THIRD AMENDMENT TO OFFICE BUILDING LEASE
THIRD
AMENDMENT TO OFFICE BUILDING LEASE
THIS
THIRD AMENDMENT TO OFFICE BUILDING LEASE (“Third
Amendment”) is made this 24th day of March, 2005, by and between
PRIM
ROCKVILLE PIKE, LLC, a
Delaware limited liability company (“Landlord”) and XXXXX
ONLINE, INC., a
Delaware corporation (“Tenant”).
W
I T N E S S E T H :
WHEREAS, 11200
RP Associates L.P., Landlord's predecessor in interest, and Financial Insight
Systems, Inc., Tenant’s predecessor in interest, entered into that certain
Office Building Lease dated July 1, 1998, (the “Lease”) as amended by that
certain First Amendment to Lease dated September 24, 1998 (the “First
Amendment”), and as further amended by that certain Second Amendment to Office
Building Lease dated August 11, 2000 (the “Second Amendment”), (the Lease, First
Amendment, and Second Amendment are herein referred to collectively as the
“Original Lease”), pursuant to which Tenant leased that certain premises on the
third (3rd) floor of the building located at 00000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxx (the “Building”), said premises consisting of Suite 310 (containing Ten
Thousand Four Hundred Fourteen (10,414) rentable square feet (the “Suite 310
Premises”)) and Suite 330 (containing Three Thousand Seven Hundred Eighty
(3,780) rentable square feet (the “Suite 330 Premises”)) containing in the
aggregate Fourteen Thousand One Hundred Ninety-Four (14,194) rentable square
feet (the Suite 310 Premises and the Suite 330 Premises are referred to
collectively herein as the “Premises”);
WHEREAS, the
Term of the Lease expires September 30, 2005; and
WHEREAS,
Landlord and Tenant desire to amend the Lease to (i) extend the Term of the
Lease, and (ii) amend certain other terms and conditions of the Lease as herein
provided.
NOW,
THEREFORE, in
consideration of the premises and mutual covenants and agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree
to the following:
1. Recitals. The recitals set forth
above are incorporated herein by this reference with the same force and effect
as if fully set forth hereinafter.
2. Capitalized
Terms. Capitalized terms not
otherwise defined herein shall have the meaning ascribed to them in the Lease.
From and after the date hereof, the Lease and this Third Amendment shall be
known collectively as the “Lease”.
3. Landlord
and Tenant.
a. All
references in the Lease to either of 11200 RP Associates L.P. or OTR, an Ohio
general partnership, the duly authorized nominee of the State Teachers’
Retirement System of Ohio, as Landlord, shall instead apply to PRIM Rockville
Pike, LLC, which acquired the Building.
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b. All
references in the Lease to Financial Insight Systems, Inc., as Tenant, shall
instead apply to XXXXX Online, Inc., which acquired Financial Insight Systems,
Inc.
4. Renewal
Term. The Term of the Lease is
hereby extended for approximately nine (9) years and eleven (11) months beyond
September 30, 2005 (the currently scheduled expiration date of the Term), and
shall instead expire on August 31, 2015, unless sooner terminated in accordance
with the terms of the Lease or hereof. The period from January 1, 2005 (the
“Early Renewal Date”) throughout the Term (as hereby amended), inclusively, is
herein referred to as the “Renewal Term.” Effective as of the date hereof,
Sections 4.10, 4.11 and 7.03 of the Lease are deleted in their entirety, and of
no further force or effect.
5. Base
Rent.
