LEASE AMENDMENT EIGHT (Expansion/Co-Terminous)
Exhibit 10.17
LEASE AMENDMENT EIGHT
(Expansion/Co-Terminous)
THIS LEASE AMENDMENT EIGHT (“Amendment”) is made as of the 28th day of November, 2006, between
CMD Realty Investment Fund IV, L.P. (“Landlord”), an Illinois limited partnership, and
InterContinentalExchange, Inc. (“Tenant”), a Delaware corporation.
A. Landlord and Tenant are the current parties to that certain Office Lease (“Original
Lease”) dated June 8, 2000, for space currently described as Suites 500 and 600 (collectively,
“Premises”) in the building (“Building”) known as 2100 RiverEdge, located at 0000
XxxxxXxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000 (“Property”), which lease has heretofore been
amended by Lease Amendment One dated April 30, 2001, Lease Term Adjustment Confirmation Letter
dated August 2, 2001, Lease Amendment Two dated March 6, 2003, Lease Amendment Three dated
September 10, 2003, Lease Amendment Four dated June 4, 2004, Lease Amendment Five dated October 28,
2004, Lease Amendment Six dated October 12, 2005, Lease Amendment Seven dated May 12, 2006, and
Lease Term Confirmation letter dated October 26, 2006 (collectively, and as amended herein,
“Lease”).
B. The parties mutually desire to amend the Lease on the terms hereof.
NOW THEREFORE, in consideration of the mutual agreements herein contained, the parties hereby
agree as follows.
1. Additional Premises. The space currently known as Suite 650 (“Additional
Premises”), the approximate location of which is shown on Exhibit A hereto on the sixth (6th) floor
of the Building, and which shall be deemed to contain 5,970 square feet of rentable area for
purposes hereof, shall be added to and become a part of the Premises commencing on the earlier to
occur of (i) Tenant’s occupancy of the Additional Premises for business purposes, or (ii) April 1,
2007 (“Additional Premises Commencement Date”) and continuing co-terminously with the expiration
date under the Lease (“Lease Expiration Date”), as the same may be extended from time to time,
subject to the terms herein. The Additional Premises Commencement Date and Lease Expiration Date
shall be subject to adjustment and confirmation to the extent further described below.
*** | Certain information in this agreement has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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2. Base Rent For Additional Premises. Tenant shall pay monthly base rent for the
Additional Premises as provided below and otherwise as provided in the Lease:
Additional | ||
Premises | ||
Period | Monthly Base Rent | |
Additional Premises Commencement Date — May 31, 2007
|
[***] | |
June 1, 2007 — May 31, 2008
|
[***] | |
June 1, 2008 — May 31, 2009
|
[***] | |
June 1, 2009 — May 31, 2010
|
[***] | |
June 1, 2010 — May 31, 2011
|
[***] | |
June 1, 2011 — Lease Expiration Date
|
[***] |
3. Expenses and Taxes. Commencing on the Additional Premises Commencement Date: (a)
Tenant shall pay Tenant’s Share for the Additional Premises of increases in Taxes and Expenses over
the respective amounts for the year 2006, and as otherwise provided in the Lease, and (b) “Tenant’s
Share” for the Additional Premises shall be two and 24/100 percent (2.24%), for purposes hereof.
4. Prorations; Consolidated or Separate Xxxxxxxx. If the Additional Premises
Commencement Date does not occur at the beginning of an applicable payment period under the Lease,
Landlord shall reasonably pro rate Tenant’s payment obligations on a per diem basis. The Base
Rent, Expenses, Taxes, and all other rentals and charges respecting the Additional Premises are
sometimes herein called “Additional Premises Rent”. Landlord may compute and xxxx Additional
Premises Rent (or components thereof) separately or treat the Additional Premises and Premises as
one unit for computation and billing purposes.
5. Other Terms; Remaining Right of Offer. Commencing on the Additional Premises
Commencement Date, the Additional Premises shall be added to, and become part of, the Premises
under the Lease, and all applicable provisions then or thereafter in effect under the Lease shall
also apply to the Additional Premises (including, without limitation, the Extension Option pursuant
to Exhibit D attached to Lease Amendment Seven), except as provided to the contrary herein. The
Additional Premises hereunder together with the Additional Premises pursuant to Lease Amendment
Seven comprise the entire rentable area of the 6th floor of the Building; therefore, Tenant’s Right
of Offer pursuant to Exhibit E attached to Lease Amendment Seven shall hereafter apply only to all
fourth (4th) floor space in the Building.
