|
Exhibit
10.254
EIGHTH AMENDMENT TO LEASE
AGREEMENT
THIS EIGHTH AMENDMENT TO
LEASE AGREEMENT (this “Amendment”) is made and entered
into this 1st day of March, 2006, by and between GREENWAY
PROPERTIES, INC. (f.k.a. Western Center Properties, Inc.)
(“Landlord”) and PPD DEVELOPMENT, LP
(“Tenant”).
WITNESSETH:
WHEREAS, Tenant, through PPD
Development, LLC (Tenant’s predecessor in interest) and
Landlord entered into a lease dated April, 30, 2001, as amended on
August 15, 2001, August 25,
2003, March 22, 2004, May 17,
2004, December 14, 2004, June 3, 2004 and
July 29, 2005 with respect to certain space located at 8551
Research Way, Middleton, Wisconsin (the lease, as so amended and as
amended by this Amendment is referred to as the
“Lease”) in a building known as the Greenway Research
Center (“Building”); and
WHEREAS, Landlord is the
current owner of the real estate which is the subject matter of the
Lease; and
WHEREAS, the parties desire
to amend the Lease as set forth herein;
NOW, THEREFORE, in
consideration of the mutual promises contained herein and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, it is agreed as follows:
1. Lease Extension.
Modifying Section 1.9 of the Lease, the term of the Lease
shall expire on November 30, 2016, unless terminated sooner or
extended as elsewhere provided in the Lease.
2. Extension Commencement
Date. The terms contained in this Amendment are effective
March 1, 2006 (the “Extension Commencement
Date”).
3. Definition of
Premises. The term “Premises” as defined in
Section 2.1 of the Lease shall include any and all Additional
Space as defined in any amendment to the Lease effective now or
hereafter. At the execution of this Amendment, the Premises consist
of 89,354 rentable square feet in the Building.
4. Monthly Rent.
Modifying Section 1.11 of the lease beginning with the
Extension Commencement Date, the Monthly Rent (as defined in
Section 4.1 of the Lease) for the Premises shall be Thirteen
Dollars and Ninety Cents ($13.90) per rentable square foot
($103,501.75 per month).
5. Monthly Rent
Increases . Modifying Section 1.11 of the Lease, on each
anniversary of the Extension Commencement Date, the Monthly Rent
shall increase three percent (3%), and that increased amount will
be the Monthly Rent until the next anniversary of the Extension
Commencement Date.
6. Right of First Refusal
for ROFR Space.
(a) Beginning on the
Extension Commencement Date, Tenant shall have a right of first
refusal (the “Right of First Refusal”) to lease any
space that becomes available to lease within the Building (each a
“ROFR Space”) provided that:
(i) The Right of First
Refusal will be subject and subordinate to the existing Right of
First Offer held by LDS Nicolet (“LDS”) pursuant to the
lease by and between LDS and Landlord dated May 21, 2004 for
the space adjacent to LDS as identified on Exhibit A;
(ii) This Lease is in full
force and effect, and Tenant is and has been, at all times during
the term of the Lease, open and continuously operating in all of
the Premises;
(iii) Tenant is not in
default under the tell is and conditions of this Lease at the time
Tenant exercises the Right of First Refusal and shall not be in
default on the date Tenant is supposed to take possession of the
ROFR Space; and
(iv) Guarantor’s
then-current financial condition, as revealed by its most recent
financial statements, must demonstrate, in Landlord’s
reasonable discretion that Guarantor meets the financial criteria
acceptable to Landlord.
(b) Landlord shall give
Tenant written notice (the “Landlord’s Notice”)
of each ROFR Space that becomes available for lease. The
Landlord’s Notice shall include the terms and conditions on
which Landlord is prepared to lease the ROFR Space to a bona fide
third party lessee (the “Proposed Lease
Terms”).
(c) To exercise this Right of
First Refusal, Tenant shall:
(i) Accept the Proposed Lease
Terms in their entirety, without exception or amendment, by
notifying Landlord, in writing, within ten (10) business days
after Tenant’s receipt of Landlord’s Notice, sent by
registered or certified mail, return receipt requested, or a
nationally recognized overnight courier, of Tenant’s intent
to so accept; and
(ii) Execute and deliver an
amendment to this Lease, subjecting the ROFR Space to this Lease at
the rent and for the terms and conditions set forth in the Proposed
Lease Terms) within five (5) business days after receipt of
same from Landlord.
(d) Tenant acknowledges that
time is of the essence with regard to this Right of First Refusal.
