Exhibit 10.32
THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT (this "THIRD AMENDMENT") is
made as of the 18th day of June, 2001 by and between XXXX 00XX XXXXXX
XXXXXXXXXXX ASSOCIATES, LLC ("LANDLORD") and AUGUST TECHNOLOGY CORPORATION
("TENANT").
R E C I T A L S:
A. Landlord and Tenant entered into that certain Lease Agreement
dated October 18, 1999 (the "ORIGINAL LEASE") as amended by that certain First
Amendment to Lease Agreement dated March 31, 2000 (the "FIRST AMENDMENT") and
that certain Second Amendment to Lease Agreement dated July 25, 2000 (the
"SECOND AMENDMENT"; the Original Lease as amended by the First Amendment and the
Second Amendment is referred to herein as the "LEASE") demising approximately
62,843 square feet of space comprised of the "Initial Premises," the "First
Expansion Premises" and the "Second Expansion Premises" (collectively, the
"EXISTING PREMISES") in the building located at 0000 X. 00xx Xxxxxx xx
Xxxxxxxxxxx, Xxxxxxxxx.
B. Landlord and Tenant desire to expand the Existing Premises, extend
the term of the Lease and make certain changes to the Lease as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, Landlord and Tenant hereby amend the Lease as
follows:
1. TERM. Section 2 of the Original Lease is hereby modified to change
the Lease expiration date from January 31, 2005 to April 30, 2006 (hereinafter,
the "EXPIRATION DATE").
2. MONTHLY BASE RENT. Effective as of September 30, 2000, Section 3
of the Original Lease is hereby deleted in its entirety and the following
Section 3 is substituted therefor:
MONTHLY BASE RENT: Monthly Base Rent for the Existing Premises shall be as
follows:1
INITIAL TERM:
----------------------------------------------------------------------------------------
DATE ANNUAL BASE RENT PER SQUARE FEET ANNUAL BASE RENT FOR
SQUARE FOOT EXISTING PREMISES
----------------------------------------------------------------------------------------
10/l/00 - 4/30/02 $7.45 62,843 $468,180.35
----------------------------------------------------------------------------------------
5/l/02 - 4/30/03 $7.94 62,843 $498,973.42
----------------------------------------------------------------------------------------
5/1/03 - 4/30/04 $7.94 62,843 $498,973.42
----------------------------------------------------------------------------------------
5/l/04 - 4/30/05 $8.59 62,843 $539,821.37
----------------------------------------------------------------------------------------
5/l/05 - 4/30/06 $8.59 62,843 $539,821.37
----------------------------------------------------------------------------------------
------------------------
(1) BASE RENT FOR THE THIRD EXPANSION PREMISES AND THE FOURTH EXPANSION PREMISES
ARE SET FORTH IN SECTIONS 3 AND 4 BELOW.
RENEWAL TERM:
---------------------------------------------------------------------------------
DATE ANNUAL BASE RENT PER SQUARE FEET ANNUAL BASE RENT
SQUARE FOOT FOR EXISTING
PREMISES
---------------------------------------------------------------------------------
5/1/06 - 4/30/07 $8.19 62,843 $514,684.17
---------------------------------------------------------------------------------
5/l/07 - 4/30/08 $8.48 62,843 $532,908.64
---------------------------------------------------------------------------------
5/1/08 - 4/30/09 $8.48 62,843 $532,908.64
---------------------------------------------------------------------------------
3. THIRD EXPANSION PREMISES. Tenant has notified Landlord of Tenant's
desire to lease the Third Expansion Premises as defined in Section 1B of the
Original Lease, and Landlord has agreed to lease the Third Expansion Premises to
Tenant on all of the terms, conditions and obligations contained in the Lease,
with the following modifications:
(a) Sections 1B(i) and (ii) of the Original Lease are deleted in their
entirety. The Lease Term for the Third Expansion Premises shall
commence on March 1, 2002 (the "THIRD EXPANSION PREMISES
COMMENCEMENT DATE"), and shall continue until the Expiration Date.
(b) Landlord shall deliver possession of the Third Expansion Premises
to Tenant, broom clean and free of all tenants, subtenants, and
other occupants, on or before November 1, 2001. Prior to delivery
of possession, Landlord shall, at Landlord's sole cost and
expense: (i) timely fulfill all of Landlord's obligations set
forth in Section 9(c) below (relating to replacement of the HVAC
systems serving the Premises including the Third Expansion
Premises) and Section 9(d) below (relating to replacement of the
roof of the Building); and (ii) remove, at Landlord's expense, all
work or improvements associated with the current occupant of the
Third Expansion Premises (as well as any subsequent occupant of
the Third Expansion Premises prior to Landlord's delivery of the
same to Tenant) and fill, patch and repair all holes in the floor
of the area occupied or utilized by such current tenant or any
subsequent tenant prior to the date possession of the Third
Expansion Premises is tendered to Tenant (however, Landlord shall
not be required to fill and patch holes in the floor if Tenant
notifies Landlord of its intention to remove the current flooring
from the Third Expansion Premises as part of its improvement
work). From and after the date that Landlord delivers the Third
Expansion Premises to Tenant, the provisions of Section 11 of the
Original Lease setting forth Tenant's insurance requirements with
respect to the Existing Premises shall be applicable to the Third
Expansion Premises. Landlord shall not be deemed to have delivered
possession of the Third Expansion Premises to Tenant until it has
provided evidence, reasonably acceptable to Tenant, that it has
complied with the foregoing. None of Landlord's expenses or costs
incurred in complying with the foregoing shall be charged to
Tenant, either directly or as part of Operating Costs.
(c) Section 16D of the Original Lease is hereby deleted in its
entirety. The Third Expansion Commencement Date shall be delayed
one day for each day after December 1, 2001 that Landlord delivers
possession of the Third Expansion Premises to Tenant in the
condition as set forth above. In addition, and without limitation
of the foregoing, if, except for Excused Delays, the Third
Expansion
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Premises have not been delivered to Tenant in the condition
required hereunder by January 1, 2002 and such failure to deliver
the Third Expansion Premises in fact delays Tenant's occupancy of
the Third Expansion Premises, then, Tenant shall be entitled to
Third Expansion Rent Abatement (as hereinafter defined), which
Third Expansion Rent Abatement shall be applied against the first
installment(s) of Base Rent due and owing with respect to the
Third Expansion Premises until the same is fully utilized. For
purposes hereof, the term "THIRD EXPANSION RENT ABATEMENT" shall
mean, in the aggregate, (i) one day of Base Rent abatement at the
then applicable rate for each day that the Third Expansion
Delivery Date (as hereinafter defined) is delayed beyond January
1, 2002 and up to February 1, 2002, (ii) one and one-half days of
Base Rent abatement at the then applicable rate for each day that
the Third Expansion Delivery Date is delayed beyond February 1,
2002 and up to March 1, 2002 and (iii) two days of Base Rent
abatement at the then applicable rate for each day that the Third
Expansion Delivery Date is delayed beyond March 1, 2002. For
purposes hereof, the term "THIRD EXPANSION DELIVERY DATE" shall
mean the date that Landlord delivers the Third Expansion Premises
to Tenant in the condition required under the Lease as amended by
this Third Amendment.