a. Notwithstanding
anything to the contrary contained in the Lease, from the Early Renewal Date and
thereafter throughout the Renewal Term Tenant shall pay Base Annual Rent with
respect to the Premises in equal monthly installments in accordance with Section
1.04 of the Lease in accordance with the following schedule:
|
Period
|
Annual
Base Rent
|
Monthly
Base Rent
|
|||||
|
01/01/05
- 12/31/05 |
$ |
382,968.00 |
$ |
31,914.00 |
|||
|
01/01/06
- 12/31/06 |
$ |
392,542.20 |
$ |
32,711.85 |
|||
|
01/01/07
- 12/31/07 |
$ |
402,355.80 |
$ |
33,529.65 |
|||
|
01/01/08
- 12/31/08 |
$ |
412,414.68 |
$ |
34,367.89 |
|||
|
01/01/09
- 12/31/09 |
$ |
422,725.08 |
$ |
35,227.09 |
|||
|
01/01/10
- 12/31/10 |
$ |
433,293.24 |
$ |
36,107.77 |
|||
|
01/01/11
- 12/31/11 |
$ |
444,125.52 |
$ |
37,010.46 |
|||
|
01/01/12
- 12/31/12 |
$ |
455,228.64 |
$ |
37,935.72 |
|||
|
01/01/13
- 12/31/13 |
$ |
466,609.32 |
$ |
38,884.11 |
|||
|
01/01/14
- 12/31/14 |
$ |
478,274.52 |
$ |
39,856.21 |
|||
|
01/01/15
- 08/31/15 |
$ |
490,231.44* |
$ |
40,852.62 |
|||
*annualized
rate
b. Notwithstanding
the foregoing, (i) Base Rent and Parking Charges (as defined in Paragraph 6(b)
of this Third Amendment) for the month of July, 2005, and (ii) one-half of the
Base Rent and one-half of the Parking Charges for the months of August,
September, October and November, 2005 shall be abated (collectively, the "Rent
Abatement"). No other amounts due to Landlord under this Lease other than the
Base Rent and Parking Charges referenced above shall be abated, except as
expressly provided herein. In the event Tenant defaults hereunder and fails to
cure such default within any applicable notice or cure period, Tenant shall not
be entitled to any further abatement of Base Rent and Parking Charges and all
Base Rent and Parking Charges previously abated shall be immediately paid by
Tenant to Landlord.
c. Upon
Execution of this Third Amendment, Tenant shall deliver to Landlord the sum of
Thirty-One Thousand Nine Hundred Fourteen and 00/100 Dollars ($31,914.00), which
amount shall be applied to the installment of monthly Base Rent payable with
respect to the month of January, 2005.
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6. Parking.
a. As of the
Early Renewal Date, Section 4.01(A) of the Lease is deleted in its entirety and
the following new Section 4.01(A) is substitute in place thereof:
“(A) During
the Renewal Term and subject to the rules and regulations attached to the Lease
as Exhibit D, as modified by Landlord from time to time (the "Rules"), Tenant
shall be entitled to use the number of parking spaces set forth in Section
1.01(I) in the parking facility of the Project (the “Parking Facilities”) at the
monthly rate applicable from time to time for monthly parking as set by Landlord
and/or its licensee (collectively, the “Parking Rights”). As of the date hereof,
the parking rate for such unreserved spaces is Seventy and 00/100 Dollars
($70.00) per month per space. Landlord may, in its sole discretion, assign
tandem parking spaces to Tenant and designate the location of any reserved
parking spaces. For purposes of this Lease, a “parking space” refers to the
space in which one (1) motor vehicle is intended to park (e.g., a
tandem parking stall includes two tandem parking spaces). Landlord reserves the
right at any time to relocate Tenant's reserved and unreserved parking spaces.
If Tenant commits or allows in the parking facility any of the activities
prohibited by the Lease or the Rules, then Landlord shall have the right,
without notice, in addition to such other rights and remedies that it may have,
to remove or tow away the vehicle involved and charge the cost to Tenant, which
cost shall be immediately payable by Tenant upon demand by Landlord. Tenant's
parking rights are the personal rights of Tenant and Tenant shall not transfer,
assign, or otherwise convey its parking rights separate and apart from this
Lease. The
monthly parking rate per parking space is subject to change by Landlord, in
Landlord‘s sole discretion, upon five (5) days' prior written notice to Tenant.
Monthly parking fees (in the aggregate with respect to Tenant’s parking spaces,
the “Parking Charges”) shall be payable in advance prior to the first day of
each calendar month. Visitor parking rates shall be determined by Landlord from
time to time in Landlord's sole discretion. The parking rates charged to Tenant
or Tenant’s visitors may not be the lowest parking rates charged by Landlord for
the use of the parking facility. Notwithstanding anything to the contrary
contained herein, any tax imposed on the privilege of occupying space in the
parking facility, upon the revenues received by Landlord from the parking
facility or upon the charges paid for the privilege of using the parking
facility by any governmental or quasi-governmental entity may be added by
Landlord to the monthly parking charges paid by Tenant at any time, or Landlord
may require Tenant and other persons using the parking facility to pay said
amounts directly to the taxing authority. Notwithstanding the foregoing, the
monthly parking rates hereinabove described shall not increase in excess of five
percent (5%) per year (on a cumulative basis) during the Renewal
Term.
