Exhibit 10.46
FIFTH AMENDMENT TO LEASE
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(InfoNow Corporation -- 0000 Xxxxxxxx Xxxxxx)
THIS FIFTH AMENDMENT MENDMENT TO LEASE ("Amendment") is dated effective as
of May 15, 2002, by and between Principal Life Insurance Company, an Iowa
Corporation ("Landlord"), and InfoNow Corporation, a Delaware corporation
("Tenant").
RECITALS:
WHEREAS, Landlord's predecessor-in-interest and Tenant entered into that
certain Office Lease dated March 2, 1999, as amended by that certain First
Amendment to Office Lease dated March 31, 1999, Second Amendment to Office
Lease dated April 14, 1999, Third Amendment to Office Lease dated November 29,
1999, and Fourth Amendment Office Lease dated January 3, 2000 (collectively, the
"Lease"), pertaining to the premises commonly referred to as Suite 1100,
containing approximately 13,595 rentable square feet of space ("Premises")
located within the building located at 0000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx
("Building"); and
WHEREAS, Landlord and Tenant desire to enter into this Amendment to extend
the term of the Lease, expand the area of the Premises and provide for certain
other matters as more fully set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties agree that the Lease shall be amended in
accordance with the terms and conditions set forth below.
1. Definitions.
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(a) Generally. The capitalized terms used herein shall have the same
definition as set forth in the Lease, unless otherwise defined herein.
(b) Expansion Premises. The term "Expansion Premises" is hereby
defined to be and to mean that certain space located on the ninth floor of the
Building commonly referred to as Suite 900, consisting of approximately 13,595
rentable square feet of space, as outlined on Exhibit A, attached hereto and
incorporated herein by this reference.
(c) Adjusted Premises. The term "Adjusted Premises" is hereby defined
to be and to mean the original Premises and the Expansion Premises,
collectively. Effective as of the Expansion Commencement Date, the Adjusted
Premises shall be the Premises. The Adjusted Premises consists of a collective
total of approximately 27,190 rentable square feet of space.
(d) Expansion Commencement Date. The term "Expansion Commencement
Date" is hereby defined to be and to mean October 1, 2002.
(e) Expiration Date. The term "Expiration Date", as set forth in
Section 4 of the Lease, is hereby amended to be and to mean September 30, 2007.
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(f) Expansion Term. The term "Expansion Term" is hereby defined to be
and to mean that period of time commencing on the Expansion Commencement Date
and expiring on the Expiration Date.
2. Original Premises and Building. The parties hereby acknowledge~ and
agree that effective as of the Expansion Commencement Date, the original
Premises shall be deemed to contain approximately 13,595 rentable square feet of
space and the Building shall be deemed to contain approximately 185,737 rentable
square feet of space for all purposes under the Lease.
3. Expansion of the Original Premises. Effective on the Expansion
Commencement Date, Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord, on the terms and conditions set forth in the Lease and herein,
the Expansion Premises. Tenant shall accept the Expansion Premises in its
present "as is" condition. Tenant hereby acknowledges that it currently occupies
the Expansion Premises pursuant to a sublease which is due to expire at midnight
the day before the Expansion Commencement Date.
4. Monthly Base Rent. During the Expansion Term, Tenant shall pay to
Landlord, do Xxxxxxxx Xxxx Denver, Inc., Dept. 688, 0000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxx 00000-0000, Base Rent for the Adjusted Premises, payable in
monthly installments as follows:
Monthly Base Approx. Xxx. Monthly Base Approx. Xxx.
Dates Rent for Suite 900 Base Rent/RSF* Rent for Suite 1100 Base Rent/RSF*
----- ------------------ -------------- ------------------- --------------
10/1/02 - 6/30/03 $19,259.58 $17.00 $18,126.67 $16.00
Monthly Base Rent for Approximate Annual
Dates Adjusted Premises Base Rent/RSF*
----- ----------------- --------------
7/1/03 - 9/30/05 $38,519.17 $17.00
10/1/05 - 9/30/07 $40,785.00 $18.00
* For convenience purposes only, Base Rent is independent of the size of the
original Premises, Expansion Premises or Adjusted Premises.
Except as otherwise set forth herein, Base Rent shall be payable pursuant to
Section 6 of the Lease.
