EXHIBIT 10.3
AMENDMENT NO. 1 TO LEASE
THIS AMENDMENT NO.1 TO LEASE ("Amendment No. 1") is made as of December
29, 2004 by and between XXXXXX REALTY, L.P., a Delaware Limited Partnership
("Landlord"), and ENCORE SOFTWARE, INC., a Minnesota corporation ("Tenant"),
with reference to the following facts and objectives:
R E C I T A L S:
A. Landlord, acting in the capacity of and therein referred to as
Landlord, entered into a Lease dated October 8, 2004, with Tenant, acting in the
capacity of and therein referred to as Tenant (the "Lease") for Suite 700 (the
"Premises") consisting of approximately 13,216 rentable (12,294 usable) square
feet, located in an eight-story building, the street address of which is 000 X.
Xxxxxxxxx Xxxxxxxxx, Xx Xxxxxxx, Xxxxxxxxxx, 00000 (the "Building"). The
Building is part of that certain office project described in Section 1.1.2 of
the Lease, and includes: (i) the Building and the "Common Areas," as that term
is defined in Section 1.1.3 of the Lease, (ii) the land (which is improved with
landscaping, parking facilities and other improvements) upon which the Building
and the Common Areas are located, (iii) the parking structure located at 000
Xxxxx Xxxxxxxxx Xxxxxxxxx, (iv) the building located adjacent to Building at 000
Xxxxx Xxxxxxxxx Xxxxxxxxx, and (v) at Landlord's discretion, any additional real
property, areas, land, buildings or other improvements added thereto outside of
the Project. The Lease and this Amendment No. 1 are hereinafter collectively
referred to as the "Lease."
B. Tenant desires to install and maintain Telecommunications Equipment, as
that term is defined in the Lease, on the rooftop of the Building, and Pursuant
to Section 29.49 of the Lease Landlord and Tenant have agreed to execute this
Amendment No. 1 to permit Tenant to install the Telecommunications Equipment.
C. Landlord and Tenant desire to acknowledge the foregoing and to amend
the Lease as hereinafter provided.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. EQUIPMENT
Landlord hereby grants to Tenant a non-exclusive right to, at its sole
cost and expense, install, operate, maintain, repair and replace one (1)
telecommunications satellite dish, of size, weight and dimension more
particularly described in Exhibit "A" attached hereto (referred to herein as the
"Equipment"), on the roof-top of the Building, in the location designated by
crosshatching on Exhibit "B" (the "Equipment Space"). Landlord shall give Tenant
reasonable access to vertical and horizontal shafts, if necessary, to enable
Tenant to adequately maintain its Equipment. Nothing contained herein shall be
construed as granting to Tenant any property or ownership rights in the Building
or to create a partnership or joint venture between Landlord and Tenant.
2. USE.
2.1 Use.
Tenant shall use the Equipment for data communications purposes.
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2.2 Prohibited Uses
Tenant shall not store or do or permit anything to be stored or done
in or about the Equipment Space which will in any way conflict with any law,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated, or which will obstruct or interfere with the rights
of other tenants of the Building or the Project or injure or annoy them, or
allow the Equipment Space to be used for any unlawful or objectionable purpose,
nor shall Tenant store, cause, maintain or permit any nuisance in, on or about
the Equipment Space. Tenant shall not commit or suffer to be committed any waste
in or upon the Equipment Space. Tenant shall at its sole cost and expense
promptly comply with all statutes, ordinances and governmental rules,
regulations or requirements now in force or which may hereafter be in force and
with all laws, statues, ordinances and governmental rules and the requirements
of any board of fire underwriters or other similar body now or hereafter
constituted relating to or affecting the condition, use or items stores in the
Equipment Space.
2.3 Landlord Not Liable For Personal Property
Tenant recognizes that Landlord does not have insurance coverage for
any personal property belonging to Tenant, its employees, agents, or invitees
that may be kept in the Equipment Space. Tenant shall provide whatever insurance
coverage Tenant deems necessary and Tenant accepts complete liability and all
risk of loss which may arise from damage to or loss of the property kept by
Tenant within the Equipment Space due to the Function, fire, acts of God, theft,
vandalism, or any other cause not occurring as a result of the willful
malfeasance or gross negligence of Landlord. Tenant waives any and all rights of
subrogation against Landlord with respect to any insurance that Tenant may
obtain with respect to any property to be kept by Tenant within the Equipment
Space.
2.4 Effect of Use on Insurance
Tenant shall not do, omit to do, or permit to be done any act or
thing upon the Equipment Space which will invalidate or be in conflict with any
fire insurance policy covering part or all of the Equipment Space or which shall
or might subject Landlord to any liability or responsibility for injury to any
person or persons or to property by reason of any such act or thing or omission.
