EXHIBIT 10.13


 


SIXTH AMENDMENT TO LEASE AGREEMENT


 


THIS
SIXTH AMENDMENT TO LEASE AGREEMENT (this “Sixth Amendment”) is made as of the 27th day of October,
2004 by and between 4900  WEST 78TH STREET LLC (“Landlord”)
and AUGUST TECHNOLOGY CORPORATION (“Tenant”).


 


R E C I T A L S:


 


A.            West
78th Street Bloomington Associates, LLC (Landlord’s
predecessor-in-interest) and Tenant entered into that certain Lease Agreement
dated October 18, 1999 (the “Original Lease”)
as amended by (i) that certain First Amendment to Lease Agreement dated March 31,
2000 (the “First Amendment”), (ii) that
certain Second Amendment to Lease Agreement dated July 25, 2000 (the “Second Amendment”) (iii) that certain Third Amendment to
Lease Agreement dated June 18, 2001 (the “Third Amendment”); (iv) that certain Fourth Amendment to Lease
Agreement dated February 28, 2003 (the “Fourth
Amendment”); and (v) that certain Fifth Amendment to Lease dated May
27, 2004 (the “Fifth Amendment”);
the Original Lease as amended by the First Amendment, the Second Amendment the
Third Amendment, the Fourth Amendment and the Fifth Amendment is referred to
herein as the “Lease”) demising approximately
78,437 square feet of space comprised of the “Initial Premises,” the “First
Expansion Premises,” the “Second Expansion Premises” and the “Third Expansion
Premises” (collectively, the “Existing Premises”)
in the building located at 4900 W. 78th Street in Bloomington,
Minnesota.


 


B.            Landlord
and Tenant desire to extend the term of the Lease and make certain other 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.             Definitions.  Each capitalized term used as a defined
term in this Sixth Amendment but not otherwise defined in this Sixth Amendment
shall have the same meaning ascribed to such term in the Lease.


 


2.             Term. 
The term of the Lease is hereby extended by changing the Lease
expiration date from April 30, 2006 to April 30, 2012 (hereinafter,
the “New Term Expiration Date”).  The period commencing on November 1,
2004 (the “New Term Commencement Date”)
and ending on the New Term Expiration Date is hereinafter the “New Term”. 
Except to the extent expressly modified hereby, such extension of the
Term shall be on and subject to all of the terms and provisions of the Lease
that would have been applicable during the last year of the Initial Term had
the Lease term not been extended by this Sixth Amendment.


 


3.             Base Rent for Existing Premises.  Effective as of the New Term Commencement
Date, Section 3 of the Original Lease (as amended pursuant to Section 5
of the First Amendment, Section 3 of the Second Amendment and Section 2
of the Third Amendment) and Section 3.(d) of the Third Amendment are
hereby deleted in their entirety and the following is substituted therefor:


 





















 


“3.           MONTHLY
BASE RENT:  Tenant agrees to pay to
Landlord during the New Term a monthly Base Rent (“Base Rent”) as set forth
below:


 


	
  Date

  	
   

  	
  Annual

  Base Rent

  Per Square

  Foot

  	
   

  	
  Square Feet

  	
   

  	
  Annual

  Base Rent

  For Existing

  Premises

  	
   

  	
  Monthly

  Base Rent

  for Existing

  Premises

  	
   

  
	
  11/1/04 – 4/30/08

  	
   

  	
  $

  	
  7.75

  	
   

  	
  78,437

  	
   

  	
  $

  	
  607,886.25

  	
   

  	
  $

  	
  50,657.23

  	
   

  
	
  5/1/08 – 4/30/10

  	
   

  	
  $

  	
  8.00

  	
   

  	
  78,437

  	
   

  	
  $

  	
  627,496.00

  	
   

  	
  $

  	
  52,291.33

  	
   

  
	
  5/1/10 – 4/30/12

  	
   

  	
  $

  	
  8.25

  	
   

  	
  78,437

  	
   

  	
  $

  	
  647,105.25

  	
   

  	
  $

  	
  53,925.44

  	
   

  



 


Except
as otherwise expressly set forth herein, Base Rent shall be payable on the
first day of each month in advance, without deduction or setoff of any kind, to
Landlord and delivered to 4900 West 78th Street LLC, c/o Interstate
Partners, N16W23217 Stone Ridge Drive, Suite 280, Waukesha, WI 53188 or at such
other place as may from time to time be designated by Landlord.”


