THIRD LEASE AMENDMENT
EXHIBIT
10
THIS
THIRD LEASE AMENDMENT (the "Amendment") is executed this 19th day of June,
2007,
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 and December 13, 2002 (collectively, the "Lease"), whereby Tenant leases
from Landlord certain premises consisting of 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
WHEREAS,
Landlord and Tenant desire to expand the Original Premises by approximately
79,385 rentable square feet (the "Additional Space") in an approximately
153,686
square foot office building to be constructed commonly known as Woodland
Corporate Park VI. Collectively, the Original Premises and 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 (i) March 1, 2008; (ii) such later date upon which the First Takedown
Space
Tenant Improvements described in Exhibit
B-5
hereof
are Substantially Completed (as defined in Exhibit
B-5),
provided, however, that such date shall not be extended as a result of any
Tenant Delay (as defined in Exhibit
B-5)
and
Substantial Completion shall be deemed to have occurred upon the date that
it
would have occurred but for such Tenant Delay; or (iii) upon such earlier
date
as Tenant begins conduct of its business in any part of the first takedown
space
(as hereinafter defined) (the "First Takedown Space Commencement Date"),
Section
1.01
of
Article
1
of the
Lease is hereby amended by substituting Third
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"), and the third takedown space containing approximately 19,846 rentable
square feet (the "Third Takedown Space") are cross-hatched and labeled, in
lieu
of Second
Amended Exhibit A
attached
to the Lease. Subject to the availability of such space and a day-for-day
extension for Tenant Delay and events of Force Majeure, in the event that
the
First Takedown Space is not substantially complete by March 1, 2008 or each
remaining portion of the Additional Space is not substantially complete within
sixty (60) days of its respective commencement date specified in Section
(2)(b)(B) hereof, Landlord shall use commercially reasonable efforts to provide
comparable temporary space as near as possible to Woodland Corporate Park
V at
no cost to Tenant until the appropriate Additional Space is substantially
complete. The term "availability" as used above means vacant office space
owned
by Landlord which has not been leased to another tenant or for which a letter
of
intent to lease has not been entered into with a potential tenant.
(b) Commencing
on the First Takedown Space Commencement Date, Section
1.01,
Subsections X, X, X, X, X, X, X, X and N of the Lease are hereby deleted
in
their entirety and the following is substituted in lieu thereof:
A. Leased
Premises (depicted on Third
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 39,693
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 79,385 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 the usable area
of the
Woodland VI. The Rentable Area shall include the area within the 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. 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,
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 in accordance with BOMA Standards and Landlord has notified
Tenant in writing of the same, to have the applicable
Additional Space
(in the
case of (i) above) or the entire 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
(in
the case of (i) above) or entire 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 (in the case of (i) above) or the entire
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 (in the case of (i) above) or entire 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. Upon determination of the
actual
Rentable Area of the applicable Additional Space (in the case of (i) above)
or
the entire Applicable 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 - 25.82%;
Commencing
on September 1, 2008 - 38.74%;
Commencing
on March 1, 2009 - 51.65%.
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:
|
*Months
1 - 3
|
$
|
46,936.98
(3 months
|
)
|
|
|
Months
4 - August 31, 2008
|
|
196,281.90
(3 months
|
)
|
|
|
September
1, 2008 - February 28, 2009
|
|
588,840.72
(6 months
|
)
|
|
|
March
1, 2009 - February 28, 2013
|
|
1,570,235.28
per year
|
||
|
March
1, 2013 - May 31, 2013
|
|
392,558.82
(3 months
|
)
|
|
|
June
1, 2013 - May 31, 2017
|
|
1,824,267.36
per year
|
||
|
June
1, 2017 - March 31, 2018
|
|
1,520,222.80
(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:
|
*Months
1 - 3
|
$
|
15,645.66
per month
|
||
|
Month
4 - August 31, 2008
|
|
65,427.30
per month
|
||
|
September
1, 2008 - February 28, 2009
|
|
98,140.12
per month
|
||
|
March
1, 2009 - February 28, 2013
|
|
130,852.94
per month
|
||
|
March
1, 2013 - May 31, 2013
|
|
130,852.94
per month
|
||
|
June
1, 2013 - May 31, 2017
|
|
152,022.28
per month
|
||
|
June
1, 2017 - March 31, 2018
|
|
152,022.28
per month
|
-2-
*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.
F. Lease
Term: through March 31, 2018;
G. Security
Deposit: None;
H. Brokers:
Duke Realty Services, LLC representing Landlord and Meridian Real Estate
Services 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.
3. Amendment
of Section 2.02.
Construction
of Tenant Improvements.
Section
2.02
of the
Lease is hereby deleted in its entirety and the following is substituted
in lieu
thereof:
"Landlord
shall construct the Building Shell for Woodland VI and construct and install
all
leasehold improvements to the Additional Space in accordance with Exhibit
B-5
attached
hereto and made a part hereof."
