Exhibit 10.23
FOURTH AMENDMENT TO LEASE
AGREEMENT
THIS FOURTH AMENDMENT TO LEASE
AGREEMENT (this “Amendment”) is entered on and to be
effective as of March 1, 2009, by and between BAILARD AUSTIN
II, LIMITED PARTNERSHIP, a Texas limited partnership, as lessor
(“Lessor”), and XPLORE TECHNOLOGIES CORP., a Delaware
corporation, as lessee (“Lessee”).
R E C I
T A L
S
WHEREAS, Sealy Summit Tech L.P.
(“Original Lessor”), predecessor in interest to Lessor,
and Xplore Technologies Corp., a corporation formed under the laws
of Canada (“Original Lessee”), predecessor in
interest to Lessee, entered into that certain Lease Agreement dated
April 10, 2003, as amended by (a) that certain First
Amendment to Lease dated as of May 18, 2003 (the “First
Amendment”), by and between Original Lessor and Original
Lessee; (b) that certain Second Amendment of Lease dated as of
May 26, 2004 (the “Second Amendment”), by and
between Original Lessor and Original Lessee; and (c) that
certain Third Amendment of Lease dated as of June 29, 2004
(the “Third Amendment”), by and between Original Lessor
and Original Lessee (as amended, the “Lease”), pursuant
to which Lessee leases from Lessor certain industrial space known
as Suite 900 (the “Leased Premises”) at 14000
Summit Drive, Austin, Texas, in the building known as 14000 Summit
(the “Building”); and
WHEREAS, Lessee has requested to
reduce the rent payable under the Lease for the remainder of the
current term of the Lease and to extend such term, and Lessor and
Lessee desire to set forth the terms and conditions upon which the
Lease will be modified and extended.
NOW, THEREFORE, for good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Lessor and Lessee hereby agree that the Lease
should be, and hereby is, amended as follows:
1.
Term of Lease
. The Term of the Lease (as
defined in the Lease) is hereby extended to August 31, 2014,
and the term “Expiration Date” (as defined in the
Lease) shall be amended accordingly. As used herein, the term
“Extended Term” shall mean the period from
September 1, 2009 through August 31, 2014.
Notwithstanding anything to the contrary contained in the Lease,
Lessor and Lessee acknowledge and agree that the Second Amendment
extended the Term of the Lease through August 31, 2009.
Any references in the Second Amendment or Third Amendment to
“July 31, 2009” and “July 2009”
were meant to read “August 31, 2009” and
“August 2009”, respectively.
2.
Base Rent . Base Monthly Rent (as defined in the
Lease) shall be amended as follows:
1
|
Time Period
|
|
Base Monthly Rent
|
|
|
|
|
|
|
|
March 1, 2009 through
February 28, 2011
|
|
$
|
10,621.73
|
|
|
|
|
|
|
|
March 1, 2011 through
February 29, 2012
|
|
$
|
13,656.51
|
|
|
|
|
|
|
|
March 1, 2012 through
February 28, 2013
|
|
$
|
14,306.82
|
|
|
|
|
|
|
|
March 1, 2013 through August 31,
2014
|
|
$
|
14,740.36
|
|
3.
Exhibit A
. The site plan attached as
Exhibit A to the Lease is hereby deleted in its
entirety, and the site plan attached as Exhibit A to
this Amendment shall be substituted therefor.
4.
Improvements to Leased
Premises . Lessee
hereby accepts the Leased Premises for the Extended Term in its
as-is condition, and Lessor shall have no obligation to make any
improvements thereto in connection with this Amendment,
except that Lessor shall complete those leasehold
improvements (the “Leasehold Improvements”) described
in the estimate dated April 16, 2009, attached hereto as
Exhibit B (the “Approved Scope of Work”),
which Approved Scope of Work has been agreed to by Lessor and
Lessee. Lessor shall complete the Leasehold Improvements by
hiring a contractor to install or construct the Leasehold
Improvements in accordance with the Approved Scope of Work and by
coordinating such work with Lowell Christensen, Lessee’s
Director of Operations. Lessor agrees to use diligent good
faith efforts to complete the Leasehold Improvements on or before
July 31, 2009, so long as Lessee takes all steps necessary to
prevent interference with Lessor’s completion of the
Leasehold Improvements. Any work (labor or materials) outside
the scope of the Approved Scope of Work shall be at Lessee’s
sole cost and expense.
5.
Lessor’s Address for
Payments and Notices .
(a) Lessor’s address for
the payment of rent, as set forth in Article 4.A. of
the Lease, is hereby amended to read as follows:
“Bailard Austin II, Limited
Partnership, DBA Sealy Summit Tech Center, Dept. 6304, Los Angeles,
CA 90084-6304”
(b) Lessor’s address for
notices, as set forth in Article 32 of the Lease, is
hereby amended to read as follows:
“LESSOR:
Bailard Austin II, Limited
Partnership
c/o RREEF Management
Company
1406 Halsey Way,
Suite 110
Carrollton, TX
75007”
2
The additional address for copies of all notices
to Lessor, as set forth in Section 2.02 of the First
Amendment, is hereby deleted in its entirety.
6.
Lessee’s
Insurance .
Article 9 of the Lease is hereby deleted in its
entirety, and the following is hereby substituted
therefor:
“9. LESSEE’S
INSURANCE
Lessee shall keep in force
throughout the Term: (a) a Commercial General Liability
insurance policy or policies to protect the Lessor Entities against
any liability to the public or to any invitee of Lessee or a Lessor
Entity incidental to the use of or resulting from any accident
occurring in or upon the Leased Premises with a limit of not less
than $1,000,000 per occurrence and not less than $2,000,000 in the
annual aggregate, or such larger amount as Lessor may prudently
require from time to time, covering bodily injury and property
damage liability and $2,000,000 products/completed operations
aggregate; (b) Business Auto Liability covering non-owned and
hired vehicles with a limit of not less than $1,000,000 per
accident; (c) Worker’s Compensation Insurance with
limits as required by statute with Employers Liability with limits
of $100,000 each accident, $500,000 disease policy limit, $100,000
disease—each employee; (d) All Risk or Special
Form coverage protecting Lessee against loss of or damage to
Lessee’s alterations, additions, improvements, carpeting,
floor coverings, panelings, decorations, fixtures, inventory and
other business personal property situated in or about the Leased
Premises to the full replacement value of the property so insured;
(e) Business Interruption Insurance with limit of liability
representing loss of at least approximately six (6) months of
income; and (f) Excess Liability in the amount of
$6,000,000.
The aforesaid policies shall
(a) be provided at Lessee’s expense; (b) name the
Lessor Entities as additional insureds (General Liability) and loss
payee (PropertyCSpecial Form); (c) be issued by an insurance
company with a minimum Best’s rating of ‘A-:VII’
during the Term; and (d) provide that said insurance shall not
be canceled unless thirty (30) days prior written notice (ten days
for non-payment of premium) shall have been given to Lessor; a
certificate of Liability insurance on ACORD Form 25 and a
certificate of Property insurance on ACORD Form&nb