*** | Confidential information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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6. Condition of Additional Premises. Tenant has inspected, or had an opportunity to
inspect, the Additional Premises (and portions of the Property, Systems and Equipment providing
access to or serving the Additional Premises), and agrees to accept the same “as is” without any
agreements, representations, understandings or obligations on the part of Landlord to perform or
pay for any alterations, repairs or improvements, except as may be expressly provided under this
Lease. Tenant shall, at its option, perform certain Work to the Additional Premises, and Landlord
shall provide an Allowance therefor, as further described in Exhibit B attached hereto.
Notwithstanding the foregoing to the contrary, Landlord hereby represents that to Landlord’s actual
knowledge as of the date of this Amendment (i) the Building standard mechanical, electrical,
plumbing, sprinkler and HVAC equipment servicing the Additional Premises are in good working order,
and (ii) there are no current material violations of Laws affecting Tenant’s use of the Additional
Premises. “Landlord’s actual knowledge” herein means the actual knowledge of the Asset Manager for
the management company for the Property.
7. Early Access; Possession Date; Date; Confirmation of Dates. Landlord shall permit
Tenant to enter the Additional Premises on the day immediately following mutual execution and
delivery of this Amendment (“Possession Date”) but Tenant shall with respect to the
Additional Premises have no obligation to pay Landlord the Additional Premises Rent (consisting of
Base Rent, Taxes and Expenses) for such period prior to the Additional Premises Commencement Date
(as defined in Section 1 above). During any period that Tenant shall enter the Additional Premises
prior to the Additional Premises Commencement Date to perform Work under Exhibit B hereto,
or to install telecommunications and computer cabling, equipment and furniture, Tenant shall comply
with all terms and provisions of the Lease, except that the Additional Premises Commencement Date
shall not occur based on such early possession for such purposes. The Additional Premises
Commencement Date shall be the earlier to occur of (i) Tenant’s occupancy of the Additional
Premises for business purposes, or (ii) April 1, 2007. Landlord and Tenant shall execute a
confirmation of any dates herein in such form as Landlord may reasonably request; any failure to
respond within thirty (30) days after Landlord provides such written confirmation shall be deemed
an acceptance of the dates set forth in Landlord’s confirmation. If Tenant disagrees with
Landlord’s determination of such dates, Tenant shall pay Additional Premises Rent and perform all
other obligations commencing and ending on the dates determined by Landlord, subject to refund or
credit against Additional Premises Rent when the matter is resolved.
8. Real Estate Brokers. Landlord and Tenant hereby: (a) mutually represent to each
other that they have dealt only with CB Xxxxxxx Xxxxx, Inc. (representing Tenant) and PM Realty
Group (representing Landlord) as broker, salesperson, agent or finder in connection with this
Amendment (and to whom Landlord shall pay a commission pursuant to separate written agreement), and
(b) mutually agree to defend, indemnify and hold each other harmless from and against all
liabilities and expenses (including reasonable attorneys’ and expert witness fees, and court costs)
arising from any breach of their respective foregoing representations.
9. Offer. The submission and negotiation of this Amendment shall not be deemed an
offer to enter into the same by Landlord. This Amendment shall not be binding on Landlord unless
and until fully signed and delivered by both parties. Tenant’s execution of this Amendment
constitutes a firm offer to enter into the same which may not be withdrawn for a
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period of thirty (30) days after delivery to Landlord. During such period, Landlord may
proceed in reliance thereon, but such acts shall not be deemed an acceptance.
10. Whole Amendment; Full Force and Effect; Conflicts. This Amendment sets forth the
entire agreement between the parties with respect to the matters set forth herein. There have been
no additional oral or written representations or agreements. As amended herein, the Lease shall
remain in full force and effect. In case of any inconsistency between the provisions of the Lease
and this Amendment, the latter provisions shall govern.