4. Amendment
of Section 2.03.
Tenant's
Acceptance of the Leased Premises.
Section
2.03
of the
Lease is hereby amended to clarify and provide that the terms thereof shall
apply only to the Original Premises.
5. Amendment
of Section 3.02.A.
"Annual
Rent Adjustment".
Section
3.02.A.
of the
Lease is hereby deleted in its entirety and the following is substituted
in lieu
thereof:
"A.
"Annual
Rental Adjustment"
- shall
mean the amount of Tenant's Proportionate Share of Operating Expenses for
a
particular calendar year."
6. Amendment
of Section 3.02.B.
"Operating
Expenses".
Section
3.02.B.
of the
Lease is hereby amended to provide that, notwithstanding anything to the
contrary set forth in such Section, Operating Expenses shall (i) exclude
Real
Estate Taxes with respect to Woodland V (as such taxes are to be paid directly
to the taxing authority by Tenant pursuant to Section
3.03
hereof),
and (ii) include Real Estate Taxes with respect to Woodland VI.
7. Amendment
of Section 3.02C.
Tenant's
Proportionate Share of Operating Expenses.
Section
3.02C
of the
Lease is hereby deleted in its entirety and the following is substituted
in lieu
thereof:
"Tenant's
Proportionate Share of Operating Expenses"
- shall
be (a) an amount equal to the remainder of (i) the product of Tenant's Building
Expense Percentage for Woodland V times the Operating Expenses for Woodland
V
less (ii) Landlord's Share of Operating Expenses for Woodland V, provided
that
such amount shall not be less than zero, plus (b) an amount equal to the
remainder of (i) the product of Tenant's Building Expense Percentage for
Woodland VI times the Operating Expenses for Woodland VI less (ii) Landlord's
Share of Operating Expenses for Woodland VI, provided that such amount shall
not
be less than zero."
8. Amendment
of Section 3.02.D.
Real
Estate Taxes.
The
second paragraph of Section
3.02.D
of the
Lease is hereby amended by deleting the word "Building" throughout and
substituting "Woodland V" in lieu thereof.
9. Amendment
of Section 3.02.E.
"Common
Areas".
Section
3.02.E.
of the
Lease is hereby amended to provide that the last two sentences of such Section
shall apply only to Woodland V, except during such times, if any, that Tenant
or
a Permitted Transferee leases one hundred percent (100%) of Woodland VI,
in
which event such sentences shall also apply to Woodland VI during such times.
10. Amendment
of Section 3.03.
"Payment
of Additional Rent".
Section
3.03
of the
Lease is hereby amended to provide that, notwithstanding anything to the
contrary in such Section, Real Estate Taxes shall be (i) excluded from
Additional Rent with respect to Woodland V, and (ii) included as part of
Additional Rent with respect to Woodland VI. Such Section is further amended
to
clarify that Tenant shall only pay Real Estate Taxes directly to the taxing
authority with respect to Real Estate Taxes applicable to Woodland V, and
Real
Estate Taxes applicable to Woodland VI shall be paid to the taxing authority
by
Landlord. Any audit by Tenant under Section
3.03
may
include an audit of Real Estate Taxes respecting Woodland VI.
11. Amendment
of Section 5.01.
Use.
Section
5.01
of the
Lease is hereby amended to clarify and provide that the second and third
sentences thereof shall apply only to the Woodland V Land and Woodland V
portion
of the Leased Premises and not
to the
Woodland VI Land or Woodland VI portion of the Leased Premises.
-3-
12. Amendment
of Section 8.01.
Casualty.
Section
8.01
is
hereby amended by deleting the period "." from the end of the paragraph and
adding the following:
"or
other
tenant improvements provided for with respect to the Original Premises or
the
Additional Space, as applicable. Notwithstanding anything to the contrary
herein, in the event that only one of the Buildings suffers a casualty which
Landlord estimates will take longer than one hundred eighty (180) days to
repair
or rebuild (a "Major Casualty"), Tenant may only exercise the termination
rights
provided in this Section 8.01 with respect to the individual building (Woodland
V or Woodland VI) which suffered the Major Casualty, and the Lease shall
continue with respect to the other building."
13. Amendment
of Section 9.02.
Tenant's
Insurance.
Section
9.02
of the
Lease is hereby amended as follows:
(a) Subparagraph
(b) of Section
9.02
of the
Lease is hereby deleted in its entirety and the following shall be substituted
in lieu thereof:
"(b) Commercial
General Liability Insurance (which insurance shall not exclude blanket
contractual liability, broad form property damage, personal injury, or fire
damage coverage) covering the Leased Premises and Tenant's use thereof against
claims for bodily injury or death and property damage, which insurance shall
provide coverage on an occurrence basis with a per occurrence limit of not
less
than $10,000,000 for each policy year, which limits may be satisfied by any
combination of primary and excess or umbrella per occurrence
policies."
