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Exhibit 10.20
[REMEDY CORPORATION LOGO]
Bldg 2
Abstract Date: September 12, 1997
0000 XXXXXXXXXX XXXXX
XXXXXXXXXX, XXXXXXXXXX
LEASE SUMMARY
DOCUMENTS:
SUBLEASE DATE: MARCH 17, 1997
MASTER LEASE DATED: DECEMBER 27, 1985
ADDENDUM TO LEASE DATED: DECEMBER 27, 1985
CONSENT AND AGREEMENT OF LANDLORD DATED: MARCH 19, 1997
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Lease Information Xxxxx Xxxxxx
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CONTACTS
LANDLORD
X. X. XxXxxxxxx -------------------
c/o Xxx Xxxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxx, XX 00000-0000
SUBLESSOR
Viacom International, Inc. --------------------
1515 Broadway
New York, New York 10036
CRITICAL DATES
LEASE TERM 3 years, 9 months N/A
--------------------
COMMENCEMENT March 19, 1997 Sublease Para 2
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EXPIRATION December 31, 2000 Sublease Para 2
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EARLY TERMINATION (NOTICE) N/A
--------------------
RENEWAL OPTION 1 (NOTICE) March 1, 1999 Consent Para 2(a)
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RENEWAL OPTION 1 (NOTICE) June 30, 2000
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RENEWAL OPTION 1 (NOTICE) July 31, 2000
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RENEWAL OPTION 2 (NOTICE) N/A
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EXPANSION OPTION (NOTICE)
--------------------
Xxxxxxx Realty Corporation makes no warranty or representation as to the
accuracy or completeness of this information. The information should be
verified by Remedy Corporation.
XXXXXXX REALTY CORPORATION
2
Abstract Date: September 12, 1997
[REMEDY CORPORATION LOGO]
0000 XXXXXXXXXX XXXXX
XXXXXXXXXX, XXXXXXXXXX
LEASE SUMMARY (PAGE 2)
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Lease Information Xxxxx Xxxxxx
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TOTAL BUILDING SQUARE FEET: 47,000 Lease Para 2
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RENTABLE SQUARE FEET: 47,000 Lease Para 2
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USEABLE SQUARE FEET: N/A
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LOAD FACTOR: N/A
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PRO-RATA SHARE: 100%
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RENT:
LEASE TYPE: NET
DATES ANNUAL RATE (P.S.F.) MO. PAYMENT ANNUAL RENT Sublease Para 3(a)
------------------------------------------------------------------------------------- ---------------------------
3/15/97 - 12/31/97 11.40 44,650 535,800
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1/1/98 - 12/31/00 11.76 46,060 552,720
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EFFECTIVE RENT: 11.69
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HOLDOVER RENT: Rate: 150% Sublease Para 2
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Damages: N/A Lease Para 26
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LATE CHARGE: 6% penalty after 5 days after notice Sublease Para 4
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SECURITY DEPOSIT: $46,000 (one month) Sublease Para 3(b)
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T.I. ALLOWANCE: None Sublease Para. 7(a)
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XXXXXXXXXXXX X.X.: N/A
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EXPENSES:
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RESPONSIBLE PARTY: Sublease Para 3(c)
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Insurance: Tenant Lease Addendum Para 59/60
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Taxes: Tenant Lease Para II
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Common Area: Tenant
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Utilities: Tenant
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Janitorial: Tenant
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Other:
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Operating Expense Caps: N/A
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TENANT'S OBLIGATION TO REPAIR/MAINTAIN:
All except roof, skylights, structural Sublease Para 7(b)
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Lease Para 7.1
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LANDLORD'S OBLIGATION TO REPAIR/MAINTAIN:
Roof, skylights, structural Sublease Para 7(b)
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Lease Para 7.4
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AUDIT RIGHTS: N/A
------------------------------------ ---------------------------
------------------------------------
Xxxxxxx Realty Corporation makes no warranty or representation as to the
accuracy or completeness of this information. The information should be
verified by Remedy Corporation.
