EXHIBIT 10.13A
SIXTH AMENDMENT TO LEASE AGREEMENT
THIS SIXTH AMENDMENT TO LEASE AGREEMENT ("Sixth Amendment") is made and
entered into as of July 23, 2004, by and between MEADOW BROOK NORTH, L.L.C., a
Delaware limited liability company ("Landlord") and EMAGEON UV, INC., a Delaware
corporation f/k/a Emageon, Inc. ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated as of December 20, 2001, as amended by that certain First Amendment to
Lease dated as of December 20, 2001, as amended by that certain Tri-Party
Agreement ("Tri-Party Agreement") by and between Landlord, Tenant and Data
Center Company, LLC ("Data Center") dated as of December 20, 2001, as amended by
that certain Second Amendment to Lease (the "Second Amendment") dated as of July
1, 2002, as amended by that certain Third Amendment to Lease Agreement dated as
of December 23, 2002, as amended by that certain Fourth Amendment to Lease
Agreement dated as of March, 2003, and as amended by that certain Fifth
Amendment to Lease Agreement (the "Fifth Amendment") dated as of June 14, 2003
(as so amended, the "Lease") with respect to therein described space (the
"Original Premises") located in the building known as Meadow Brook 1200, located
at 0000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000; and
WHEREAS, Landlord and Tenant wish to amend the Lease pursuant to the terms
and conditions hereinafter set forth in this Sixth Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants contained herein and in the Lease, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Landlord and Tenant hereby agree as follows:
1. As of the date hereof, the Original Premises consist of 10,763 rentable
square feet, consisting of the following:
* 1,154 rentable square feet of storage space designated as Suite G-42
(the "G-42 Space");
* 1,290 rentable square feet of storage space designated as Suite G-45
(the "G-45 Space");
* 4,277 rentable square feet of office space designated as Suite 200
(the "Suite 200 Space"); and
* 4,042 rentable square feet of office space designated as Suite 400
(the "Suite 400 Space").
As of the date hereof, Tenant subleases from Data Center that certain
11,539 rentable square feet of space (the "Data Center Space") as more
particularly described on Exhibit A attached hereto and made a part hereof. The
G-42 Space, the G-45 Space and the G-49 Space (as hereinafter defined) are
sometimes referred to collectively herein as the "Storage Space"; the Suite 200
Space, the Suite 400 Space, the Data Center Space, the Suite 210 Space (as
hereinafter defined) and the Suite 250 Space (as hereinafter defined) are
sometimes referred to herein as the "Office Space"; the Storage Space and the
Office Space are collectively referred to herein as the "Premises" and, from and
after September 1, 2004, are deemed to be the "Premises" demised pursuant to the
Lease, as amended hereby.
2. The expiration date of the Data Lease (as defined in the Tri-Party Agreement)
has been accelerated by Landlord and Data to August 31, 2004, whereupon Tenant's
sublease of the Data Center Space shall automatically terminate. Effective as of
September 1, 2004, Landlord shall lease to Tenant, and Tenant shall lease from
Landlord, the Data Center Space on the terms and conditions of the Lease (other
than the construction, work letter and improvement allowance provisions
thereof), as modified by this Sixth Amendment. From and after September 1, 2004,
the Data Center Space shall be deemed to be a part of Suite 400.
3. Effective on September 1, 2004, Landlord shall lease to Tenant, and Tenant
shall lease from Landlord, that certain 1,649 rentable square feet designated as
Suite 210 as more particularly described on
Exhibit X-x attached hereto and made a part hereof (the "Suite 210 Space") and
that certain 7,050 rentable square feet of space designated as Suite 250 as more
particularly described on Exhibit B-2 attached hereto and made a part hereof
(the "Suite 250 Space"). Further, effective on September 1, 2004, Landlord shall
lease to Tenant, and Tenant shall lease from Landlord, that certain 886 rentable
square feet of space designated as Suite G-49 as more particularly described on
Exhibit B-3 attached hereto and made a part hereof (the "G-49 Space").
