EXHIBIT 10.83
AMENDMENT TO LEASE
THIS AGREEMENT is made as of October 1, 2004 (the "EFFECTIVE DATE"), by
and between BIT HOLDINGS FORTY-EIGHT, INC., a Maryland corporation ("LANDLORD"),
and PEERLESS SYSTEMS IMAGING PRODUCTS, INC., a Washington corporation
("TENANT").
RECITALS
A. INTRAROCK 1 LLC, a Delaware limited liability company ("INTRAROCK"), as
landlord, and Tenant, as tenant, entered into a lease dated as of March 15, 2000
for certain premises (the "PREMISES") located on the Fourth (4th) Floor of the
building commonly known as "CREEKSIDE ONE BUILDING" located at 20415-72nd Avenue
South, Kent, Washington (the "LEASE"). The Premises contain 10,756 rentable
square feet and are more particularly described in the Lease. Capitalized terms
used in this Agreement and not otherwise defined herein shall have the meanings
given to them in the Lease.
B. Landlord is a successor in interest to Intrarock and the current owner
of the Land and Building, having acquired the Land and Building from Intrarock.
C. Landlord and Tenant have agreed to make certain modifications to the
terms of the Lease in accordance with the terms of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, Landlord and Tenant agrees as follows:
1. Lease Term. The Lease Term is hereby extended for a new Term of sixty
eight (68) months commencing on the Effective Date, such that the Expiration
Date as defined in the Lease shall be extended to May 31, 2010.
2. Base Rent. Commencing on the Effective Date, and continuing through
November 30, 2004, Tenant shall continue to make payments of Monthly Base Rent
and Additional Rent (including without limitation the tenant improvement
reimbursement payments payable under the Lease) in accordance with the original
terms of the Lease. Commencing on December 1, 2004, the Schedule of Monthly Base
Rent set forth in Section 1(f) of the Lease shall be revised as follows:
AMEND TO LEASE 3.2
Period Monthly Base Rent
- ---------------------- ----------------------
12/1/2004 to 9/30/2005 $9,859.67 ($11.00/rsf)
10/1/2005 to 9/30/2006 $10,307.83 ($11.50/rsf)
10/1/2006 to 9/30/2007 $10,756.00 ($12.00/rsf)
10/1/2007 to 9/30/2008 $11,204.17 ($12.50/rsf)
10/1/2008 to 9/30/2009 $11,652.33 ($13.00/rsf)
10/1/2009 to 5/31/2010 $12,100.50 ($13.50/rsf)
3. Rent Adjustment. So long as Tenant is not in default beyond the
expiration of any applicable notice and cure period, (a) Monthly Base Rent for
December 2004 through August 2005 shall be waived, and (b) Tenant shall be
entitled to a credit against Monthly Base Rent for the month of September 2005
in the amount of $3,244.08 (collectively, the "RENT ADJUSTMENT").
Notwithstanding the Rent Adjustment, Tenant shall remain liable for Tenant's
share of Operating Costs and Real Property Taxes in accordance with Section 5 of
the Lease.
4. Termination of Additional Allowance Reimbursement. So long as Tenant is
not in default beyond the expiration of any applicable notice and cure period,
effective on December 1, 2004, Tenant shall no longer be responsible for monthly
payments made with respect to the repayment of the Additional Allowance
(additional Tenant Improvement costs) advanced by Landlord under Exhibit D to
the Lease and confirmed in the Confirmation of Lease Terms dated August 28,
2000.
5. Tenant's Share of Operating Costs and Real Property Taxes. Effective
December 1, 2004, Section 5(b)(i) of the Lease is hereby amended as follows:
(a) The 5% administrative fee on Operating Costs described in the first
sentence shall be eliminated.
(b) In no event shall the controllable components of Tenant's Share of
Operating Costs and Real Property Taxes (e.g., components other than
taxes, insurance, utility charges or snow removal) be increased for
any given Lease Year by more than five percent (5%) over the prior
Lease Year.
(c) "Operating Costs" shall not include costs incurred by Landlord for
the replacement or repair of capital expense items which are
Landlord's responsibility to maintain, such as foundation, walls,
and roof structure (except maintenance of roof overlays).
AMEND TO LEASE 3.2
6. Waiver of Right to Terminate. Section 28(e) of the Lease is hereby
deleted in its entirety.
7. Right of First Opportunity. Section 28(g) of the Lease is deleted in
its entirety and replaced with the following:
(g) Right of First Opportunity. Tenant shall have an ongoing right
of first opportunity (the "RFO") to lease any space on the
Fourth (4th) Floor of the Building which becomes available for
lease during the current Lease Term (the "RFO Space").
Tenant's rights to the RFO Space shall be subject to the
expansion and extension rights of other tenants of the
Building, and space will not be considered available if the
tenant then occupying the RFO Space agrees with Landlord to
extend the term of its lease with respect to all or a portion
of the RFO Space. Prior to leasing any RFO Space to a third
party, Landlord will first advise Tenant in writing (the "RFO
Notice") of the amount of any RFO Space which is available and
the terms and conditions under which Landlord is prepared to
lease the subject RFO Space to Tenant. If the RFO Notice is
given during the last thirty six (36) months of the current
Lease Term, Landlord may require that Tenant exercise the
Extension Option described in Section 3(c) of the Lease.