Tenant shall not store flammable or explosive liquids or materials, nor do or
permit anything to be done in or about the Equipment Space nor bring or keep
anything therein which shall be unlawful or which will in any way increase the
existing rate of or affect any fire or other insurance upon the Building or any
of its contents, or cause a cancellation of any insurance policy covering the
Building or the Project or any part thereof, nor shall Tenant sell or permit to
be stored, kept, used or sold in or about said Equipment Space any articles
which may be prohibited by a standard form policy of insurance. Without
limitation upon Landlord's remedies for Tenant's breach of this covenant, Tenant
shall promptly upon demand reimburse Landlord for any additional premium charged
under any such policy by reason of Tenant's failure to comply with the
provisions of this Paragraph 2.
3. ELECTRIC UTILITIES.
Tenant shall pay the costs associated with installation of a separate
electrical panel and meter, if necessary, at time of installation for the
Equipment and shall be responsible for the electrical and any HVAC costs
attributable to the Equipment.
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4. CONSTRUCTION.
4.1 Prior to the commencement of any work, Tenant shall, at its cost
and expense, prepare and deliver to Landlord working drawings, plans and
specifications (the "Plans"), detailing the location and size of the
Equipment specifically describing the proposed construction and work. No
work shall commence until Landlord has approved the Plans, which approval
will not be unreasonably withheld or unduly delayed. Tenant agrees to:
4.1.1 Perform such construction in a safe manner consistent
with generally accepted construction standards;
4.1.2 Perform such construction and work in such a way as to
reasonably minimize interference with the operation of the Building and
Landlord's tenants and other Tenants; and
4.1.3 Obtain, prior to the commencement of any construction
and work, necessary federal, state and municipal permits, licenses and
approvals.
4.2 In connection with the installation or construction of the
Equipment by or for Tenant, all roof, floor and wall penetrations must be
sealed. Tenant acknowledges that Landlord's review of Tenant's plans for the
installation of the Equipment: (a) shall only be for general conformance to
Landlord's established criteria, and (b) shall not include analysis of the
structural integrity of existing or new improvements nor of the adequacy of any
material or systems proposed by Tenant with respect to the Equipment. Tenant
further acknowledges that Tenant is and shall be responsible for any damage to
the roof of the Building that may occur as a result of the acts of Tenant or its
employees, agents or contractors during the installation or subsequent removal
of the Equipment, and Tenant agrees to repair any such damage to the reasonable
satisfaction of Landlord. In the event that at any penetrations of the roof
shall be required, Tenant shall be required to utilize the Equipment, and Tenant
agrees to repair any such damage to the reasonable satisfaction of Landlord. In
the event that any penetrations of the roof shall be required, Tenant shall be
required to utilize the services of Landlord's roofing contractor in connection
with such installation. Tenant shall promptly reimburse Landlord for all
reasonable contractor in connection with such installation. Tenant shall
promptly reimburse Landlord for all reasonable costs and expenses incurred by
Landlord in connection with the installation, use or removal of the Equipment.
5. TENANT'S COVENANTS.
Tenant hereby covenants and agrees (i) to keep the Equipment in good
order, repair and condition throughout the Term (as hereinafter defined) and
promptly and adequately repair all damage to the Building caused by Tenant,
other than ordinary wear and tear; (ii) to comply with federal, state and
municipal laws, orders, rules and regulations applicable to the Equipment; and
(iii) except as contemplated by Paragraph 4.1.2 hereof, not to disrupt,
adversely affect or interfere with other providers of services in the Building
or with any occupant's use and enjoyment of his licensed premises or the common
areas of the Building.
6. EQUIPMENT; REMOVAL UPON TERMINATION.
The Equipment, and any other personal property in the Building belonging
to Tenant, shall be there at the sole risk of Tenant and Landlord shall not be
liable for damage thereto or theft, misappropriation or loss thereof, except in
the event of Landlord's gross negligence or willful misconduct. Upon the
expiration or earlier termination of the Lease or Tenant's voluntary surrender
of the Equipment Space for any reason, Tenant will, upon notice by the Landlord,
at Tenant's sole cost and expense, remove the Equipment and Tenant's personal
property from the Equipment Space and Building, as applicable, and repair all
damage caused by such removal, excepting normal wear
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and tear. Any property not so removed within sixty (60) days after the
expiration or earlier termination of the Lease shall be deemed the property of
Landlord.
7. EQUIPMENT RELOCATION
Tenant warrants that its Equipment will not cause measurable interference
with the radio signals of any transmitting or receiving equipment presently
installed at the Building as of the date of execution of this Amendment No. 1.
