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EXHIBIT 10.1
THIRD AMENDMENT TO
LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT (this "AMENDMENT") is by and
between TRST IRVING, INC., a Texas corporation ("LANDLORD"), and I2
TECHNOLOGIES, INC., a Texas corporation ("TENANT").
RECITALS
A. Landlord and Tenant have previously entered into a certain
Lease Agreement dated July 14, 1995 (the "ORIGINAL LEASE"), with respect to
Suite No. 1600 in the office building located at 000 Xxx Xxxxxxx Xxxxxxxxx,
Xxxxxx, Xxxxx. (Except as otherwise provided herein, all terms with initial
capital letters have the same meaning ascribed to them in the Original Lease.)
B. The Original Lease has been amended by (i) a certain First
Amendment to Lease Agreement dated February 6, 1996, whereby Landlord and
Tenant confirmed an increase in the Basic Rental, and (ii) a certain Second
Amendment to Lease Agreement (the "SECOND AMENDMENT") dated February 23, 1996,
whereby Tenant increased the size of the Premises by leasing Suite No. 1400 in
the Building. (The Original Lease, as amended, is hereinafter referred to as
the "LEASE.")
C. Tenant desires to lease additional space from Landlord.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant hereby agree as follows:
1. The Basic Lease Information, which sets forth various
definitions, is hereby amended as follows:
a. The definition of Premises is amended to read as follows:
"Premises: (i) Suite No. 1600 (the "Initial Lease
Area"), containing 36,534 rentable square
feet, and (ii) Suite No. 1400 containing
10,926 rentable square feet, and Suite
No. 1300 containing 18,197 rentable square
feet (Suite Nos. 1300 and 1400 are sometimes
collectively referred to as the "Additional
Lease Area"), in the office building known
as Computer Associates Tower, 000 X. Xxx
Xxxxxxx Xxxx. (the "Building") located in
the City of Irving, Dallas County,
Texas, described on Exhibit 'I'. The
Premises are outlined on the plan attached
to the Lease as Exhibit 'A'."
b. The definition of Term is amended to read as follows:
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"Term: Commencing on the Commencement Date and
ending on October 31, 2000, subject to
adjustment or earlier termination as provided
in the Lease. As used herein, the term
'Commencement Date' shall mean the following:
(a) with respect to the Initial Lease
Area, the Commencement Date shall
mean October 15, 1995;
(b) with respect to Suite No. 1400, the
Commencement Date shall mean the
earlier of (i) the date upon which
Tenant commences business in Suite
No. 1400, or (ii) August 1, 1996;
and
(c) with respect to Suite No. 1300, the
Commencement Date shall mean the
earlier of (i) the date upon which
Tenant commences business in Suite
No. 1300, or (ii) October 1, 1996."
c. The definition of Basic Rental is amended to read as follows:
"Basic Rental: Payable monthly based on the
following annual amounts: Subject
to increase in accordance with
Exhibit 'C,' (i) the annual Basic
Rental for the Initial Lease Area
will be $15.94 per rentable square
foot per year during the first
twelve (12) month period (months
1-12), $15.94 per rentable square
foot per year during the second
twelve (12) month period (months
13-24), $16.44 per rentable square
foot per year during the third
twelve (12) month period (months
25-36), $16.94 per rentable square
foot per year during the fourth
twelve (12) month period (months
37-48), and $17.44 per rentable
square foot per year during the last
twelve (12) month period (months
49-60); (ii) the annual Basic Rental
for Suite No. 1400 will be $20.00
per rentable square foot per year
throughout the entire Xxxx xx Xxxxx
Xx. 0000; and (iii) the annual Basic
Rental for Suite No. 1300 will be
$21.00 per rentable square foot per
year throughout the entire Term of
Suite No. 1300."
2. Exhibit "A" attached to this Amendment is hereby substituted
for the Exhibit "A" attached to the Lease.
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3. Tenant accepts Suite No. 1300 in its "as is" condition.
Landlord and Tenant hereby agree that Suite No. 1300 will be completed in
accordance with Exhibit "B" attached hereto and incorporated herein for all
purposes.
4. Landlord and Tenant confirm that Suite No. 1400 will be
completed in accordance with Exhibit "B" attached to the Second Amendment.
However, the parties hereby agree that paragraph 8.h. of Exhibit "B" attached
to the Second Amendment is amended to read as follows:
"h. Tenant shall not become entitled to the Construction
Allowance or a portion thereof until the following
occurs: Each installment of work has been
substantially completed in a workmanlike manner
acceptable to the Landlord's Construction Manager.
The Construction Allowance will be paid not more
often than monthly within thirty (30) days after
Landlord's Construction Manager's receipt of invoice
from Tenant or Tenant's Construction Manger, which
shall include (i) all invoices from contractors,
subcontractor, and suppliers evidencing the costs of
performing the work, together with lien waivers from
such parties, and a consent of the surety to the
finished work (if applicable), and (ii) with respect
to the final payment only, a certificate of occupancy
from the appropriate governmental authority, if
applicable to the Work, or evidence of governmental
inspection and approval of the Work. In no event
shall any one installment invoice by Tenant exceed an
amount equal to (a) the percentage of completion
times (b) the Total Construction Costs."
