|
Exhibit
10.249
FIFTH LEASE AMENDMENT TO
LEASE AGREEMENT
THIS FIFTH LEASE AMENDMENT TO
LEASE AGREEMENT (hereinafter referred to as the
“Amendment”) is made as of the 7 day of July 2005, by
and between DUKE REALTY LIMITED PARTNERSHIP, an Indiana
limited partnership doing business in North Carolina as Duke Realty
of Indiana Limited Partnership, successor by merger to Weeks
Realty, L.P. (hereinafter referred to as “Landlord”)
and PPD DEVELOPMENT LP, a Texas limited partnership and
successor in interest to PPD Development, Inc. (hereinafter
referred to as “Tenant”).
WITNESSETH:
WHEREAS, pursuant to a Lease
Agreement dated June 26, 1998 by and between Landlord and
Tenant, as amended by that certain First Lease Amendment to Lease
Agreement dated October 28, 1998, and as amended by that
certain Second Amendment to Lease Agreement dated October 1,
2002, and as mended by that certain Third Lease Amendment to Lease
Agreement dated September 22, 2003 and as further amended by
that certain Fourth Lease Amendment to Lease Agreement dated
March 31, 2005 (the Lease Agreement, and all amendments
thereto shall be referred to herein collectively as the
“Lease”), Landlord leased to Tenant certain premises
consisting of approximately 83,719 rentable square feet (the
“Original Premises”) in a building located on certain
land (the “Land”) which had been provided the address
of 4023 Paramount Parkway, but is now known as 3900 South Paramount
Parkway, Morrisville, Wake County, North Carolina 27560, all as
more particularly described in the Lease; and
WHEREAS, the parties hereto
desire to correct the date on which the Base Rent and Operating
Expenses for the entire Premises will be adjusted as set forth in
that certain Second Amendment to Lease Agreement, Third Amendment
to Lease Agreement and Fourth Amendment to Lease Agreement
(collectively “the Amendments”); and
WHEREAS, the parties hereto
desire to amend the Lease, among other things, to expand the
Premises by approximately 3,730 rentable square feet in Suite 225
(the “Suite 225 Space”) and approximately 8,696 square
feet of space in Suite 250 (the “Suite 250 Space”) of
the Building (the Suite 225 Space and the Suite 250 Space shall
hereinafter collectively be referred to as the “Additional
Space”) and provide for an additional tenant improvement
allowance ; and
NOW, THEREFORE, for and in
consideration of Ten Dollars ($10.00) paid by Landlord and Tenant
to one another, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by
Landlord and Tenant, Landlord and Tenant amend the Agreement as
follows:
1. Premises and
Term.
(a) Premises.
Subparagraph (a) of Article 1 of the Lease is hereby amended
to provide that Tenant shall lease the Original Premises and the
Suite 225 Space effective June 15, 2005 (the “Suite 225
Expansion Date”). Subparagraph (a) of Article 1 of the
Lease is hereby further amended to provide that Tenant shall lease
the Original Premises and the Suite 250 Space effective
September 1, 2005 (the Suite 250 Expansion Date”).
Together the Original Premises, the Suite 225 Space and the Suite
250 Space shall consist of approximately 96,145 rentable square
feet of space and shall hereinafter collectively be referred to as
the “Premises”.
(b) Term. Subparagraph
(a) of Article 1 of the Lease is hereby modified to reflect
that the term of the Suite 225 Space shall commence on the Suite
225 Expansion Date and the term of the Suite 250 Space shall
commence on the Suite 250 Expansion Date, and shall each expire on
November 8, 2013 (the “Expansion Term”) and shall
be coterminous with the existing Lease Term of the Original
Premises.
2. Base Rent, Operating
Expenses and Security Deposit.
(a) Base Rent. The
first paragraph of paragraph 2 (a) of the Lease is amended by
adding the following:
| |
“(a) |
Base Rent, Additional Rent and Operating Expenses for the
Original Premises shall continue to be due and payable as provided
in the Lease. Base Rent for the Original Premises shall continue to
be subject to increases as provided in the Lease through
November 8, 2013. Tenant shall pay to Landlord the Base Rent
for the Additional Space as follows: |
|
|
|
|
|
| Suite 225 Space (3,730 RSF): |
|
|
|
|
| 06/15/2005 - 11/15/2005 |
|
$
0.00 per month (1) |
|
|
| 11/16/2005 - 11/08/2006 |
|
$5,874.74 per month |
|
$79,497.00 per year |
| 11/09/2006 - 11/08/2007 |
|
$6,002.19 per month |
|
$72,026.28 per year |
| 11/09/2007 - 11/08/2008 |
|
$6,135.85 per month |
|
$73,630.20 per year |
| 11/09/2008 - 11/08/2013 |
|
Adjusted as set forth below |
|
|
|
|
|
| Suite 250 Space (8,696 RSF): |
|
|
|
|
| 09/01/2005 - 01/08/2006 |
|
$
0.00 per month (2) |
|
|
| 01/09/2006 - 11/08/2006 |
|
$13,696.20 per month |
|
$136,962.00 (3) |
| 11/09/2006 - 11/08/2007 |
|
$13,993.31 per month |
|
$167,919.72 |
| 11/09/2007 - 11/08/2008 |
|
$14,304.92 per month |
|
$171,659.04 |
| 11/09/2008 - 11/08/2013 |
|
Adjusted as set forth below |
|
|
| (1) |
represents five (5) months |
| (2) |
represents four (4) months and eight
(8) days |
| (3) |
represents ten (10) months |
The Lease is hereby further amended
wherever applicable to reflect that the date on which the Base Rent
and Operating Expenses for the entire Premises will be adjusted
should have been November 9, 2008 rather than November 8,
2008 as was incorrectly stated in the Amendments.