5. Base Year. Effective on October 1, 2002, the term "Base Year" as defined
in the Lease shall mean calendar year 2003.
6. Refurbishment Improvements. Landlord hereby agrees to reimburse amount
of Three Hundred Twenty-Six Thousand Two Hundred Eighty and No/100ths
($326,280.00) (i.e. approximately $12.00 per rentable square foot of space in
the entire Adjusted Premises) for a portion of the cost of certain improvements
(including architectural planning and construction costs) to be made to any
portion of the Adjusted Premises (" Allowance"). Such improvements shall be made
in accordance with mutually agreeable improvements and Section 11 of the Lease
("Refurbishment Improvements'). All Refurbishment Improvements must be completed
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on or before September 30, 2005. In the event that Landlord constructs the
Refurbishment Improvements, Tenant hereby agrees to (i) allow Landlord, its
agents, employees or contractors access to the Premises in order to construct
the Refurbishment Improvements, (ii) move furniture and other items so as to
allow Landlord to construct the Refurbishment Improvements, (iii) accept any and
all reasonable disturbances in connection with such construction by Landlord or
Landlord's agents, employees or independent contractors, and (iv) pay any actual
cost overages of the Refurbishment Improvements within thirty (30) days of
receipt of an invoice and evidence of such actual costs. Following completion
of the Refurbishment Improvements, any unused portion of the Refurbishment
Allowance may be used by Tenant as a credit against next accruing amounts due
under the Lease. No construction management fee shall be charged by Landlord. In
the event that Tenant constructs the Refurbishment Improvements, Landlord shall
reimburse to Tenant the Refurbishment Allowance (or applicable portion thereof)
within thirty (30) days following Landlord's receipt of a written request
therefor, applicable lien waivers, paid invoices and any and all other
documentation as Landlord may reasonably require.
7. Waiver of Previous Options. Except as otherwise set forth in this
Amendment, Landlord and Tenant hereby acknowledge and agree any and all of
Tenant's options regarding renewal, extension, offer, expansion, refusal,
termination and/or reduction, if any, are hereby deemed to be waived and of no
further force or effect. Without limitation to the generality of the foregoing,
Tenant expressly waives the Option to Extend, Preferential Right to Lease, Right
of First Refusal, and Termination Option as set forth in Rider No. 1 through
Rider No.4 to Lease, respectively.
8. Continuing Right of Refusal.
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(a) Grant of Right of Refusal. Subject to the provisions as
hereinafter set forth, Landlord hereby grants to Tenant a right of refusal
("Right of Refusal") to lease from Landlord any space located on the tenth
(lOth) floor of the Building ("Refusal Space").
(b) Third Party Offer; Exercise Notice. During the initial three (3)
years of the Expansion Term, if Landlord desires to accept a bona fide offer
from a third party ("Third Party Offer") to lease the Refusal Space or a portion
thereof, Landlord shall first give to Tenant notice that Landlord has received
such Third Party Offer and describing the terms and conditions of such Third
Party Offer ("Third Party Offer Notice"). Tenant may exercise the Right of
Refusal by giving Landlord written notice ("Exercise Notice") within five (5)
business days after receipt of the Third Party Offer Notice of Tenant's desire
to lease that portion of the Refusal Space set forth in the Third Party Offer.
Hereinafter the term "Refusal Space" shall be and shall mean the Refusal Space
or portion thereof set forth in the Third Party Offer.
(c) Expansion Amendment. After receipt of the Exercise Notice,
Landlord and Tenant shall enter into an amendment of the Lease "Expansion
Amendment" acceptable to Land1ord and Tenant. Such Expansion Amendment shall
provide that from and after the applicable date on which the Refusal Space is
leased by Tenant ("Expansion Commencement Date"), the Lease shall be deemed
modified as follows.
(i) Base Rent for the Refusal Space shall be as set forth in the
Third Party Offer;
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(ii) Tenant's proportionate share of Excess Operating Expenses
and other charges applicable to the Refusal Space shall be a
fraction, the numerator of which shall be the number of rentable
square feet in the Refusal Space and the denominator of which
shall be the number of rentable square feet in the Building (as
both shall be reasonably determined by Landlord);
(iii) The Base Year applicable to the Refusal Space shall be as
set forth in the Third Party Offer;
(iv) Tenant shall accept the Refusal Space in the time, condition
and manner described in the Third Party Offer;
(v) Tenant's lease of the Refusal Space shall be for the term set
forth in the Third Party Offer;
(vi) Other applicable terms and conditions of the Third Party
Offer shall modify the Lease; and
(vii) For all purposes under the Lease, other than for the
applicable calculations set forth above, the term "Premises"
shall be deemed to include the Refusal Space.
