Exhibit 10.1
SECOND AMENDMENT TO OFFICE LEASE AGREEMENT
This Second Amendment to Office Lease
Agreement (this “ Second Amendment ”) is made
and entered into as of September 24, 2007, by and between
PLAZA CENTER PROPERTY LLC, a Delaware limited liability company
(“ Landlord ”), and AUTHORIZE.NET HOLDINGS,
INC., a Delaware corporation (“ Tenant ”).
RECITALS :
A.
Landlord, as successor-in-interest to EOP Operating Limited
Partnership, a Delaware limited partnership, and Tenant (formerly
known as Lightbridge, Inc.) entered into that certain Office Lease
Agreement, dated August 10, 2004 (the “ Office
Lease ”), as amended by that certain First Amendment,
dated May 3, 2005 (collectively, the “ Lease
”), pursuant to which Landlord leases to Tenant and Tenant
leases from Landlord certain space (the “ Existing
Premises ”) commonly known as Suites 310, 320 and 600 in
the building located at 10800 NE 8th Street, Bellevue, Washington
(the " Building ”).
B.
Landlord and Tenant desire to amend the Lease on the terms and
conditions set forth in this Second Amendment.
NOW, THEREFORE, in consideration of
the foregoing recitals and the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows.
AGREEMENT :
1.
Defined Terms . Except as explicitly set forth in
this Second Amendment, each initially capitalized term when used
herein shall have the same respective meaning as is set forth in
the Lease.
2.
Premises .
2.1
Seventh Floor Premises . Effective as of the date
(the “ Expansion Premises Commencement Date ”)
that is the earlier to occur of (i) the date the
“Seventh Floor Premises”, as that term is defined,
below, are “Ready for Occupancy,” as that term is
defined in Section 5.1 of the Tenant Work Letter attached
hereto as Exhibit B (the “ Tenant Work
Letter ”) (which is anticipated to occur as of
January 15, 2008 (the “ Anticipated Completion
Date ”)), or (ii) the date Tenant first commences the
conduct of business from the Seventh Floor Premises, or any portion
thereof, subject to the terms of this Second Amendment, the
“Premises” under the Lease shall consist of
(a) 14,281 rentable square feet of space located on the
seventh (7 th ) floor of the
Building, as more particularly set forth on
Exhibit A , attached hereto (the " Seventh
Floor Premises ”), and (b) 14,148 rentable square
feet of space located on the sixth (6 th ) floor of the
Building (the “ Sixth Floor Premises ”), which
Sixth Floor Premises is presently part of the Existing Premises.
Except as otherwise may be specifically set forth in this Second
Amendment, the rentable square footages of the Sixth Floor Premises
and the Seventh Floor Premises shall not be subject to
re-measurement or modification. Tenant hereby acknowledges that
Tenant currently occupies the Sixth Floor Premises, that Tenant
shall continue to accept the Sixth Floor Premises in their
existing, “as is” condition, and that Landlord shall
have no obligation to provide or pay for any improvements with
respect to the Sixth Floor Premises. Except as specifically set
forth in the Tenant Work Letter, Tenant shall accept the Seventh
Floor Premises in their existing, “as is” condition and
Landlord shall not be obligated to provide or pay for any
improvement work or services related to the improvement of the
Expansion Premises. Tenant also acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty
regarding the condition of the Seventh Floor Premises or with
respect to the suitability of the Seventh Floor Premises for the
conduct of Tenant’s business. For purposes of this Second
Amendment, the Seventh Floor Premises shall consist, collectively,
of the following two components: (x) 9,298 rentable square
feet of space (to be referred to herein as the “ Relocated
Third Floor Premises ”) (which is to be leased by Tenant,
as more particularly set forth in Section 2.2 , below,
in lieu of the 9,298 rentable square feet of space on the third
floor of the Building that is included in the Existing Premises as
of the date
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hereof),
and (y) 4,983 rentable square feet of space (which is being
leased by Tenant in order to expand the premises leased by Tenant)
(the “ Expansion Premises ”).
2.2
Surrender of Third Floor Premises .
2.2.1
In General . Upon the date (the “ Third
Floor Surrender Date ”) that is five (5) business days
following the Expansion Premises Commencement Date, Tenant’s
lease of the “Third Floor Premises”, as that term is
defined, below, shall automatically terminate and be of no further
force and effect, and Landlord and Tenant shall be relieved of
their respective obligations under the Lease, as amended hereby, in
connection with the Third Floor Premises, except those obligations
of Tenant set forth in the Lease, as amended hereby, which relate
to the term of Tenant’s lease of the Third Floor Premises
and/or which specifically survive the expiration or earlier
termination of the Lease, including, without limitation, the
payment by Tenant of all amounts owed by Tenant under the Lease, as
amended hereby, through and including the Third Floor Surrender
Date. Tenant shall vacate the Third Floor Premises, and surrender
and deliver possession of the Third Floor Premises to Landlord free
of anyone claiming possession of the Third Floor Premises by,
through or under Tenant on or before the Third Floor Surrender Date
in accordance with the provisions of the Lease, as amended hereby.