(b) The
last
paragraph of Section
9.02
of the
Lease is hereby deleted in its entirety and the following shall be substituted
in lieu thereof:
"All
insurance required by Tenant hereunder shall (i)
be
issued by one or more insurance companies reasonably acceptable to Landlord,
licensed to do business in the State in which the Leased Premises is located
and
having an AM Best's rating of A IX or better, and (ii)
provide
that said insurance shall not be materially changed, canceled or permitted
to
lapse on less than thirty (30) days' prior written notice to Landlord, unless
the reason for cancellation is non-payment of the insurance premium by Tenant,
in which case the insurer may not cancel such insurance on less than ten
(10)
days prior written notice to Landlord. In addition, Tenant's insurance shall
protect Tenant and Landlord as their interests may appear, naming Landlord,
Landlord's managing agent, and any mortgagee requested by Landlord, as
additional insureds under its commercial general liability policies. On or
before the First Takedown Space Commencement Date, and thereafter, within
thirty
(30) days prior to the expiration of each such policy, Tenant shall furnish
Landlord with certificates of insurance in the form of XXXXX 25 or XXXXX
25-S
(or other evidence of insurance reasonably acceptable to Landlord), evidencing
all required coverages, together with a copy of the endorsements to Tenant's
commercial general liability policies evidencing primary and non-contributory
coverage afforded to the appropriate additional insureds. Upon Tenant's receipt
of a request from Landlord, Tenant shall provide Landlord with copies of
all
insurance policies, including all endorsements, evidencing the coverages
required hereunder. If Tenant fails to carry such insurance and furnish Landlord
with such certificates of insurance or copies of insurance policies (if
applicable), Landlord may obtain such insurance on Tenant's behalf and Tenant
shall reimburse Landlord upon demand for the cost thereof as Additional Rent.
Landlord reserves the right from time to time to require Tenant to obtain
higher
minimum amounts or different types of insurance if it becomes customary for
other landlords of similar buildings in the area to require similar sized
tenants in similar industries to carry insurance of such higher minimum amounts
or of such different types."
14. Amendment
of Section 16.11.
Signage.
Section
16.11
of the
Lease is hereby amended as follows:
(a) Subparagraphs
A and B of Section
16.11
of the
Lease are hereby amended to provide that the same apply only the Woodland
V.
(b) Section
16.11
of the
Lease is further amended by adding new Subparagraph C as follows:
"C. Woodland
VI Exterior Signage.
Provided that (i) Tenant complies with all zoning and other municipal and
county
regulations, (ii) Tenant and/or a Permitted Transferee does not reduce, sublease
(except to a Permitted Transferee), or assign (except to a Permitted Transferee)
the Additional Space or any portion thereof, and (iii) there is no uncured
Default by Tenant hereunder, Tenant may, at its own cost and expense, erect
two
(2) signs ("Woodland VI Signs") identifying its business on Woodland VI.
The
location, style and size of the Woodland VI Signs shall be consistent with
Landlord's park signage guidelines (a copy of which are attached hereto as
Exhibit
E)
and
otherwise subject to Landlord's prior written approval, which shall not be
unreasonably withheld, conditioned or delayed. Notwithstanding the forgoing,
(a)
if Tenant fails to comply with item (ii) above but Tenant or a Permitted
Transferee still leases and occupies at least fifty percent (50%) of Woodland
VI, Tenant may maintain the Woodland VI Signs that have already been attached
to
the Building (but may not attach any additional signs to the Building), and
(b)
if Tenant fails to comply with item (ii) above but Tenant or a Permitted
Transferee still leases and occupies at least twenty-five percent (25%) of
Woodland VI, Tenant may maintain only one of the Woodland VI Signs and Tenant
shall remove the Woodland VI Sign of its choice if Tenant has previously
attached more that one sign to Woodland VI and repair all damage caused to
Woodland VI thereby. Tenant agrees to maintain such Woodland VI Signs in
first-class condition and in compliance with all zoning and building codes
throughout the Lease Term. Upon expiration or early termination of the Lease
Term with respect to the Additional Space, Tenant shall remove the Woodland
VI
Signs and repair all damage to Woodland VI caused thereby, returning Woodland
VI
to the condition existing prior to the installation of the Woodland VI Signs.
Landlord does not warrant the continuing availability of such Woodland VI
Signs
to Tenant; however, Landlord agrees not to take any action which would negate
Tenant's ability to maintain such Signs and to provide reasonable cooperation
to
Tenant in connection with any application required by Governmental Laws.
Any
language in the Lease notwithstanding, Tenant shall indemnify and hold harmless
Landlord from any and all liability for any loss of or damage or injury to
any
person (including death resulting therefrom) or property connected with or
arising from the Woodland VI Signs or the rights granted Tenant herein. The
obligations of Tenant herein shall survive the expiration or earlier termination
of this Lease."