b. As of the
Early Renewal Date, Section 1.01(I) of the Lease is deleted in its entirety, and
the following new Section 1.01(I) is inserted in place thereof:
“(I)
“Parking Spaces” shall mean 2.5 parking spaces in the parking facility from time
to time serving the Building for each 1,000 rentable square feet contained in
the Premises, for use on an unreserved basis in common with other tenants of the
Building.”
c. Notwithstanding
the foregoing and anything to the contrary set forth in the Lease, provided that
(i) Tenant is not in default beyond any applicable notice and cure period, and
(ii) Tenant is then leasing and occupying not less than Fourteen Thousand One
Hundred Ninety-Four (14,194) rentable square feet of space in the Building,
Tenant shall be entitled to the use (on an unreserved basis in common with other
tenants of the Building, and otherwise in accordance with Section 4.01 of the
Lease) Forty-Five (45) parking spaces in the parking facility from time to time
serving the Building.
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7. Operating
Expenses.
a. As of the
Early Renewal Date, the first full sentence of Section 3.01 of the Lease is
deleted in its entirety, and the following sentence inserted in lieu
thereof:
“The term
“Base Operating Year” shall mean calendar year 2005.”
b. As of the
Early Renewal Date, the last sentence of Section 3.02 of the Lease is deleted in
its entirety, and the following new sentence is inserted in place thereof:
“Notwithstanding
the foregoing, Tenant shall have no obligation to make any Operating Payment
with respect to the period from January 1, 2005 through December 31,
2005.”
c. As of the
Early Renewal Date, the following new Section 3.05 is added to the
Lease:
“3.05 Controllable Operating
Expense Cap. Notwithstanding
anything to the contrary in this Section 3, Tenant shall not be obligated to pay
to Landlord its Pro Rata
Share of
increases in Operating
Expenses for the property to the
extent that such increases exceed six percent (6%) of the previous calendar
year's Operating
Expenses for the property
provided, however, that there shall be no limitation on the payment by Tenant of
increases in such expenses that cannot be controlled by Landlord (e.g., utility
costs, insurance costs, real property tax increases and any other costs that are
beyond Landlord's reasonable control). The foregoing limitations shall be
applied separately during each year of the Lease Term. If such expenses have
increased by more than six percent (6%) in a previous calendar year and by less
than six percent (6%) in a subsequent calendar year, Landlord shall have the
right to pass through to Tenant the increase Landlord was unable to pass through
in the previous calendar year in the subsequent calendar year provided that
Landlord does not exceed in any year a maximum increase of six percent (6%). For
example, assume that such expenses, other than utilities, insurance, taxes and
any other costs beyond the reasonable control of Landlord (the "Controllable
Expenses") for the calendar year 2006 increased by ten percent (10%). Assume
further that said Controllable Expenses in the calendar year 2007 increased by
one percent (1%). In this event, Tenant's Share of Controllable Expenses
increases could be increased by six percent (6%) in 2006 and by five percent
(5%) in 2007.”
8. Security
Deposit.
a. Landlord
hereby acknowledges that it currently holds Irrevocable Letter Of Credit No. 290
issued by Potomac Valley Bank (the "Security Deposit Letter of Credit")
delivered to Landlord by Tenant pursuant to the terms of the Lease. The parties
hereto agree that upon full execution hereof, Landlord will promptly return the
Security Deposit Letter of Credit to Tenant. From and after the date of full
execution hereof, any reference in the Lease to the Security Deposit shall mean
the Security Deposit described in subparagraph 8(c), below.