(d) Tenant shall pay Base Rent for the Third Expansion Premises,
commencing on the Third Expansion Premises Commencement Date, in
the following amounts:
INITIAL TERM:
---------------------------------------------------------------------------------
DATE ANNUAL BASE RENT SQUARE FEET ANNUAL BASE RENT
PER SQUARE FOOT FOR THIRD
EXPANSION PREMISES
---------------------------------------------------------------------------------
3/l/02 - 4/30/02 $7.50 15,594 $116,955.00
---------------------------------------------------------------------------------
5/l/02 - 4/30/03 $7.50 15,594 $116,955.00
---------------------------------------------------------------------------------
5/1/03 - 4/30/04 $7.50 15,594 $116,955.00
---------------------------------------------------------------------------------
5/l/04 - 4/30/05 $8.00 15,594 $124,752.00
---------------------------------------------------------------------------------
5/l/05 - 4/30/06 $8.00 15,594 $124,752.00
---------------------------------------------------------------------------------
Notwithstanding the foregoing or anything contained in the Lease or this Third
Amendment to the contrary, if for any reason Tenant does not take occupancy of
the Third Expansion Premises (i.e. does not take possession for purposes of
conducting business therefrom) by the Third Expansion Premises Commencement
Date, Tenant shall be entitled to a credit against monthly Base Rent for the
Third Expansion Premises in an amount equal to $4,873.13 for the period
commencing on the Third Expansion Premises Commencement Date and ending on the
earlier of (i) the first anniversary of the Third Expansion Premises
Commencement Date and (ii) the date Tenant takes occupancy of the Third
Expansion Premises and begins conducting business therefrom (the "THIRD
EXPANSION PREMISES CREDIT TERMINATION DATE").
RENEWAL TERM:
-----------------------------------------------------------------------------------
DATE ANNUAL BASE RENT SQUARE FEET ANNUAL BASE RENT
PER SQUARE FOOT FOR THIRD
EXPANSION PREMISES
-----------------------------------------------------------------------------------
3
-----------------------------------------------------------------------------------
5/1/06 - 4/30/07 $8.00 15,594 $124,752.00
-----------------------------------------------------------------------------------
5/l/07 - 4/30/08 $8.00 15,594 $124,752.00
-----------------------------------------------------------------------------------
5/1/08 - 4/30/09 $8.00 15,594 $124,752.00
-----------------------------------------------------------------------------------
(e) Effective on the Third Expansion Premises Commencement Date, the
Premises shall be expanded to include the Third Expansion Premises
and Tenant's Proportionate Share shall likewise be adjusted. All
caps of Operating Costs set forth in Section 5B of the Original
Lease (e.g. the Operating Cost Cap, the HVAC Cap and the Roof Cap)
shall apply to the entire Premises (including the Third Expansion
Premises), on an aggregate basis, after it has been expanded to
include the Third Expansion Premises.
(f) Section 8 of the Original Lease is modified in the following
respects: without limiting any of Landlord's affirmative
obligations concerning the maintenance and repair of the Third
Expansion Premises contained in the Lease or this Third Amendment,
Tenant shall be responsible, at Tenant's expense, for the
demolition of any existing leasehold improvements and construction
of any new leasehold improvements in the Third Expansion Premises
desired by Tenant, which shall be performed in accordance with
Tenant's design and specification therefor, subject to Landlord's
reasonable prior approval, which shall not unreasonably be
withheld, delayed, or conditioned. Subject to Landlord's prior
approval, which shall not be unreasonably withheld, delayed, or
conditioned, Tenant may select the contractors and professionals
of Tenant's choosing to perform this work. Tenant may commence its
leasehold improvement work immediately upon delivery of possession
of the Third Expansion Premises. Landlord shall contribute to
Tenant's demolition and leasehold improvements in the amount of
(i) $4.00 per foot for demolition and (ii) $15.00 per foot for
construction (said $15.00 per foot allowance being referred to as
the "THIRD EXPANSION PREMISES CONSTRUCTION ALLOWANCE") for a total
of $19.00 per foot. Landlord shall pay such allowances directly to
Tenant promptly upon presentation of invoices or bills relating to
said demolition or construction (which may be presented and paid
on a progress payment basis at Tenant's election); provided,
however, that if Tenant does not take occupancy of the Third
Expansion Premises on or prior to the Third Expansion Premises
Commencement Date, Landlord may delay its payment of the Third
Expansion Premises Construction Allowance until the Third
Expansion Premises Credit Termination Date. Tenant may use such
allowances for any and all expenses relating to or arising from
the demolition, design and/or construction of leasehold
improvements to the Third Expansion Premises as well as for the
payment of any broker's commissions that are due and payable
specifically with respect to Tenant's leasing of the Third
Expansion Premises. To the extent Tenant does not use the entire
amount of such allowances for the foregoing items, Tenant may use
the excess toward: (a) improvements and expenses, including,
without limitation, brokers commissions, relating to the Fourth
Expansion Premises (as defined in Section 4 below); (b) leasehold
improvements during any renewal term; and/or (c) repayment of the
Third Expansion Premises Expiration Payment and/or the Fourth
Expansion Premises Expiration Payment (as such terms are defined
below). Any excess so utilized shall be promptly paid by Landlord
to Tenant in accordance with the payment procedures set forth
above. In addition to the foregoing, Tenant may use up to $5.00
per foot of the allowances for the Third Expansion Premises to pay
rental obligations with respect to the Third Expansion
4
Premises. This amount shall be applied evenly, without interest,
over the period between the Third Expansion Premises Commencement
Date and the Expiration Date.