(c) Section
16.11
of the
Lease is further amended by adding new Subparagraph D as follows:
-4-
"D. Woodland
VI Signage (General).
Landlord, at its cost and expense, shall provide Tenant with standard signage
on
the main Woodland VI directory and at the entrance to the Leased Premises
located in Woodland VI. Any changes requested by Tenant to the initial directory
or suite signage shall be made at Tenant's sole cost and expense and shall
be
subject to Landlord's approval. Landlord may install such other signs,
advertisements, notices or tenant identification information on the Woodland
VI
directory, tenant access doors or other areas of Woodland VI, as it shall
deem
necessary or proper. Tenant shall not place any exterior signs on the portion
of
the Leased Premises located in Woodland VI or interior signs visible from
the
exterior thereof without the prior written consent of Landlord. Notwithstanding
any other provision of this Lease to the contrary, Landlord may immediately
remove any sign(s) placed by Tenant in violation of this Section
16.11D."
(d) Section
16.11
of the
Lease is further amended by adding new Subparagraph E as follows:
"E. Renaming
of Portion of Innovation Blvd.; Monument Signage.
At such
time as Tenant or its Permitted Transferee commences the payment of rent
on all
of the Leased Premises and provided that Tenant or its Permitted Transferee
continues to lease and occupy all of the Leased Premises and Woodland V,
(i)
upon Tenant's written request, Landlord shall use commercially reasonable
efforts to cause the applicable governmental authority to rename that portion
of
Innovation Boulevard cross hatched on Exhibit
F attached
hereto, to "Interactive Way", and (ii) provided that such signage is permitted
by the Government Laws, Landlord agrees to provide at its sole expense, a
monument sign (as more particularly described on said Exhibit
F)
with
the words "Interactive Intelligence Campus at Woodland Corporate Park" (or
such
other wording to similar effect as shall be mutually agreed upon by Landlord
and
Tenant) in one of the locations depicted on said Exhibit
F."
15. Amendment
of Section 16.13.
Parking.
Section
16.13
of the
Lease is hereby amended to provide that the same applies only to the Woodland
V
Land and to Woodland V. Section 16.13 is further amendment to provide that
Landlord will use commercially reasonable efforts to protect Tenants exclusive
parking rights in the Woodland V surface parking lot, as identified on
Second
Amended Exhibit A-1
attached
hereto, including, to the extent necessary, placing signage indicating that
such
parking area is for the exclusive use of the tenants of Building V and notifying
known violators in writing.
Section
16.13
of the
Lease is hereby further amended by adding the following new
paragraph:
"The
following shall apply to parking on the Woodland VI Land. Tenant shall be
entitled to the non-exclusive use, at no cost to Tenant, of a pro-rata portion
of the total number of parking spaces designated for Woodland VI by Landlord
based on Tenant's Building Expense Percentage from time to time. The parking
spaces designated for Woodland VI by Landlord are depicted on Second
Amended Exhibit A-1,
attached hereto. Landlord shall maintain a parking ratio for Woodland VI
of four
(4) parking spaces per 1000 rentable square feet of rentable space in Woodland
VI. Tenant
agrees not to overburden the parking facilities and agrees to cooperate with
Landlord and other tenants in the use of the parking facilities. Landlord
reserves the right in its absolute discretion to determine whether parking
facilities are becoming crowded and, in such event, to allocate parking spaces
between Tenant and other tenants. There will be no assigned parking unless
Landlord, in its sole discretion, deems such assigned parking advisable.
No
vehicle may be repaired or serviced in the parking area and any vehicle brought
into the parking area by Tenant, or any of Tenant's employees, contractors
or
invitees, and deemed abandoned by Landlord will be towed and all costs thereof
shall be borne by the Tenant. All driveways, ingress and egress, and all
parking
spaces are for the joint use of all tenants. There shall be no parking permitted
on any of the streets or roadways located within the park.
In
addition, Tenant agrees that its employees will not park in the spaces
designated visitor parking."
16. Amendment
of Section 16.14.
Relocation
and Discretionary Allowances.
Section
16.14
of the
Lease is hereby deleted in its entirety and the following is substituted
in lieu
thereof:
"Discretionary
Allowance.
For and
in consideration of Tenant leasing the Additional Space and provided there
is no
uncured Default by Tenant hereunder, Landlord shall pay to Tenant a
discretionary allowance in an amount equal to Four Hundred Fifty Thousand
Dollars ($450,000.00) (the "Discretionary Allowance") for Tenant's use towards
costs associated with Tenant's Leased Premises in either Woodland V or Woodland
VI, including, but not limited to, moving costs, wiring and cabling, space
planning, design, furniture, fixtures and equipment. Landlord hereby agrees
to
pay the Discretionary Allowance to Tenant as follows: (i) Two Hundred
Twenty-five Thousand Dollars ($225,000.00) on or before the First Takedown
Space
Commencement Date; (ii) One Hundred Twelve Thousand Five Hundred Dollars
($112,500.00) on or before September 1, 2008; and (iii) One Hundred Twelve
Thousand Five Hundred Dollars ($112,500.00) on or before March 1,
2009."