XXXXXXX REALTY CORPORATION
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Abstract Date: September 12, 1997
[REMEDY CORPORATION LOGO]
0000 XXXXXXXXXX XXXXX
XXXXXXXXXX, XXXXXXXXXX
LEASE SUMMARY (PAGE 3)
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Lease Information Xxxxx Xxxxxx
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RENEWAL OPTION: Consent Para 2(a)
--------------------------
(1) TERM: 5/31/01 or 5/31/03 RATE: Same or FMV
--------------------- ------------------
Notice Dates: 3/1/99 - 6/30/00 - 7/31/00
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Tenant Improvements: None
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Operating Expenses: Net
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EXPANSION OPTIONS:
--------------------------
Space: N/A
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Tenant Improvements:
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Rent:
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Notice Date:
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TERMINATION OPTION: N/A
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PARKING: Ratio:
------------------- --------------------------
Rate: Free
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USE: Office Sublease Para 5(a)
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ASSIGNMENT & SUBLETTING: Sublease Para 6(a)
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LL Approval: Required Lease Para 12
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Affiliates: Exception - Sublease Para 6(c)/lease 12.2
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Profit Sharing: N/A
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Recapture Rights: N/A
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Other:
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ALTERATIONS: Consent Para 3.9(b)
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LL Approval: Required Sublease Para 7(d)
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Limitation: $25,000/bldg. permit Lease Addendum Para 53
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Restoration: Can be required Lease Para 7.2/7.5
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INDEMNIFICATION: Sublessee indemnifies Sublessor Sublease Para 12
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TENANT INSURANCE REQUIREMENTS: Consent Para 4
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Property insurance (100% replacement) Sublease Para 8(a)(b)
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Earthquake (purchased from Sublandlord) Lease Addendum Para 54/55
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Comprehensive general liability
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LANDLORD INSURANCE REQUIREMENTS:
---------------------------------------------------------------- --------------------------
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ESTOPPEL CERTIFICATE: Required Lease Addendum Para 61
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Lease Para 16
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ADDITIONAL PROVISIONS:
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Xxxxxxx Realty Corporation makes no warranty or representation as to the
accuracy or completeness of this information. The information should be
verified by Remedy Corporation.
XXXXXXX REALTY CORPORATION
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SUBLEASE
SUBLEASE, dated as of the 17 day of March, 1997, by and between Viacom
International Inc., a Delaware corporation, with offices located at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, hereinafter referred to as "Sublessor" and
Remedy Corporation, a Delaware corporation, with offices located at 0000 Xxxxxx
Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, hereinafter referred to as "Sublessee".
WITNESSETH
WHEREAS, X. X. XxXxxxxxx, hereinafter referred to as "Landlord", and
Viacom International, Inc., an Ohio corporation, predecessor in interest to
Sublessor, entered into a certain Lease dated December 27 1985, as the same has
been amended, (the "Lease") with respect to the building, containing
approximately 47,000 square feet, situated on land located at 0000 Xxxxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxxxx (the "Demised Premises") being more particularly
described in the Lease, a copy of which is attached hereto as Exhibit "A" and
made a part hereof; and
WHEREAS, Sublessor wishes to sublease to Sublessee and Sublessee wishes to
sublease from Sublessor the Demised Premises.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, receipt of which is hereby
acknowledged, it is mutually agreed as follows:
1. Sublessor hereby subleases to Sublessee the Demised Premises upon
and subject to the terms and conditions hereinafter set forth.
