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Exhibit 10.1.2
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment"), made and entered
into as of the _____ day of July, 2000, by and between CONCOURSE I, LTD., a
Georgia limited partnership ("Landlord"), and SIMMONS COMPANY, a Delaware
corporation ("Tenant");
W I T N E S S E T H T H A T:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
(the "Lease") dated April 20, 2000 (the "Effective Date"), for certain premises
in the building located at One Concourse Parkway, Atlanta, Georgia 30328 (the
"Building"), consisting of approximately 43,080 rentable square feet of space
(the "Premises");
WHEREAS, Landlord and Tenant agree to expand the size of the Premises
and evidence such expansion by means of this Amendment;
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the Lease is hereby amended and
the parties hereto do hereby agree as follows:
1. EXPANSION OF PREMISES. Tenant shall lease from Landlord an
additional 5,965 rentable square feet of space on the 7th
floor of the Building, as shown on EXHIBIT "A" attached
hereto and by this reference made a part hereof ("Expansion
Space"), increasing the rentable square feet of the portion
of the Premises on the seventh floor to 11,685, and the total
rentable square feet of space in the Premises to 49,045. The
foregoing expansion shall be effective on the Effective Date.
Tenant's Share shall be increased to reflect such expansion.
2. PART OF PREMISES. As of the Effective Date, the Expansion
Space shall be part of the Premises for all purposes under
the Lease, including, without limitation, for purposes of the
Commencement Date and delivery of the Premises.
3. RENAMING SEVENTH FLOOR PREMISES. The parties hereto agree
that notwithstanding anything set forth in this Lease to the
contrary, the portion of the Premises located on the seventh
(7th) floor of the Building shall be renamed and shall
hereinafter be known as "Suite 770." Tenant's remaining
Premises shall continue to be referenced as set forth in the
Lease.
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4. RENT. Annual Rent and Monthly Rent are hereby adjusted as follows:
Monthly Rental
Lease Per Rentable
Year Sq. Foot Annual Rental Monthly Rental
---- -------- ------------- --------------
1 $21.50 $1,054,467.50 $87,872.29
2 $22.50 1,103,512.50 91,959.38
3 $23.50 1,152,557.50 96,046.46
4 $24.58 1,205,526.10 100,460.51
5 $25.71 1,260,946.95 105,078.91
6 $26.89 1,318,820.05 109,901.67
7 $28.13 1,379,635.85 114,969.65
8 $29.42 1,442,903.90 120,241.99
9 $30.78 1,509,605.10 125,800.43
10 $32.19 1,578,758.55 131,563.21
11 $33.67 1,651,345.15 137,612.10
5. RIGHT OF FIRST REFUSAL. Tenant acknowledges and agrees that it was
offered approximately 8,239 rentable square feet of the First Offer
Space ("Offered Space") by Landlord, and that it elected to take only
that portion of the Offered Space which represents the Expansion
Space, therefore, Landlord shall have the right to lease the remainder
of the Offered Space to any third party in accordance with the
provisions of Special Stipulation 1, subsection (iii) of the Lease.
6. CONSTRUCTION SCHEDULE FOR PREMISES. The following shall be substituted
for Subparagraphs 1 - 9 of Section 2.01 of EXHIBIT "C" to the Lease:
"1. On or before July 19, 2000, Tenant's Architect shall have
submitted to the applicable governmental authorities for
permitting preliminary the Tenant Improvement Construction
Documents which were prepared for pricing the Tenant
Improvements.
2. On or before July 19, 2000, Tenant's Architect shall have
submitted to Landlord the final Tenant Space Plans in the
form approved by Landlord.
3. On or before July 26, 2000, Tenant's Architect shall prepare
and deliver to Landlord the prepared Tenant Improvement
Construction Documents.
4. By the end of the second (2nd) full Working Day after receipt
of the Tenant Improvement Construction Documents, Landlord
shall review and resubmit the same to Tenant's Architect,
either with Landlord's consent or comments thereto.
5. By the end of the second (2nd) full Working Day after receipt
of Landlord's comments to the Tenant Improvement Construction
Documents, Tenant's
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Architect shall resubmit to Landlord the Tenant Improvement
Construction Documents with such changes or information as
requested by Landlord.
6. The process described in Section 2.01(4) and (5) shall
continue until final approval by Landlord and Tenant and such
documents shall constitute the final Tenant Improvement
Construction Documents.
7. Any approval or consent by Landlord of any items submitted by
Tenant to and/or reviewed by Landlord pursuant to this Work
Letter shall be deemed to be strictly limited to an
acknowledgment of approval or consent by Landlord thereto and
shall not imply or be deemed to imply any representation or
warranty by Landlord that the design is safe or structurally
sound or will comply with any legal or governmental
requirements. Any deficiency, mistake or error in design
(expressly excluding the engineering drawings), although the
same has the consent or approval of Landlord, shall be the
sole responsibility of Tenant, and Tenant shall be liable for
all costs and expenses which may be incurred and all delays
suffered in connection with or resulting from any such
deficiency, mistake or error in design."
7. BROKERS. Tenant represents and warrants to Landlord that neither it
nor its officers or agents nor anyone acting on its behalf has dealt
with any real estate broker other than Hines Properties, Inc. who
represented Landlord, and Julien J. Studley, Inc. who represented
Tenant in the negotiating or making of this Amendment, and Tenant
agrees to indemnify and hold Landlord, its agents, employees,
partners, directors, shareholders and independent contractors harmless
from all liabilities, costs, demands, judgments, settlements, claims,
and losses, including reasonable attorneys' fees and costs, incurred
by Landlord in conjunction with any such claim or claims of any other
broker or brokers claiming to have interested Tenant in the Building
or Premises or claiming to have caused Tenant to enter into this
Amendment.
8. NO DEFAULT. Tenant hereby agrees that there are, as of the date
hereof, regardless of the giving of notice or the passage of time, or
both, no defaults or breaches on the part of Landlord or Tenant under
the Lease.
9. CAPITALIZED TERMS. All capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Lease.
10. ENTIRE AGREEMENT. This Amendment represents the entire agreement
between the parties hereto. Landlord and Tenant agree that there are
no collateral or oral agreements or understandings between them with
respect to the Premises or the Building. This Amendment supersedes all
prior negotiations, agreements, letters or other statements with
respect to Tenant's expansion and renewal of the Premises.
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EXCEPT AS expressly amended and modified hereby, the Lease shall
otherwise remain in full force and effect, the parties hereto hereby ratifying
and confirming the same. To the extent of any inconsistency between the Lease
and this Amendment, the terms of this Amendment shall control.
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IN WITNESS WHEREOF, the undersigned parties have duly executed this
Amendment as of the day and year first above written.
TENANT: LANDLORD:
SIMMONS COMPANY, CONCOURSE I, LTD., a Georgia limited
a Delaware corporation partnership
By: /s/ William S. Creekmuir
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Name: William S. Creekmuir
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Title: Executive Vice President & CFO
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By: National Office Partners Limited Partnership,
a Texas limited partnership, as agent and
authorized representative for CALPERS, as the
sole general partner of Concourse II, Ltd.
By: Hines Fund Management, L.L.C., a
Delaware limited ability company,
general partner
By: Hines Interest Limited
Partnership, a Delaware
limited partnership
By: Hines Holdings, Inc., a Texas
corporation, its general
partner
By: /s/ Daniel MacEachron
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Name: Daniel MacEachron
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Its: Vice President
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EXHIBIT "A"
SUITE 770, AS EXPANDED
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[To be provided by Management Company]