(g) Should Tenant fail to exercise its Renewal Option as set forth in
Section 5 below, then Tenant shall repay to Landlord a portion of
the Third Expansion Premises Construction Allowance (the "THIRD
EXPANSION PREMISES EXPIRATION PAYMENT"). The Third Expansion
Premises Expiration Payment shall equal the principal amount which
would have been outstanding as of the Expiration Date had Landlord
made a loan to Tenant on the Third Expansion Premises Commencement
Date (or the Third Expansion Premises Credit Termination Date if
Tenant is entitled to a credit against Base Rent for the Third
Expansion Premises pursuant to subsection 3[d] above) in the
original principal amount equal to the Third Expansion Premises
Construction Allowance, less all amounts which would have been
received by Landlord assuming Tenant had repaid said loan from the
Third Expansion Premises Commencement Date (or the Third Expansion
Premises Credit Termination Date, as applicable) until the
Expiration Date in equal monthly installments of principal and
interest at the rate of 10% per annum, so as to completely
amortize such principal and interest over a period of sixty (60)
months. Said payment shall be made on or before the last day upon
which Tenant may give Tenant's notice of intent to exercise the
Renewal Option as set forth in Section 5 below, and shall be
discounted to present value to account for the period between the
date of payment and the Expiration Date at the same 10% interest
rate set forth above. Once all of the variables necessary to
determine the Third Expansion Premises Expiration Payment are
known, Landlord and Tenant agree to work together, with reasonable
diligence, to determine the Third Expansion Premises Expiration
Payment.
(h) Simultaneously with Landlord's payment to Tenant of the Third
Expansion Premises Construction Allowance, Tenant shall increase
the Security Deposit by an amount equal to $25,000.00 (said amount
being referred to as the "THIRD EXPANSION SECURITY Deposit"). The
Third Expansion Security Deposit shall be paid and held pursuant
to the terms of Section 7 of the Original Lease as amended;
provided, however, that (i) Landlord shall pay Tenant interest on
the Third Expansion Security Deposit at the rate of 5% per annum
and (ii) so long as Tenant is not then in default under the terms
of the Lease beyond any applicable notice and cure periods, then
on August 3, 2005, Landlord shall return the Third Expansion
Security Deposit, together with all interest earned thereon, to
Tenant. Notwithstanding the foregoing, at Landlord's election
which must be given to Tenant in writing at least twenty (20) days
prior to the date that the Third Expansion Security Deposit must
be furnished by Tenant to Landlord, Tenant shall be required, in
lieu of posting the same in cash, to post the Third Expansion
Security Deposit in the form of a letter of credit, the form and
substance of which letter of credit shall be reasonably acceptable
to both Landlord and Tenant; it being further agreed that if
Landlord so elects to have Tenant post the Third Expansion
Security Deposit in the form of a letter of credit, Landlord shall
bear any and all costs (including, without limitation, annual fees
and other charges) relating to such letter of credit but, in such
case, Landlord shall not be required to pay Tenant interest on the
Third Expansion Security Deposit.
5
4. FOURTH EXPANSION PREMISES. Tenant shall have the option (the "FOURTH
EXPANSION PREMISES OPTION") to lease approximately 20,176 square feet as
depicted on Exhibit A hereto (the "FOURTH EXPANSION PREMISES") for a period
commencing as set forth below and terminating on the Expiration Date.
(a) Tenant shall give written notice (the "FOURTH EXPANSION PREMISES
NOTICE") to Landlord, if at all, on or before December 31, 2001 of
Tenant's exercise of the Fourth Expansion Premises Option. The
Fourth Expansion Premises Notice shall specify a proposed
commencement date for the Fourth Expansion Premises that is not
later than April 1, 2002 (the "FOURTH EXPANSION PREMISES
COMMENCEMENT DATE"); provided, however, that, if Tenant desires to
take early delivery of the Fourth Expansion Premises, Tenant shall
so notify Landlord in writing and so long as Landlord does not
have a binding agreement with a third party for the lease of the
Fourth Expansion Premises for the period prior to the Fourth
Expansion Premises Commencement Date, Landlord shall use
commercially reasonable efforts to provide early delivery of the
Fourth Expansion Premises to Tenant in accordance with Tenant's
desired timing.
(b) If Tenant does not exercise its Fourth Expansion Premises Option
by December 31, 2001, then, and only then, Landlord may market the
Fourth Expansion Premises to third parties for leasing (the period
from and after January 1, 2002 through the date falling nine [9]
months prior to the Expiration Date if the Lease term is not
extended or twelve [12] months prior to the Expiration Date if the
Lease term is extended is hereinafter referred to as the "OFFER
PERIOD"); provided, however, that Tenant shall have an ongoing
option (the "ONGOING OPTION") during the Offer Period unless and
until a Refusal Notice (as hereinafter defined) is furnished to
Tenant, to lease the Fourth Expansion Premises on the terms set
forth in this Section 4 by notifying Landlord of its intent to so
lease the Fourth Expansion Premises at any time during the Offer
Period; it being further agreed that (i) the leasing of the Fourth
Expansion Premises pursuant to an exercise of the Ongoing Option
shall be on the same terms and conditions set forth in this
Section 4 except that the Fourth Expansion Premises Commencement
Date shall be as specified by Tenant in Tenant's exercise notice
but, in any case, shall be no more than ninety (90) days after the
date of such exercise notice and (ii) any exercise of the Ongoing
Option within the final six (6) months of the Offer Period shall
be conditioned upon Tenant's simultaneous exercise of the first
available renewal option, if any, under the Lease. Furthermore, if
a Refusal Notice is furnished to Tenant and Landlord does not
lease the Fourth Expansion Premises to Tenant or a third party
within four (4) months after the date of such Refusal Notice, then
the Ongoing Option shall again be afforded to Tenant. In addition
to the Ongoing Option, in the event Landlord shall locate a
prospective third party tenant or occupant for the Fourth
Expansion Premises during the Offer Period and reach a point of
negotiation with that prospective tenant or occupant where there
is substantial evidence of an intent to proceed to execution of a
lease or other occupancy agreement - such as a term sheet, letter
of intent, or the like - then, prior to entering into a lease or
any other binding agreement with such prospective tenant or
occupant for the Fourth Expansion Premises (or any portion
thereof), Landlord shall first notify Tenant (a "REFUSAL NOTICE")
and Tenant shall have the right to exercise its right to lease the
Fourth Expansion Premises by providing notice to Landlord of its
intent to do so within five (5) business days of Tenant's
6
receipt of the given Refusal Notice (the "DELAYED FOURTH EXPANSION
PREMISES NOTICE"); it being agreed that the leasing of the Fourth
Expansion Premises pursuant to this subsection (b) shall be on the
same terms and conditions set forth in this Section 4 except that
the Fourth Expansion Premises Commencement Date shall be as
specified by Tenant in the Delayed Fourth Expansion Premises
Notice but, in any case, shall be no more than ninety (90) days
after the date of the Delayed Fourth Expansion Premises Notice.