 


4.             Base Rent for Basement Space.  Tenant shall continue to have the exclusive
right to use the basement of the Building during the New Term in accordance
with the provisions of Section 1.D. of the Original Lease; provided,
however, that notwithstanding anything to the contrary set forth in said section or
elsewhere in the Lease, Tenant will not be obligated to pay any Base Rent
therefor, nor shall the rentable square footage of the basement be included in
the square footage of the Premises for purposes of calculating Tenant’s
Proportionate Share of Operating Costs.


 


5.             Extension Allowance.  Landlord agrees to contribute $200,000.00
(the “Extension Allowance”)
towards any and all expenses Tenant incurs relating to or arising from the
demolition, design and/or construction of leasehold improvements to the
Existing Premises and any additional space Tenant adds to the Existing Premises
pursuant to Sections 12 and 13 below (the “Tenant’s
Extension Work”). On or after November 1, 2006, Landlord shall,
at Tenant’s election, (a) pay the Extension Allowance, or applicable portion
thereof, directly to Tenant promptly upon presentation of invoices or bills
relating to Tenant’s Extension Work (which invoices or bills may be presented
and paid on a progress payment basis at Tenant’s election), and apply any
remaining portion of the Extension Allowance as a credit (the “Rent Credit”), or (b) apply the entire
Extension Allowance as the Rent Credit, which Rent Credit, in either case,
shall be applied against the next due installment(s) of Base Rent until fully
utilized.


 


6.             Operating Costs.  The phrase “not to exceed 5% of gross rents”
set forth in the 21st line of Section 5.A. of the Original
Lease is hereby amended to read “not to exceed 3% of gross rents.”  Further, notwithstanding anything to the
contrary set forth in the Lease or this Sixth Amendment, it is expressly
acknowledged by the parties hereto that the definition of Operating Costs set
forth in Section 5.A. of the Original Lease includes all expenses and
costs (but not specific costs which are: (i) separately billed to and paid by
individual tenants; or (ii) to be paid by the Landlord as set forth in such Section 5.A.)
relating to the basement of the Building. 
Finally, the parties acknowledge and agree that the Operating Cost Cap,
as defined in Section 5.B.(i) of the Lease, shall be extended on the same
terms and provisions during the New Term (and any extension 


 





















 


thereof) as in effect
during the Initial Term (i.e., it shall increase by 3% per calendar year, such
that, for instance, the Operating Cost Cap for calendar year 2005 remains at
$1.57, the Operating Cost Cap for calendar year 2006 remains at $1.61, the
Operating Cost Cap for calendar year 2007 remains at $1.66, the Operating Cost
Cap for calendar year 2008 shall be $1.71, the Operating Cost Cap for calendar
year 2009 shall be $1.76, the Operating Cost Cap for calendar year 2010 shall
be $1.81, the Operating Cost Cap for calendar year 2011 shall be $1.86, and the
Operating Cost Cap for calendar year 2012 shall be $1.92.).


 


7.             Security Deposit.  The parties hereto acknowledge that Landlord
is holding a Security Deposit in the amount of $25,000.00 pursuant to the
provisions of Section 7 of the Original Lease, as amended pursuant to Section 12
of the Third Amendment.  The terms and
provisions of Section 3(h) of the Third Amendment are hereby deleted in
their entirety.


 


8.             Cap Adjustment Period.  Without limitation of the caps on Operating
Costs set forth in the Lease as amended hereby, the second to the last sentence
of Section 9.(c) of the Third Amendment is hereby amended to provide that
the HVAC Cap Adjustment Period ends on December 31, 2004.  Further, without limitation of the caps on
Operating Costs set forth in the Lease as amended hereby, the second to the last
sentence of Section 9.(d) of the Third Amendment is hereby amended to
provide that the Roof Cap Adjustment Period ends on December 31, 2004.