Tenant shall make commercially reasonable efforts to operate its Equipment in a
manner that shall not interfere with other roof mounted telecommunication
equipment installed on the roof of the Building subsequent to the execution of
this Amendment No. 1. Landlord shall not be liable to Tenant for any
interference with the operation of the Equipment caused by another tenant,
Tenant, occupant or any other party in or on the Building. Tenant's sole remedy
in the event of interference with the operation of Tenant's Equipment shall be
against the party causing such interference, with which Landlord shall be
neither concerned nor liable. In the event the Equipment must be relocated to
resolve any interference issue, Landlord shall provide Tenant thirty (30) days
to relocate the Equipment and reasonably work with Tenant to avoid disruption of
Tenant's telecommunications services to the tenants of the Building during any
relocation. Furthermore, Landlord shall reasonably work in good faith with
Tenant to find acceptable new locations for the Equipment.
8. CONDITION OF EQUIPMENT SPACE AND BUILDING.
Landlord makes no warranty or representation that the Equipment Space or
the Building is suitable for the use described in Paragraph 2 of this Amendment
No. 1, it being assumed that Tenant has satisfied itself thereof. Tenant has
inspected the Equipment Space and the Building, accepts the same "as is" and
agrees that Landlord is under no obligation to perform any work or provide any
materials to prepare the Equipment Space or the Building for Tenant.
9. ROOFTOP ACCESS
Landlord shall provide Tenant access to the rooftop of the Building upon
Landlord's receipt of advance notice, in writing, at least one business day
prior to the intended roof entry, if reasonably possible, otherwise by telephone
or direct personal notice to the Building Manager of the Building at least four
(4) hours prior to the intended roof entry. A representative of Landlord may
accompany Tenant or Tenant's contractor or supplier during any such roof access.
The requirements for advance notice and the presence of a representative of
Landlord shall not be required in the event of any emergency requiring immediate
action. Tenant shall be solely responsible for the actions of employees and
agents of Tenant or its contractors and suppliers at any and all times that
employees or agents of Tenant or any such contractors or suppliers are entering
upon, exiting from or are upon any portion of the Building, and Tenant shall
ensure that any such employees and agents of Tenant or any contractor or
supplier shall comply with Landlord's reasonable and insurance company imposed
requirements for the Building. If due to an emergency Tenant requires access to
the roof of the Building, and Tenant does not advise Landlord in advance of such
intended entry, Tenant shall notify Landlord on the business day immediately
following the day that Tenant has so gone upon the roof of the Building so that
Landlord may verify the re-locking of doors and compliance with security and
safety requirements.
10. INDEMNIFICATION.
Tenant shall indemnify, protect, defend and hold Landlord, its principals,
officers, directors, agents, employees and servants harmless (i) from and
against all losses, damages, claims, liabilities, costs and expenses (including
reasonable attorneys' fees) incurred by Landlord arising out of (A) a breach by
Tenant of any of its obligations hereunder, or (b) any act or omission of Tenant
or its agents, servants, employees, contractors or representatives, including,
but not limited to, damages, losses or injuries from Tenant's exercise of any
rights or obligations hereunder, including, without
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limitation, (i) the construction operation, maintenance and repair of the
Equipment or any Word and, (ii) for the satisfaction and payment of any liens
against Landlord or the Building as a result of the Work performed. The
provisions of this Paragraph 10 shall survive the expiration or earlier
termination of this Agreement.
11. INSURANCE
Tenant's insurance required to be maintained pursuant to Section 10.3 of
the Lease shall include the Equipment Space, and Tenant's Equipment or other
personal property thereon. Upon Landlord's request Tenant shall provide a
current Certificate of Insurance so indicating such expanded coverage.
12. LIENS
Tenant shall be responsible for the satisfaction or payment of any liens
for any provider of work, labor, material or services claiming by, through or
under Tenant in connection with the installation, operation, maintenance or
removal of the Equipment or Equipment Space. Tenant shall also indemnify, hold
harmless and defend Landlord against any such liens, including the reasonable
fees of Landlord's attorneys. Such liens shall be discharged by Tenant within
thirty (30) days after notice of filing thereof by bonding, payment or
otherwise, provided that Tenant may contest, in good faith and by appropriate
proceedings any such liens.
13. PERFORMANCE OF WORK. Tenant may contract or subcontract any portion
of work within the Building contemplated by this Amendment No. 1 to any person
or entity competent to perform such work. In no event shall such subcontract
relieve Tenant of any of its obligations hereunder
14. EVENTS OF DEFAULT. In addition to any event of Default defined in
Section 19.1 of the Lease each of the following occurrences shall constitute a
Default under the Lease:
14.1 Breach by either party of any material non-monetary provision
of this Amendment No. 1;
14.2 If Tenant abandons or deserts the Equipment during the Term of
the Lease; and/or
14.3 Interference caused to pre-existing telecommunications
facilities by the installation, operation, maintenance, replacement or repair of
Tenant's Equipment.