2. The term of the Sublease shall commence as of the date on which (i)
this Sublease is fully executed or (ii) Landlord grants its consent to this
Sublease, whichever is later (the "Commencement Date") and shall terminate on
December 31, 2000. Upon expiration or sooner termination of the Sublease, if
Sublessee shall hold over and remain on the Demised Premises, such holding over
shall not be deemed to be an extension of this
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Sublease, but shall be deemed to create a tenancy-at-sufferance, and, in
addition to any rights Sublessor may have under this Sublease or the Lease in
the event of a default, Sublessee shall be obligated to pay to Sublessor an
amount equal to 150% of the base monthly rent payable by Sublessor under the
Lease on the date before such hold over for each day that Sublessee remains in
occupancy of the Demised Premises. Notwithstanding the foregoing, in the event
that Sublessee and Landlord enter into a separate agreement for the lease of the
Demised Premises and Sublessee is entitled to remain in possession of the
Demised Premises pursuant to such agreement from and after December 31, 2000,
Sublessee shall not be deemed to be holding over beyond December 31, 2000.
3. (a) For the period commencing on the March 15, 1997 through and
including December 31, 1997, Sublessee shall pay to Sublessor a base monthly
rent of Forty Four Thousand Six Hundred Fifty and 00/100 ($44,650.00) Dollars,
based on a monthly rate of $.95 per square foot. For the period commencing on
January 1, 1998 through December 31, 2000, Sublessee shall pay to Sublessor a
base monthly rent of Forty Six Thousand Sixty and 00/100 ($46,060.00) Dollars,
based on a monthly rate of $.98 per square foot. No base monthly rent shall be
payable for the first month of the term; however, Sublessee shall be obligated
to pay all other amounts due hereunder and perform all other obligations
required to be performed hereunder from and after the Commencement Date.
(b) Sublessee shall deposit with Sublessor, upon execution hereof,
(i) the first month's base rent and (ii) the sum of Forty Six Thousand Sixty and
00/100 ($46,060.00) Dollars as security for the faithful performance and
observance by Sublessee of the terms, provisions and conditions of this Sublease
(the "Security Deposit"). In the event Sublessee defaults in respect to any of
the terms, provisions and conditions of this Sublease, including without
limitation, the payment of rent, Sublessor may use, apply or retain the whole or
any part of the Security Deposit, to the extent required, for the payment of any
rent or other sum as to which Sublessee is in default or for any sum which
Sublessor may expend or may be required to expend by reason of Sublessee's
default, and in such event, Sublessee shall pay
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to Sublessor upon demand a sum sufficient to restore the Security Deposit to
its original amount. Sublessor agrees to retain the Security Deposit in an
interest bearing account, the type of such account to be determined in
Sublessor's reasonable sole discretion. Provided Sublessee shall not be in
default hereunder, Sublessor shall return the Security Deposit together with any
accrued interest thereon to Sublessee (less any amounts which Sublessor may
retain as permitted by the terms hereof) promptly following the expiration of
the Sublease.
(c) Sublessee shall be responsible for and shall pay any and all
taxes, assessments, heat, water and sewer charges, electric and other utility
charges, as well as any other charges required by the Lease and relating to the
Demised Premises, it being understood that this Sublease is a double net
sublease, and except as specifically set forth herein, any and all costs
relating to the Demised Premises that would be payable by Sublessor as tenant
under the Lease shall be borne by Sublessee.
(d) All rent shall be payable on the first day of each month
without any set-off or deduction whatsoever to Sublessor at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 Attention: Xxxxx X. Xxxxxxxxxx, unless otherwise specified
in a written notice to Sublessee as hereinafter provided. Rent for any other
period of less than one month shall be apportioned based on the number of days
in that month.
(e) Sublessee and Sublessor agree to cooperate with each other in
seeking reductions of real property taxes applicable to, or the assessed
valuation of, the Demised Premises for the 1996-1997 tax year and subsequent
years during the term of this Sublease. Said cooperation shall include the
filing of any appeal or protest of the valuation of the Demised Premises by the
county tax assessor if such action is requested by either party in writing. Any
tax reductions resulting therefrom, after deducting all expenses incurred in
such appeal or protest, shall be apportioned between Sublessor and Sublessee on
a prorata basis in accordance with their respective occupancies of the Demised
Premises during the respective tax year (including the 1996-1997 tax year, with
Xxxxxxxxx's occupancy commencing as of the Commencement Date).