17. Amendment
of Section 16.15.
Right
of First Offer to Purchase the Building.
Section
16.15
of the
Lease is hereby amended by deleting "(and any extension thereto pursuant
to the
exercise of Tenant's expansion rights under Section
16.16,
16.17,
16.18
and/or
16.20),"
in
the first (1st)
and
second (2nd)
lines.
Section
16.15
of the
Lease is hereby further amended by deleting the second (2nd)
paragraph in its entirety. Section
16.15
of the
Lease is hereby further amended by deleting the word "Building" throughout
and
substituting "Woodland V" in lieu thereof. Section
16.15
of the
Lease is hereby further amended by adding the following:
"Upon
Tenant's occupancy of seventy-five percent (75%) of Woodland VI, Landlord
and
Tenant hereby acknowledge and agree that Tenant shall have a right of first
offer to purchase Woodland VI upon the same terms and conditions as Tenant's
right of first offer to purchase Woodland V."
-5-
18. Amendment
of Section 16.16.
Phase
I Building Expansion Option.
Section
16.16
of the
Lease is hereby deleted in its entirety and shall be of no further force
or
effect.
19. Amendment
of Section 16.17.
Phase
II Building Expansion Option.
Section
16.17
of the
Lease is hereby deleted in its entirety and shall be of no further force
or
effect.
20. Amendment
of Section 16.18.
Phase
III Building Expansion Option.
Section
16.18
of the
Lease is hereby deleted in its entirety and shall be of no further force
or
effect.
21. Amendment
of Section 16.19.
Option
to Extend.
Section
16.19
of the
Lease is hereby amended to provide that Landlord and Tenant hereby acknowledge
and agree that Tenant's option to extend under Section 16.19 shall pertain
to
all of the Leased Premises, as defined by the Lease as amended by this
Amendment. Notwithstanding the forgoing, (i) Landlord and Tenant agree that
the
Rent Adjustment with respect to Woodland V and Woodland VI shall be determined
independently of one another, such that the rental amount for each of such
Buildings may be different, and (ii) as a condition to exercising its option
to
extend under Section 16.19, Tenant shall, in addition to the requirements
set
forth in the first sentence of Section 16.19, have been continuously operating
(once having taken possession of the applicable portion of the Additional
Space
as provided in Section 2(b)B hereof) in the entire Additional Space.
22. Amendment
of Section 16.21.
Name
Change of Park.
Section
16.21
of the
Lease is hereby deleted in its entirety and shall be of no further force
or
effect.
23. Amendment
of Section 16.22.
Infrastructure
Improvements.
Section
16.22
of the
Lease is hereby deleted in its entirety and shall be of no further force
or
effect.
24. Amendment
of Section 16.23.
Early
Occupancy.
Section
16.23
of the
Lease is hereby deleted in its entirety and shall be of no further force
or
effect.
25. Amendment
of Article 16.
Miscellaneous.
Article
16
of the
Lease is hereby amended by adding the following additional
sections:
"Section
16.24.
Right
of First Offer (Woodland Corporate Park Building I).
(a) Provided
that (i) no Default has occurred which remains uncured, (ii) the
creditworthiness of Tenant is then reasonably acceptable to Landlord, and
(iii)
Tenant originally named herein or its Permitted Transferee remains
in possession of seventy-five percent (75%) or more of the Leased Premises,
and
subject to any rights of other tenants to the Offer Space (as defined herein)
and Landlord's right to renew or extend the lease term of any other tenant
with
respect to the portion of the Offer Space now or hereafter leased by such
other
tenant, Landlord shall, before entering into a lease with a third party for
space containing 10,000 square feet or more located in Woodland Corporate
Park
Building I ("Woodland I") (the particular space referred to in Landlord's
Notice
(as defined below) being hereinafter referred to as the "Offer Space"), notify
Tenant in writing of the availability of the Offer Space for leasing and
setting
forth the terms and conditions upon which Landlord is willing to lease the
Offer
Space to Tenant ("Landlord's Notice"). Tenant shall have seven (7) business
days
from its receipt of Landlord's Notice to deliver to Landlord a written notice
agreeing to lease the Offer Space on the terms and conditions contained in
Landlord's Notice ("Tenant's Acceptance"). In the event Tenant fails to deliver
Tenant's Acceptance to Landlord within said seven (7) business day period,
such
failure shall be conclusively deemed a rejection of the Offer Space and a
waiver
by Tenant of this right of first offer with respect to the Offer Space,
whereupon Tenant shall have no further rights with respect to the Offer Space
and Landlord shall be free to lease the Offer Space to a third
party.