In the event that Tenant retains possession of the Third Floor
Premises or any part thereof after the Third Floor Surrender Date,
then the provisions of Article 22 of the Office Lease
shall apply with respect to the Third Floor Premises and any
amounts payable by Tenant thereunder shall be computed using the
rent payable for the last month that the Lease is in effect with
respect to the Third Floor Premises. For purposes of this Second
Amendment, the “ Third Floor Premises ” shall
mean the 9,298 rentable square feet of space leased by Tenant on
third floor of the Building as of the date hereof and known as
Suites 310 and 320, which space is part of the Existing
Premises.
2.2.2
Representations of Tenant . Tenant represents and
warrants to Landlord that, with respect to the Third Floor
Premises, (a) Tenant has not heretofore sublet the Third Floor
Premises nor assigned all or any portion of its interest in the
Lease; (b) no other person, firm or entity has any right,
title or interest in the Lease with respect to the Third Floor
Premises; and (c) Tenant has the full right, legal power and
actual authority to enter into this Second Amendment and to
terminate the Lease with respect to the Third Floor Premises
without the consent of any person, firm or entity. Tenant further
represents and warrants to Landlord that as of the date hereof
there are no, and as of the Third Floor Surrender Date there shall
not be any, mechanic’s liens or other liens encumbering all
or any portion of the Third Floor Premises, by virtue of any act or
omission on the part of Tenant, its predecessors, contractors,
agents, employees, successors, assigns or subtenants. The
representations and warranties set forth in this
Section 2.2.2 shall survive the termination of the
Lease with respect to the Third Floor Premises and Tenant shall be
liable to Landlord for any inaccuracy or any breach thereof.
3.
Lease Term . The term of the Lease is hereby extended
from September 30, 2009 to the date (the “ Extended
Expiration Date ”) immediately preceding the sixty
(60) month anniversary of the Expansion Premises Commencement
Date, and shall expire on the Extended Expiration Date, unless the
Lease, as amended by this Second Amendment, is sooner terminated as
provided in the Lease. The term of the Lease commencing as of
October 1, 2009 (the “ Extended Term Commencement
Date ”) and continuing through and including the Extended
Expiration Date is referred to herein as the " Extended Term
”.
4.
Rent .
4.1
Base Rent .
4.1.1
Modified Existing Premises .
4.1.1.1
Prior to Extended Term Commencement Date . Prior to
the Extended Term Commencement Date, Tenant shall continue to pay
monthly Base Rent for the Relocated Third Floor Premises and the
Sixth Floor Premises (i.e., 23,446 rsf of the Premises)
(collectively, the " Modified Existing Premises ”) in
accordance with the terms of the Lease (i.e., prior to the Extended
Term Commencement Date, the Base Rent payable by Tenant with
respect to the Sixth Floor Premises shall remain as set forth in
the Lease and the Base Rent payable by Tenant with respect to the
Relocated Third Floor Premises shall be the Base Rent that would
have been payable by Tenant under the Lease for the Third Floor
Premises had this Second Amendment not been entered into).
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4.1.1.2
As of Extended Term Commencement Date . Effective as
of the Extended Term Commencement Date, Tenant shall pay monthly
Base Rent for the Modified Existing Premises in the amounts set
forth below; provided, however, that Landlord and Tenant hereby
acknowledge and agree that, effective as of the Extended Term
Commencement Date, (i) the Sixth Floor Premises shall be
deemed to consist of 14,289 rentable square feet, and (ii) the
Modified Existing Premises shall be deemed to consist of 23,587
rentable square feet of space, which rentable square footages shall
not be subject to re-measurement or modification.