Upon occurrence of an Event of Default the non-defaulting party shall give
written notice to the defaulting party, setting forth the nature of the Event of
Default. The defaulting party shall have thirty (30) days to cure such Event of
Default. If the defaulting party shall have failed to cure the Default within
the applicable cure period, the non-defaulting party may elect to terminate the
rights conferred on Tenant hereunder, whereupon Tenant shall forthwith remove
its Equipment from the Equipment Space, and elsewhere in the Building if related
to the Equipment, in a neat and orderly manner and as of the date of such
removal neither party shall have any claim against the other in connection with
Tenant's use of the Equipment and/or Equipment Space, except for claims that may
have arisen prior to such termination, and the provisions of this Amendment No.
1 shall be deemed terminated and of no force and effect. In no event shall
either party be liable for any special, incidental, consequential or punitive
damages of the other party. In addition to the right of termination by Landlord
set forth in this Paragraph 14 by reason of Tenant's default, Landlord also may
terminate this Agreement: (i) in the event of damage or destruction or
condemnation which results in the Building not being reconstructed to
substantially the same condition as existed prior to the damage destruction or
condemnation, at Landlord's sole election; or (ii) in the event Landlord
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elects to redevelop the Landlord's Building and as a consequence the Building is
to be demolished or substantially altered; provided that Tenant shall be
provided a first right of refusal to relocate Tenant's Equipment in the new or
reconstructed building.
15. ASSIGNMENT. Tenant shall not assign or transfer any rights granted
hereunder with respect to the Equipment or the Equipment Space.
16. PERSONAL PROPERTY TAXES. Tenant shall pay, prior to delinquency, all
taxes assessed against or levied upon the Equipment and all other personal
property of Tenant located in the Equipment Space and/or in the Building. In the
event any or all of Tenant's Equipment or other personal property shall be
assessed and taxed with property of Landlord its share of such taxes within ten
(10) days after delivery to Tenant by Landlord of a statement in writing setting
forth the amount of such taxes applicable to Tenant's property. Tenant shall pay
directly to the party or entity entitled thereto all business license fees,
gross receipts taxes and similar taxes and impositions which may from time to
time be assessed against or levied upon Tenant, as and when the same become due
and before delinquency.
17. ESTOPPEL CERTIFICATE; SUBORDINATION AND ATTORNMENT. The provisions
of Article 17 of the Lease, concerning a tenant statement or estoppel, and the
provisions of Article 18 of the Lease, concerning subordination and attornment,
all shall apply to this Amendment No. 1, with necessary changes to refer to the
subject matter of this Amendment No. 1 instead of the subject matter of the
Lease, and with the word Landlord meaning Landlord herein and Tenant meaning
Tenant herein.
18. COUNTERPARTS
This Amendment No. 1 may be executed in counterparts, including facsimile
counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute one and the same Amendment No. 1.
19. AUTHORITY
Each individual executing this Amendment No. 1 represents that he or she
is duly authorized to execute and deliver this Amendment No. 1 and that this
Amendment No. 1 is binding upon each of the respective parties in accordance
with its terms.
20. COMPLIANCE WITH LAWS/RULES AND REGULATIONS
Tenant's use of the Equipment Space as set forth herein shall be subject
to all applicable laws and to such reasonable rules and regulations as Landlord
may promulgate. In no event shall Tenant be permitted to utilize the Equipment
Space (or any other area of the Premises) in any manner which impairs or may
impair the character, reputation or image of the Project, Building or the
Premises or which causes or may cause a nuisance or annoyance to Licensor or the
occupants, visitors, or employees of the Project.
21. MISCELLANEOUS
Words used herein which are defined in the Lease shall have the same
meaning when used in this Amendment No. 1. Any Exhibits attached hereto are by
this reference incorporated herein. Landlord and Tenant each hereby acknowledge
that to their best information and belief no default exists under the provisions
of the Lease. Except as herein and/or previously amended the Lease is hereby
ratified, affirmed and approved and shall continue to apply in full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
as of the date first herein above written.
XXXXXX REALTY, L.P., ENCORE SOFTWARE, INC.,
A Delaware Limited Partnership A Minnesota Corporation
By: XXXXXX REALTY CORPORATION, By: _________________________
A Maryland Corporation
General Partner Title: ______________________
By: ___________________________ By: _________________________
Title: ________________________ Title: ______________________
By: ___________________________ "TENANT"
Title: ________________________
"LANDLORD"
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