11. Interpretation. This Amendment shall be interpreted in a reasonable manner in
conjunction with the Lease. If an Exhibit is attached to this Amendment, the term “Lease” therein
shall refer to this Amendment or the Lease as amended, and terms such as “Commencement Date” and
“Lease Term” shall refer to analogous terms in this Amendment, all as the context expressly
provides or reasonably implies. Unless expressly provided to the contrary herein: (a) any terms
defined herein shall have the meanings ascribed herein when used as capitalized terms in other
provisions hereof, (b) capitalized terms not otherwise defined herein shall have the meanings, if
any, ascribed thereto in the Lease, and (c) non-capitalized undefined terms herein shall be
interpreted broadly and reasonably to refer to terms contained in the Lease which have a similar
meaning, and as such terms may be further defined therein.
12. Authority. Each signatory of this Amendment represents hereby that he or she has
the authority to execute and deliver the same on behalf of the party hereto for which such
signatory is acting.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first set forth
above.
LANDLORD: | CMD Realty Investment Fund IV, L.P. [SEAL] an Illinois limited partnership |
|||
By: | CMD/Fund IV GP Investments, L.P., | |||
an Illinois limited partnership, its general partner | ||||
By: | CMD XXXX IV, Inc., | |||
an Illinois corporation, its general partner | ||||
By: | CMD Realty Investors, | |||
an Illinois general partnership, as agent | ||||
/s/ Xxxxxx X. Xxxxx | ||||
Xxxxxx X. Xxxxx | ||||
Senior Vice President | ||||
TENANT: | IntercontinentalExchange, Inc. [SEAL] a Delaware corporation |
|||
/s/ Xxxxxxx X. Xxxxxxxx | ||||
Xxxxxxx X. Xxxxxxxx | ||||
Chairman and Chief Executive Officer |
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EXHIBIT A
FLOOR PLATE SHOWING ADDITIONAL PREMISES
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EXHIBIT B
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CMD 108C (3/04) | ||
Minor/Moderate Work | |||
WORK LETTER
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Tenant Performance/Allowance |
This Exhibit is a “Work Letter” to the foregoing document (referred to herein for convenience
as the “Lease Document”).
I. Basic Arrangement
a. Tenant to Arrange for Work. Tenant desires to engage one or more contractors to perform
certain improvements (the “Work,” as further defined in Section VI) to or for the Premises
under the Lease Document. Tenant shall arrange for the Work to be planned and performed in
accordance with the provisions of this Exhibit and applicable provisions of the Lease Document.
Tenant shall pay when due all costs for or related to the Plans and Work whatsoever (“Costs of
the Work”), and Landlord shall reimburse certain such costs up to the Allowance, as further
described below.
b. Allowance. Landlord shall provide up to [***] (the “Allowance”) towards the Costs
of the Work relating to permanent leasehold improvements (provided the portion of the Allowance
available for the Plans shall be limited to five percent (5%), and shall exclude planning for
furniture, trade fixtures and business equipment). Tenant shall pay Landlord’s reasonable
out-of-pocket costs, if any, for architectural and engineering review of the Plans and any
Engineering Report, and all revisions thereof. The foregoing items may be charged against the
Allowance, and if the Allowance shall be insufficient, Tenant shall pay Landlord for such amounts
as additional Rent within fifteen (15) days after billing. Notwithstanding anything to the contrary
contained herein, any personal property, trade fixtures or business equipment, including, but not
limited to, modular or other furniture, and cabling for communications or computer systems, whether
or not shown on the Approved Plans, shall be provided by Tenant, at Tenant’s sole cost, and the
Allowance shall not be used for such purposes. In the event that Landlord fails to timely pay the
Allowance in accordance with this Section I.b. and such failure continues for more than five (5)
business days following receipt of written notice from Tenant of such failure, then the unpaid
amount of the Allowance shall accrue interest from the due date at the Default Rate until payment
is received by Landlord.
c. Funding and Disbursement. Landlord shall fund and disburse the Allowance within thirty
(30) days after the Work has been completed in accordance with the Approved Plans in accordance
with the provisions hereof, and Tenant has submitted all invoices, architect’s certificates, a
Tenant’s affidavit, complete unconditional lien waivers and affidavits of payment by all Tenant’s
Contractors, and such other evidence as Landlord may reasonably require that the cost of the Work
has been paid and that no architect’s, mechanic’s, materialmen’s or other such liens have been or
may be filed against the Property or the Premises arising out of the design or performance of such
Work. Landlord may issue checks to fund the Allowance jointly or
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separately to Tenant, its general contractor, and any other of Tenant’s Contractors. If Tenant
does not use the entire Allowance for the purposes permitted herein, or does not submit the
foregoing documentation to Landlord, within nine (9) months after the Commencement Date, then
Landlord shall be entitled to the savings and Tenant shall receive no credit therefor.