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b. Upon
Tenant's execution of this Third Amendment, Tenant shall deposit with Landlord
the sum of Thirty-One Thousand Nine Hundred Fourteen and 00/100 Dollars
($31,914.00) as security for Tenant's faithful performance of Tenant's
obligations as security for the full and timely payment and performance of the
Tenant’s obligations under the Lease pursuant to Section 1.01(N) of the Lease
(as amended hereby).
c. As of the
date Tenant deposits the Thirty-One Thousand Nine Hundred Fourteen and 00/100
Dollars ($31,914.00) with Landlord, Section 1.01(N) of the Lease shall be
deleted in its entirety, and the following new Section 1.01(N) shall be inserted
in place thereof:
“(N)
“Security Deposit” shall mean the amount of Thirty-One Thousand Nine Hundred
Fourteen and 00/100 Dollars ($31,914.00).”
d. As of the
date hereof, Section 4.08 of the Lease is deleted in its entirety and the
following new Section 4.08 inserted in place thereof:
“Section
4.08 Security
Deposit. Tenant
shall deliver to Landlord at the time it executes this Lease the Security
Deposit set forth in Section 1.01(N) as security for Tenant's faithful
performance of Tenant's obligations hereunder. If Tenant fails to pay Base Rent
or other charges due hereunder, or otherwise defaults with respect to any
provision of this Lease, Landlord may use all or any portion of said deposit for
the payment of any Base Rent or other charge due hereunder, to pay any other sum
to which Landlord may become obligated by reason of Tenant's default, or to
compensate Landlord for any loss or damage which Landlord may suffer thereby. If
Landlord so uses or applies all or any portion of said deposit, Tenant shall
within ten (10) days after written demand therefor deposit cash with Landlord in
an amount sufficient to restore said deposit to its full amount. Landlord shall
not be required to keep said Security Deposit separate from its general
accounts. If Tenant performs all of Tenant's obligations hereunder, said
deposit, or so much thereof as has not heretofore been applied by Landlord,
shall be returned, without payment of interest or other amount for its use, to
Tenant (or, at Landlord's option, to the last assignee, if any, of Tenant's
interest hereunder) at the expiration of the Term hereof, and after Tenant has
vacated the Premises. No trust relationship is created herein between Landlord
and Tenant with
respect to said Security Deposit. Tenant acknowledges that the Security Deposit
is not an advance payment of any kind or a measure of Landlord's damages in the
event of Tenant's default. Tenant hereby waives the provisions of any law which
is inconsistent with this Section 4.08.”
9. Tenant
Improvements; Alterations.
a. Tenant
hereby acknowledges that Landlord has met all of its obligations, if any, to
construct tenant improvements for the Premises pursuant to the Lease. Landlord
shall have no obligation to construct any tenant improvements to the Premises on
behalf of Tenant during the Extended Term.
b. Tenant
shall refurbish the Premises (hereinafter referred to as "Refurbishments") in
accordance with the plans to be prepared by Tenant and reasonably approved in
final form by Landlord. The Refurbishments shall include, without limitation,
repainting the Premises and installing new carpet throughout the Premises. In
connection thereto, Landlord hereby grants to Tenant a "Refurbishment Allowance"
of up to Ten
and No/100 Dollars ($10.00) per square foot of space in the Premises
(i.e., 14,194
square feet multiplied by $10.00 = $141,940.00), which Refurbishment Allowance
shall be used only in connection with the cost of the Refurbishments.
The
Refurbishments shall be made and
done in a good and workmanlike manner and with new materials satisfactory to
Landlord by a contractor reasonably approved by Landlord in compliance with all
of the terms and conditions of the Lease, and such Refurbishments shall be the
property of Landlord and remain upon and be surrendered with the Premises at the
expiration of the Term of the Lease; provided, however, at the expiration of the
Term, Landlord may require the removal of any Refurbishment installed by Tenant
and the restoration of the Premises and the Project to their prior condition, at
Tenant's expense.
D-5
c. The
Refurbishment Allowance shall be disbursed to Tenant not more frequently than
once per month based on disbursement requests submitted by Tenant to Landlord
and certified by Tenant's architect. Such disbursement request shall set forth
the total amount incurred, expended and/or due for each requested item less
prior disbursements and a description of the work performed, and materials
supplied and/or costs incurred or due with respect to each item for which
disbursement is requested. Each such disbursement request shall be accompanied
by invoices, vouchers, statements, affidavits, payroll records and/or other
documents reasonably requested by Landlord, which substantiate costs incurred to
justify such a disbursement, together with lien waivers for those contractors
and materialmen providing construction services or materials. In addition, the
disbursement shall be subject to inspection and approval of completed work by
Landlord's construction engineer. In the event that the cost of the
Refurbishments shall exceed Ten and No/100 Dollars ($10.00) per square foot of
space in the Premises (i.e., 14,194
square feet multiplied by $10.00 = $141,940.00), then the cost of the
Refurbishments shall include a construction supervisory fee equal to one percent
(1%) of the hard cost of the Refurbishments payable to Landlord for the
supervision of the construction of the Refurbishments; otherwise, no
construction supervisory fee shall be payable in connection with the
Refurbishments. In the event the cost of the Refurbishments exceeds the
Refurbishment Allowance, Tenant shall pay from another source of funds the
amount by which the cost of the Refurbishments exceeds the Refurbishment
Allowance prior to any disbursement of the Refurbishment Allowance by Landlord.
