FOURTH LEASE AMENDMENT
EXHIBIT
10.16
FOURTH LEASE
AMENDMENT
THIS
FOURTH LEASE AMENDMENT (the "Amendment") is executed this 14th
day of March,
2008, by and between DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited
partnership ("Landlord"), and INTERACTIVE INTELLIGENCE, INC., an Indiana
corporation ("Tenant").
W I T N E S S E T H:
WHEREAS,
Landlord (f/k/a Duke-Weeks Realty Limited Partnership) and Tenant entered into a
certain lease dated April 1, 2001, as amended by instruments dated September 19,
2001, December 13, 2002 and June 19, 2007 (collectively, the "Lease"), whereby
Tenant leases from Landlord certain premises consisting of (i) approximately
120,000 rentable square feet of space (the "Original Premises") located in an
office building commonly known as
Woodland Corporate Park V, 0000 Xxxxxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000,
and (ii) approximately 79,385 rentable square feet of space (the "Additional
Space") located in an office building currently being constructed and commonly
known as 0000 Xxxxxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000; and
WHEREAS,
Landlord and Tenant desire to expand the Additional Space by approximately 258
rentable square feet (the "Second Additional Space"). Collectively,
the Original Premises, Additional Space and Second Additional Space shall
hereinafter be referred to as the "Leased Premises"; and
WHEREAS,
Landlord and Tenant desire to amend certain provisions of the Lease to reflect
such expansion and any other changes to the Lease;
NOW,
THEREFORE, in consideration of the foregoing premises, the mutual covenants
herein contained and each act performed hereunder by the parties, Landlord and
Tenant hereby enter into this Amendment.
1. Incorporation of
Recitals. The above recitals are hereby incorporated into this
Amendment as if fully set forth herein.
2. Amendment of Article
1. Lease of
Premises.
(a) Commencing
on the First Takedown Space Commencement Date, Section 1.01 of Article 1 of the
Lease is hereby amended by substituting Fourth
Amended Exhibit A, attached hereto and incorporated herein by reference,
on which the Original Premises are striped, the first takedown space containing
approximately 39,693 rentable square feet (the "First Takedown Space"), the
second takedown space containing approximately 19,846 rentable square feet (the
"Second Takedown Space"), the third takedown space containing approximately
19,846 rentable square feet (the "Third Takedown Space") and the second
additional space containing approximately 258 rentable square feet (the "Second
Additional Space") are cross-hatched and labeled, in lieu of Third
Amended Exhibit A attached to the Lease.
(b) Commencing
on the First Takedown Space Commencement Date, Section 1.01,
Subsections A, B, C, D, E, H and I of the Lease are hereby deleted in their
entirety and the following is substituted in lieu thereof:
A. Leased
Premises (depicted on Fourth
Amended Exhibit A attached hereto): Building
Addresses: Woodland Corporate Park V ("Woodland V"), 0000 Xxxxxxxxxxx
Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000 and Woodland Corporate Park VI ("Woodland VI"),
0000 Xxxxxxxxxxx Xxx, Xxxxxx 000 and 400, Xxxxxxxxxxxx, Xxxxxxx 00000 (the
buildings known as Woodland V and Woodland VI shall hereinafter be collectively
referred to as the "Building", unless otherwise specifically provided in this
Amendment). Woodland V is located on the land identified as the
"Woodland V Land" on Second
Amended Exhibit A-1 and Woodland VI is located on the land identified as
the "Woodland VI Land" on Second
Amended Exhibit A-1. Unless otherwise specified herein,
the term "Land" as used herein shall refer to the Woodland V Land and the
Woodland VI Land collectively.
B. Rentable
Area: approximately 120,000 rentable square feet in Woodland V;
commencing on the First Takedown Space Commencement Date, an additional
approximately 39,951 rentable square feet in Woodland VI; commencing September
1, 2008, an additional approximately 19,846 rentable square feet in Woodland VI;
and commencing March 1, 2009, an additional approximately 19,846 rentable square
feet in Woodland VI for a total of approximately 79,643 rentable square feet in
Woodland VI.