4.From and after September 1, 2004, following the addition of the Data Center
Space, the Xxxxx 000 Xxxxx, xxx Xxxxx 000 Space and the G-49 Space, the total
space leased from Landlord to Tenant, and by Tenant from Landlord, pursuant to
the Lease, as amended hereby, equals 31,887 rentable square feet.
5.The Term currently expires on December 31, 2004, subject to the provisions of
Section 2 of the Second Amendment to Lease with respect to the G-45 Space. The
Term is hereby extended, with respect to the entire Premises (i.e., the Office
Space and the Storage Space) through a new Expiration Date of March 31, 2010
(the period commencing September 1, 2004 and expiring March 31, 2010 is herein
referred to as the "Extended Term"). Effective as of the date hereof, the
provisions of Section 2 of the Second Amendment to Lease are deemed to be null
and void and of no further force and effect.
6.All obligations for Base Rent, Operating Expenses, Additional Rent and all
other charges applicable to the Original Premises during the Term shall be
applicable to the entire Premises during the Extended Term, calculated at the
same rates, timing and rates of escalations, except that the Base Year Amount
for the entire Premises during the Extended Term shall be reset to Operating
Expenses for calendar year 2005 and except that Base Rent for the entire
Premises during the Extended Term shall be calculated in accordance with the
following schedules:
BASE RENT PER RENTABLE SQUARE FOOT OF THE
PERIOD OFFICE SPACE
------ ------------
September 1, 2004 - August 31, 2005 $18.00
September 1, 2005 - August 31, 2006 $18.45
September 1, 2006 - August 31, 2007 $18.91
September 1, 2007 - August 31, 2008 $19.38
September 1, 2008 - August 31, 2009 $19.87
September 1, 2009 - March 31, 2010 $20.37
PLUS:
BASE RENT PER RENTABLE SQUARE FOOT OF THE
PERIOD STORAGE SPACE
------ -------------
September 1, 2004 - August 31, 2005 $12.00
September 1, 2005 - August 31, 2006 $12.30
September 1, 2006 - August 31, 2007 $12.61
September 1, 2007 - August 31, 2008 $12.92
September 1, 2008 - August 31, 2009 $13.25
September 1, 2009 - March 31, 2010 $13.58
Base Rent for the entire Premises shall be abated for the period September
1, 2004 through March 31, 2005. With respect to each other full or partial month
during the Extended Term, Tenant shall make Base Rent payments as otherwise
provided in the Lease, as amended hereby. Notwithstanding such abatement of Base
Rent (a) all other sums due under the Lease, as amended hereby, including
Additional Rent and Operating Expenses, shall be payable as provided in the
Lease, as amended hereby, during all full or partial months of the Extended
Term, and (b) any increases in Base Rent set forth in the Lease, as amended
hereby, shall occur on the dates scheduled therefor. The abatement of Base Rent
provided for in this provision is conditioned upon Tenant's full and timely
performance of all of its obligations under the Lease, as amended hereby. If at
any time during the current Term or the Extended Term an event of default by
Tenant occurs and continues beyond the expiration of any applicable notice and
cure periods, then the abatement of Base Rent
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provided for in this paragraph shall immediately become of no further force and
effect and thereafter, Tenant shall make Base Rent payments for all full or
partial months (or partial months) remaining in the current Term and the
Extended Term without regard to this paragraph.
Tenant's Share shall be adjusted to 24.88% (calculated as 31,887/128,142)
to reflect the entire Premises during the Extended Term
7. Tenant acknowledges that Landlord has fully performed all tenant improvements
to be performed prior to the date hereof and fully funded all tenant improvement
allowances to be funded prior to the date hereof. Except as set forth on Exhibit
C attached hereto and by this reference made a part hereof, the entire Premises
is delivered to Tenant by Landlord "AS IS, WHERE IS AND WITH ALL FAULTS", and
Landlord is not obligated to perform any tenant improvements therein or to
provide any tenant improvement allowances with respect thereto.
8. The provisions of Section 16 of the Lease (signage) and Section 34 of the
Lease (parking) shall be applicable to the entire Premises as of September 1,
2004, permitting Building standard suite entry signage and Building standard
directory entries to be installed as part of the Work at Tenant's request,
subject to Landlord's prior approval, with the cost thereof paid out of the
Allowance (as hereinafter defined) and establishing the parking ratio available
for use under the terms of the Lease, as amended hereby, to 3.5 spaces per 1,000
square feet in the entire Premises.