5. In addition to the parking spaces Tenant is entitled to use
pursuant to, and in accordance with, Exhibit "E" attached to the Lease, and the
parking spaces Tenant is entitled to use pursuant to paragraph 4 of the Second
Amendment, Tenant will also be permitted to use fifty-two (52) undesignated
vehicular parking spaces in the Parking Garage during the initial Term of Suite
No. 1300 (i.e., Tenant's rights to such additional parking spaces will not
commence until October 1, 1996). Of the fifty-two spaces, thirteen (13) will
be in the underground section of the Parking Garage and thirty-nine (39) will
be in the above ground section of the Parking Garage. Tenant may use such
additional parking spaces at no charge during the first 25 months of such Term,
but Tenant will pay $40.00 per space per month during the last 24 months of the
Term of the Lease. Tenant's use of such parking spaces will be subject to such
terms, conditions and regulations as are from time to time charged or
applicable to patrons of the Parking Garage. If, for any reason, Landlord
fails or is unable to provide, or Tenant is not permitted to use, all or any
portion of the parking spaces to which it is entitled under this paragraph,
then Tenant's obligation to pay for such spaces shall be abated for so long as
Tenant does not have the use thereof; this abatement shall be in full
settlement of all claims that Tenant might otherwise have against Landlord
because of Landlord's failure or inability to provide Tenant with such parking
spaces. If Tenant sublets any portion of the Premises or assigns any of its
interest in the Lease, then the total parking spaces allocated to Tenant under
the Lease, as amended hereby, shall be reduced to the extent the ratio between
the rentable square feet of the Premises and the parking spaces granted to
Tenant under the Lease as amended hereby exceeds the Building standard ratio of
parking space per rentable square foot as established by Landlord from time to
time.
6. Landlord and Tenant hereby confirm that Tenant has the right
to renew the Lease as
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it relates to the Additional Lease Area upon the terms and conditions set forth
in the Renewal Option described in Exhibit "F" attached to the Lease.
7. Landlord will pay The Amend Group a commission for the leasing
of Suite No. 1300 pursuant to a separate agreement between Landlord and The
Amend Group.
8. Except as amended hereby the Lease remains in full force and
effect. As of the effective date of this Amendment, Landlord and Tenant each
acknowledges to the other that neither party is in default under the Lease, as
amended hereby. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment
to be effective as of the latest date accompanying a signature below.
LANDLORD
TRST IRVING, INC., a Texas corporation
Date: July 25, 1996 By: /s/ M. XXXXX XXXXXXXX
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Printed Name: M. Xxxxx Xxxxxxxx
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Title: Vice President
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TENANT
i2 TECHNOLOGIES, INC., a Texas
corporation
Date: July 10, 1996 By: /s/ XXXXX X. XXXX
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Printed Name: Xxxxx X. Xxxx
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Title: CFO
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EXHIBIT B
TENANT FINISH-WORK: ALLOWANCE
1. Tenant accepts Suite No. 1300 in its "as is" condition on the date
that this Amendment is entered into and shall have the benefit of all
existing improvements in Suite No. 1300 only.
2. Tenant shall provide to Landlord for its approval space plans of Suite
No. 1300 prior to commencing working drawings. Following Landlord's
written approval of such space plans, such approval not to be
unreasonably withheld or delayed (such determination to be
communicated within five (5) working days following submission by
Tenant), Tenant shall provide to Landlord for its approval final
working drawings, prepared by an architect that has been approved by
Landlord (which approval shall not unreasonably be withheld), of all
improvements that Tenant proposes to install in Suite No. 1300; such
working drawings shall include the partition layout, ceiling plan,
electrical outlets and switches, telephone outlets, drawings for any
modifications to the mechanical and plumbing systems of the Building,
and detailed plans and specifications for the construction of the
improvements called for under this Exhibit in accordance with all
applicable governmental laws, codes, rules, and regulations. Landlord
agrees to communicate its determination regarding the acceptability of
such working drawing within ten (10) days following their submission
by Tenant. Further, if any of Tenant's proposed construction work
will affect the Building's HVAC, electrical, mechanical, or plumbing
systems, then the working drawings pertaining thereto shall be
prepared by the Building's engineer of record, whom Tenant shall at
its cost engage for such purpose. Landlord's approval of such working
drawings shall not be unreasonably withheld, provided that (a) they
comply with all applicable governmental laws, codes, rules, and
regulations, (b) such working drawings are sufficiently detailed to
allow construction of the improvements in a good and workmanlike
manner, and (c) the improvements depicted thereon conform to the rules
and regulations promulgated from time to time by Landlord for the
construction of tenant improvements (a copy of which has been
delivered to Tenant). As used herein, "Working Drawings" shall mean
the final working drawings approved by Landlord, as amended from time
to time by any approved changes thereto, and "Work" shall mean all
improvements to be constructed in accordance with and as indicated on
the Working Drawings. Approval by Landlord of the Working Drawings
shall not be a representation or warranty of Landlord that such
drawings are adequate for any use, purpose, or condition, or that such
drawings comply with any applicable law or code, but shall merely be
the consent of Landlord to the performance of the Work. All changes
in the Work must receive the prior written approval of Landlord, and
in the event of any such approved change Tenant shall, upon completion
of the Work, furnish Landlord with an accurate, reproducible
"as-built" plan (e.g., sepia) of the improvements as constructed,
which plan shall be incorporated into the Lease by this reference for
all purposes, as well as copies of all operating manuals,
specifications and warranties on equipment installed and connected to
the Building's systems.