 


9.             HVAC Work.  Notwithstanding anything to the contrary set
forth in the Lease, including without limitation the last sentence of Section 3
of the Fifth Amendment, Tenant shall have the right to utilize the HVAC Credit
Allowance at any time during the New Term.


 


10.           Deletion of Inapplicable Terms.  As of the New Term Commencement Date, the
terms and provisions of (a) Section 2.(A) of the Original Lease (relating
to Tenant’s renewal rights), as amended pursuant to Section 5 of the Third
Amendment, and (b) Sections 3.(g) (relating to the Third Expansion Premises
Expiration Payment), 4 (relating to Tenant’s expansion option), 6 (relating to
Tenant’s additional renewal rights) and 7 (relating to Landlord’s revocation of
Tenant’s extension rights), all of the Third Amendment, shall be of no further
force or effect:


 


11.           Renewal Option.  Tenant shall have the option (the “New Term Renewal Option”) to renew the
Lease for one additional period of three (3) years (the “New Term Renewal Term”).  Tenant shall provide written notice of its
exercise of the New Term Renewal Option at least 180 days prior to the
termination of the New Term.  The New
Term Renewal Term shall be on the same terms, covenants and conditions as in
the Lease, other than Base Rent.  Base
Rent for the Existing Premises during the New Term Renewal Term will be $8.50
per square foot per annum; provided, however, that, subject to the provisions
of Section 6 of this Sixth Amendment, no Base Rent nor Operating Costs
shall be due in connection with Tenant’s leasing of the so-called “basement
space”.  Notwithstanding the foregoing,
in the event that Tenant previously exercises its Fourth Expansion Premises
Option (as defined in Section 12 below) or its First Offer Right (as
defined in Section 13 below), Tenant, at Tenant’s sole discretion, can
elect whether or not to renew the term of the Lease as to the Fourth Expansion
Premises (as defined in Section 12 below) in its written notice of
exercise for New Term Renewal Option; provided, however, if Tenant fails to
designate in its written notice of exercise whether or not its exercise of the
New Term Renewal Option includes the Fourth Expansion Premises, Tenant shall be
deemed to have elected to renew the term of the Fourth Expansion Premises.


 





















 


12.           Fourth Expansion Option.  Tenant, by written notice to Landlord given
not later than November 1, 2005, 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 on May 1, 2006 and terminating on the New Term Expiration Date (the “Fourth Expansion Term”).  The terms for the leasing of the Fourth
Expansion Premises during the Fourth Expansion Term shall be on the same terms,
covenants and conditions as in the Lease, other than Base Rent.  Base Rent for the Fourth Expansion Premises
during the Fourth Expansion Term will be $5.00 per square foot per annum;
provided, however, that such Base Rent shall be abated in full, together with
Operating Costs for the Fourth Expansion Premises, for a period of sixty (60)
days to provide Tenant time to construct leasehold improvements in the Fourth
Expansion Premises.  The Fourth Expansion
Premises will be delivered to Tenant in its as-is condition as of the date of
this Sixth Amendment; provided, however, that Landlord, at Landlord’s sole cost
and expense will (i) at the request of Tenant, demolish any improvements to the
Fourth Expansion Premises made by any tenant therein on or after the date of
this Sixth Amendment and restore the Fourth Expansion Premises to a condition
of Building standard flooring (with all adhesives removed), lighting and wall
coverings and otherwise in broom clean condition and in keeping with similar
office/warehouse space, (ii) make any improvements necessary to the restrooms
located within the Fourth Expansion Premises so that they are compliant with
the Americans with Disabilities Act, and (iii) provide for heating, ventilation
and air conditioning to the Fourth Expansion Premises adequate for general
office use therein.  Notwithstanding
anything to the contrary set forth above, in the event Tenant does not elect to
exercise its Fourth Expansion Premises Option by notice to Landlord on or
before November 1, 2005, Tenant shall again be provided the Fourth
Expansion Premises Option, to be exercised on or before November 1, 2008,
on the terms and conditions set forth above, except that the term of the
leasing thereof shall commence on May 1, 2009. 
Further, in the event that Tenant does not elect to exercise its Fourth
Expansion Premises Option by notice to Landlord on or before November 1, 2005
(i.e., for a period commencing on May 1, 2006), and to accommodate Tenant’s
right to exercise the Fourth Expansion Premises Option effective as of May 1,
2009, Landlord covenants and agrees that, in the event the existing tenant (the
“Existing Tenant”) in the Fourth
Expansion Premises elects to extend its lease, Landlord shall not grant such
extension for a period greater than through April 30, 2009.