9. As of September 1, 2004, Tenant will lease directly from Landlord the "Data
Space" and the "Emageon Space" as each is defined in the Tri-Party Agreement.
Accordingly, from and after September 1, 2004, the Tri-Party Agreement shall be
deemed to be of no further force and effect.
10. The provisions of Section 4(b) of the Fifth Amendment regarding the
"Adjacent Space" are deemed to be of no further force and effect. From and after
the date hereof, Tenant shall have no further rights in the Adjacent Space.
11. Right of Refusal.
(a)During the Extended Term (excluding any holdover period), so long as
the Lease, as amended, is in full force and effect and no default has occurred
beyond the expiration of any applicable notice and cure periods and no facts or
circumstances then exist which, with the giving of notice or the passage of
time, or both, would constitute a default either at the time of the Offer (as
defined below) or as of the effective date of the proposed expansion of the
Premises to include the Refusal Space as set forth herein, Landlord hereby
grants to Tenant a one-time right of refusal (the "Right of Refusal") to expand
the Premises to include that certain space comprising approximately 6,287
rentable square feet as more particularly described on Exhibit D attached hereto
and by this reference made a part hereof (the "Refusal Space") subject to the
terms and conditions set forth herein and subject and subordinate to prior
rights of other tenants.
(b) After Landlord has received a "bona-fide" offer to lease Refusal Space
from a third party prospective tenant (as determined by Landlord) and which
Landlord is willing to accept in its sole discretion (the "Third Party Offer"),
Landlord shall not lease the Refusal Space without first offering (the "Offer")
Tenant the right to lease such Refusal Space as set forth herein.
Notwithstanding the foregoing, if the Third Party Offer includes space in excess
of the Refusal Space, such space may be included by Landlord in the Offer and if
so, Tenant must exercise its right hereunder, if at all, as to all (and not any
lesser portion) of the space contained in the Offer. Notwithstanding the
foregoing, if the Third Party Offer is for space less than the entire Refusal
Space, the Refusal Space shall be deemed to be such lesser space and if so,
Tenant must exercise the right hereunder, if at all, as to such lesser portion.
(c) The Offer shall contain (i) all terms and conditions of the Third
Party Offer; (ii) the date on which Landlord expects the Refusal Space to become
available; and (iii) the increase in Tenant's operating expense percentage. Upon
receipt of the Offer, Tenant shall have the right, for a period of seven (7)
calendar days after receipt of the Offer, to exercise the Right of Refusal by
giving Landlord written notice
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that Tenant desires to lease the Refusal Space (but not any lesser portion) upon
the same terms and conditions contained in this Lease as amended hereby and as
modified by the terms of Offer; provided, however, that any construction
provisions, improvement allowances, rent abatements or other concessions
applicable to the Premises shall not be applicable to the Refusal Space unless
expressly included in the Offer. Time is of the essence with respect to the
foregoing. Unless otherwise stated in the Offer, the term of the Lease with
respect to the Refusal Space shall be coterminous with the then current demised
term of the Lease and shall be leased to Tenant in its "as is" condition.
(d) If, within such seven (7) calendar day period, Tenant exercises the
Right of Refusal, then Landlord and Tenant shall amend the Lease to include the
Refusal Space subject to the same terms and conditions as the Lease, as amended
hereby and as modified by the terms and conditions of the Offer; provided,
however, that any construction provisions, improvement allowances, rent
abatements or other concessions applicable to the Premises shall not be
applicable to the Refusal Space unless expressly included in the Offer. If the
Lease is guaranteed now or at any time in the future, Tenant simultaneously
shall deliver to Landlord an original, signed reaffirmation of each Guarantor's
guaranty, in form and substance acceptable to Landlord.