In the event the actual cost of the Refurbishments is less than the
Refurbishment Allowance, then the unused portion of the Refurbishment Allowance
shall not be paid or refunded to Tenant, but shall be available to Tenant as a
credit against the next (following completion of the Refurbishments, if any)
installments of Base Rent payable hereunder. The Refurbishment Allowance must be
expended by Tenant on or before December 31, 2007. If the Refurbishment
Allowance is not expended on or before December 31, 2007, the Refurbishment
Allowance shall no longer be available to Tenant and Landlord shall have no
further obligation to provide such Refurbishment Allowance to Tenant, provided,
however, that at any time prior to December 31, 2007, and after Tenant has (i)
completed the painting and carpet installation described in Section 9(b), above,
and (ii) expended from the Refurbishment Allowance a minimum of Four and No/100
Dollars ($4.00) per square foot of space in the Premises (i.e., 14,194
square feet multiplied by $4.00 = $42,582.00) on the Refurbishments (which
expenditure may include the foregoing paint and carpet installation), Tenant may
elect to apply any remaining unused portion of the Refurbishment Allowance as a
credit against installments of Base Rent next payable hereunder.
d. Notwithstanding
anything to the contrary set forth in Section 2.03 of the Lease, Tenant shall
not be required to remove any Alterations at the expiration or sooner
termination of the Term; provided, however, that Tenant may remove the
Alterations to the extent that the same can be removed without causing material
damage, and provided further that Tenant shall restore the Premises to their
prior condition at Tenant’s sole expense.
D-6
e. To the
extent that the Landlord receives any notice from a governmental entity that the
third floor common area of the Building is in violation of any requirement of
the Americans with Disabilities Act ("ADA") and the Landlord is obligated
pursuant to a final determination to undertake action in order to comply with
ADA, then in such event Landlord agrees to undertake such remedial action. If
such requirement was in effect as of the date hereof and such violation existed
as of the date hereof, Landlord shall be responsible for the cost of curing such
violation. If such requirement was not in effect as of the date hereof or such
violation did not exist as of the date hereof, then the cost of curing such
violation shall be included in Operating Expenses. To the extent that such
notice requires action with regard to Tenant's particular use of the Premises,
Tenant shall be obligated to undertake such action at Tenant's sole cost and
expense. Tenant shall be solely responsible, at Tenant's sole cost and expense,
for complying with all requirements of the ADA which relate to the interior of
the Premises.
f. If
Landlord fails to respond in writing to Tenant's proper written request for
Landlord's approval of any proposed Refurbishments, or of any contractor (in
either case, a "First Request") within ten (10) days following Landlord's
receipt of the First Request, then Tenant shall send to Landlord a second
written request for Landlord's approval (the "Second Request") which such Second
Request shall contain a statement in bold letters of a large font at the top
such document stating that "Landlord's failure to respond to this document
within five (5) business days will constitute Landlord's deemed approval of the
Alterations [or contractor] requested herein." If Landlord fails to respond to
the Second Notice within five (5) business days following Landlord's receipt of
the Second Notice, then such failure shall be deemed to constitute Landlord's
approval of the Alteration. The First
Request and the Second Request shall include, and Landlord's response period
contained in the foregoing sentences shall not commence, unless and until
Landlord has received from Tenant all of the information reasonably necessary
for the evaluation of Tenant’s written requests.
10. Signage. Landlord will provide, at
Landlord’s sole cost and expense, suite entry signage and Building directory
signage. The design, size, location and materials of such signage shall be in
accordance with Landlord's standard Building signage package. The cost of any
changes in the Building standard graphics on the door to the Premises or the
Building directory following their initial installation are subject to
Landlord's approval and shall be paid by Tenant, at Tenant's sole cost and
expense.