Tenant shall have ten (10) business days after receiving an
RFO Notice to notify Landlord in writing that Tenant desires
to lease all of the subject RFO Space under the terms and
conditions set forth in the RFO Notice. Such terms shall
reflect market terms in the local South King County submarket,
including but not limited to any and all concessions that
might be offered to any other prospective tenant, rental rate,
escalations, allowances, commissions and tenant rights. If
Tenant fails to timely notify Landlord of its interest in
leasing all of the subject RFO Space, Landlord shall be free
to lease the RFO Space to any other person or entity,
regardless of the length of time it takes Landlord to re-let
the RFO Space or the terms upon which it is ultimately re-let.
The RFO would again apply to any RFO Space which later becomes
available for lease only after re-letting and subsequent
expiration of the new lease.
8. Survival of Extension Option. The Extension Option set forth in Section
3(c) of the Lease shall remain available to Tenant at the end of the Term, as
extended by the terms of this Agreement.
9. Waiver of Recapture Right. Section 16(b) of the Lease is hereby deleted
in its entirety. In lieu of Landlord's Recapture Right, any rent payable to
Tenant under an approved sublease in excess of Base Rent (per square foot)
payable hereunder, or any additional consideration paid to Tenant arising from
an assignment or sublease approved by Landlord, shall be divided equally between
Landlord and Tenant, and Landlord's portion shall be payable by Tenant to
Landlord as additional rent under the Lease.
AMEND TO LEASE 3.2
10. Alterations by Tenant; Construction Labor Matters. Tenant acknowledges
that Landlord may condition its consent to any proposed alterations to the
Premises by Tenant pursuant to Section 11 of the Lease upon the management of
the construction of such alterations by Landlord or its property manager, for a
reasonable fee which shall not exceed five percent (5%) of the cost of the
project. Also notwithstanding any provision of the Lease to the contrary, Tenant
agrees that if, at any time during the Lease Term, it shall construct or alter
the improvements on or about the Premises, Tenant shall cause such construction
or alteration work to be performed by contractors who shall employ craft workers
who are members of unions that are affiliated with the AFL-CIO Building and
Construction Trades Department (the "LABOR COVENANT"). Tenant shall include the
Labor Covenant in each of its contracts for such construction or alteration
work. Tenant shall provide such evidence as Landlord may reasonably require,
from time to time during the course of such construction or alteration work,
that the Labor Covenant is being fully and faithfully observed and Tenant shall
include the obligation to provide such evidence in each contract entered into by
Tenant for such construction or alteration work. Tenant agrees that it shall
incorporate the foregoing requirements in any sublease of the Premises.
11. Confidentiality. Landlord and Tenant shall keep the terms of the
Lease, as amended by this Agreement, confidential and shall not disclose the
material terms of the Lease, or disseminate or distribute any information
concerning the terms of the Lease to any third party without the prior written
consent of the non-disclosing party. Notwithstanding the foregoing, the
foregoing restrictions shall not preclude Tenant from making disclosures of
financial and other information required to be made by Tenant in connection with
financial or other reporting required of Tenant as a publicly traded company.
Furthermore, the foregoing shall not prohibit Landlord from providing such
information to prospective purchasers or lenders in connection with any proposed
sale or financing of the land and building. Finally, the foregoing shall not
preclude Landlord or Tenant from disclosing information regarding the terms of
the Lease with financial and legal advisors, accountants, investors, in
financial statements, or as required by law.
12. No Other Changes. Except as expressly modified or amended by this
Agreement, all of the terms and conditions of the Lease shall remain unchanged
and in full force and effect. To the extent any of the terms and conditions of
the Lease conflict with any of the terms or conditions of this Agreement, this
Agreement shall control.
AMEND TO LEASE 3.2
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement as of
the Effective Date.
LANDLORD:
BIT HOLDINGS FORTY-EIGHT, INC., a
Maryland corporation
By _________________________________
Its __________________________
TENANT:
PEERLESS SYSTEMS IMAGING PRODUCTS,
INC., a Washington corporation
By _________________________________
Its __________________________
AMEND TO LEASE 3.2
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this _____ day of ______________, 2004, before me, a Notary Public in
and for the State of Washington, duly commissioned and sworn, personally
appeared ____________________, to me known to be the ________________ of BIT
HOLDINGS FORTY-EIGHT, INC., a Maryland corporation, the corporation named in and
which executed the foregoing instrument; and he/she acknowledged to me that
he/she signed the same as the free and voluntary act and deed of said
corporation for the uses and purposes therein mentioned.
I certify that I know or have satisfactory evidence that the person
appearing before me and making this acknowledgment is the person whose true
signature appears on this document.
WITNESS my hand and official seal the day and year in this certificate
above written.
______________________________________________
Signature
______________________________________________
Print Name
NOTARY PUBLIC in and for the State of
Washington, residing at _____________________.
My commission expires _______________________.
AMEND TO LEASE 3.2
STATE OF WASHINGTON )
) ss.
COUNTY OF __________ )
On this _______ day of _______________, 2004, before me, the undersigned,
a Notary Public in and for the State of Washington, duly commissioned and sworn
personally appeared ____________________________, known to me to be the
_____________________ of PEERLESS SYSTEMS IMAGING PRODUCTS, INC., a Washington
corporation, the corporation that executed the foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of
said corporation, for the purposes therein mentioned, and on oath stated that
he/she was authorized to execute said instrument.
I certify that I know or have satisfactory evidence that the person
appearing before me and making this acknowledgment is the person whose true
signature appears on this document.
WITNESS my hand and official seal hereto affixed the day and year in the
certificate above written.
______________________________________
Signature
______________________________________
Print Name
NOTARY PUBLIC in and for the State of
Washington, residing at ____________.
My commission expires ______________.
AMEND TO LEASE 3.2