(e) If, within such seven (7) calendar day period, Tenant declines or
fails to exercise the Right of Refusal, Landlord shall then have the right to
lease the Refusal Space in portions or in its entirety to any third party or
parties without regard to the restrictions in this Right of Refusal and on
whatever terms and conditions Landlord may decide in its sole discretion. If
Tenant so declines or so fails to exercise, this Right of Refusal shall
terminate, this Special Stipulation shall be of no further force and effect, and
Tenant shall have no further Right of Refusal on the Refusal Space.
(f) This Right of Refusal is personal to EMAGEON UV, INC., a Delaware
corporation f/k/a Emageon, Inc., may not be exercised by any party other than
EMAGEON UV, INC., a Delaware corporation f/k/a Emageon, Inc. and shall become
null and void upon the occurrence of an assignment of the Lease or a sublet of
all or a part of the Premises.
12. Not Used.
13. Option to Renew.
(a) During the Extended Term (excluding any holdover period), so long as,
both as of the exercise date and as of the first day of the Renewal Term (as
hereinafter defined) the Lease, as amended, is in full force and effect and no
default has occurred and continued beyond the expiration of any applicable
notice and cure period and no facts or circumstances then exist which, with the
giving of notice or the passage of time, or both, would constitute a default,
Landlord hereby grants to Tenant one (1) option to further extend the Extended
Term with respect to all but not any lesser portion of the Premises for a period
of five (5) years beginning immediately upon the expiration of the Extended Term
("Renewal Term"), such option to be exercised by Tenant giving written notice of
its exercise to Landlord in the manner provided in the Lease at least two
hundred seventy (270) days prior, but not more than three hundred sixty (360)
days prior, to the expiration of the Extended Term. Time is of the essence with
respect to the foregoing.
(b) Base Rent for the Renewal Term shall be the prevailing market rate
(the "Prevailing Market Rate") calculated on a per square foot basis for
comparable renewal leases during the Renewal Term covering the Building and
buildings comparable to the Building (as adjusted for any variances between such
buildings and the Building and as adjusted for other relevant factors,
including, but not limited to, size of space, location of space within the
building, signage rights, age, location and quality of building, length of term,
credit standing of tenant, tenant improvement contributions, leasing commissions
and rent concessions) located in the same market area as the Building
(hereinafter referred to as the "Market Area") to which the Base Year Amount
shall be added.
Landlord shall, within twenty (20) days after the receipt of Tenant's
notice of exercise, notify Tenant in writing of Landlord's reasonable
determination of the Prevailing Market Rate for the Premises for
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the Renewal Term. Thereafter, Tenant shall have ten (10) days from its receipt
of Landlord's notice to notify Landlord in writing that Tenant does not agree
with Landlord's determination of the Prevailing Market Rate. If Tenant fails to
object as aforesaid, Landlord's determination shall be deemed to be the
Prevailing Market Rate for the Renewal Term. Upon receipt of Tenant's objection,
Landlord and Tenant shall meet for a period of ten (10) additional days (the
"Negotiation Period") to negotiate the Prevailing Market Rate, with each acting
in good faith. If such negotiations are successful, the rate so negotiated by
the parties will be deemed to be the Prevailing Market Rate for the Renewal
Term. If such negotiations are not successful, the Prevailing Market Rate will
be determined in accordance with the following arbitration procedure:
Within five (5) days after the expiration of the Negotiation Period,
Tenant shall notify Landlord of Tenant's selection of a real estate broker who
shall act on Tenant's behalf in determining the Prevailing Market Rate. After
Tenant delivers its notice to Landlord as set forth above, Landlord shall notify
Tenant of Landlord's selection of a real estate broker who shall act on Landlord
behalf in determining the Prevailing Market Rate. Within twenty (20) days after
the selection of Tenant's and Landlord's broker, the two (2) brokers shall
render a joint written determination of the Prevailing Market Rate, which joint
determination shall be final, conclusive and binding for the Renewal Term. If
the two (2) brokers are unable to agree upon a joint written determination
within said twenty (20) day period, the two brokers shall select a third broker
within such twenty (20) day period and shall each submit a determination of the
Prevailing Market Rate to such third broker. In the event the two brokers cannot
agree on a third, Landlord or Tenant may request that the local chapter of the
Board of Realtors appoint a party to act as the third broker. Within ten (10)
days after the appointment of the third broker, the third broker shall render a
written determination of the Prevailing Market Rate, which must be either the
Landlord's broker's determination as submitted or the Tenant's broker's
determination as submitted, but no other amount and no compromise between the
two, with the third broker's determination being final, conclusive and binding
on both parties. All brokers selected or appointed in accordance with this
subparagraph shall have at least ten (10) years prior experience in the
commercial office leasing market of the Market Area. If either Landlord or
Tenant fails or refuses to select a broker, the other broker shall alone
determine the Prevailing Market Rate. Landlord and Tenant agree that they shall
be bound by the determination of Prevailing Market Rate pursuant to this
paragraph. Landlord shall bear the fee and expenses of its broker; Tenant shall
bear the fee and expenses of its broker; and Landlord and Tenant shall share
equally the fee and expenses of the third broker, if any.