(c) Landlord shall deliver possession of the Fourth Expansion Premises
to Tenant, broom clean and free of all tenants, subtenants, and
other occupants, at least ninety (90) days prior to the Fourth
Expansion Premises Commencement Date. Prior to delivery of
possession, Landlord shall, at Landlord's sole cost and expense
timely fulfill all of Landlord's obligations set forth in Section
9(c) below relating to replacement of the HVAC systems serving the
Fourth Expansion Premises. Landlord shall not be deemed to have
delivered possession of the Fourth Expansion Premises to Tenant
until it has provided evidence, reasonably acceptable to Tenant,
that it has complied with the foregoing. None of Landlord's
expenses or costs incurred in complying with the foregoing shall
be charged to Tenant, either directly or indirectly as part of
Operating Costs. From and after the date that Landlord delivers
the Fourth Expansion Premises to Tenant, the provisions of Section
11 of the Original Lease setting forth Tenant's insurance
requirements with respect to the Existing Premises shall be
applicable to the Fourth Expansion Premises.
(d) The Fourth Expansion Premises Commencement Date shall be the later
of: (i) ninety (90) days after the date upon which Landlord
delivers possession of the Fourth Expansion Premises to Tenant in
the condition described above; or (ii) the Fourth Expansion
Premises Commencement Date as specified in the Fourth Expansion
Premises Notice.
(e) Tenant shall not be required to pay rent or other charges for the
Fourth Expansion Premises prior to the Fourth Expansion Premises
Commencement Date. Tenant shall pay Base Rent for the Fourth
Expansion Premises, commencing on the Fourth Expansion Premises
Commencement Date, in the following amounts:
------------------------------------------------------------------------------------
PERIOD(2) ANNUAL BASE RENT SQUARE FEET ANNUAL BASE RENT
PER SQUARE FOOT FOR FOURTH
EXPANSION PREMISES
------------------------------------------------------------------------------------
Fourth Expansion $10.00 20,176 $201,760.00
Premises
Commencement Date -
6/30/04
------------------------------------------------------------------------------------
7/1/04 - 4/30/06 $10.37 20,176 $209,225.12
------------------------------------------------------------------------------------
-------------------
(2) IF THE FOURTH EXPANSION PREMISES COMMENCEMENT DATE IS ON OR AFTER JULY 1,
2004 THEN (a) THE FIRST ROW BELOW SHALL NOT BE APPLICABLE AND (b) THE SECOND ROW
BELOW SHALL RUN FOR THE "PERIOD" FROM THE FOURTH EXPANSION PREMISES COMMENCEMENT
DATE THROUGH APRIL 30, 2006.
7
Notwithstanding the foregoing or anything contained in the Lease or this Third
Amendment to the contrary, if for any reason Tenant does not take occupancy of
the Fourth Expansion Premises (i.e. does not take possession for purposes of
conducting business therefrom) by the Fourth Expansion Premises Commencement
Date, Tenant shall be entitled to a credit against monthly Base Rent for the
Fourth Expansion Premises in an amount equal to $8,407.92 for the period
commencing on the Fourth Expansion Premises Commencement Date and ending on the
earlier of (i) the first anniversary of the Fourth Expansion Premises
Commencement Date and (ii) the date Tenant takes occupancy of the Fourth
Expansion Premises and begins conducting business therefrom (the "FOURTH
EXPANSION PREMISES CREDIT TERMINATION DATE").
RENEWAL TERM:
----------------------------------------------------------------------------------
PERIOD ANNUAL BASE RENT SQUARE FEET ANNUAL BASE RENT
PER SQUARE FOOT FOR FOURTH
EXPANSION PREMISES
----------------------------------------------------------------------------------
5/1/06 - 4/30/09 $10.25 20,179 $206,834.75
----------------------------------------------------------------------------------
(f) Effective on the Fourth Expansion Premises Commencement Date, the
Premises shall be expanded to include the Fourth Expansion
Premises and Tenant's Proportionate Share shall likewise be
adjusted. All caps of Operating Costs set forth in Section 5B of
the Original Lease (e.g. the Operating Cost Cap, the HVAC Cap and
the Roof Cap) shall apply to the entire Premises (including the
Fourth Expansion Premises), on an aggregate basis, after it has
been expanded to include the Fourth Expansion Premises.
Additionally, effective on the Fourth Expansion Premises
Commencement Date, the cap on Landlord's management fees set forth
in Section 5A of the Original Lease shall be lowered from 5% of
gross rents for the Project to 3.5% of gross rents for the Project
(specifically excluding, however, utilities and janitorial costs
and expenses).
(g) Without limiting any of Landlord's affirmative obligations
concerning the maintenance and repair of the Fourth Expansion
Premises contained in the Lease or this Fourth Amendment, Tenant
shall be responsible, at Tenant's expense, for the demolition of
any existing leasehold improvements and construction of any new
leasehold improvements in the Fourth Expansion Premises desired by
Tenant, which shall be performed in accordance with Tenant's
design and specification therefor, subject to Landlord's
reasonable prior approval, which shall not unreasonably be
withheld, delayed, or conditioned. Subject to Landlord's prior
approval, which shall not be unreasonably withheld, delayed, or
conditioned, Tenant may select the contractors and professionals
of Tenant's choosing to perform this work. Tenant may commence its
leasehold improvement work immediately upon delivery of possession
of the Fourth Expansion Premises. Landlord shall contribute to
Tenant's demolition and leasehold improvements in the amount of
(i) $4.00 per foot for demolition and (ii) $25.00 per foot for
construction (said $25.00 per foot allowance being referred to as
the "FOURTH EXPANSION PREMISES CONSTRUCTION ALLOWANCE") for a
total of $29.00 per foot. Landlord shall pay such allowances
directly to Tenant promptly upon presentation of invoices or bills
relating to said demolition or construction (which may be
presented and paid on a progress payment basis at Tenant's
election); provided,
8
however, that if Tenant does not take occupancy of the Fourth
Expansion Premises on or prior to the Fourth Expansion
Commencement Date, Landlord may delay its payment of the Fourth
Expansion Premises Construction Allowance until the Fourth
Expansion Premises Credit Termination Date. Tenant may use such
allowances for any and all expenses relating to or arising from
the demolition, design and/or construction of leasehold
improvements to the Fourth Expansion Premises as well as for the
payment of any broker's commissions that are due and payable
specifically with respect to Tenant's leasing of the Fourth
Expansion Premises. To the extent Tenant does not use the entire
amount of such allowances for the foregoing items, Tenant may use
the excess toward: (a) leasehold improvements during any renewal
term; and/or (b) repayment of the Third Expansion Premises
Expiration Payment and/or the Fourth Expansion Premises Expiration
Payment (as such term is defined below). Any excess so utilized
shall be promptly paid by Landlord to Tenant in accordance with
the payment procedures set forth above. In addition to the
foregoing, Tenant may use up to $5.00 per foot of the allowances
for the Fourth Expansion Premises to pay current rental
obligations on any Premises leased or occupied by Tenant. This
amount shall be applied evenly, without interest, over the period
between the Fourth Expansion Premises Commencement Date and the
Expiration Date.
