehr -------------------------- Title: Managing Director -4-