II. Planning. The term “Plans” herein means a “Space Plan,” as the same may
be superseded by any “Construction Drawings,” prepared and approved pursuant to this Section (and
as such terms are further defined in Section VI). In the event of any inconsistency between the
Space Plan and Construction Drawings, or revisions thereto, as modified to obtain permits, the
latest such item approved by Landlord shall control. The term “Approved Plans” herein
means the Plans (and any revisions thereof) as approved by Landlord in writing in accordance with
this Section.
a. Tenant’s Planners. Tenant shall engage a qualified, licensed architect (“Architect”),
subject to Landlord’s prior written approval. To the extent required by Landlord or appropriate in
connection with preparing the Plans, Tenant shall also engage one or more qualified, licensed
engineering firms, e.g. mechanical, electrical, plumbing, structural and/or HVAC (“Engineers”), all
of whom shall be designated or approved by Landlord in writing. The term “Tenant’s
Planners” herein shall refer collectively or individually, as the context requires, to the
Architect or Engineers engaged by Tenant, and approved or designated by Landlord in writing in
accordance with this Exhibit.
Notwithstanding anything contained herein to the contrary, Tenant agrees to engage Peacock
Architects to prepare the Construction Drawings (as defined below).
b. Space Plan and Construction Drawings. Tenant shall promptly hereafter cause the Architect
to submit three (3) sets of a “Space Plan” (as defined in Section VI) to Landlord for
approval. Landlord shall, within ten (10) working days after receipt thereof, either approve said
Space Plan, or disapprove the same advising Tenant of the reasons for such disapproval. In the
event Landlord disapproves said Space Plan, Tenant shall modify the same, taking into account the
reasons given by Landlord for said disapproval, and shall submit three (3) sets of the revised
Space Plan to Landlord. Landlord shall review or comment on all revised plans and drawings (that
have been approved by Tenant and are re-submitted to Landlord for approval) within five (5)
business days after receipt of same. If Landlord provides comments to a revised Space Plan, then
the process outlined above shall continue with all subsequent review and comment periods of
Landlord being limited to five (5) business days (it being understood that Landlord shall be
entitled to comment solely on the revised portions of such plan or drawing, unless the revisions
affect any other portion of the plan or drawing or unless Landlord discovers a previously
undetected material error in another portion of the plan or drawing). To the extent required by
Landlord or the nature of the Work and as further described in Section VI, Tenant shall, after
Landlord’s approval of the Space Plan: (i) cause the Architect to submit to Landlord for approval
“Construction Drawings” (including, as further described in Section VI below, sealed
mechanical, electrical and plumbing plans prepared by a qualified, licensed Engineer approved or
designated by Landlord), and (ii) cause the Engineers to submit for Landlord’s approval a
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report (the “Engineering Report”) indicating any special heating, cooling, ventilation,
electrical, heavy load or other special or unusual requirements of Tenant, including calculations.
Landlord shall, within fifteen (15) working days after receipt thereof (or such longer time as may
be reasonably required in order to obtain any additional architectural, engineering or HVAC report
or due to other special or unusual features of the Work or Plans), either approve the Construction
Drawings and Engineering Report, or disapprove the same advising Tenant of the reasons for
disapproval. If Landlord disapproves of the Construction Drawings or Engineering Report, Tenant
shall modify and submit revised Construction Drawings, and a revised Engineering Report, taking
into account the reasons given by Landlord for disapproval. . Landlord shall review or comment on
all revised Construction Drawings and revised Engineering Report (that have been approved by Tenant
and are re-submitted to Landlord for approval) within five (5) business days after receipt of same.