(h) Should Tenant fail to exercise its Renewal Option as set forth in
Section 5 below, then Tenant shall repay a portion of the Fourth
Expansion Premises Construction Allowance (the "FOURTH EXPANSION
PREMISES EXPIRATION PAYMENT"). The Fourth Expansion Premises
Expiration Payment shall equal the principal amount which would
have been outstanding as of the Expiration Date had Landlord made
a loan to Tenant on the Fourth Expansion Premises Commencement
Date (or the Fourth Expansion Premises Credit Termination Date if
Tenant is entitled to a credit against Base Rent for the Fourth
Expansion Premises pursuant to subsection 4[d] above) in the
original principal amount equal to the Fourth Expansion Premises
Construction Allowance, less all amounts which would have been
received by Landlord assuming Tenant had repaid said loan from the
Fourth Expansion Premises Commencement Date (or the Fourth
Expansion Premises Credit Termination Date, as applicable), until
the Expiration Date in equal monthly installments of principal and
interest at the rate of 10% per annum, so as to completely
amortize such principal and interest over a period of sixty (60)
months. Said payment shall be made on or before the last day upon
which Tenant may give Tenant's notice of intent to exercise its
Renewal Option as set forth in Section 5 below, and shall be
discounted to present value to account for the period between the
date of payment and the Expiration Date at the same 10% interest
rate set forth, above. Once all of the variables necessary to
determine the Fourth Expansion Premises Expiration Payment are
known, Landlord and Tenant agree to work together, with reasonable
diligence, to determine the Fourth Expansion Premises Expiration
Payment.
(i) Simultaneously with Landlord's payment to Tenant of the Fourth
Expansion Premises Construction Allowance, Tenant shall increase
the Security Deposit by an amount equal to $40,000.00 (said amount
being referred to as the "FOURTH EXPANSION SECURITY DEPOSIT"). The
Fourth Expansion Security Deposit shall be paid and held pursuant
to the terms of Section 7 of the Lease as amended hereby;
provided, however, that (i) Landlord shall pay Tenant interest on
the Fourth
9
Expansion Security Deposit at the rate of 5% per annum and (ii) so
long as Tenant is not then in default under the terms of the Lease
beyond any applicable notice and cure periods, then on August 3,
2005, Landlord shall return the Fourth Expansion Security Deposit,
together with all interest earned thereon, to Tenant.
Notwithstanding the foregoing, at Landlord's election which must
be given to Tenant in writing at least twenty (20) days prior to
the date that the Fourth Expansion Security Deposit must be
furnished by Tenant to Landlord, Tenant shall be required, in lieu
of posting the same in cash, to post the Fourth Expansion Security
Deposit in the form of a letter of credit, the form and substance
of which letter of credit shall be reasonably acceptable to both
Landlord and Tenant; it being further agreed that if Landlord so
elects to have Tenant post the Fourth Expansion Security Deposit
in the form of a letter of credit, Landlord shall bear any and all
costs (including, without limitation, annual fees and other
charges) relating to such letter of credit but, in such case,
Landlord shall not be required to pay Tenant interest on the
Fourth Expansion Security Deposit.
5. RENEWAL OPTION. Tenant shall retain the renewal option set forth in
Section 2A of the Original Lease. The notice shall be given at least two hundred
seventy (270) days prior to the Expiration Date set forth above, the Renewal
Term shall commence on May 1, 2006, and the option shall apply to all Premises
occupied by Tenant as of the Expiration Date. Base Rent for the Renewal Term
shall be as set forth in Section 3 of the Original Lease (as modified by this
Third Amendment). Additionally, if Tenant exercises such renewal option and is
not in default under the Lease beyond the expiration of all applicable notice
and cure periods on the Expiration Date set forth above (i.e. April 30, 2006),
then, on the commencement date of the Renewal Term, Landlord shall return the
entire accumulated Security Deposit.
6. ADDITIONAL RENEWAL OPTIONS. In addition to the foregoing, Tenant shall
have two additional options to renew the Lease (each singularly an "ADDITIONAL
RENEWAL OPTION" and collectively the "ADDITIONAL RENEWAL OPTIONS" as to all
Premises then being leased by Tenant, on all terms and conditions of the Lease
as modified herein, for two (2) additional terms of two (2) years each,
commencing on May 1, 2009, and May 1, 2011, respectively. Tenant shall provide
written notice of its exercise of (a) the first Additional Renewal Option on or
prior to May 1, 2008 and (b) the second Additional Renewal Option on or prior to
May 1, 2010. Base Rent for the first additional renewal term shall be (a) $8.65
per square foot of the Premises then being leased by Tenant if Tenant has not
elected to lease the Fourth Expansion Premises pursuant to Section 4 above or
(b) $9.00 per square foot of the Premises then being leased by Tenant if Tenant
has elected to lease the Fourth Expansion Premises pursuant to Section 4 above.
Base Rent for the second additional renewal term shall be (a) $8.85 per square
foot of the Premises then being leased by Tenant if Tenant has not elected to
lease the Fourth Expansion Premises pursuant to Section 4 above or (b) $9.25 per
square foot of the Premises then being leased by Tenant if Tenant has elected to
lease the Fourth Expansion Premises pursuant to Section 4 above.
7. REVOCATION OF ADDITIONAL RENEWAL OPTION(S) UPON DEMOLITION OF BUILDING.
Notwithstanding anything contained in Section 6 of this Third Amendment to the
contrary, if Tenant exercises an Additional Renewal Option and, within sixty
(60) days after notice of such exercise, Landlord notifies Tenant in writing
that it intends to demolish the Building within one (1) year after the
expiration of the then Term of the Lease (a "DEMOLITION NOTICE"), then Tenant's
exercise of such Additional Renewal Option shall be deemed null and void and of
no further force and effect and Tenant shall have no further rights to renew the
Lease pursuant to Section 6 of this Third Amendment; provided, however, if,
Landlord provides Tenant with a Demolition Notice and
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does not in fact demolish the Building within such one (1) year period following
the expiration of the then Term of the Lease, Landlord shall within thirty (30)
days following the end of such one-year period pay Tenant One Hundred Twenty
Five Thousand and No/100 Dollars ($125,000.00) (the "REVOCATION PAYMENT"). As
security for the Revocation Payment, on the first (1st) day of each of the last
ten (10) months of the then Term of the Lease, Landlord agrees to deposit
$12,500.00 in a third-party controlled escrow account. The terms and provisions
governing such escrow account, as well as the third party-escrowee, shall be
subject to Tenant's reasonable prior approval.