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4. In addition to such remedies as may be provided in the Lease or this
Sublease, Sublessor shall be entitled to a late charge of six percent (6%) of
the amount of the monthly rent if any payment of monthly rent is not received
within five (5) days after Sublessee's receipt of notice that timely payment of
monthly rent by Sublessee has not been made. The parties agree that damages to
Sublessor as a result of a late payment or an unpaid check by Sublessee are
difficult to ascertain and that these charges represent a fair and reasonable
estimate of said damages. Acceptance by Sublessor of a late charge shall not
constitute a waiver by Sublessor of any default of Sublessee nor prevent
Sublessor from exercising any right or remedy hereunder or otherwise available
by law.
5. (a) Sublessee shall use the Demised Premises solely for office use
and for no other purposes.
(b) Sublessee shall have the exclusive right to use the monument
signage currently used by Sublessor. All costs related to Sublessee's use of the
sign or any other signage permitted by Sublessor and Landlord shall be the sole
responsibility of Sublessee, including without limitation, any permits required
in connection therewith.
(c) Nothing shall be done upon or about the Demised Premises which
shall be unlawful, improper, or contrary to any law, ordinance, regulation or
requirement of any public authority or insurance inspection or rating bureau or
similar organization having jurisdiction and Sublessee will promptly comply with
any such law, ordinance, regulation or requirement.
6. (a) Sublessee shall not, by operation of law or otherwise,
transfer, assign, sublet, enter into license agreements, mortgage or hypothecate
this Sublease or the Sublessee's interest in and to the Demised Premises without
first procuring the prior written consent of Sublessor and Landlord. Sublessor
agrees that its consent required in the immediately preceding sentence shall not
be unreasonably withheld or delayed and in no event shall Sublessor withhold its
consent if Landlord grants its consent. Any attempted transfer, assignment,
subletting, license agreement, mortgage or hypothecation without Sublessor's and
Landlord's prior written consent shall be void and confer no rights upon any
third person. In
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the event of any sublease or assignment by Sublessee, Sublessee shall not be
relieved from its covenants and obligations for the Sublease term. The
acceptance of rent by Sublessor from any other person or entity shall not be
deemed a waiver by Sublessor of any provision hereof. Sublessee agrees to
reimburse Sublessor for any reasonable fees (not to exceed $500 per request)
incurred in conjunction with the processing and documentation of any such
requested transfer, assignment, subletting, licensing agreement, change in
ownership, mortgage or hypothecation of this Sublease or Sublessee's interest in
and to the Demised Premises.
(b) The consent of Sublessor and Landlord to any transfer,
assignment, sublease, license agreement, change in ownership, mortgage or
hypothecation of this Sublease is not and shall not operate as a consent to any
future or further transfer, assignment, sublease, license agreement, change in
ownership, mortgage or hypothecation.
(c) Notwithstanding the above, Sublessee may, upon delivery of
written notice to Sublessor, sublet the Demised Premises without Sublessor's
consent (i) to any corporation which controls, is controlled by or is under
common control with Sublessee (hereinafter, an "Affiliate") provided that such
corporation remains an Affiliate of Sublessee throughout the remaining term of
this Sublease, (ii) to any corporation resulting from the merger or
consolidation of Sublessee, or (iii) to any person or entity which acquires all
of the assets of Sublessee as a going concern of the business that is being
conducted on the Demised Premises, provided that any subletting by Sublessee
shall be, at all times, subject and subordinate to this Sublease and the Lease.
This subsection (c) shall apply only to a subletting by Sublessee of the Demised
Premises and not to an assignment by Sublessee of its interests hereunder.