If Landlord provides comments to revised Construction Drawings or revised Engineering Report, then
the process outlined above shall continue with all subsequent review and comment periods of
Landlord being limited to five (5) business days (it being understood that Landlord shall be
entitled to comment solely on the revised portions of such revised Construction Drawings or revised
Engineering Report, unless the revisions affect any other portion of the revised Construction
Drawings or revised Engineering Report or unless Landlord discovers a previously undetected
material error in another portion of the revised Construction Drawings or revised Engineering
Report). The Construction Drawings shall include a usable computer aided design (CAD) file.
c. Tenant’s Planning Responsibility and Landlord’s Approval. Tenant has sole responsibility
to provide all information concerning its space requirements to Tenant’s Planners, to cause
Tenant’s Planners to prepare the Plans, and to obtain Landlord’s final approval thereof (including
all revisions). Tenant and Tenant’s Planners shall perform independent verifications of all field
conditions, dimensions and other such matters), and Landlord shall have no liability for any
errors, omissions or other deficiencies therein. Landlord shall not unreasonably withhold,
condition or delay approval of any Plans or Engineering Report submitted hereunder, if they provide
for a customary office layout, with finishes and materials generally conforming to building
standard finishes and materials currently being used by Landlord at the Property, are compatible
with the Property’s shell and core construction, and if no modifications will be required for the
Property electrical, heating, air-conditioning, ventilation, plumbing, fire protection, life
safety, or other systems or equipment, and will not require any structural modifications to the
Property, whether required by heavy loads or otherwise, and will not create any potentially
dangerous conditions, potentially violate any codes or other governmental requirements, potentially
interfere with any other occupant’s use of its premises, or potentially increase the cost of
operating the Property.
d. Governmental Approval of Plans; Building Permits. Tenant shall cause Tenant’s Contractors
(as defined in Section III) to apply for any building permits, inspections and occupancy
certificates required for or in connection with the Work. If the Plans must be revised in order to
obtain such building permits, Tenant shall promptly notify Landlord, promptly arrange for the Plans
to be revised to satisfy the building permit requirements, and shall submit the revised Plans to
Landlord for approval as a Change Order under Paragraph e below. Landlord shall have no obligation
to apply for any zoning, parking or sign code amendments,
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approvals, permits or variances, or any other governmental approval, permit or action. If any such
other matters are required, Tenant shall promptly seek to satisfy such requirements (if Landlord
first approves in writing), or shall revise the Plans to eliminate such requirements and submit
such revised Plans to Landlord for approval in the manner described above. Upon request, at no
cost to Landlord, Landlord shall (if Landlord has approved same as provided above) assist Tenant in
obtaining all such permits and other items.
e. Changes After Plans Are Approved. If Tenant shall desire, or any governmental body shall
require, any changes, alterations, or additions to the Approved Plans, Tenant shall submit a
detailed written request or revised Plans (the “Change Order”) to Landlord for approval,
which written request or revised Plans shall be reviewed by Landlord in the manner provided for in
Section II.b. above. If reasonable and practicable and generally consistent with the Plans
theretofore approved, Landlord shall not unreasonably withhold, condition or delay its approval.
All costs in connection therewith, including, without limitation, construction costs, permit fees,
and any additional plans, drawings and engineering reports or other studies or tests, or revisions
of such existing items, shall be included in the Costs of the Work under Section VI. In the event
that the Premises are not constructed in substantial accordance with the Approved Plans, Tenant
shall not be permitted to occupy the Premises until the Premises reasonably comply in all respects
therewith; in such case, the Rent shall nevertheless commence to accrue and be payable as otherwise
provided in the Lease Document.
III. Contractors and Contracts. Tenant shall engage to perform the Work such
contractors, subcontractors and suppliers (“Tenant’s Contractors”) as Landlord customarily
engages or recommends for use at the Property; provided, Tenant may substitute other licensed,
bonded, reputable and qualified parties capable of performing quality workmanship who have good
labor relations and will be able to work in harmony with each other and those of Landlord and other
occupants of the Property so as to ensure proper maintenance of good labor relationships, and in
compliance with all applicable labor agreements existing between trade unions and the relevant
chapter of the Association of General Contractors of America. Such substitutions may be made only
with Landlord’s prior written approval. Such approval shall be granted, subject to specified
reasonable conditions, or denied within ten (10) working days after Landlord receives from Tenant a
written request for such substitution, containing a reasonable description of the proposed party’s
background, finances, references, qualifications, and other such information as Landlord may
request. For Work involving any mechanical, electrical, plumbing, structural, demolition or HVAC
matters, or any Work required to be performed outside the Premises or involving Tenant’s entrance,
Landlord may require that Tenant select Tenant’s Contractors from a list of such contractors.