For
purposes of this Lease, the Building Owners and Managers Association
International ("BOMA") Standard Method for Measuring Floor Area In Office
Buildings American National Standard ANSI-Z65.1-1996 approved June 7, 1996 by
American National Standards Institute, Inc. ("BOMA Standards") shall be utilized
to determine the useable area of the Additional Space and Second Additional
Space and the usable area of the Woodland VI. The Rentable Area shall
include the area within the Additional Space and Second Additional Space plus a
pro rata portion of the area covered by the common areas within Woodland VI, as
reasonably determined by Landlord prior to Tenant's occupancy of the appropriate
Additional Space and Second Additional Space. Landlord's
determination of Rentable Area in the manner provided shall be deemed correct
for all purposes hereunder; provided, however, Tenant or Landlord shall have the
right, at any time prior to the earlier of (i) the commencement date for the
applicable Additional Space and Second Additional Space, or (ii) within fifteen
(15) days after the construction of Woodland VI has progressed to the stage
necessary for Tenant to be able to measure all of the Additional Space and
Second Additional Space in accordance with BOMA Standards and Landlord has
notified Tenant in writing of the same, to have the applicable Additional Space
and Second Additional Space (in the case of (i) above) or the entire Additional
Space and Second Additional Space (in the case of (ii) above) and Woodland VI
measured by Tenant's architect or, if such measurement is requested by Landlord,
by Landlord's architect (which measurement Tenant's architect or Landlord's
architect, as applicable, shall certify has been made in accordance with BOMA
Standards) and, in the event of a disparity with the rentable square footage
originally estimated in the first sentence of this Section 1.01B (the
"Originally Estimated Area"), either (a) Landlord and Tenant shall mutually
agree on the Rentable Area of the applicable Additional Space and Second
Additional Space (in the case of (i) above) or entire Additional Space and
Second Additional Space (in the case of ii above) and the rentable area of the
Woodland VI, or (b) Landlord and Tenant shall agree to have the applicable
Additional Space and Second Additional Space (in the case of (i) above) or the
entire Additional Space and Second Additional Space (in the case of (ii) above)
and Woodland VI measured by an independent architect (in accordance with BOMA
standards) mutually agreed upon by Landlord and Tenant, in which event Landlord
and Tenant agree to abide by such certified remeasurement. If the
rentable square footage of the applicable Additional Space and Second Additional
Space (in the case of (i) above) or entire Additional Space and Second
Additional Space (in the case of (ii) above) or Woodland VI, as measured by said
independent architect, is one thousand (1,000) feet or more smaller than the
Originally Estimated Area, then the costs of said independent architect shall be
borne by Landlord, otherwise said costs shall be borne by
Tenant.
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Upon determination of the
actual Rentable Area of the applicable Additional Space and Second Additional
Space (in the case of (i) above) or the entire Additional Space and Second
Additional Space (in the case of (ii) above) and rentable area of Woodland VI,
the Minimum Annual Rent and all other rents payable by Tenant hereunder shall be
adjusted to reflect the actual square footage.
C. Building
Expense Percentage:
Woodland
V – 100%;
Woodland
VI – commencing on the First Takedown Space Commencement
Date - 26%;
Commencing on September 1, 2008 –
38.91%;
Commencing on March 1, 2009 –
51.82%.
D. Minimum
Annual Rent:
Original
Premises:
|
April
1, 2003 – March 31, 2008
|
$2,016,000.00
per year
|
|
|
April
1, 2008 – March 31, 2013
|
$2,292,000.00
per year
|
|
|
April
1, 2013 – March 31, 2018
|
$2,712,000.00
per year
|
Additional Space and Second
Additional Space:
|
*Months
1 – 3
|
$ 47,242.05
(3 months)
|
|
|
Months
4 – August 31, 2008
|
$ 197,557.71
(3 months)
|
|
|
September
1, 2008 – February 28, 2009
|
$ 591,392.34
(6 months)
|
|
|
March
1, 2009 – February 28, 2013
|
$1,575,338.52
per year
|
|
|
March
1, 2013 – May 31, 2013
|
$ 393,834.63
(3 months)
|
|
|
June
1, 2013 – May 31, 2017
|
$1,830,196.20
per year
|
|
|
June
1, 2017 – March 31, 2018
|
$1,525,163.50
(10 months)
|
E. Monthly
Rental Installments:
Original
Premises:
|
April
1, 2003 – March 31, 2008
|
$ 168,000.00
per month
|
|
|
April
1, 2008 – March 31, 2013
|
$ 191,000.00
per month
|
|
|
April
1, 2013 – March 31, 2018
|
$ 226,000.00
per month
|
Additional Space and Second
Additional Space:
|
*Months
1 – 3
|
$ 15,747.35
per month
|
|
|
Month
4 – August 31, 2008
|
$ 65,852.57
per month
|
|
|
September
1, 2008 – February 28, 2009
|
$ 98,565.39
per month
|
|
|
March
1, 2009 – February 28, 2013
|
$ 131,278.21
per month
|
|
|
March
1, 2013 – May 31, 2013
|
$ 131,278.21
per month
|
|
|
June
1, 2013 – May 31, 2017
|
$ 152,516.35
per month
|
|
|
June
1, 2017 – March 31, 2018
|
$ 152,516.35
per month
|
*Although
Tenant is not required to pay Minimum Annual Rent during
months 1-3 of the Lease Term, Tenant shall be required to pay
Additional Rent during such three (3) month period in the amount of $4.73 per
rentable square foot.