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Annual Rental |
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Month of |
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Annual |
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Monthly Installment |
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Rate per |
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Extended Term |
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Base Rent |
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of Base Rent |
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Rentable Square
Foot |
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10/1/09 —
1/31/10
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$ |
850,311.35 |
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$ |
70,859.28 |
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$ |
36.05 |
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2/1/10 —
1/31/11
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$ |
875,785.31 |
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$ |
72,982.11 |
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$ |
37.13 |
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2/1/11 —
1/31/12
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$ |
902,202.75 |
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$ |
75,183.56 |
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$ |
38.25 |
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2/1/12 —
Extended Expiration Date*
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$ |
929,091.93 |
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$ |
77,424.33 |
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$ |
39.39 |
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*Notwithstanding anything contained herein to the contrary, in the
event that the Extended Expiration Date shall occur after 1/31/13,
then to the extent the same is due to the Seventh Floor Premises
being Ready for Occupancy following the Anticipated Completion Date
as a result of one or more “Tenant Delays,” as that
term is defined in Section 5.2 of the Tenant Work Letter, the
monthly Base Rent for the Modified Existing Premises shall
thereafter increase by three percent (3%) annually, with the first
such adjustment to occur as of 2/1/13. In the event that the
Extended Expiration Date shall occur after 1/31/13 due to the
Seventh Floor Premises being Ready for Occupancy following the
Anticipated Completion Date for reasons other than one or more
Tenant Delays, then Tenant shall continue to pay monthly Base Rent
for the Modified Existing Premises following 1/31/13 and continuing
until the Extended Expiration Date in an amount equal to $77,424.33
per month.
4.1.2
Expansion Premises . Commencing on the Expansion
Premises Commencement Date and continuing through and including the
Extended Expiration Date, Tenant shall pay monthly Base Rent for
the Expansion Premises in the amounts set forth below. The term of
Tenant’s lease of the Expansion Premises (which commences as
of the Expansion Premises Commencement Date and expires
coterminously with the Modified Existing Premises on the Extended
Expiration Date) is referred to herein as the “ Expansion
Term .”
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Annual Rental |
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Month of |
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Annual |
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Monthly Installment |
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Rate per |
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Expansion Term |
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Base Rent |
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of Base Rent |
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Rentable Square
Foot |
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1-12
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$ |
174,405.00 |
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$ |
14,533.75 |
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$ |
35.00 |
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13-24
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$ |
179,637.15 |
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$ |
14,969.76 |
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$ |
36.05 |
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25-36
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$ |
185,018.79 |
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$ |
15,418.23 |
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$ |
37.13 |
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37-48
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$ |
190,599.75 |
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$ |
15,883.31 |
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$ |
38.25 |
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49-60
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$ |
196,280.37 |
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$ |
16,356.70 |
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$ |
39.39 |
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Notwithstanding anything in this Section 4.1.2 , above,
to the contrary, provided that Tenant is not in default of the
Lease, as amended hereby, beyond any applicable notice and cure
period, Tenant shall not be obligated to pay an amount equal to
$14,533.75 of the monthly Base Rent attributable to the Expansion
Premises for the first (1 st ) month of
Tenant’s lease of the Expansion Premises. Upon Tenant’s
execution of this Second Amendment, Tenant shall deliver to
Landlord a check payable to Landlord in the amount of $14,533.75,
which amount represents the Base Rent due for the Expansion
Premises or the first month of the Expansion Term following the
expiration of the foregoing free Base Rent period.
4.2
Expenses and Taxes .
4.2.1
Modified Existing Premises .
4.2.1.1
Prior to Extended Term Commencement Date . Prior to
the Extended Term Commencement Date, Tenant shall continue to pay
Tenant’s Pro Rata Share of Expenses and Taxes for the
Modified Existing Premises in accordance with the terms of the
Lease (i.e., the Expenses and Taxes payable by Tenant with respect
to the Sixth Floor Premises shall remain as set forth in the Lease
and the Expenses and Taxes payable by Tenant with respect to the
Relocated Third Floor Premises shall be calculated and paid by
Tenant in the same manner as the Expenses and Taxes payable by
Tenant under the Lease for the Third Floor Premises would have been
paid had this Second Amendment not been entered into).
4.2.1.2
As of Extended Term Commencement Date . Effective as
of the Extended Term Commencement Date, Tenant shall pay
Tenant’s Pro Rata Share of Expenses and Taxes for the
Modified Existing Premises in accordance with the terms of the
Lease; provided, however, that as of the Extended Term Commencement
Date, with respect to the Modified Existing Premises (which, as set
forth in Section 4.1.1.2 , above, shall then be deemed
to consist of 23,587 rentable square feet of space)
(i) Tenant’s Pro Rata Share shall equal 17.17%,
(ii) Tenant shall only be obligated to pay Tenant’s Pro
Rata Share of Expenses (including estimates thereof) in excess of
the Expenses incurred during the “2010 Base Year,” as
that term is defined, below, and (iii) Tenant shall only be
obligated to pay Tenant’s Pro Rata Share of Taxes (including
estimates thereof) in excess of the Taxes incurred during the 2010
Base Year. For purposes of this Second Amendment, the “
2010 Base Year ” shall mean the calendar year 2010. In
connection with the calculation of Expenses for the 2010 Base Year,
Expenses shall not include market-wide cost increases due to
extraordinary circumstances, including, but not limited to, force
majeure, boycotts, strikes, conservation surcharges, embargoes or
shortages, or amortized costs relating to capital improvements.