7. (a) Sublessee agrees to take the Demised Premises in its "as is"
condition. Sublessee is fully familiar with the physical condition of the
Demised Premises. To the best of Sublessor's knowledge, without having made any
investigation, Sublessor represents that it has not caused late charges to
become payable for three (3) consecutive installments of rent under the Lease
and that the Demised Premises are in good working order: otherwise,
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Sublessor makes no other representations or warranties to Sublessee with
respect to the Demised Premises.
(b) With the exception of the repair and maintenance of the roof,
skylights and structural portions of the building (which Sublessor shall be
obligated to maintain in good order and condition at Sublessor's sole cost and
expense), Sublessee shall be responsible for all maintenance and repairs to the
Demised Premises in order to keep the Demised Premises in good order and
condition and as otherwise required by the Lease. Sublessee shall also be
responsible for any capital expenditures involving the replacement of any
portion of the building systems that become necessary during the term of this
Sublease (the "Capital Expenditures"). Any Capital Expenditures shall require
the prior written approval of Sublessor and Landlord, which consent shall not be
unreasonably withheld, and may not be withheld if Sublessee's failure to make
the replacement contemplated by such Capital Expenditure would either constitute
a breach of this Sublease or the Lease, or materially impairs Sublessee's use or
occupancy. Notwithstanding the above, where the useful life of any such
replacement shall extend beyond the expiration of the term of this Sublease,
Sublessee's obligation with respect to the Capital Expenditures related thereto
shall not, in any calendar year, exceed the following amounts (the "Limits"):
(i) $40,000, in 1997;
(ii) $30,000, in 1998;
(iii) $20,000, in 1999; and
(iv) $10,000, in 2000.
To the extent that the total Capital Expenditures in any calendar year are in
excess of the Limits, Sublessor shall be responsible to pay for such excess and
shall reimburse Sublessee for such excess within 30 days following Sublessee's
presentation of reasonable evidence substantiating the Capital Expenditure.
(c) All personal property of every kind placed or stored by
Sublessee at the Demised Premises shall be so placed or stored at the sole risk
of Sublessee. Neither
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Sublessor nor Landlord shall be liable to Sublessee or any other person for
any injury, loss, damage or inconvenience occasioned by any cause whatsoever to
said personal property unless caused by Sublessor's negligence, willful
misconduct or breach of this Sublease, provided that Sublessor's liability
therefor shall not exceed $1,000.00.
(d) Subject to the provisions of Paragraph 2 hereof, upon
termination of the Sublease, Sublessee shall quit and surrender the Demised
Premises in accordance with the terms of the Lease. All improvements or fixtures
installed in the Demised Premises, including those previously installed by
Sublessor, which are affixed to the Demised Premises shall be removed upon the
termination of this Sublease to the extent required by Landlord. Sublessee shall
repair all damage or defacement to the Demised Premises and to the fixtures,
appurtenances and equipment of Landlord therein, caused by the Sublessee's
removal of its furniture, fixtures, equipment, machinery and the like and the
removal of any improvements or alterations.
8. (a) Sublessee shall, at its sole cost and expense, keep the
Demised Premises insured against loss or damage by fire, windstorm and casualty
in an amount equal to 100% of the full replacement cost thereof. The policies
shall be written to insure Sublessee, Sublessor and Landlord as their interests
may appear and shall be primary and non-contributory. Sublessor shall maintain
insurance against loss or damage to the Demised Premises by earthquake in an
amount equal to 100% of the full replacement cost thereof, and Sublessee shall
pay to Sublessor, as additional rent, all costs incurred by Sublessor with
respect thereto, within thirty (30) days after receipt of an invoice therefor.
In the event of any loss or damage to the Demised Premises by earthquake, (i)
Sublessor shall assign to Sublessee all insurance proceeds received under its
earthquake insurance coverage and (ii) Sublessor and Sublessee shall be
responsible for any deductible amount in the ratio of 2 to 1 (for every two
dollars that Sublessor pays toward the deductible, Sublessee shall be obligated
to pay one dollar); provided that Sublessee's liability under this clause (ii)
shall not exceed $83,333.33.