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H. Broker: Duke
Realty Services, LLC representing Landlord and none representing
Tenant.
|
I.
|
Landlord's
Share of Operating Expenses:
|
Woodland
V - $3.75 per rentable square foot of the Original Premises
Woodland
VI - $4.73 per rentable square foot of the Additional Space and Second
Additional Space; provided, however, Tenant acknowledges that Landlord's Share
of Operating Expenses shall be $0.00 per rentable square foot of the Additional
Space and Second Additional Space during months 1 through 3.
3. Amendment of Section
2.02. Construction of Tenant
Improvements. Section 2.02 of the
Lease is hereby amended by adding the following:
"Landlord
shall construct and install all leasehold improvements to the Second Additional
Space in accordance with Exhibit
B-7 attached hereto and made a part hereof."
4. Amendment of Section
16.14. Relocation and Discretionary
Allowances. Section 16.14 of the Lease is hereby amended by
deleting "Four Hundred Fifty Thousand Dollars ($450,000.00)" and substituting
"Four Hundred Seventy-seven Thousand Eight Hundred Fifty-eight Dollars
($477,858.00)" in lieu thereof. Section 16.14 is hereby further
amended by deleting "Two Hundred Twenty-five Thousand Dollars ($225,000.00)" and
substituting "Two Hundred Thirty-nine Thousand Seven Hundred Six Dollars
($239,706.00)" in lieu thereof. Section 16.14 is hereby further
amended by deleting the two references to "One Hundred Twelve Thousand Five
Hundred Dollars ($112,500.00)" and substituting "One Hundred Nineteen Thousand
Seventy-six Dollars ($119,076.00)" in lieu thereof.
5. Broker. Landlord
and Tenant represent and warrant that, except for Duke Realty Services, LLC
representing Landlord, no other real estate broker or brokers were involved in
the negotiation and execution of this Amendment and that Landlord is responsible
for paying such broker. Each party shall indemnify the other and hold
it harmless from any and all liability for the breach of any such
representations and warrants on its part and shall pay any compensation to any
other broker or person who may be deemed or held to be entitled thereto as a
result of such indemnifying party's action.
6. Representations.
(a) Tenant
hereby represents that (i) Tenant is duly organized, validly existing and in
good standing (if applicable) in accordance with the laws of the State under
which it was organized; (ii) Tenant is authorized to do business in the State
where the Building is located; and (iii) the individual(s) executing and
delivering this Amendment on behalf of Tenant has been properly authorized to do
so, and such execution and delivery shall bind Tenant to its terms.
(b) Landlord
hereby represents that (i) Landlord is duly organized, validly existing and in
good standing (if applicable) in accordance with the laws of the State under
which it was organized; (ii) Landlord is authorized to do business in the State
where the Building is located; and (iii) the individual(s) executing and
delivering this Amendment on behalf of Landlord has been properly authorized to
do so, and such execution and delivery shall bind Landlord to its
terms. Landlord represents that Woodland VI is properly zoned for the
Permitted Use.
7. Examination of
Amendment. Submission of this instrument for examination or
signature to Tenant does not constitute a reservation or option, and it is not
effective until execution by and delivery to both Landlord and
Tenant.
8. Definitions. Except
as otherwise provided herein, the capitalized terms used in this Amendment shall
have the definitions set forth in the Lease.
9. Incorporation. This
Amendment shall be incorporated into and made a part of the Lease, and all
provisions of the Lease not expressly modified or amended hereby shall remain in
full force and effect.
[SIGNATURES
CONTAINED ON THE FOLLOWING PAGE]
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IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed on the
day and year first written above.
LANDLORD:
DUKE
REALTY LIMITED PARTNERSHIP,
an
Indiana limited partnership
By: Duke
Realty Corporation,
its
general partner
By: /s/ Xxxxxxxx X.
Xxxx
Xxxxxxxx
X. Xxxx
Senior
Vice President
Indiana
Office Group
TENANT:
INTERACTIVE
INTELLIGENCE, INC.,
an
Indiana corporation
By: /s/ Xxxxxxx X.
Head
Printed: Xxxxxxx
X. Head
Title:
CFO
STATE OF
Indiana )
)
SS:
COUNTY OF
Xxxxxx
)
Before
me, a Notary Public in and for said County and State, personally appeared Xxxxxxx X. Head, by
me known and by me known to be the CFO of Interactive
Intelligence, Inc., an Indiana corporation, who acknowledged the execution of
the foregoing "Fourth Lease Amendment" on behalf of said
corporation.
WITNESS
my hand and Notarial Seal this 14 of
March,
2008.
/s/ Xxxxx X.
Xxxx
Notary
Public
Xxxxx X.
Xxxx
Printed
Signature
My
Commission Expires: March 14,
2015
My County
of Residence: Xxxxx
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