EXHIBIT 10.12
FIRST AMENDMENT TO SUBLEASE
This First Amendment to Sublease ("First Amendment") is dated as of
November 27, 2002 ("Effective Date") by and between Openwave Systems, Inc., a
Delaware corporation, as Sublessor, and Genitope Corporation, a Delaware
corporation, as Sublessee.
This First Amendment is entered upon the basis of the following facts,
intentions and understandings:
A. Pursuant to that certain Sublease, dated as of July 13, 2001,
by and between Sublessor and Sublessee as modified by that certain letter of
consent from Metropolitan Life Insurance Company, dated August 29, 2001
(collectively, the "Sublease"), Sublessor subleased to Sublessee approximately
18,512 rentable square feet ("Subleased Premises") located in that certain
building commonly known as 000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000
("Building").
B. Sublessor and Sublessee desire to extend the term of the
Sublease and to make additional modifications to the Sublease resulting
therefrom.
C. Capitalized terms not defined in this First Amendment shall
have the meanings set forth in the Sublease.
NOW, THEREFORE, in consideration of the respective covenants and
agreements contained herein, the legal sufficiency of which hereby is
acknowledged, the parties agree as follows:
1. TERM.
The first sentence of Paragraph 3.A. of the Sublease is revised as
follows:
"The term of this Sublease ("Term") shall be for that period commencing
with the day after the date on which Sublessor has received and faxed to
Sublessee Master Lessor's written consent to this Sublease ("Commencement
Date"), and ending on March 10, 2005 ("Expiration Date"), unless this Sublease
is sooner terminated pursuant to its terms, or the Master Lease is sooner
terminated pursuant to its terms."
2. MONTHLY BASE RENT.
The first sentence of Paragraph 4.A. of the Sublease is revised as
follows:
"Commencing on January 1, 2003 and continuing on the first day of each
calendar month thereafter during the Term, as extended, Sublessee shall pay
monthly base rent ("Monthly Base Rent") for the Subleased Premises in equal
monthly installments in the amount of $1.70 per rentable square foot, or
$31,470.04 per month."
1.
3. ADDITIONAL MODIFICATIONS.
The following provisions of the Sublease hereby are deleted in their
entirety: Paragraphs 4.C., 4.D., 19, 25 and 30.
4. CONDITION PRECEDENT.
This First Amendment and Sublessor's and Sublessee's obligations
hereunder are conditioned upon obtaining the written consent of the Master
Lessor to this First Amendment, which consent Sublessor agrees to use
commercially reasonable efforts to obtain. If Sublessor fails to obtain the
Master Lessor's consent within thirty (30) days after the date on which
Sublessor delivers a fully executed copy of this First Amendment to Master
Lessor, then either Sublessor or Sublessee may terminate this First Amendment by
giving the other party ten (10) days' prior written notice, in which case this
First Amendment shall terminate on the day following the last day of the ten
(10) day notice period (unless Master Lessor's consent is obtained during such
ten (10) day period, in which case this Amendment shall remain in full force and
effect), neither party shall have any further rights or obligations under this
First Amendment and the Sublease shall remain unmodified and continue in full
force and effect.
5. RATIFICATION.
Sublessor hereby represents and warrants to Sublessee, to the best of
Sublessor's knowledge, that as of the execution and delivery of this Amendment
by Sublessor to Sublessee: (i) Sublessee is not in default under the Sublease by
reason of its failure to perform any obligations thereunder, and there is no
circumstance, event, condition or state of facts which, by the passage of time
or the giving of notice, or both, could constitute or result in such a default,
and (ii) the Master Lease is in full force and effect, and that no default or
event that, with the passing of time or the giving of notice, or both, would
constitute a default, exists on the part of Sublessor the Master Lessor.
6. SUBLESSEE'S ALTERATIONS.
Notwithstanding anything the provisions of Sections 14 and 18 of the
Sublease, Sublessee shall not be required to remove any of Sublessee's
alterations or improvements unless and to the extent the same are required to be
removed by Master Lessor pursuant to Section 12 of the Master Lease.
7. REMAINDER UNAFFECTED.
Except as expressly set forth in this First Amendment, the terms and
conditions of the Sublease shall remain unmodified and in full force and effect.
[SIGNATURES APPEAR ON NEXT PAGE)
2.
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this First
Amendment to Sublease as of the Effective Date.
SUBLESSOR: SUBLESSEE:
OPENWAVE SYSTEMS, INC., GENITOPE CORPORATION,
a Delaware corporation a Delaware corporation
By: /s/ Xxxx Xxxxx By: /s/ Xxx X. Xxxxxx, Xx.
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Title: CFO and SrVP., Corp. Affairs Title: CEO
Date: _______________________________________________ Date: 27 Nov 2002
3.