11. Access.
a. Subject
to the other terms and conditions of the Lease, Landlord shall provide Tenant
with reasonable access to the common areas of the Building and to the Premises
twenty-four (24) hours a day, three hundred sixty-five (365) days per year.
Notwithstanding the foregoing, Tenant acknowledges and agrees that repairs,
hazardous conditions and other circumstances beyond Landlord's control may
prevent access to the common areas of the Building and to the Premises from time
to time.
b. Landlord
shall maintain the current level of security at the Building existing as of the
date hereof. Additional keycards shall be provided to Tenant at Tenant’s
expense.
D-7
12. Option
to Terminate.
a. Provided
that Tenant is not in default at the time of Tenant's exercise of the Option
(defined hereinafter) or as of the Termination Date (as defined hereinafter),
Tenant shall have the option to terminate this Lease (the “Option”). The
termination date shall be either December 31, 2009, or December 31, 2011 (as the
case may be, the "Termination Date"). Tenant shall provide to Landlord not less
than two hundred seventy (270) days prior to the applicable Termination Date
(the "Notice Date"), a written notice of the exercise of the Option to terminate
the Lease, time being of the essence. Such notice shall be given in accordance
with Section 8.04 of the Lease, as hereby amended. If notification of the
exercise of the Option is not so given and received, the Option granted
hereunder shall automatically expire. As a condition to the effectiveness of
this Option, Tenant shall pay to Landlord an amount equal to one hundred percent
(100%) of all unamortized brokerage fees and tenant improvement costs as of the
Termination Date (the “Termination Payment”) (as detailed by Landlord in a
written statement), payable as follows: (i) fifty percent (50%) of the
Termination Payment shall be paid on the Notice Date, and (ii) the remaining
fifty percent (50%) of the Termination Payment shall be paid on or before the
Termination Date. The Termination Payment is in addition to payment by the
Tenant of all other amounts payable by Tenant to Landlord pursuant to the Lease
prior to the Termination Date.
b. The
Option granted to Tenant herein is personal to the original Tenant (which for
purposes of this Paragraph shall include any entity which owns Tenant or is the
purchaser in connection with the sale or transfer of substantially all of the
assets of the Tenant or the sale or transfer of substantially all of the
outstanding ownership interests in Tenant) and may
be exercised only by the original Tenant while occupying the entire Premises.
The Option is not assignable separate and apart from this Lease, nor may any
Option be separated from this Lease in any manner, either by reservation or
otherwise. If at any time an Option is exercisable by Tenant, the Lease has been
assigned, or a sublease exists as to any portion of the Premises, the Option
shall be deemed null and void and neither Tenant nor any assignee or subtenant
shall have the right to exercise the Option. Tenant shall have no right to
exercise the Option if Tenant is in default of any of the terms, covenants or
conditions of this Lease. The period of time within which the Option may be
exercised shall not be extended or enlarged by reason of Tenant's inability to
exercise the Option because Tenant is in default under the Lease.
13. Right
of First Offer. Provided
Tenant is not in default hereunder beyond any applicable cure periods at the
time of Tenant's exercise of the Expansion Option (as hereinafter defined) or at
the commencement of the Option term, and subject to Landlord's right to first
offer and lease any such space to any tenant who is then occupying or leasing
such space at the time the space becomes available for leasing and all other
options existing as of the date hereof held by tenants of the Building, Tenant
shall have the right of first offer (the “Expansion Option”) with respect to any
space on the third (3rd) floor
of the Building and which is vacant or becomes vacant and which is contiguous to
the Premises (the "Option Space"). Prior to leasing any of the Option Space,
Landlord shall give Tenant written notice of its intent to lease the Option
Space. Tenant may exercise such right only as to all of the Option Space
described in the Landlord's notice, and not to merely a part of such Option
Space. Tenant shall have ten (10) business days in which to provide Landlord
with written notice of its election to exercise such right. Such notice shall be
given in accordance with Section 8.04 of the Lease, as hereby amended. The Base
Rent payable for the Option Space shall be ninety-five percent (95%) of the Fair
Market Rental of the Option Space as of the commencement date of the Lease with
respect to the Option Space, and the Term of the Lease with respect to the
Option Space shall be coterminous with the Term of the Lease as to the Premises,
it being understood that the "Fair Market Rental" shall take into account the
length of the Option term. If the parties are unable to agree on "Fair Market
Rental", the provisions of Paragraph 14(b) of this Third Amendment shall apply.