Rent Adjustment. On
November 9, 2008 (the “Rent Adjustment Date”),
Tenant’s Base Rent for the entire Premises shall be adjusted
to the then current Market Rent (as hereinafter defined) and taking
into account the readjustment of the operating expenses as set out
in Paragraph 2(b) of the Second Amendment; provided, however, that
in no event shall the Base Rent per square foot, as adjusted, be
less than Tenant’s then current rent.”
Market Rent. For
purposes of this Lease, “Market Rent” shall mean the
rental rate and other economic terms then in effect for buildings
in the Research Triangle Park, North Carolina area of similar size,
age, construction, with similar amenities and landscaping, and
similar occupancy levels to the
Building. The monthly rental
installments shall be an amount equal to one-twelfth (1/12) of
the Base Rent for the remainder of the Term and shall be paid at
the same time and in the same manner provided herein.
Arbitration. If Tenant
disagrees with Landlord’s determination of Market Rent,
Tenant shall deliver to Landlord a written objection to
Landlord’s calculation of the Market Rent within fifteen
(15) business days after Tenant’s receipt of
Landlord’s determination of the Market Rent. If the parties
cannot agree on the Market Rent within ten (10) days after
Tenant’s written objection, Tenant may choose arbitration to
determine the Market Rent. If Tenant chooses arbitration, Tenant
shall give Landlord written notice of its desire to seek
arbitration within three (3) days after expiration of such ten
(10) day period (“Arbitration Notice”). Within ten
(10) days after Tenant provides Landlord with its Arbitration
Notice, the parties shall each appoint an appraiser to determine
the Market Rent for the Premises. Each appraiser so selected shall
be either an MAI appraiser or a licensed real estate broker, each
having at least ten (10) years prior experience in the
appraisal or leasing of comparable space in the Research Triangle
Park area and with a working knowledge of current rental rates and
practices. If the two appraisers cannot agree upon the Market Rent
for the Premises within twenty (20) days after their
appointment, then, within ten (10) days after the expiration
of such twenty (20) day period, the two appraisers shall
select a third appraiser meeting the above criteria. Once the third
appraiser has been selected as provided for above, then such third
appraiser shall within ten (10) days after appointment make
its determination of the Market Rent. The average of the two
closest determinations of the Market Rent shall be used as the Base
Rent and shall be binding on both Landlord and Tenant. Landlord and
Tenant shall each bear the cost of its appraiser and shall share
the cost of the third. If Tenant fails to provide the Arbitration
Notice as provided above, then Landlord’s original
determination of Market Rent shall be deemed to be the Market
Rent.”
(b) Operating
Expenses. Effective on the Suite 225 Expansion Date,
Tenant’s proportionate share of Taxes (as defined in Article
2(b) of the Lease, hereinafter “Taxes”) and Operating
Expenses for the Premises shall be 73.38% and effective on the
Suite 250 Expansion Date, Tenant’s proportionate share of
taxes and Operating Expenses for the Premises shall be 80.68% and
shall be calculated consistently with the provision of paragraph
2(b)(ii) of the Lease. Notwithstanding the foregoing, Tenant shall
not be charged Operating Expenses on (i) the Suite 225 Space
for the period beginning June 15, 2005 through and including
November 15, 2005, and (ii) the Suite 250 Space for the
period beginning September 1, 2005 through and including
January 8, 2006; provided, however, that if any such expenses
were incurred solely as a result of Tenant’s occupancy, then
Tenant shall be responsible for such particular Operating
Expenses.
3. Additional Space
Improvements.
(a) Landlord shall provide
Tenant with a tenant improvement allowance for the construction of
the tenant improvements to the Additional Space in the amount of
Twelve and 00/100 Dollars ($12.00) per rentable square foot of the
Additional Space (the “Additional Space Improvement
Allowance”). The Additional Space Improvement Allowance shall
be applied toward construction, engineering, professional,
telecommunication, design, project management, plan review,
permits, architecture, voice and data cabling and other costs and
expenses associated with the Additional Space Improvements (as
hereinafter defined) to the Additional
Space and shall be paid by Landlord upon
the receipt of proper documentation from Tenant that such work has
been done. Landlord shall be responsible for the payment of all
costs and expense associated with improvements to the Additional
Space up to the Additional Space Improvement Allowance. Any cost or
expense incurred by Landlord and approved by Tenant in connection
with the Additional Space Improvements to the Additional Space in
excess of the Additional Space Improvement Allowance (the
“Excess”) shall be borne by Tenant and shall be paid by
Tenant to Landlord within thirty (30) days of Tenant’s
receipt of an invoice from Landlord providing sufficient detail and
documentation for such costs and expenses. Failure by Tenant to pay
any portion of the Excess as aforesaid is an event of default
hereunder. If the tenant has not used the Additional Space
Improvement Allowance within the first year of the Effective Date
or the Additional Space Improvement Allowance exceeds the Cost
Statement (as hereinafter defined) (taking into account any
increases or decreases resulting from any Change Orders), such
savings shall be the property of Tenant.
(b) Following the date of
this Amendment, Tenant will work with a space planner to develop a
space plan for the Additional Space that is reasonably acceptable
to Landlord (the “Space Plan”). Within thirty
(30) days after Landlord’s receipt of the Space Plan,
Tenant shall prepare and submit to Landlord a set of plans and
specifications and/or construction drawings (the “Plans and
Specifications”) prepared by an architect reasonably
acceptable to Landlord covering all work to be performed
by
|