(c) Except for the Base Rent, which shall be determined as set forth in
subparagraph B above, leasing of the Premises by Tenant for the Renewal Term
shall be subject to all of the same terms and conditions set forth in the Lease,
as amended; provided, however, that any construction provisions, improvement
allowances, rent abatements or other concessions applicable to the Premises
during the Extended Term shall not be applicable during the Renewal Term (unless
otherwise mutually acceptable to both Landlord and Tenant in the sole discretion
of each at the time Tenant exercises its option to extend). Landlord and Tenant
shall enter into an amendment to the Lease to evidence Tenant's exercise of this
extension option. If the Lease is guaranteed now or at any time in the future,
Tenant simultaneously shall deliver to Landlord an original, signed
reaffirmation of each guarantor's guaranty, in form and substance acceptable to
Landlord.
14. Section 25 of the Lease is hereby modified to provide that Tenant shall
reimburse Landlord for its legal and administrative costs in reviewing any such
proposed assignment or sublease. Section 32 of the Lease is hereby modified to
provide that any estoppel certificate shall include the items listed in such
Section 32 and such other statements as Landlord shall reasonably request.
15. Tenant warrants and represents to Landlord that except for Xxxxxx Realty
Services, L.L.C. and Xxxxxxxx Realty Company, no broker, finder, real estate
agent or other person is entitled to a commission, fee or other compensation in
connection with or as a result of the Lease or the transactions contemplated
hereby or hereunder. The commission of the broker(s) identified above shall be
paid by Landlord pursuant to a separate agreement. Tenant hereby indemnifies and
holds harmless Landlord from any and all claims, losses, costs and damages
(including reasonable attorneys' fees) arising in connection with any claims
against Landlord for broker commissions, fees, or other compensation; the
foregoing indemnity shall not
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include the fees of the broker(s) identified above if Landlord is responsible
for the commission of such broker(s) as described above.
16. Landlord and Tenant affirm and covenant that each has the authority to enter
into this Sixth Amendment, to abide by the terms hereof, and that the
signatories hereto are authorized representatives of their respective entities
empowered by their respective entities to execute this Sixth Amendment. Upon
Landlord's request, Tenant shall provide evidence of the foregoing to Landlord.
17. To the extent the provisions of this Sixth Amendment are inconsistent with
the Lease, the terms of this Sixth Amendment shall control. Except as expressly
amended or modified herein, all other terms, covenants and conditions of the
Lease shall remain in full force and effect and this Sixth Amendment shall be
binding upon the parties hereto and their respective successors and assigns.
This Sixth Amendment shall be governed by the laws of the State in which the
Building is located. Any terms used in this Sixth Amendment as defined terms,
but which are not defined herein, shall have the meanings attributed to those
terms in the Lease. The submission of this Sixth Amendment to Tenant for
examination or consideration does not constitute an offer to amend the Lease,
and this Sixth Amendment shall become effective only upon the execution and
delivery thereof by both Landlord and Tenant. The Lease, as amended hereby,
contains the entire agreement between the parties with respect to the space
demised by the Lease, as amended, and no representations, inducements, promises,
agreements, oral or otherwise, between the parties not embodied in the Lease, as
amended hereby, shall be of any force and effect. Time is of the essence as to
all of the obligations of Tenant under the Lease and this Sixth Amendment. This
Sixth Amendment has been negotiated "at arm's length" by Landlord and Tenant,
each having the opportunity to be represented by legal counsel. Therefore, this
Sixth Amendment shall not be more strictly construed against either party by
reason of the fact that one party may have drafted this Sixth Amendment. This
Sixth Amendment may be executed by the parties signing different counterparts of
this Sixth Amendment, which counterparts together shall constitute the agreement
of the parties.