If Tenant does not give Landlord written notice of its election to lease such
Option Space within the ten (10) business day period, Landlord shall thereafter
be free to lease such Option Space to a third party on any terms and conditions
that Landlord shall select, with no further obligation to Tenant. In the event
that Landlord offers any space to Tenant pursuant to this right of first offer,
and Tenant elects not to lease the space, the space so offered shall no longer
be subject to this right of first offer, and thereafter Landlord shall not be
obligated to offer said space to Tenant. Upon determination of the terms
applicable to the Option Space, the parties shall promptly execute an amendment
to this Lease stating the terms so determined.
D-8
14. Option
to Renew.
a. Provided
that Tenant is not in default beyond any applicable cure period at the time of
Tenant’s exercise of the Option or at the commencement of the applicable Option
term, Tenant shall have two (2) Options to renew the Lease (each an “Option
Period”) as follows: the “First Option Period” and the “Second Option Period”
shall each be for a period of five (5) years. Tenant shall provide to Landlord
on a date which is prior to the date that the applicable Option Period would
commence (if exercised) by at least one hundred eighty (180) days and not more
than two hundred seventy (270) days a written notice of the exercise of the
Option to extend the Lease for the additional Option Period, time being of the
essence. Such notice shall be given in accordance with Section 8.04 of the
Lease. If notification of the exercise of the Renewal Option is not so given and
received, the Renewal Options granted herein shall automatically expire. Base
Rent applicable to the Premises for each Option Period shall be equal to
ninety-five percent (95%) of the Fair Market Rental, as defined hereinafter. All
other terms and conditions of the Lease shall remain the same, except that upon
the exercise of the first Renewal Option, Tenant shall have only one (1)
remaining Renewal Option, and upon the exercise of the second Renewal Option,
Tenant shall have no further Renewal Options.
b. If the
Tenant exercises a Renewal Option, the Landlord shall determine the Fair Market
Rental for such Option Period by using its good faith judgment. Landlord shall
provide Tenant with written notice of such amount within fifteen (15) days after
Tenant exercises its Renewal Option. Tenant shall have thirty (30) days
("Tenant's Review Period") after receipt of Landlord's notice of the new base
rent within which to accept such rental. In the event Tenant fails to accept in
writing such rental proposal by Landlord, then such proposal shall be deemed
rejected and Landlord and Tenant shall attempt to agree upon such Fair Market
Rental, using their best good faith efforts. If Landlord and Tenant fail to
reach agreement within fifteen (15) days following Tenant's Review Period
("Outside Agreement Date") then the parties shall each within ten (10) days
following the Outside Agreement Date appoint a real estate broker who shall be
licensed in the state of Maryland and who specializes in the field of commercial
office space leasing in the Rockville, Maryland market, has at least ten (10)
years of experience and is recognized within the field as being reputable and
ethical. If one party does not timely appoint a broker, then the broker
appointed by the other party shall promptly appoint a broker for such party.
Such two individuals shall each determine within ten (10) days after their
appointment such base rent. If such individuals do not agree on base rent, then
the two individuals shall, within five (5) days, render separate written reports
of their determinations and together appoint a third similarly qualified
individual having the qualifications described above. If the two brokers are
unable to agree upon a third broker, the third broker shall be appointed by the
President of the Maryland Board of Realtors. In the event the Maryland Board of
Realtors is no longer in existence, the third broker shall be appointed by the
President of its successor organization. If no successor organization is in
existence, the third broker shall be appointed by the Chief Judge of the Circuit
Court of Xxxxxxxxxx County, Maryland. The third individual shall within ten (10)
days after his or her appointment make a determination of such base rent. The
third individual shall determine which of the determinations of the first two
individuals is closest to his own and the determination that is closest shall be
final and binding upon the parties, and such determination may be enforced in
any court of competent jurisdiction. Landlord and Tenant shall each bear the
cost of its broker and shall share equally the cost of the third broker. Upon
determination of the base rent payable pursuant to this Section, the parties
shall promptly execute an amendment to this Lease stating the rent so
determined.