3. The Work shall be performed only by contractors and subcontractors
approved in writing by Landlord, which approval shall not be
unreasonably withheld. All contractors and subcontractors shall be
required to procure and maintain (a) insurance against such risks, in
such amounts, and with such companies as Landlord may reasonably
require and (b) payment
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and performance bonds covering the cost of the Work and otherwise
reasonably satisfactory to Landlord. Certificates of such insurance,
with paid receipts therefor, and copies of such bonds must be received
by Landlord before the Work is commenced. The Work shall be performed
in a good and workmanlike manner that is free of defects and is in
strict conformance with the Working Drawings, and shall be performed
in such a manner and at such times as to maintain harmonious labor
relations and not to interfere with or delay Landlord's other
contractors, the operation of the Building, and the occupancy thereof
by other tenants. All contractors and subcontractors shall contact
Landlord and schedule time periods during which they may use Building
facilities in connection with the Work (e.g., elevators, excess
electricity, etc.).
4. Tenant shall bear the entire cost of performing the Work (including,
without limitation, design of the Work and preparation of the Working
Drawings, costs of construction labor and materials, electrical usage
during construction, additional janitorial services, general tenant
signage, related taxes and insurance costs, all of which costs are
herein collectively called the "Total Construction Costs") in excess
of the Construction Allowance (hereinafter defined).
5. Landlord shall provide to Tenant a construction allowance (the
"Construction Allowance") equal to the lesser of (a) $12.25 per
rentable square foot in Suite No. 1300, or (b) the Total Construction
Costs, as adjusted for any Landlord approved changes to the Work.
Tenant shall not become entitled to the Construction Allowance until
the Work has been substantially completed and Tenant has caused to be
delivered to Landlord (i) all invoices from contractors,
subcontractors, and suppliers evidencing the cost of performing the
Work, together with lien waivers from such parties, and a consent of
the surety to the finished Work (if applicable), and (ii) a
certificate of occupancy from the appropriate governmental authority,
if applicable to the Work, or evidence of governmental inspection and
approval of the Work. Landlord agrees that a portion of the
Construction Allowance may be allocated, at Tenant's option, as
follows:
a. Up to $2.00 per rentable square foot of Suite No. 1300 may be
paid for architectural and engineering design;
b. Up to $1.50 per rentable square foot of Suite No. 1300 may be
paid to Tenant's construction manager.
6. Tenant or its agent shall supervise the Work, make disbursements
required to be made to the contractor. Landlord or its agent
(Landlord's Construction Manager) shall supervise the Work, and act as
a liaison between the contractor and Tenant and coordinate the
relationship between the Work, the Building, and the Building's
systems. In consideration for such construction supervision
services, Tenant shall pay to Landlord or its Agent a construction
supervision fee equal to five percent (5%) of the Total Construction
Costs.
7. To the extent not inconsistent with this Exhibit, Sections 8a. and 8c
of the Lease shall govern the performance of the Work and the
Landlord's and Tenant's respective rights and obligations regarding
the improvements installed pursuant thereto.
8. a. Tenant is responsible for bringing all areas of Suite No. 1300
in compliance with existing codes. Without limiting the
generality of the preceding sentence, Tenant shall
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be responsible to cause all areas, including without
limitation the restrooms, in Suite No. 1300 to comply with
applicable ADA standards for handicapped persons. There are
no Common Areas in Suite No. 1300.
b. Normal wear would include holes in walls to hang pictures or
shelving, marks and scratches on the walls, and any electrical
or mechanical equipment that can wear out with use.
c. Tenant shall prepare the bid package in accordance with AIA
procedures.
d. A minimum of five contractors (acceptable to Landlord, and two
of which shall be recommended by Landlord) shall bid the work.
e. Tenant will contract with the lowest qualified bidder among the
contractors.
f. Tenant shall not become entitled to the Construction Allowance
or a portion thereof until the following occurs: Each
installment of work has been substantially completed in a
workmanlike manner acceptable to the Landlord's Construction
Manager. The Construction Allowance will be paid not more
often than monthly within thirty (30) days after Landlord's
Construction Manager's receipt of invoice from Tenant or
Tenant's Construction Manger, which shall include (i) all
invoices from contractors, subcontractor, and suppliers
evidencing the costs of performing the work, together with
lien waivers from such parties, and (ii) with respect to the
final payment only, a certificate of occupancy from the
appropriate governmental authority, if applicable to the Work,
or evidence of governmental inspection and approval of the
Work. In no event shall any one installment invoice by Tenant
exceed an amount equal to (a) the percentage of completion
times (b) the Total Construction Costs.