IV. Performance of Work
a. Conditions to Commencing Work. Before commencing any Work, Tenant shall: (i) obtain
Landlord’s written approval of Tenant’s Planners and the Plans, as described in Section II, (ii)
obtain and post all necessary governmental approvals and permits as described in Section II, and
provide copies thereof to Landlord, (iii) obtain Landlord’s written approval of Tenant’s
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Contractors, and provide Landlord with copies of the contracts as described in Section III, and
(iv) provide evidence of insurance to Landlord as required under the Lease Document.
b. Compliance and Standards. Tenant shall cause the Work to comply in all respects with the
following: (i) the Approved Plans, (ii) the Property Code of the City and State in which the
Property is located and Federal, State, County, City or other laws, codes, ordinances, rules,
regulations and guidance, as each may apply according to the rulings of the controlling public
official, agent or other such person, (iii) applicable standards of the National Board of Fire
Underwriters (or successor organization) and National Electrical Code, (iv) applicable
manufacturer’s specifications, and (v) any work rules and regulations as Landlord or its agent may
have adopted for the Property, including any Rules attached as an Exhibit to the Lease Document.
Tenant shall use only new, first-class materials in the Work, except where explicitly shown in the
Approved Plans. Tenant’s Work shall be performed in a thoroughly safe, first-class and workmanlike
manner, and shall be in good and usable condition at the date of completion. In case of
inconsistency, the requirement with the highest standard protecting or favoring Landlord shall
govern.
c. Property Operations, Dirt, Debris, Noise and Labor Harmony. Tenant and Tenant’s
Contractors shall make all efforts and take all proper steps to assure that all construction
activities do not interfere with the operation of the Property or with other occupants of the
Property. Tenant’s Work shall be coordinated under Landlord’s direction with any other work and
other activities being performed for or by other occupants in the Property so that Tenant’s Work
will not interfere with or delay the completion of any other work or activity in the Property.
Construction equipment and materials are to be kept within the Premises, and delivery and loading
of equipment and materials shall be done at the Building loading dock and freight elevator, at such
time as Landlord shall direct so as not to burden the construction or operation of the Property.
Tenant’s Contractors shall comply with any work rules of the Property and Landlord’s requirements
respecting the hours of availability of elevators and manner of handling materials, equipment and
debris. Demolition must be performed before 7:00 a.m. or after 6:00 p.m. and on weekends, or as
otherwise required by Landlord or the work rules for the Property. Construction which creates
noise, odors or other matters that may bother other occupants may be rescheduled by Landlord at
Landlord’s sole discretion. Delivery of materials, equipment and removal of debris must be
arranged to avoid any inconvenience or annoyance to other occupants. The Work and all cleaning in
the Premises must be controlled to prevent dirt, dust or other matter from infiltrating into
adjacent occupant, common or mechanical areas. Tenant shall conduct its labor relations and
relations with Tenant’s Planners and Contractors, employees, agents and other such parties so as to
avoid strikes, picketing, and boycotts of, on or about the Premises or Property. If any employees
of the foregoing parties strike, or if picket lines or boycotts or other visible activities
objectionable to Landlord are established, conducted or carried out against Tenant or such parties
in or about the Premises or Property, Tenant shall immediately close the Premises and remove or
cause to be removed all such parties until the dispute has been settled.
d. Removal of Debris. Tenant’s Contractors shall be required to remove from the Premises and
dispose of, at least once a day and more frequently as Landlord may direct, all debris and rubbish
caused by or resulting from the Work, and shall not place debris in the
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Property’s waste containers. Tenant shall be permitted to place a trash dumpster at the Building
loading dock. If required by Landlord, Tenant shall sort and separate its waste and debris for
recycling and/or environmental law compliance purposes. Upon completion of Tenant’s Work, Tenant’s
Contractors shall remove all surplus materials, debris and rubbish of whatever kind remaining
within the Property which has been brought in or created by Tenant’s Contractors in the performance
of Tenant’s Work. If any of Tenant’s Contractors shall neglect, refuse or fail to remove any such
debris, rubbish, surplus material or temporary structures within 48 hours after notice to Tenant
from Landlord with respect thereto, Landlord may cause the same to be removed by contract or
otherwise as Landlord may determine expedient, and charge the cost thereof to Tenant as additional
Rent under the Lease Document.