If Tenant does not timely exercise its Right of First Refusal in
strict compliance with the provisions of’ Section 6(c),
then (i) Landlord will have the unfettered right to lease the
ROFR Space to a bona fide third party lessee generally on the
Proposed Lease Terms and (ii) Landlords obligation to notify
Tenant regarding the ROFR Space or offer the ROFR Space to Tenant
shall terminate, except as specifically provided in
Section 6(e).
2
(e) If Landlord does not
lease the ROFR Space to a bona fide third party lessee generally in
accordance with the Proposed Lease Terms described in
Landlord’s Notice (i.e. there is a material change in the
Proposed Lease Terms), then Tenant’s Right of First Refusal
with respect to the ROFR Space shall be deemed revived and Landlord
shall offer the ROFR Space to Tenant under new Proposed Lease Terms
under which Landlord is then willing to lease the ROFR Space to a
bona fide third party lessee.
(f) This Right of First
Refusal for ROFR Space is personal to the Tenant and is not
transferable.
7. Option to
Renew.
(a) Tenant shall have two
(2) options (each a “Renewal Option”) to extend
the term of the Lease for five (5) additional years each, at a
fixed Monthly Rent equal to ninety-five percent (95%) of the
then current Market Rent (as herein defined). Each such five
(5) year period is a “Renewal Term.”
(b) Provided Tenant is not
then in default under the Lease, Tenant shall have the right to
exercise its Renewal Option to extend the term for the next Renewal
Term by giving Landlord prior written notice of its intention to
exercise the Renewal Option at least one hundred eighty
(180) days prior to the expiration of the initial term or the
then current Renewal Term.
(c) Except as provided in
this Section 7, during any Renewal Term, all terms and
conditions contained in the Lease shall remain the same except that
after exercising the second Renewal Option, Tenant will have no
further options to renew or extend the term of the Lease. In
addition, on the first day of each Renewal Term (each a
“Renewal Commencement Date”), the Monthly Rent shall be
recalculated to an amount that is ninety-five percent (95%) of
the then current Market Rent. Thereafter, on each anniversary of
the Renewal Commencement Date, fixed Monthly Rent will increase
three percent (3%) and that increased amount will be the
Monthly Rent until the next anniversary of the Renewal Commencement
Date.
(d) If Tenant exercises one
or more of its Major Expansion Options (as defined below), then,
notwithstanding any provisions in this Lease to the contrary,
Tenant’s exercise of each such Major Expansion Option will
cause the term or the lease to be extended to the date that is ten
(10) years after the date Landlord delivers the completed
Major Expansion Space to Tenant. Thereafter any Unused Renewal
Options (as defined in Section 7(e)) may be exercised by
Tenant in accordance with the provisions of this Lease.
(e) For the purposes of this
Lease, Unused Renewal Options” shall be defined as provided
for in this Section 7(e).
(i) If Tenant exercises a
Major Expansion Option during the initial term of this Lease or
during the first Renewal Term, then after the expiration of the ten
(10) year extension provided for Section 7(d), Tenant
shall have two (2) complete Renewal Options to extend the term
of the Lease for five (5) additional years each, all in
accordance with the provisions of this Section 7.
3
(ii) If Tenant exercises a
Major Expansion Option during the second Renewal Term, then after
the expiration of the ten (10) year extension provided for in
Section 7(d), Tenant shall have one (1) complete Renewal
Option to extend the term of the Lease for five (5) additional
years, all in accordance with the provisions of this
Section 7.
8. Market Rent. Market
Rent shall be determined as follows:
(a) Within thirty
(30) days following Tenant giving Landlord written notice of
its intention to exercise its Renewal Option, Landlord and Tenant
shall each at their own expense, hire a commercial broker
experienced with commercial leases in Dane County, and each such
commercial broker shall, within fifteen (15) days, provide a
fair market rent determination for the Premises simultaneously to
Landlord and Tenant (each a “Market Rent
Determination”).
(b) If the two Market Rent
Determinations vary by less than five percent (5%) of the
smaller of the two Market Rent Determinations, then ninety-five
percent (95%) of the average of the two Market Rent
Determinations shall be the Monthly Rent for the first year of the
Renewal Term.