(b) The
term
for the Offer Space shall be coterminous with the term for the then existing
Leased Premises (the "Existing Premises"); provided, however, that the minimum
term for the Offer Space shall be five (5) years and the term for the then
Existing Premises shall be extended, if necessary, to be coterminous with
the
term for the Offer Space. If the Lease Term for the Existing Premises is
extended as provided above, the Minimum Annual Rent for such extension term
shall be an amount equal to the Minimum Annual Rent then being quoted by
Landlord to prospective renewing tenants of the Building for space of comparable
size and quality and with similar or equivalent improvements as are found
in the
Building, and if none, then in similar buildings in the Park; provided, however,
that in no event shall the Minimum Annual Rent during such extension term
be
less than the highest Minimum Annual Rent payable during the immediately
preceding term.
(c) If
Tenant
properly exercises its right of first offer, Landlord and Tenant shall enter
into an amendment to this Lease adding the Offer Space to the Leased Premises
upon the terms and conditions set forth herein and making such other
modifications to this Lease as are appropriate under the circumstances. Landlord
and Tenant shall work diligently and in good faith to enter into such amendment
as promptly as reasonably possible.
(d) Notwithstanding
anything to the contrary in this Section 16.24, if Tenant properly exercises
its
right of first offer hereunder during the first five years of the Lease Term
for
the Additional Space, (i) the rental rates applicable to the applicable Offer
Space will be the rental rates then in effect for the Additional Space (and
such
rates shall escalate at the same time as the rental escalations for the
Additional Space), and (ii) Tenant shall receive the same tenant improvement
allowance ($24.00 per rentable square foot) for the applicable Offer Space
as
was provided for the Additional Space, except that such allowance shall be
prorated based on the remaining lease term.
-6-
Section
16.25.
Right
of First Offer (Woodland VI).
(a) Provided
that (i) no Default has occurred which remains uncured, (ii) the
creditworthiness of Tenant is then reasonably acceptable to Landlord, and
(iii)
Tenant originally named herein or its Permitted Transferee remains
in possession of seventy-five percent (75%) or more of the Leased Premises,
and
subject to any rights of other tenants to the Offer Space (as defined herein)
and Landlord's right to renew or extend the lease term of any other tenant
with
respect to the portion of the Offer Space now or hereafter leased by such
other
tenant, Landlord shall, before entering into a lease with a third party for
space located in Woodland VI (the particular space referred to in Landlord's
Notice (as defined below) being hereinafter referred to as the "Offer Space"),
notify Tenant in writing of the availability of the Offer Space for leasing
and
setting forth the terms and conditions upon which Landlord is willing to
lease
the Offer Space to Tenant ("Landlord's Notice"). Tenant shall have seven
(7)
business days from its receipt of Landlord's Notice to deliver to Landlord
a
written notice agreeing to lease the Offer Space on the terms and conditions
contained in Landlord's Notice ("Tenant's Acceptance"). In the event Tenant
fails to deliver Tenant's Acceptance to Landlord within said seven
(7) business day period, such failure shall be conclusively deemed
a
rejection of the Offer Space and a waiver by Tenant of this right of first
offer
with respect to the Offer Space, whereupon Tenant shall have no further rights
with respect to the Offer Space and Landlord shall be free to lease the Offer
Space to a third party.
(b) The
term
for the Offer Space shall be coterminous with the term for the then existing
Leased Premises (the "Existing Premises"); provided, however, that the minimum
term for the Offer Space shall be five (5) years and the term for the Existing
Premises shall be extended, if necessary, to be coterminous with the term
for
the Offer Space. If the Lease Term for the Existing Premises is extended
as
provided above, the Minimum Annual Rent for such extension term shall be
an
amount equal to the Minimum Annual Rent then being quoted by Landlord to
prospective renewing tenants of the Building for space of comparable size
and
quality and with similar or equivalent improvements as are found in the
Building, and if none, then in similar buildings in the Park; provided, however,
that in no event shall the Minimum Annual Rent during such extension term
be
less than the highest Minimum Annual Rent payable during the immediately
preceding term.
(c) If
Tenant
properly exercises its right of first offer, Landlord and Tenant shall enter
into an amendment to this Lease adding the Offer Space to the Leased Premises
upon the terms and conditions set forth herein and making such other
modifications to this Lease as are appropriate under the circumstances. Landlord
and Tenant shall work diligently and in good faith to enter into such amendment
as promptly as reasonably possible.