(d) Subordination. Tenant's Right of Refusal shall be subordinate to
any and all existing rights or interests conferred to other tenants for all or
any portion of the Refusal Space, as contained in any lease, or otherwise, in
effect on the effective date of this Amendment, including, without limitation,
(i) options or rights regarding renewal, extension or expansion and/or (ii)
subleases.
(e) Failure to Exercise. If Tenant does not exercise its Right of
Refusal in the time and manner set forth herein, the Right of Refusal for that
portion of the Refusal space involving a Third Party Offer shall be deemed
terminated and of no further force or effect. Notwithstanding the prior sentence
to the contrary, however, after the expiration of six (6) months following the
date of each of Tenant's refusal or failure to accept or exercise its Right of
Refusal as herein provided, Tenant shall thereafter, subject to the provisions
of this Section, receive written notice from Landlord of Landlord's bona fide
intent, and the terms and conditions thereof, to lease to particular tenant
prospects the Refusal Space or any portions thereof not leased or otherwise
encumbered pursuant to a Third Party Offer.
(f) No Default. Tenant may exercise the Right of Refusal, and an
exercisble thereof shall only be effective, provided that at the time of
Tenant's exercise of the Right of Refusal and on the date on which Tenant's
lease of the Refusal Space or any portion thereof commences, (i) the Lease is in
full force and effect, (ii) Tenant is not in default following any applicable
notice and the expiration of any applicable cure period hereunder and (iii) no
event has occurred which, with the giving of any applicable notice or passage of
time, would constitute a default.
(g) Not Transferable. Tenant acknowledges and agrees that the Right
of~ Refusal shall be deemed personal to Tenant and if Tenant subleases, assigns
or otherwise transfers any interests hereunder to any person or entity prior to
the exercise of the Right of Refusal, the Right of Refusal shall lapse and be
forever waived.
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9.Renewal Option.
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(a) Renewal Option. Subject to the provisions hereinafter set forth,
Landlord hereby grants to Tenant an option ("Renewal Option") to extend the Term
on the same terms, conditions and provisions as contained herein, except as
otherwise provided below, for one (1) additional period of between three (3) and
five (5) years ("Renewal Term"), which Renewal Term shall commence on October 1,
2007 ("Renewal Commencement Date").
(b) Renewal Notice. The Renewal Option shall be exercisable by written
notice ("Renewal Notice") from Tenant to Landlord of Tenant's election to
exercise the Renewal Option, which Renewal Notice must be given no earlier than
July 1, 2006 nor later than December 31, 2006. The Renewal Notice shall specify
the exact number of whole months in the Renewal Term (if no number of months is
specified, the Renewal Term shall be five (5) years). If Tenant fails to deliver
to Landlord the Renewal Notice within the prescribed time period, the Renewal
Option shall lapse and be forever waived.
(c) Monthly Base Rent During the Renewal Term. Monthly Base Rent for
the Premises payable during the Renewal Term shall be equal to the prevailing
Market Rental Rate. For the Purposes of this Section only, the term "Market
Rental Rate" per square foot of area shall mean the annual rate of Monthly Base
Rent reasonably determined to be the prevailing market rental rate in the
submarket in which the Building is located, as determined by Landlord, for
comparable office space for terms commencing on or about the Renewal
Commencement Date and shall take into its consideration (i) the duration of the
term for which such space is being leased, (ii) location within the applicable
building, (iii) when the applicable rate first becomes effective, (iv) other
concessions customarily given to other renewing tenants including, without
limitation, rent abatement and tenant improvement allowances, and (v) other
comparable factors. Bona fide written offers to lease comparable space in the
Building received by Landlord from third parties (at arm's length) and
consummated between Landlord and such third party within six (6) months prior to
the date of the Renewal Notice may be used by Landlord or Tenant as an
indication of the Market Rental Rate. The components of the Market Rental Rate
may include, among other items, the components of rent, periodic adjustments or
additions to a fixed Monthly Base Rent based upon a share of real estate taxes
and other expenses and increases to adjust for inflation then customary in the
applicable submarket.