[SIGNATURES APPEAR ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seals, the day and year first above written.
LANDLORD:
MEADOW BROOK NORTH, L.L.C., a
Delaware limited liability company
By: Xxxxxx Realty Services, L.L.C.,
an Alabama limited liability company
By: Xxxxxx Realty Corporation, an
Alabama corporation, its Manager
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name:________________________________
Title:_______________________________
TENANT:
EMAGEON UV, INC., a Delaware corporation
f/k/a Emageon, Inc.
By: /s/ W. Xxxxxxx Xxxxxxx
------------------------------------
Name:________________________________
Title:_______________________________
(CORPORATE SEAL)
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Exhibit A
Meadow Brook 1200 - Fourth Floor
Exhibit X-x
Meadow Brook 1200 - Second Floor
Exhibit X-0
Xxxxxx Xxxxx 0000 - Xxxxxx Xxxxx
Exhibit X-0
Xxxxxx Xxxxx 0000 - Xxxxxx Xxxxx
EXHIBIT C
WORK LETTER
This WORK LETTER ("Work Letter") is attached to and made part of that certain
Sixth Amendment (to which this Exhibit C is attached). The terms, definitions
and other provisions of the Lease, as amended hereby, are hereby incorporated
into this Work Letter by reference.
In consideration of the execution of the Sixth Amendment and the mutual
covenants and conditions hereinafter contained, Landlord and Tenant agree as
follows:
1. The Work (as hereinafter defined) shall be constructed by Landlord utilizing
"Building Standard" improvements in accordance with the provisions hereof, and
Landlord shall provide to Tenant the allowance set forth below:
(a) Landlord will provide Tenant a planning allowance (the "Planning
Allowance") of up to $8,490.00 to be applied to the cost of the Plans (as
hereinafter defined) for the Xxxxx 000 Xxxxx, xxx Xxxxx 000 Space and the
G-49 Space. Prior to funding of the Allowance by Landlord hereunder,
Tenant shall fund or cause to be funded ("Tenant's Planning Contribution")
the amount by which the cost of the Plans exceeds the Planning Allowance.
Tenant's Planning Contribution shall be paid prior to the commencement of
construction of the Work or promptly upon demand therefor by Landlord, if
such excess (or the exact amount thereof) is not known or anticipated as
of the commencement of the construction of the Work. So long as the Lease,
as amended, is in full force and effect and Tenant is not in default
hereunder (a "Failed Condition"), utilizing the Planning Allowance and
Tenant's Planning Contribution, if any, Landlord will pay the Architect
according to the contract with the Architect. In the event of a Failed
Condition, all costs associated with the Plans shall be payable by Tenant
upon demand therefor, together with all applicable late charges and
interest applicable to the nonpayment of Rent hereunder.
(b) On the terms and conditions set forth in Section 9 below, Landlord
will provide Tenant an allowance (the "Allowance") of up to $255,285.00 to
be applied to the costs of the Work. Any portion of the Allowance not
exhausted by the cost of the Work up to $5.00 per rentable square foot in
the Premises shall be available to Tenant for reimbursement of actual,
third-party, documented moving expenses within the Premises,
telecommunication and computer cabling installation expenses within the
Premises and/or the cost to purchase furniture, fixtures or equipment
installed in the Premises as necessary to ready the Premises for Tenant's
continued occupancy thereof or expansion therein, as applicable, so long
as Tenant has otherwise complied with the provisions of this Work Letter,
this Sixth Amendment and the Lease. Tenant shall be eligible for such
reimbursement upon its presentation to Landlord, on or before the
expiration of the ninety (90) days following completion of the Work, of
paid invoices, receipts or other reasonable evidence supporting actual,
third party expenses incurred by Tenant eligible for this reimbursement
and any lien waivers or other customary documentation requested by
Landlord. Time is of the essence with respect to the foregoing. To the
extent the Allowance is not fully exhausted by the foregoing, Landlord
shall not be required to fund such excess, with Tenant hereby agreeing to
release any and all rights thereto. Any costs and expenses for the Work in
excess of the Allowance shall be paid solely by Tenant.
