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EXHIBIT 10.17
FOURTH AMENDMENT TO
LEASE AGREEMENT
THIS FOURTH 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 X. 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, (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, and (iii) a certain Third Amendment to Lease Agreement (the
"THIRD AMENDMENT") dated July 25, 1996, whereby Tenant increased the size of
the Premises by leasing Suite No. 1300 in the Building. (The Original Lease,
as amended, is hereinafter referred to as the "LEASE.")
C. Tenant desires to lease additional space (specifically, the
twelfth floor in the Building) 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, Suite No. 1300 containing 18,197 rentable
square feet, and Suite No. 1200 containing 18,583
rentable square feet (Suite Nos. 1400,
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1300, and 1200 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:
"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 August 1, 1996;
(c) with respect to Suite No. 1300, the
Commencement Date shall mean October 1,
1996; and
(d) with respect to Suite No. 1200, the
Commencement Date shall mean the earlier of
(i) the date upon which Tenant commences
business in Suite No. 1200, or (ii) April 1,
1997."
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 Section 4 and Exhibit 'C' of
the Lease, (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)
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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; (iii) the annual Basic
Rental for Suite No. 1300 will be $21.00 per
rentable square foot per year throughout the
entire Xxxx xx Xxxxx Xx. 0000; and (iv) the
annual Basic Rental for Suite No. 1200 will
be $22.00 per rentable square foot per year
throughout the entire Term of Suite No.
1200."
2. Exhibit "A" attached to this Amendment is hereby substituted for
the Exhibit "A" attached to the Lease.
3. Tenant accepts Suite No. 1200 in its "as is" condition. Landlord
and Tenant hereby agree that Suite No. 1200 will be completed in accordance
with Exhibit "B" attached hereto and incorporated herein for all purposes.
4. Landlord and Tenant confirm that Tenant is obligated under the
Lease to pay an amount per each rentable square foot in the Premises equal to
the Excess from time to time of the actual Basic Cost per rentable square foot
in the Building over the Expense Stop. Landlord and Tenant agree that for
purposes of calculating the Excess with respect to Suite No. 1200, the Expense
Stop will be the actual Basic Cost per rentable square foot for calendar year
1997. Landlord and Tenant confirm that the Expense Stop for the Initial Lease
Area and for Suite Nos. 1400 and 1300 is the actual Basic Costs per rentable
square foot for calendar year 1995.
5. Landlord and Tenant confirm that Tenant is entitled to use
certain parking spaces in the Parking Garage pursuant to, and in accordance
with, Exhibit "E" attached to the Lease, paragraph 4 of the Second Amendment,
and paragraph 4 of the Third Amendment. In addition to such spaces, Tenant
will also be permitted to use sixty-six (66) undesignated vehicular parking
spaces in the Parking Garage during the initial Term of Suite No. 1200 (i.e.,
Tenant's rights to such additional parking spaces will not commence until the
Commencement Date of Suite No. 1200). (Of the 66 parking spaces provided for
in this Amendment, approximately 26 will be underground, and approximately 40
will be above ground.) Tenant may use such additional parking spaces at no
charge during the first 19 months of such Term, but Tenant will pay $40.00 per
space per month during the remainder 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
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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 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. Tenant warrants to Landlord that it has not dealt with any broker
or agent in connection with the negotiation or execution of this Amendment.
Landlord warrants to Tenant that it has not dealt with any broker or agent in
connection with the negotiation or execution of this Amendment, other than
Lincoln Property Company CSE, Inc. Tenant and Landlord shall each indemnify
the other against all costs, expenses, attorneys' fees, and other liability
resulting to the other party by reason of a breach of the representation and
warranty made by such party in this paragraph 7.
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
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TRST IRVING, INC., a Texas corporation
Date: December 19, 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
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I2 TECHNOLOGIES, INC., a Texas corporation
Date: December 10, 1996 By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Chief Financial Officer
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EXHIBIT A
[5 pages of floor plans - graphics]
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EXHIBIT B
TENANT FINISH-WORK: ALLOWANCE
1. Tenant accepts Suite No. 1200 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. 1200 only.
2. Tenant shall provide to Landlord for its approval space plans of Suite
No. 1200 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. 1200; 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
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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 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) $10.75 per rentable
square foot in Suite No. 1200, 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 up to $2.00 per rentable square foot (in Suite No. 1200) of
the Total Construction Costs may be applied to architectural and
engineering design costs.
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
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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. 1200 in
compliance with existing codes. Without limiting the generality
of the preceding sentence, Tenant shall be responsible to cause
all areas, including without limitation the restrooms, in Suite
No. 1200 to comply with applicable ADA standards for handicapped
persons. There are no Common Areas in Suite No. 1200.
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.