(d) Notwithstanding
anything to the contrary in this Section 16.25, if Tenant properly exercises
its
right of first offer hereunder during the first five years of the Lease Term
for
the Additional Space, (i) the rental rates applicable to the applicable Offer
Space will be the rental rates then in effect for the Additional Space (and
such
rates shall escalate at the same time as the rental escalations for the
Additional Space), and (ii) Tenant shall receive the same tenant improvement
allowance ($24.00 per rentable square foot) for the applicable Offer Space
as
was provided for the Additional Space, except that such allowance shall be
prorated based on the remaining lease term.
Section
16. 26.
Tax
Abatement (Woodland VI).
(a) Landlord
and Tenant acknowledge that, as of the date of this Amendment, Tenant has
obtained tax abatement on Woodland VI (the "Tax Abatement"). Landlord agrees
that Tenant shall receive the benefit of any Tax Abatement obtained by Tenant
on
Woodland VI in accordance with the terms which follow below. During the term
of
the Lease, within thirty (30) days after Landlord pays each installment of
Real
Estate Taxes respecting Woodland VI, Landlord shall pay to tenant a pro-rata
portion of any Real Estate Taxes that were abated with respect to the applicable
installment based on the percentage of rentable square footage of Woodland
VI
that is not, as of date Landlord pays such installment, leased by Tenant
or an
affiliate thereof. The following provides a sample calculation of Tenant's
Real
Estate Tax liability respecting Woodland VI for the fourth calendar year
of the
Lease Term (for purposes of this example, the selection of the fourth calendar
year is arbitrary) based on the following assumptions: (i) Tenant leases
approximately 75,000 square feet, a third party tenant leases approximately
25,000 square feet, and the remaining approximately 50,000 square feet of
Woodland VI is not leased by any tenant, (ii) the first installment and second
installment of Real Estate Taxes for Woodland VI for said fourth calendar
year
of the Lease Term are paid by Landlord to the taxing authority on May 10
and
November 10 of such year, respectively, in the amount of $40,000.00 per
installment, and (iii) $60,000.00 of Real Estate Taxes are abated for each
such
installment (i.e., if not for the Tax Abatement, $100,000.00 of Real Estate
Taxes would have been payable by Landlord to the taxing authority for each
installment of Real Estate Taxes in said fourth year of the Lease Term).
Based
on the forgoing, Landlord would pay to Tenant $30,000.00 on or before June
9 and
$30,000.00 on or before December 10 in said fourth year of the Lease Term,
as
consideration for the tax savings to Landlord as a result of the Tax Abatement.
In the above example, Tenant would be responsible for $20,000.00 of each
of said
installments based on its Building Expense Percentage of fifty percent (50%)
for
Woodland VI, and any overpayment or underpayment by Tenant of its $40,000
obligation for Real Estate Taxes for said fourth calendar year of the Lease
Term
would be considered in calculating the Annual Rental Adjustment following
the
end of said fourth calendar year of the Lease Term. Notwithstanding the
forgoing, Tenant hereby agrees and acknowledges that Tenant shall be responsible
for Tenant’s pro-rata share of all Real Estate Taxes respecting Woodland VI
payable during the Lease Term based on Tenant's Building Expense Percentage
for
Woodland VI. Tenant agrees to indemnify, defend and hold harmless Landlord
from
and against any and all losses, claims or damages (including without limitation,
any abated Real Estate Taxes respecting Woodland VI which Landlord may be
required to reimburse to the taxing authority) resulting from Tenant's failure
to comply with its obligations under this Section or under any agreement
entered
into by Tenant with the City of Indianapolis and/or other applicable
governmental authorities with respect to the Tax Abatement (collectively,
the
"Tax Abatement Agreements").
-7-
(b) Landlord
agrees not to commence construction of Woodland VI prior to April 10, 2006.
Immediately upon execution of this Lease, Tenant shall prepare and file any
required applications, forms, resolutions, agreements or other materials,
whether for or on behalf of Tenant or Landlord. To permit Tenant to take
the
actions necessary to obtain and maintain property tax abatement deductions
on
the Woodland VI, Landlord shall (i) upon reasonable notice from Tenant, execute
such tax abatement applications, forms, resolutions, agreements, and other
materials provided the same shall be in a form reasonably acceptable to
Landlord; (ii) upon reasonable notice from Tenant, provide Tenant with
information in its possession with respect to the Woodland VI necessary to
prepare such applications, forms, resolutions, agreements and other materials;
(iii) upon reasonable notice from Tenant, either appear or authorize Tenant
to
appear on behalf of Landlord at any public hearing related to obtaining or
maintaining real estate tax abatement on the Woodland VI; and (iv) shall
forward
to Tenant promptly upon receipt any notice of assessment or change in assessment
relating to the Woodland VI. Notwithstanding the forgoing in this Section
16.26,
Landlord shall not be required to enter into any agreement or take any other
action whereby Landlord would have any liability to the City of Indianapolis
or
other applicable governmental authority under the Tax Abatement Agreements
as a
result of Tenant's failure to comply with its obligations thereunder or
otherwise. This Section 16.26 shall survive the expiration or earlier
termination of the Lease.