The term "Building Standard" or "Building standard" as used in this Sixth
Amendment shall mean the standards, materials and specifications set forth by
Landlord for construction of occupied tenant spaces within the Building,
including but not limited to such items as partition standards and details,
doors and door hardware, ceiling grid and tile, HVAC equipment and materials,
light fixtures, carpet and flooring, sprinkler heads, sill finishes and signage.
The Work shall at all time remain the property of the Landlord, subject to
Landlord's rights as set forth in Section 12 and Section 37 of the Lease.
2. With Tenant's cooperation and in accordance with the floor plans attached
hereto , Landlord shall cause Xxx Xxxxx Architects (the "Architect") to prepare,
or cause to be prepared, working drawings for the
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construction of the Building standard items and improvements (together with the
floor plan and all modifications thereof, such drawings are referred to as the
"Plans"). The Plans be subject to compliance with all governmental laws,
regulations and requirements and shall be subject to Landlord's and Tenant's
approval (which approval by each party shall not be unreasonably withheld,
except with respect to items which impact Building systems or structure or which
are visible from the Building's exterior or common areas, in which event
Landlord's prior approval may be withheld in Landlord's sole discretion).
Tenant's failure to approve or disapprove (with specificity) the Plans (or any
modifications thereto) within five (5) days of submission shall be deemed an
approval. In the event Landlord or Tenant disapproves the Plans, Landlord and
Tenant shall meet to promptly resolve any disputes in good faith. The cost of
the Plans shall not be deemed to be a cost of the Work; instead, the Planning
Allowance shall be applied to the cost of the Plans and any amount in excess of
the Planning Allowance shall be paid by Tenant.
3. Utilizing Xxxxx Xxxxxxx & Xxxxx (the "Designated Contractor"), Landlord shall
diligently prosecute the tenant improvements described in the final, approved
Plans (the "Work") to completion, subject to compliance with all governmental
laws, regulations and requirements. Landlord shall not be obligated to complete
the Work by any particular date, and Landlord and Tenant shall jointly determine
the construction schedule for the Work. In the event completion of the Work (or
any portion thereof) continues beyond September 1, 2004, Landlord and the
Designated Contractor shall be allowed to enter upon the Premises at any
reasonable times thereafter as necessary to complete such Work (or portion
thereof), and such entry shall not constitute an actual or constructive eviction
of Tenant, in whole or in part, nor shall it entitle Tenant to any abatement or
diminution of rentals or relieve Tenant from any obligation under the Lease, as
amended hereby.
4. Subject to the provisions of Section 10 below, in the event Tenant, utilizing
its own limited service contractors and vendors, will undertake certain limited
portions of the improvements to the Premises, such as relocation or installation
of cabling, systems, furniture and related items, Tenant shall use licensed
contractors, approved by Landlord, such approval not to be unreasonably
withheld. Tenant shall advise its contractors and vendors that no interest of
the Landlord in the Premises, the Building or the Project shall be subject to
liens to secure payment of any amount due such contractors or vendors. Tenant
shall also be responsible to ensure that such limited service contractors and
vendors do not impede the Designated Contractor in performance of the Work.
Landlord shall not be liable in any way for any injury, loss, damage or delay
which may be caused by or arise from Tenant or such limited service contractors
or vendors. Such limited service contractors and vendors shall be obligated to
observe Landlord's construction rules and regulations for the Building, as such
may be adopted and amended from time to time. Tenant's limited service
contractors and vendors shall be responsible for the removal of trash and debris
resulting from the performance of their work, and such trash and debris removal
shall be undertaken at such time and in such manner as designated by Landlord.