8. RIGHT OF FIRST OFFER TO PURCHASE. In the event Landlord intends to sell
the Project or any portion thereof during the Term of the Lease, Landlord will
first be obligated to provide Tenant with written notice of its intent to sell
the Project or material portion thereof (the "SALE NOTICE") and the general
terms on which Landlord intends to market the Building for sale (e.g. price,
terms, closing date). Landlord agrees that for a period of 60 days following the
Sale Notice (the "NEGOTIATION PERIOD"), Tenant shall be afforded the exclusive
opportunity to enter into a binding agreement to purchase the Building on terms
mutually acceptable to both Landlord and Tenant; it being further agreed that if
Tenant desires to purchase the Project (or applicable portion thereof), then
Landlord and Tenant agree to negotiate the terms of sale in good faith during
the Negotiation Period. Furthermore, if (a) Tenant desires to purchase the
Project (or applicable portion thereof) during the Negotiation Period but does
not agree to mutually acceptable terms with the Landlord and (b) a Third Party
Proposal (as hereinafter defined) exists at any time thereafter during the Term
(as the same may be extended) for the sale of the Project or material portion
thereof at a net price (i.e. cash price less estimated transaction costs) lesser
than or equal to seventy-five percent (75%) of the list price originally offered
by Landlord in negotiations with Tenant during the Negotiation Period, then,
under such circumstances, Landlord shall offer the Project (or applicable
portion thereof) for sale to Tenant on all of the terms set forth in the Third
Party Proposal; provided, further, that in the event the purchase price set
forth in the Third Party Proposal includes a brokerage commission due from
Landlord which will not be due and owing pursuant to Landlord's listing
agreement with such broker if Tenant purchases the Project or applicable portion
thereof pursuant to this Section 8, then Tenant shall be obligated to pay the
purchase price less said broker's commission. Tenant must accept any offer by
Landlord pursuant to the previous sentence, if at all, by notice given to
Landlord given within seven (7) days after Tenant's receipt of the given Third
Party Proposal, and, if Tenant so accepts an offer, Landlord and Tenant shall
use good faith, diligent efforts to negotiate a commercially reasonable purchase
agreement reflecting the terms of the Third Party Proposal within twenty (20)
days after Tenant's acceptance of such offer; it being further agreed that if
Tenant does not accept such offer with said 7-day period, Tenant shall have no
further rights to acquire the Project pursuant to the terms and provisions of
this Section. For purposes hereof, "THIRD PARTY PROPOSAL" shall mean a bona fide
arms-length offer which Landlord desires to accept, from a third party to
purchase the Project or material portion thereof. Notwithstanding the foregoing,
this right of first offer to purchase will not apply to any partial or whole
transfers or changes in ownership amongst and between the current members of
Landlord (i.e. Lutheran Brotherhood and Xxxx Properties, Inc.) or any affiliates
or subsidiaries thereof.
9. LEASEHOLD IMPROVEMENTS.
(a) Floor Tile: Landlord represents and warrants that to the best of
its knowledge the Third Expansion Premises and Fourth Expansion
Premises shall be free of all toxic or hazardous substances on the
date upon which possession is tendered to Tenant, with the
exception of existing vinyl composite floor tile covering
substantially all of the floor in the Third and Fourth Expansion
Premises, which the Landlord believes to contain asbestos fibers
("ACM"). Without otherwise
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limiting any of Landlord's covenants and obligations in the Lease
concerning ACM and other Hazardous Substances, Tenant agrees that,
as to the Third and Fourth Expansion Premises, its demolition and
leasehold improvement responsibilities shall include removal
and/or remediation of the floor tile if and to the extent required
by code. Any such removal of the floor tile and related disposal
shall be performed in accordance with applicable federal, state
and local laws and ordinances.
(b) Restroom: While Landlord acknowledges that Tenant has no
obligation to fulfill a Restroom Event (as defined below),
Landlord has constructed restrooms for the Second Expansion
Premises, at no cost to Tenant pursuant to the plans drawn by BDH
& Young dated September 12, 2000 in anticipation of one of the
following (each, a "RESTROOM EVENT"): (i) Tenant's exercise of the
Fourth Expansion Premises Option; (ii) Tenant's election not to
exercise the Fourth Expansion Premises Option, but nonetheless to
permit sharing of said restrooms with a third party tenant and to
construct, at Tenant's expense, reasonable improvements necessary
to effect such sharing; or (iii) Tenant's exercise of the first
Renewal Option. If no Restroom Event occurs, then Tenant shall,
within 30 days of the determination that no Restroom Event could
occur, pay to Landlord the sum of $30,000.
(c) HVAC: Notwithstanding anything contained in the Lease (as amended
hereby) to the contrary, Landlord shall, at Landlord's sole cost
and expense, remove and replace all HVAC units which have not been
replaced with new HVAC units since the Commencement Date (the
"HVAC WORK") that service or are otherwise located on or about the
Building or Project in accordance with the HVAC Requirements (as
hereinafter defined). All replacement HVAC units (collectively,
the "HVAC Requirements") (i) shall be new first-grade units, (ii)
shall have sufficient capacity to meet the HVAC Specifications for
(A) Tenant's use of the Premises (specifically including the First
Expansion Premises and the Second Expansion Premises) for office
and production purposes in the same manner that Tenant is using
the Premises as of the date of this Third Amendment, (B) Tenant's
use of the Third Expansion Premises as production space and (C)
Tenant's use of the Fourth Expansion Premises as office space,
(iii) servicing the Premises (specifically including the First
Expansion Premises and the Second Expansion Premises) shall be
distributed in a manner consistent with Tenant's use of the
Premises as of the date of this Third Amendment (i.e. the HVAC
units shall be reconnected to the existing duct work located in
the Premises), (iv) shall be installed and connected to existing
zoning systems with new thermostat controls that include
programmable temperature controls (i.e. set-backs) and (v) shall
be installed by licensed contractors, in a good and workmanlike
manner and in compliance with all applicable laws, codes and
ordinances. All HVAC Work shall be commenced by Landlord upon the
date of full execution and delivery of this Third Amendment by
Landlord and Tenant and completed as soon thereafter as is
practicable (with the use of diligent efforts by Landlord and its
contractors), except the HVAC Work relating specifically to the
Fourth Expansion Premises which, subject to Excused Delays, shall
be completed within sixty (60) days after Tenant notifies Landlord
of its election to lease the Fourth Expansion Premises.