e. Completion and General Requirements. Tenant shall use commercially reasonable efforts to
cause Tenant’s Planners to prepare the Approved Plans, and to cause Tenant’s Contractors to obtain
permits or other approvals, diligently commence and prosecute the Work to completion, and obtain
any inspections and occupancy certificates for Tenant’s occupancy of the Premises by the Additional
Premises Commencement Date set forth in the Lease Document. Any delays in the foregoing shall not
serve to xxxxx or extend the time for the Additional Premises Commencement Date or commencement of
Rent under the Lease Document, except to the extent of the following, provided substantial
completion of the Work and Tenant’s ability to reasonably use the Premises by the Additional
Premises Commencement Date (or by such later date when Tenant would otherwise have substantially
completed the Work) is actually delayed thereby: (i) one (1) day for each day that Landlord delays
approvals required hereunder beyond the times permitted herein without good cause, and (ii) any
delay in the Work caused by fire or other casualty damage, war or civil disorder, strikes,
lockouts, labor troubles, inability to procure labor or materials or reasonable substitutes or
other events outside of Tenant’s reasonable control (excluding delays resulting from changes in
economic or market conditions, or financial or internal problems of Tenant and excluding delays by
the City of Xxxxx Springs in processing building permits), collectively, “Force Majeure”, which
shall delay the Additional Premises Commencement Date on a day-for-day basis. Force Majeure shall
apply only so long as Tenant uses commercially reasonable diligence and good faith efforts to end
the delay, and keeps Landlord reasonably advised of such efforts. Tenant shall impose on and
enforce all applicable terms of this Exhibit against Tenant’s Planners and Tenant’s Contractors.
Landlord may impose reasonable additional requirements from time to time in order to ensure that
the Work, and the construction thereof does not disturb or interfere with any other occupants of
the Property, or their visitors, contractors or agents, nor interfere with the efficient, safe and
secure operation of the Property. Tenant shall notify Landlord upon completion of the Work (and
record any notice of completion contemplated by law). To the extent reasonably appropriate based
on the nature of the Work, Tenant shall provide Landlord with “as built” drawings no later than
thirty (30) days after completion of the Work.
f. Landlord’s Role and Rights. The parties acknowledge that neither Landlord nor its managing
agent is an architect or engineer, and that the Work will be designed and performed by independent
architects, engineers and Tenant’s Contractors engaged by Tenant. Landlord and its managing agent
shall have no responsibility for construction means, methods or techniques or safety precautions in
connection with the Work, and do not guarantee that the Plans or Work will
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be free from errors, omissions or defects, and shall have no liability therefor. Landlord’s
approval of Tenant’s Plans and contracts, and Landlord’s designations, lists, recommendations or
approvals concerning Tenant’s Planners and Contractors shall not be deemed a warranty as to the
quality or adequacy thereof or of the Plans or the Work, or the design thereof, or of its
compliance with laws, codes and other legal requirements. Tenant shall permit access to the
Premises, and inspection of the Work, by Landlord and Landlord’s architects, engineers, contractors
and other representatives, at all times during the period in which the Work is being planned,
constructed and installed and following completion of the Work. Landlord shall have the right, but
not the obligation, to order Tenant or any of Tenant’s Contractors who violate the requirements
imposed on Tenant or Tenant’s Contractors in performing the Work to cease the Work and remove its
equipment and employees from the Property.
V. HVAC Balancing. As a final part of the Work, Tenant shall cause its contractor to
perform air balancing tests and adjustments on all areas of the Premises served by the air handling
system that serves the areas in which the Work is performed (including any original space and any
additional space being added to the Premises in connection herewith). Landlord shall not be
responsible for any disturbance or deficiency created in the air conditioning or other mechanical,
electrical or structural facilities within the Property or Premises as a result of the Work. If
such disturbances or deficiencies result, and Tenant’s contractor does not properly correct the
same, Landlord reserves the right, after fifteen (15) days notice to Tenant, to correct the same
and restore the services to Landlord’s reasonable satisfaction, at Tenant’s reasonable expense.