(c) If the two Market Rent
Determinations vary by five percent (5%) or more of the
smaller of the two Market Rent Determinations, then Landlord and
Tenant may mutually agree to average the two Market Rent
Determinations, in which event, the Monthly Rent for the first year
of the Renewal Term will be ninety-five per cent (95%) of the
average of the two (2) Market Rent Determinations. If the
parties cannot mutually agree to average the two Market Rent
Determinations, then the parties shall engage a third commercial
broker to assist with the determination of the fixed Monthly Rent
for the Renewal Term. If a third commercial broker is to be
engaged, the two commercial brokers previously engaged shall
jointly select a third commercial broker with experience in
commercial leases in Dane County. The third commercial broker
shall, within fifteen (15) days after selection, provide a
third Market Rent Determination for the Premises, in which event
the Market Rent Determination for the Premises, in which event the
Market Rent for the first year of the Renewal Term will be
ninety-live percent of the average of the three (3) Market
Rent Determinations. All expenses related to the third commercial
broker shall be shared equally between Landlord and
Tenant.
9. Expansion Rights.
Tenant shall have the Conditional Expansion Option provided for in
Section 10, the South Expansion Option provided for in
Section 11, the West Expansion Option provided for in
Section 12 and the North Expansion Option provided for in
Section 13. The Conditional Expansion Option, the South
Expansion Option, the West Expansion Option and the North Expansion
Option are collectively referred to in this Lease as a “Major
Expansion Option.”
4
10. Conditional Expansion
Option.
(a) Subject to the provisions
of this Section 10, beginning on the Extension Commencement
Date, Tenant shall have the option to lease that certain space that
(i) is located in the Building, adjacent to and south of the
Premises, (ii) consists of approximately 10,801 rentable
square feet of space, (iii) is currently leased by A-R
Editions (“A-R”) pursuant to that certain lease, dated
October 1, 2000, between Landlord and A-R (the “A-R
Lease”), and by vdw Design (`vdw”) pursuant to that
certain lease, dated September 25, 2003, between Landlord and
vdw (the “vdw Lease”), and (iv) is generally
depicted on Exhibit B attached hereto (collectively, the
Conditional Expansion Space”) for exclusive use by Tenant
(the “Conditional Expansion Option”) provided
that:
(i) Landlord is able to
relocate A-R and vdw to other premises pursuant to new leases that
are acceptable to Landlord in Landlord’s reasonable
discretion, at a cost not to exceed $100,000.00, all as provided
for in this Section 10. Relocation costs in excess of $100,000
would be Tenant’s responsibility;
(ii) This Lease is in full
force and effect and Tenant is and has been, at all times during
the term of the Lease, open and continuously operating in all of
the Premises;
(iii) Tenant is not in
default under the terms and conditions of this Lease at the time
Tenant exercises the Conditional Expansion Option and shall not be
in default when it is supposed to take possession of the
Conditional Expansion Space; and
(iv) Guarantor’s
then-current financial condition, as revealed by its most recent
financial statements, must demonstrate, in Landlord’s
reasonable discretion that Guarantor meets the financial criteria
acceptable to Landlord.
(v) Tenant executes a lease
amendment that is mutually acceptable to Landlord and Tenant in
their reasonable discretion (the “Conditional Expansion Space
Lease Amendment”) whereby Landlord agrees to lease the
Conditional Expansion Space to ‘Tenant as part of the
Premises, and Tenant agrees to lease the Conditional Expansion
Space front Landlord as part of the Premises. Landlord and Tenant
shall each negotiate any such Conditional Expansion Space Lease
Amendment in good faith
(b) To exercise this
Conditional Expansion Option, Tenant shall give Landlord written
notice (the “Tenant’s Notice”) of its desire to
lease the Conditional Expansion Space.
5
(c) After Tenant’s
delivery of Tenant’s Notice, Landlord and Tenant shall enter
into the Conditional Expansion Space Lease Amendment. Landlord
shall then use reasonable commercial efforts to cause A-R and vdw
to relocate into other premises pursuant to new leases that are
acceptable to Landlord in Landlord’s reasonable discretion,
provided however, that Tenant shall be responsible for any
expenses in excess of $100,000 incurred by Landlord related to the
relocation of A-R and/or vdw to other premises pursuant to
Section 10.
(d) Landlord and Tenant
acknowledge and agree that, notwithstanding any provision in this
Lease to the contrary, Tenant’s Conditional Expansion Option
is conditioned upon and subject to A-R’s and vdw’s
agreement to relocate to other premises, pursuant to new leases
that are acceptable to Landlord in Landlord’s reasonable
discretion. If, within ninety (90) days after the date on
which Landlord and Tenant agreed to the Conditional Expansion Space
Lease Amendment, despite Landlord’s reasonable commercial
efforts, A-R and vdw do not agree to
| 