D-9
c. The term
"Fair Market Rental" shall mean the annual amount per rentable square foot that
a willing, comparable renewal tenant would pay and a willing, comparable
landlord of a similar office building would accept at arm's length for similar
space, giving appropriate consideration to the following matters: (i) annual
rental rates per rentable square foot; (ii) the type of escalation clauses
(including, without limitation, operating expenses, real estate taxes, and CPI)
and the extent of liability under the escalation clauses (i.e., whether
determined on a "net lease" basis or by increases over a particular base year or
base dollar amount); (iii) rent abatement provisions reflecting free rent and/or
no rent during the lease term; (iv) length of lease term; (v) size and location
of premises being leased; and (vi) other generally applicable terms and
conditions of tenancy for similar space; provided, however, Tenant shall not be
entitled to any tenant improvement or refurbishment allowance (but any broker
retained by Tenant or Landlord pursuant to subparagraph (b) above shall be
entitled to consider typical tenant improvement allowances or refurbishment
allowances paid for similar space in connection with lease renewals in making
his determination of the Fair Market Rental). The Fair Market Rental may also
designate periodic rental increases, a new Base Year and similar economic
adjustments. The Fair Market Rental shall be the Fair Market Rental in effect as
of the beginning of the Option period, even though the determination may be made
in advance of that date, and the parties may use recent trends in rental rates
in determining the proper Fair Market Rental as of the beginning of the Option
period.
15. Notices.
a. Effective
as of the date hereof, Section 1.01(G) of the Lease is deleted in its entirety
and the following Section 1.01(G) is substituted in place thereof:
“(G)
“Landlord’s Notice Address” shall mean:
PRIM
Rockville Pike, LLC
c/x
XxXxxx & Company, Inc.
Xxx Xxxx
Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xx. Xxxxxx Xxxxx
with a
copy to:
TA
Associates Realty
00 Xxxxx
Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Xx. Xxxxxxxx Xxxxxxxx”
D-10
b. Effective
as of the date hereof, Section 1.01(M) of the Lease is deleted in its entirety
and the following Section 1.01(M) is substituted in place thereof:
“(M)
“Rent Payment Address” shall mean:
PRIM
Rockville Pike, LLC
c/x
XxXxxx & Company, Inc.
Xxx Xxxx
Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Ms. Xxxx XxXxxxxx”
16. Brokers. Landlord and Tenant each
represent and warrant to the other party that it has not dealt with any realtor,
broker, agent or finder in connection with this Third Amendment other than
XxXxxx & Company, Inc. and CRESA Partners (the "Brokers"). Landlord shall
pay a commission to the Brokers in accordance with the terms of a separate
agreement between Landlord and the Brokers. Each party shall indemnify and hold
harmless the other party from and against any loss, claim, damage, expense
(including costs of suit and reasonable attorneys' fees) or liability for any
compensation, commission or charges claimed by any other realtor, broker, agent
or finder claiming to have dealt with the indemnifying party in connection with
this Third Amendment.
17. Reaffirmation
of Terms. Except as modified
herein, all of the terms, covenants and provisions of the Lease are hereby
confirmed and ratified and shall remain unchanged and in full force and
effect.
18. Representations. Tenant hereby represents
and warrants to Landlord that Tenant (i) is not in default of any of its
obligations under the Lease and that such Lease is valid, binding and
enforceable in accordance with its terms, (ii) has full power and authority to
execute and perform this Third Amendment, and (iii) has taken all action
necessary to authorize the execution and performance of this Third
Amendment.
19. Counterpart
Copies. This Third Amendment may
be executed in two or more counterpart copies, each of which shall be deemed to
be an original and all of which counterparts shall have the same force and
effect as if the parties hereto had executed a single copy of this Third
Amendment.
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IN
WITNESS WHEREOF,
Landlord and Tenant have executed this Third Amendment as of the day and year
first above written.
| LANDLORD: | ||
| PRIM
ROCKVILLE PIKE, LLC, a Delaware limited liability company, Manager | ||
| |
|
|
| By: | TA Realty LLC, a Massachusetts limited liability company, Manager | |
| By: | Realty Associates Advisors Trust, a Massachusetts business trust, sole member | |
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |
|
| ||
|
| ||
| TENANT: | ||
| XXXXX
ONLINE, INC., a Delaware corporation | ||
| |
|
|
| By: | /s/ XXXX X. XXXXX | |
|
| ||
| Its: COO AND CFO | ||
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