Furthermore, except with respect to the HVAC Work relating to the
Third Expansion Premises and the Fourth Expansion Premises which
may be performed
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at any time of day, all HVAC Work shall be performed outside of
Tenant's normal business hours (i.e. after 5:00 p.m. [Minneapolis
time] on business days and at any time on non-business days) and,
in any case, in a manner that minimizes interference with Tenant's
business operations and use and quiet enjoyment of the Premises.
Notwithstanding anything in the Lease to the contrary, Tenant's
Proportionate Share of Operating Costs solely as they relate to
the maintenance, repair and replacement of all HVAC units serving
the Building shall be fixed at the HVAC Cap (i.e., $.20 annually
per square foot of the Premises) for the period commencing on the
first (1st) month following substantial completion of all HVAC
Work and ending on the expiration date of the Initial Term (as the
same may be extended to the expiration date of the first Renewal
Term if Tenant exercises its option to extend the Term for the
first Renewal Term) (the "HVAC CAP ADJUSTMENT PERIOD"); it being
further agreed and understood that during the HVAC Cap Adjustment
Period such agreement by Tenant to pay the HVAC Cap (i) shall be
in lieu of all other payments and costs associated with repairing,
replacing and maintaining (other than routine semi-annual filter
changes) the HVAC units serving the Building including, without
limitation, all costs associated with the HVAC Maintenance
Contract and (ii) shall be factored in when calculating the
Operating Cost Cap. Following the HVAC Cap Adjustment Period, the
provisions concerning Operating Costs, including all caps of
Operating Costs relating thereto (i.e. the Operating Cost Cap, the
HVAC Cap and the Roof Cap), shall again be applicable to Tenant's
obligation to pay its Proportionate Share of Operating Costs for
the entire Premises.
(d) Roof: Notwithstanding anything contained in the Lease (as amended
hereby) to the contrary, Landlord shall, at Landlord's sole cost
and expense, replace the existing roof on the Building with a new
roof (the "ROOF WORK"). The new roof shall be rated to have a
minimum life of at least 12 years. Landlord shall cause the Roof
Work to be performed by licensed contractors, in a good and
workmanlike manner, in compliance with all applicable laws, codes
and ordinances, and in a manner that is otherwise consistent with
work on first class office-warehouse buildings located in the
Minneapolis, Minnesota metropolitan area. All Roof Work shall be
commenced by Landlord upon the date of full execution and delivery
of this Third Amendment by Landlord and Tenant and completed as
soon thereafter as is practicable (with the use of diligent
efforts by Landlord and its contractors), except the Roof Work
relating specifically to the Fourth Expansion Premises which,
subject to Excused Delays, shall be completed within sixty (60)
days after Tenant notifies Landlord of its election to lease the
Fourth Expansion Premises. Furthermore, except with respect to the
Roof Work relating to the Third Expansion Premises and the Fourth
Expansion Premises which may be performed at any time of day, the
Roof Work shall be performed outside of Tenant's normal business
hours (i.e. after 5:00 p.m. [Minneapolis time] on business days
and at any time on non-business days) and, in a manner that
minimizes interference with Tenant's business operations and use
and quiet enjoyment of the Premises. Notwithstanding anything in
the Lease to the contrary, Tenant's Proportionate Share of
Operating Costs solely as they relate to the maintenance, repair
and replacement of the roof of the Building shall be fixed at the
Roof Cap (i.e., $.20 annually per square foot of the Premises) for
the period commencing on the first (1st) month following
substantial completion of all Roof Work and ending on the
expiration date of the Initial Term (as the same may be
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extended to the expiration date of the first Renewal Term if
Tenant exercises its option to extend the Term for the first
Renewal Term) (the "ROOF CAP ADJUSTMENT PERIOD"); it being further
agreed and understood that during the Roof Cap Adjustment Period
such agreement by Tenant to pay the Roof Cap (i) shall be in lieu
of all other payments and costs associated with repairing,
replacing and maintaining the roof of the Building and (ii) shall
be factored in when calculating the Operating Cost Cap. Following
the Roof Cap Adjustment Period, the provisions concerning
Operating Costs, including all caps of Operating Costs relating
thereto (i.e. the Operating Cost Cap, the HVAC Cap and the Roof
Cap), shall again be applicable to Tenant's obligation to pay its
Proportionate Share of Operating Costs for the entire Premises.
(e) Utility Savings: Due to the savings on the cost of utilities that
will inure to the benefit of Tenant as a result of the HVAC Work,
from and after the date that both the HVAC Work and the Roof Work
are completed in accordance with the terms hereof through the
expiration date of the Initial Term (as the same may be extended
to the expiration date of the first Renewal Term if Tenant
exercises its option to extend the Term for the first Renewal
Term), Tenant shall pay Landlord on the first day of each month
during such period an amount equal to 1/12 of the product of (i)
$.15, multiplied by (ii) the number of square feet in the Premises
then being leased by Tenant under the Lease.
10. PARKING.
(a) Landlord shall provide on-site parking for all Premises,
including, without limitation, the Third and Fourth Expansion
Premises, at a ratio of not less than 4.0 stalls per 1,000 square
feet of space leased. Landlord shall provide said parking at
Landlord's sole cost and expense, with all necessary permits, in
compliance with all applicable laws, and otherwise in accordance
with Section 13 of the Original Lease.
(b) Section 13 of the Original Lease requires Landlord to provide not
less than 160 parking spaces on the north and east sides of the
Building (such parking spaces are hereinafter referred to as the
"NORTHEAST SPACES" and shall be located within the area designated
as the "NORTHEAST PARKING AREA" on Exhibit B attached hereto).
Landlord shall continue to provide the Northeast Spaces for use by
Tenant, Tenant's employees, guests, and invitees in accordance
with the terms and provisions of the Lease. All other parking
spaces required under the provisions of the Lease to meet parking
ratio (i.e. - those parking spaces in excess of the Northeast
Spaces), shall be provided within (i) the current parking areas
for the Project or (ii) if necessary, elsewhere in the areas
adjacent to the Project identified on Exhibit B attached hereto or
other parking areas adjacent to the Project that are reasonably
acceptable to Tenant (collectively, the "ADJACENT PARKING AREAS").
All costs relating to construction, grading, striping and lighting
and otherwise readying the Adjacent Parking Areas for use by
Tenant and other tenants of the Project, if any, shall be borne by
Landlord. Parking spaces required to meet the applicable ratio as
to the Third Expansion Premises and Fourth Expansion Premises
shall be supplied to Tenant on the Third Expansion Premises
Commencement Date and the Fourth Expansion Premises Commencement
Date respectively.