Further, as of and following the Extended Term Commencement Date,
for purposes of calculating Expenses due with respect to the
Modified Existing Premises (a) in no event shall the
components of Expenses for any year related to insurance, security
or utility costs be less than the components of Expenses related to
insurance, security or utility costs, respectively, in the 2010
Base Year, and (b) in no event shall Taxes in any year be less
than Taxes in the 2010 Base Year.
4.2.2
Expansion Premises . Commencing on the Expansion
Premises Commencement Date and continuing through and including the
Extended Expiration Date, Tenant shall pay Tenant’s Pro Rata
Share of Expenses and Taxes in accordance with the terms of the
Lease; provided, however, that, with respect to the Expansion
Premises, (i) Tenant’s Pro Rata Share shall equal
3.6274%, (ii) Tenant shall only be obligated to pay Tenant’s
Pro Rata Share of Expenses (including estimates thereof) in excess
of the Expenses incurred during the “2008 Base Year,”
as that term is defined, below, and (iii) Tenant shall only be
obligated to pay Tenant’s Pro Rata Share of Taxes (including
estimates thereof) in excess of the Taxes incurred during the 2008
Base Year. For purposes of this Second Amendment, the “
2008 Base Year ” shall mean the calendar year 2008. In
connection with the calculation of Expenses for the 2008 Base Year,
Expenses shall not include market-wide cost increases due to
extraordinary circumstances, including, but not limited to, force
majeure, boycotts, strikes,
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conservation surcharges, embargoes or shortages, or amortized costs
relating to capital improvements. Further, for purposes of
calculating Expenses due with respect to the Expansion Premises
(a) in no event shall the components of Expenses for any year
related to insurance, security or utility costs be less than the
components of Expenses related to insurance, security or utility
costs, respectively, in the 2008 Base Year, and (b) in no
event shall Taxes in any year be less than Taxes in the 2008 Base
Year.
4.2.3
Other Terms . Landlord and Tenant hereby acknowledge
and agree that (i) all references to “generally accepted
accounting principles” in Section 2 of
Exhibit B to the Lease are hereby deleted and
are replaced with “sound real estate accounting
principles”, and (ii) the word “gross” is
hereby inserted before the word negligence in
Section 2.02(b) of Exhibit B .
5.
Security Deposit . Within three (3) business
days following the date of the full execution and delivery of this
Second Amendment, Tenant shall deposit with Landlord a security
deposit in the amount of $44,455.69 (the “ Additional
Security Deposit ”). Upon such deposit, Landlord shall
hold an aggregate security deposit under the Lease, as amended by
this Second Amendment, in the amount of $93,781.03. In the event
that Tenant shall fail to timely delivery the Additional Security
Deposit, notwithstanding anything in the Lease to the contrary,
Tenant shall immediately be deemed to be in default of the Lease,
as amended hereby, without the requirement of any notice from
Landlord or the expiration of any cure period.
6.
Parking .
6.1
Modified Existing Premises . Prior to the Extended
Term Commencement Date, Tenant shall continue to retain the parking
rights applicable to the Modified Existing Premises (i.e., the 61
Spaces) in accordance with the terms of the Lease (including the
parking charges set forth in Section II.A of
Exhibit F of the Office Lease). Commencing as of
the Extended Term Commencement Date and continuing throughout the
Extended Term, Tenant shall continue to retain the parking rights
applicable to the Modified Existing Premises (i.e., the 61 Spaces)
in accordance with the terms of the Lease; provided, however, that
the parking rate payable by Tenant for Spaces rented by Tenant in
connection with the Modified Existing Premises shall equal the
prevailing rate charged by Landlord from time to time, plus
applicable parking taxes.
6.2
Expansion Premises . During the term of
Tenant’s lease of the Expansion Premises, Tenant shall be
entitled to an additional fifteen (15) unreserved parking
spaces in the Garage, which shall be subject to all of the terms
set forth in the Lease with respect to the Spaces to which Tenant
is entitled in connection with the Modified Existing Premises;
provided, however, that all times during the term of Tenant’s
lease of the Expansion Premises, the parking rate payable by Tenant
for Spaces rented by Tenant in connection with the Expansion
Premises shall equal the prevailing rate charged by Landlord from
time to time, plus applicable parking taxes.
7.
Normal Business Hours . The last sentence of
Section 1.13 of the Office Lease is hereby deleted in
its entirety and is replaced with the following:
“Building
Service Hours” for
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