VI. Certain Definitions
a. “Space Plan” herein means, to the extent required by the nature of the Work, detailed plans
(including any so-called “pricing plans”), including a fully dimensioned floor plan and drawn to
scale, showing: (i) demising walls, interior walls and other partitions, including type of wall or
partition and height, and any demolition or relocation of walls, and details of space occupancy and
density, (ii) doors and other openings in such walls or partitions, including type of door and
hardware, (iii) electrical and computer outlets, circuits and anticipated usage therefor, (iv) any
special purpose rooms, any sinks or other plumbing facilities, heavy items, and any other special
electrical, HVAC or other facilities or requirements, including all special loading and related
calculations, (v) any space planning considerations to comply with fire or other codes or other
governmental or legal requirements, (vi) finish selections, and (vii) any other details or features
requested by Architect, Engineer or Landlord, or otherwise required, in order for the Space Plan to
serve as a basis for Landlord to approve the Work, and for Tenant to contract and obtain permits
for the Work, or for the Space Plan to serve as a basis for preparing Construction Drawings.
b. “Construction Drawings” herein means, to the extent required by the nature of the Work,
fully dimensioned architectural construction drawings and specifications, and any required
engineering drawings, specifications and calculations (including mechanical, electrical, plumbing,
structural, air-conditioning, ventilation and heating), and shall include any applicable items
described above for the Space Plan, and any other details or features requested by
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CMD 125 (12/99)
Architect, Engineer or Landlord in order for the Construction Drawings to serve as a basis for
Landlord to approve the Work, and for Tenant to contract and obtain permits for the Work.
c. “Work” herein means: (i) the improvements and items of work shown on the final Approved
Plans (including changes thereto), and (ii) any preparation or other work required in connection
therewith, including without limitation, structural or mechanical work, additional HVAC equipment
or sprinkler heads, or modifications to any building mechanical, electrical, plumbing or other
systems and equipment or relocation of any existing sprinkler heads, either within or outside the
Premises required as a result of the layout, design, or construction of the Work or in order to
extend any mechanical distribution, fire protection or other systems from existing points of
distribution or connection, or in order to obtain building permits for the work to be performed
within the Premises (unless Landlord requires that the Plans be revised to eliminate the necessity
for such work).
VII. Miscellaneous. If this Work Letter is attached as an Exhibit to an amendment to
an existing lease (“Original Lease”), whether such amendment adds space, relocates the
Premises or makes any other modifications, the term “Lease Document” herein shall refer to
such amendment, or the Original Lease as amended, as the context implies. By way of example, in
such case, references to the “Premises” and “Commencement Date” herein shall refer, respectively,
to such additional or relocated space and the effective date for delivery thereof under such
amendment, unless expressly provided to the contrary herein. Capitalized terms not otherwise
defined herein shall have the meanings, if any, ascribed thereto in the Lease Document. This
Exhibit is intended to supplement and be subject to the provisions of the Lease Document,
including, without limitation, those provisions requiring that any modification or amendment be in
writing and signed by authorized representatives of both parties. The rights granted in this
Exhibit are personal to Tenant as named in the Lease Document, and are intended to be performed for
such Tenant’s occupancy of the Premises. Under no circumstance whatsoever shall any assignee or
subtenant have any rights under this Exhibit. Any remaining obligations of Landlord under this
Exhibit not theretofore performed shall concurrently terminate and become null and void if Tenant
subleases or assigns the Lease Document with respect to all or any portion of the Premises, or
seeks or proposes to do so (or requests Landlord’s consent to do so), or if Tenant or any current
or proposed affiliate thereof issues any written statement indicating that Tenant will no longer
move its business into, or that Tenant will vacate and discontinue its business from, the Premises
or any material portion thereof. Any termination of Landlord’s obligations under this Exhibit
pursuant to the foregoing provisions shall not serve to terminate or modify any of Tenant’s
obligations under the Lease Document. In addition, notwithstanding anything to the contrary
contained herein, Landlord’s obligations under this Exhibit, including obligations to perform any
work, or provide any Allowance or rent credit, shall be subject to the condition that Tenant shall
have faithfully complied with the Lease, and shall not have committed a material violation under
the Lease by the time that Landlord is required to perform such work or provide such Allowance or
rent credit.
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