5. Landlord or its agent may attend any and all design and preconstruction
meetings with Tenant and the Architect or their representatives as Landlord
shall deem necessary to inform the various parties of the minimum requirements
for design and construction, to assure compliance with the terms of this Work
Letter, to coordinate construction of the Premises or for any other reason
deemed necessary by Landlord.
6. Any approval by Landlord of, or consent by Landlord to, any plans,
specifications or other items to be submitted to and/or reviewed by Landlord
pursuant to this Sixth Amendment shall be deemed to be strictly limited to an
acknowledgment of approval or consent by Landlord thereto, and such approval or
consent shall not constitute the assumption by Landlord of any responsibility
for the accuracy, sufficiency or feasibility of any plans, specifications or
other such items and shall not imply any acknowledgment, representation or
warranty by Landlord that the design is safe, feasible, structurally sound or
will comply with any legal or governmental requirements, with Tenant being
responsible for all of the same. Subject to the provisions of Section 12 and 37
of the Lease, the Work shall at all time remain the property of the Landlord and
shall not be subject to levy, sale or other encumbrance or transfer by Tenant.
7. If Tenant desires any changes in the Work after having approved the initial
Plans, Tenant shall be required to sign such change orders as requested by
Landlord or the Designated Contractor prior to the commencement of Work
incorporating the relevant change order, and may, upon request of Landlord, be
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required to deliver to Landlord evidence of financing or financial capability of
Tenant sufficient to cover the excess cost, if any, resulting from such change
order. Any such changes shall be subject to Landlord's approval in accordance
with the standards set forth in Section 2 above. The additional cost of any such
change orders shall be considered a cost of the Work.
8. Notwithstanding anything provided in the Lease or herein to the contrary, in
the event Tenant elects (with Landlord's approval) to use materials other than
Building Standard, Landlord shall have no obligation to provide services which
are materially different from those provided for Building Standard improvements
(including, without limitation, janitorial and cleaning services) for any
non-Building standard improvements installed, constructed or used in the
Premises.
9. Prior to funding of the Allowance by Landlord hereunder, Tenant shall fund or
cause to be funded (as "Tenant's Contribution") the amount by which the cost of
the Work and all other costs arising pursuant to this Work Letter, exceeds the
Allowance. Tenant's Contribution shall be paid prior to the commencement of
construction of the Work or promptly upon demand therefor by Landlord, if such
excess (or the exact amount thereof) is not known or anticipated as of the
commencement of the construction of the Work. So a Failed Condition has not
occurred, utilizing the Allowance and Tenant's Contribution, if any, Landlord
will pay the Designated Contractor in periodic payments as construction
progresses according to the contract with the Designated Contractor. In the
event of a Failed Condition, all costs associated with the Work, the Plans and
this Work Letter shall be payable by Tenant upon demand therefor, together with
all applicable late charges and interest applicable to the nonpayment of Rent
hereunder.
10. Landlord, at Landlord's discretion (not to be unreasonably withheld), may
permit Tenant and Tenant's agents to enter the Suite 210 Space, the Suite 250
Space and/or the G-49 Space prior to September 1, 2004 in order that Tenant may
do such other work as may be required by Tenant to make the Xxxxx 000 Xxxxx, xxx
Xxxxx 000 Space and/or the G-49 Space ready for Tenant's use and occupancy. If
Landlord permits such early entry, such permission is conditioned upon Tenant
and its agents, contractors, employees and invitees working in harmony and not
interfering with Landlord and its agents, contractors and employees in doing the
Work or for other tenants and occupants of the Building. If at any time such
entry shall cause or threaten to cause disharmony or interference, Landlord
shall have the right to withdraw such permission upon 24 hours notice to Tenant.
Tenant agrees that any such entry into and occupation of the Suite 210 Space,
the Suite 250 Space and/or the G-49 Space shall be deemed to be under all of the
terms, covenants, conditions and provisions of the Lease, as amended hereby,
except as to the covenant to pay Base Rent and Operating Expenses, and further
agrees Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any of Tenant's work and installations made in the Premises
or to property placed therein prior to September 1, 2004, the same being at
Tenant's sole risk.
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Exhibit D
Meadow Brook 1200 - Second Floor