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(c) Landlord has informed Tenant that the Minnesota Department of
Transportation ("MNDOT") intends to relocate the primary access
road servicing the Project from the south side of the Project to
the north side of the Project, and to condemn a strip of land
along the north side of the Project to enable MNDOT to construct a
street contiguous to the north side of the Project (the "TAKING").
Notwithstanding anything contained in the Lease to the contrary,
and without limitation of Tenant's rights under Section 15 of the
Original Lease, Tenant shall be entitled to a pro rata abatement
of Base Rent and all components of Additional Rent hereunder if
and to the extent that Tenant's use and quiet enjoyment of any of
the parking spaces to which Tenant is entitled is denied, blocked
or materially and adversely interfered with either during or as a
direct or indirect result of the Taking. For purposes of the
foregoing sentence, the pro rata rent abatement shall be equal to
the product obtained by multiplying the sum of Base Rent and
Additional Rent otherwise owing hereunder for the applicable
period by a fraction, equal to (i) one (1) minus (ii) a fraction,
the numerator of which is the number of parking spaces then
available for Tenant's use at the Project in accordance with the
terms of the Lease and the denominator of which is the product of
.004 multiplied by the number of square feet in the Premises. By
way of example, if the sum of Base Rent and Additional Rent for
the given period is equal to $100,000.00, the square feet in the
Premises is equal to 100,000 square feet and the total number of
parking spaces then available for Tenant's use at the Project is
equal to 320 parking spaces, then the pro rata rent abatement to
which Tenant would be entitled is $20,000.00 (i.e. $100,000 x [1 -
320/400] = $20,000.00). Additionally, the words "including,
without limitation, any reduction of the number of parking spaces
in the parking area for the Project which results in a parking
ratio that is less than 4 stalls per 1,000 square feet of space in
the Premises" is hereby added immediately after the word
"operations" in the third sentence of Section 15 of the Original
Lease.
(d) Tenant acknowledges that Landlord owns or controls the property
immediately to the east of the Project and intends to redevelop
and/or sell such property (the "NEIGHBORING DEVELOPMENT"). In
connection with the Neighboring Development, without limitation of
any Tenant's rights under the Lease, Tenant acknowledges and
agrees that certain portions of the eastern most portion of the
parking area of the Project may be reconfigured and/or utilized as
a temporary staging area and Tenant consents to the same so long
as Landlord uses commercially reasonable efforts (consistent with
owners of other first class, multi-tenant office warehouse
buildings) to minimize any interference with Tenant's use and
enjoyment of the Premises and the parking areas serving the
Premises.
(e) Notwithstanding anything contained in the Lease to the contrary,
if as a result of the Taking or the Neighboring Development, it
becomes necessary for Landlord to provide Tenant with parking
spaces in Adjacent Parking Areas in order to meet the parking
requirements under the Lease, then Landlord shall be entitled to
expand the Project to include such portion of the Adjacent Parking
Areas that are necessary to meet such parking ratios (such
expanded area being hereinafter referred to as the "EXPANDED
PROJECT AREA") and from and after such expansion Tenant shall be
obligated to pay its Proportionate Share of Operating Costs with
respect to the Expanded Project Area with the following
limitations: (a) such obligation to pay Operating Costs shall be
subject to all applicable caps of
15
Operating Costs set forth in Section 5(b) of the Original Lease,
and (b) if the Expanded Project Area is part of a larger tax
parcel then (i) Tenant shall only be obligated to pay its
Proportionate Share of the portion of taxes, assessments (both
general and special) and related costs allocated to the Expanded
Project Area on a pro rata basis and (ii) if the overall tax
parcel on which the Expanded Project Area is included contains any
improvements other than a parking lot, then taxes, assessments
(general and special) and related costs allocated to the Expanded
Project Area shall be equitably adjusted on account thereof.
11. SIGNAGE. Section 1F of the Original Lease is hereby deleted in its
entirety and the following is substituted therefor:
Tenant shall be entitled to place one or more signs on the Building at its
own cost. The aggregate size of such signs shall not exceed 100% of the
total area permitted for exterior signage on the Building per city codes;
provided, however, that if Tenant does not exercise the Fourth Expansion
Option and if Landlord requires signage for a tenant (other than Tenant) of
the Fourth Expansion Premises, Tenant agrees to relinquish its right to no
more than 20% of the maximum signage permitted by code upon not less than
ninety (90) days prior written notice from Landlord (the "RELINQUISHED
SIGNAGE"). The Relinquished Signage shall be in an area mutually acceptable
to Landlord and Tenant. Tenant's signage shall be subject to Landlord's
approval, which shall not be unreasonably withheld, conditioned or delayed
so long as such signage meets applicable code requirements.
12. SECURITY DEPOSIT. Section 7 of the Original Lease is hereby modified
in the following respects:
(a) The fourth sentence is hereby deleted in its entirety and of no
further force and effect; and
(b) The following sentence is added to the end of Section 7: In lieu of
posting the Security Deposit required under this Section in cash,
Tenant may post the same in the form of a letter of credit or other
security provided that the form and substance of such other security
is reasonably acceptable to Landlord.
13. ADDITIONAL RENT. In the third grammatical line of Section 7 of the
First Amendment, the words "during the Initial Term" are hereby deleted and the
words "through and including January 1, 2005" are substituted therefor
14. DEFINITIONS. Each capitalized term used as a defined term in this
Third Amendment but not otherwise defined in this Third Amendment shall have the
same meaning ascribed to such term in the Lease.
15. NO OFFER. Submission of this instrument for examination or negotiation
shall not bind Landlord or Tenant, and no obligation on the part of Landlord or
Tenant shall arise until this instrument is signed and delivered by Landlord and
Tenant.
16. LEASE IN FULL FORCE AND EFFECT. Except as herein provided, all of the
terms and provisions of the Lease shall remain in full force and effect. All
capitalized terms used in this Third Amendment shall have the definition given
to them in the Lease unless otherwise defined herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
Lease Agreement to be duly executed and delivered as of the day and year first
written above.
LANDLORD: TENANT:
WEST 78TH STREET AUGUST TECHNOLOGY
BLOOMINGTON ASSOCIATES, LLC CORPORATION
BLOOMINGTON OFFICE PROJECT, LLC,
ITS MANAGER
By /s/ _______________ By /s/ _______________
Its __________________ Its __________________
EXHIBIT A
DEPICTION OF FOURTH EXPANSION PREMISES
(see attached)
EXHIBIT B
DEPICTION OF ADJACENT PARKING AREAS
(see attached)