Section
16.27. Termination
Option.
Provided that (a) no Default has occurred which remains uncured, (b) Tenant
originally named herein or a Permitted Transferee remains in possession of
and
has been continuously operating (once having taken possession of the applicable
portion of the Additional Space as provided in Section 2(b)B hereof) in the
entire Additional Space from the First Takedown Space Commencement Date through
the effective date of the First Termination Option or Second Termination
Option,
as applicable, (c) either (i) all of Tenant's stock is acquired by an
unaffiliated person or entity (an "Unaffiliated Third Party") or (ii)
substantially all of Tenant's assets are acquired by an Unaffiliated Third
Party, and (iv) neither Tenant, the Unaffiliated Third Party or any affiliates
thereof continue to have operations (including the leasing or owning of any
property for purposes of conducting business) in Xxxxxx County, Indiana or
any
of the immediately surrounding counties, Tenant shall have the right to
terminate the Lease with respect to the Additional Space and any other space
leased in Woodland VI or Woodland I effective as of either (1) the end of
the
fifth (5th)
year of
the Lease Term for the Additional Space (the "First Termination Option"),
or (2)
the end of the eighth (8th)
year of
the Lease Term for the Additional Space (the "Second Termination Option").
For
purposes of this Section 16.27, any officer or director of Tenant or its
affiliates shall be considered an affiliated party. In order to exercise
either
such termination right, Tenant shall notify Landlord of such exercise in
writing
at least twelve (12) months prior to the effective date of such termination,
and
together with such notice, Tenant shall deliver to Landlord, as an agreed
upon
termination fee, an amount equal to fifty percent (50%) of the gross rent
(i.e.
all Minimum Annual Rent and Additional Rent) that would have been paid by
Tenant
over the balance of the Lease Term for the Additional Space and any other
space
leased by Tenant at Woodland VI and/or Woodland I had Tenant not exercised
its
termination option. With respect to the First Termination Option (assuming
that
Tenant does not exercise its option to lease any of the Offer Space or otherwise
lease additional space in Woodland VI or Woodland I), Landlord estimates
that
the termination fee would be approximately $4,520,975.75. With respect to
the
Second Termination Option (assuming that Tenant does not exercise its option
to
lease any of the Offer Space or otherwise lease any space in Woodland VI
or
Woodland I), Landlord estimates that the termination fee would be approximately
$1,808,390.30. Such payment is made in consideration for Landlord's grant
of the
forgoing option to terminate to compensate Landlord for rental and other
concessions given to Tenant and for other good and valuable consideration.
The
termination fee does not constitute payment of rent to Landlord. If Tenant
fails
to notify Landlord by the deadline set forth above, for the First Termination
Option or the Second Termination Option, as applicable, Tenant shall have
waived
the applicable termination right for the remainder of the term of the Lease
and
any extensions thereof."
26. Patriot
Act.
Each of
Landlord and Tenant, each as to itself, hereby represents its compliance
with
all applicable anti-money laundering laws, including, without limitation,
the
USA Patriot Act, and the laws administered by the United States Treasury
Department's Office of Foreign Assets Control, including, without limitation,
Executive Order 13224 ("Executive Order"). Each of Landlord and Tenant further
represents (i) that it is not, and it is not owned or controlled directly
or
indirectly by any person or entity, on the SDN List published by the United
States Treasury Department's Office of Foreign Assets Control and (ii) that
it
is not a person otherwise identified by government or legal authority as
a
person with whom a U.S. Person is prohibited from transacting business. As
of
the date hereof, a list of such designations and the text of the Executive
Order
are published under the internet website address
xxx.xxxxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx.
27. Amendment
of Section 6.01.
Services
to be Provided.
Section
6.01
of the
Lease is hereby amended to provide that the second sentence thereof applies
only
to Woodland V..
28. Broker.
Tenant
represents and warrants that, except for Meridian Real Estate Services
representing Tenant, no other real estate broker or brokers were involved
in the
negotiation and execution of this Amendment on behalf of Tenant and that
Tenant
is responsible for paying such broker. Landlord represents and warrants 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 on behalf of Landlord 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.
-8-
29. 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.
30. 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.
31. Definitions.
Except
as otherwise provided herein, the capitalized terms used in this Amendment
shall
have the definitions set forth in the Lease.
32. 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.
-9-
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 "Third Lease Amendment" on behalf of said
corporation.
WITNESS
my hand and Notarial Seal this 19th of June, 2007.
/s/
Xxxxx X. Xxxx
Notary
Public
Xxxxx
X. Xxxx
Printed
Signature
My
Commission Expires: Xxxxx 00, 0000
Xx
County
of Residence: Xxxxx
-10-