 


13.           Right of First Offer.  In the event that Tenant does not elect to
exercise its Fourth Expansion Premises Option as provided in Section 12
above, Tenant shall be provided a right of first offer (the “First Offer Right”) with respect to the
Fourth Expansion Premises, which First Offer Right shall not be subject nor
subordinate to the election of the Existing Tenant to renew its lease or to the
expansion rights (whether such rights are designated as a right of first offer,
right of first refusal, expansion option or otherwise) of any tenant in the
Building, including the Existing Tenant. 
Tenant’s First Offer Right shall be exercised as follows:  at any time that Landlord has an offer from a
third party to lease all or any portion of the Fourth Expansion Premises,
Landlord shall provide written notice thereof (“Landlord’s Notice”), which Notice shall set forth the date for
Landlord’s delivery of the Fourth Expansion Premises.  Tenant may lease the Fourth Expansion
Premises upon the same terms and conditions set forth in Section 12 above
(including, without limitation, the rental rate and the sixty (60) day abatement
of Base Rent and Operating Costs) by delivering written notice of exercise to
Landlord within ten (10) days after the date of Landlord’s Notice; provided,
however, that the commencement of the term for the leasing of the Fourth
Expansion Premises shall be as set forth in Landlord’s Notice.  The First Offer Right shall terminate 


 





















 


upon Tenant’s failure to
exercise its First Offer Right within said ten (10) day period as provided in
this section; provided, however, that (a) if Tenant was entitled to exercise
its First Offer Right, but failed to provide Landlord with a notice of exercise
within the ten (10) day period provided above, and (b) Landlord does not enter
into a lease for the Fourth Expansion Premises within a period of four (4)
months following the date of Landlord’s Notice (a “Lock-Out Period”), Tenant shall once again have a First Offer
Right with respect to the Fourth Expansion Premises.  In addition, without limitation of any of the
provisions of Sections 12 and 13 of this Sixth Amendment, if at any time other
than during a Lock-Out Period the Fourth Expansion Premises is not subject to a
lease or occupancy agreement, Tenant, upon not less than five (5) days prior
written notice to Landlord, may lease the Fourth Expansion Premises upon the
same terms and conditions set forth in Section 12 above (including,
without limitation, the rental rate and the sixty (60) day abatement of Base
Rent and Operating Costs).


 


14.           Broker. 
Each of the parties represents and warrants to the other that it has not
dealt with any broker or finder in connection with this Sixth Amendment other
than United Properties, to whom Landlord has agreed to pay a brokerage fee
pursuant to separate agreement.


 


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 Sixth Amendment shall have the definition given
to them in the Lease unless otherwise defined herein.


 


IN
WITNESS WHEREOF, the parties hereto have caused this Sixth
Amendment to Lease Agreement to be duly executed and delivered as of the day
and year first written above.


 


	
  LANDLORD:

  	
  TENANT:

  
	
   

  	
   

  
	
  4900
  WEST 78TH STREET LLC

  	
  AUGUST TECHNOLOGY

  
	
   

  	
  CORPORATION

  
	
   

  	
   

  
	
  By: Interstate Partners LLC, its Manager

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By 

  	
  /s/ Gregory S.
  Miller

  	
   

  	
  By 

  	
  /s/David Klenk

  	
   

  
	
  Its

  	
  President

  	
   

  	
  Its

  	
  President

  	
   

  



 





















 


EXHIBIT
A


 


FOURTH EXPANSION PREMISES