(d) Broker Determination. No later than ten (10) days following
Landlord's receipt of the Renewal Notice, Landlord and Tenant shall meet in an
effort to negotiate, in good faith, the Market Rental Rate applicable to the
Premises. If Landlord and Tenant have not agreed upon the Market Rental Rate
applicable to the Premises within such (10) day period, then Landlord and Tenant
shall attempt to agree, in good faith, upon a single broker not later than
fifteen (15) days following Landlord's receipt of the Renewal Notice who shall
determine the Market Rental Rate for the Premises. If Landlord and Tenant are
unable to agree upon a single broker within such time period, then Landlord and
Tenant shall each appoint one broker not later than twenty (20) days following
Landlord's receipt of the Renewal Notice. Not later than twenty-five (25) days
following Landlord's receipt of the Renewal Notice, the two appointed brokers
shall appoint a third broker. If either Landlord or Tenant fails to appoint a
broker within the prescribed time period, the single broker appointed shall
determine the Market Rental Rate. If both parties fail to appoint brokers
within the prescribed time periods, then the first broker thereafter selected by
a party shall determine the Market Rental Rate. If a single broker is chosen,
then such broker shall determine the Market Rental Rate applicable to the
Premises. Otherwise, the Market Rental Rate shall be the arithmetic average of
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two (2) of the three (3) determinations which are the closest in amount, and the
third determination shall be disregarded. Landlord and Tenant shall instruct
the brokers to complete their determination of the Market Rental Rate not 1ater
than forty (40) days following Landlord's receipt of the Renewal Notice. Each
party shall bear the costs of its own broker, and the parties shall share
equally the cost of the single or third broker if applicable. Each broker shall
have at least five (5) years' experience in the leasing of commercial office
buildings in the submarket in which the Building is located and shall be a
licensed real estate broker.
(e) Amendment to Lease. If Tenant validly exercises the Renewal
Option, Landlord and Tenant shall enter into a written amendment to the Lease
confirming the terms, conditions and provisions applicable to the Renewal Term,
as determined in accordance herewith, with such revisions to the rental
provisions as may be necessary to conform such provisions to the Market Rental
Rate.
(f) No Default. Tenant may exercise the Renewal Option, and an
exercise thereof shall be effective, only if at the time of Tenant's exercise of
the Renewal Option and on the Renewal Commencement Date (i) the Lease is in full
force and effect, (ii) Tenant is not in Default, and (iii) no event has occurred
which, with the giving of any applicable notice or passage of time, would
constitute a Default.
(g) Not Transferable. Tenant acknowledges and agrees that the Renewal
Option shall be deemed to be personal to Tenant and if Tenant subleases, assigns
or otherwise transfers any interest hereunder prior to the exercise of the
Renewal Option, such option shall lapse.
10. Brokers. Tenant hereby represents and warrants to Landlord that Tenant
has not dealt with any real estate brokers or leasing agents, except Xxxxxxxx
Xxxx Company of Denver, Inc., and Staubach Company ("Brokers"), in the
negotiation of this Amendment, and that no commissions are payable to any party
claiming through Tenant as a result of the consummation of the transaction
contemplated by this Amendment, except to Brokers, if applicable. Tenant hereby
agrees to indemnify and hold Landlord harmless from any and all loss, costs,
damages or expenses, including, without limitation, all attorneys' fees and
disbursements by reason of any claim of or liability to any other broker, agent,
entity or person claiming through Tenant (other than Brokers) and arising out of
or in connection with the negotiation and execution of this Amendment.
11. Incorporation of Lease Terms; Conflict. With the exception of those
matters set forth in this Amendment, Tenant's leasing of the Premises shall be
subject to all terms, covenants and conditions of the Lease. In the event of any
express conflict or inconsistency between the terms of this Amendment and the
terms of the Lease, the terms of this Amendment shall control and govern.
12. Ratification. Except as expressly modified by this Amendment, all other
terms and conditions of the Lease are hereby ratified and affirmed.
13. Validity of Lease. The parties acknowledge that the Lease is a valid
and enforceable agreement and that Tenant holds no claims against Landlord or
its agents which might serve as the basis of any other set-off against accruing
rent and other charges or any other remedy at law or in equity.
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