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(b) Sublessee shall also maintain throughout the term of the
Sublease, with Sublessor and Landlord named as additional insureds,
comprehensive general liability insurance in amounts not less than the amounts
set forth in Paragraph 8 of the Lease.
(c) Sublessee will furnish proof of such insurance coverage to
Sublessor and Landlord on or prior to the date of commencement of the Sublease
term. Such policies shall contain a waiver of the insurer's right of subrogation
against the Sublessor and Landlord, and shall require the insurer to give
Sublessor and Landlord thirty (30) days notice prior to the expiration or
cancellation of insurance coverage.
(d) Sublessee will not do anything on the said Demised Premises to
make void or voidable any insurance upon the Demised Premises or render
necessary any increased or extra premium for the said insurance. If, as a result
of improper maintenance, poor housekeeping, or any other conduct or other
activities an the part of Sublessee, the Landlord's or Sublessor's insurance
premiums are increased, Sublessee will pay the additional cost thereof, and in
the event the conduct of Sublessee's business results in an increase in
insurance premiums to be paid by Sublessor, Sublessee shall pay to the Sublessor
the amount of such increase.
9. If the Demised Premises or any part thereof shall be damaged by fire
or other casualty, Sublessee shall give immediate notice thereof to Sublessor
and this Sublease shall continue in full force and effect except to the extent
that Sublessor's interest as tenant under the Lease may be terminated or
affected thereby. If Sublessor's interest as tenant under the Lease is
terminated as a result of any damage by fire or casualty, Sublessor's interest
in this Sublease shall likewise be terminated.
10. Sublessee hereby represents and warrants to Sublessor as follows:
(i) Sublessee shall operate and maintain the Demised Premises in good condition
and repair, in accordance with sound property management practices and the
provisions of this Sublease, and (ii) Sublessee shall not use, generate or store
any hazardous or toxic materials (as determined under federal, state or local
law) upon the Demised Premises, except that
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Sublessee shall be permitted to use standard office products and cleaning
supplies in reasonable quantities and in compliance with applicable laws.
11. Sublessor covenants that upon Sublessee paying the rent and
additional rent and observing and performing all of the terms, covenants and
conditions of this Sublease on its part to be observed and performed, Sublessee
may peaceably and quietly enjoy the Demised Premises, subject, nevertheless, to
the terms, limitations and conditions of this Sublease and of the Lease.
12. Sublessee agrees to indemnify and hold Sublessor harmless against
all loss, damage, liability, or expense (including reasonable attorneys' fees
and other attendant expenses) arising out of injury to third parties or their
property occurring on the Demised Premises or arising in connection with
anything owned or controlled by Sublessee or resulting from any act, failure to
act, or negligence of Sublessee or its employees, agents or invitees, or from
any nuisance suffered on the Demised Premises.
13. (a) Sublessee represents that it has read and is familiar with the
Lease. It is specifically understood and agreed that this Sublease and each and
every provision hereof is and shall remain subject to the Lease and each and
every provision thereof, and that in the event that the Lease shall terminate
for any reason whatsoever, then, in that event this Sublease shall ipso facto
terminate and neither party hereto shall thereby acquire any right or cause of
action against the other party by reason of such termination unless caused by
Sublessor's failure to perform its obligations under the Lease.
(b) Except as otherwise specifically provided in this Sublease,
the terms, provisions, covenants, rules and regulations, rights, obligations,
remedies and agreements of the Lease are incorporated herein by reference with
the same force and effect as if they were fully set forth herein except that any
reference in the Lease to "Landlord", "Tenant" and "Premises" shall mean
Sublessor, Sublessee and Demised Premises, respectively, as such terms are used
in this Sublease, and shall, as between Sublessor and Sublessee, constitute the
terms of this Sublease except to the extent they do not relate to the Demised
Premises or
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are inapplicable, inappropiate, inconsistent with or modified by the provisions
of this Sublease. Notwithstanding anything herein contained, the only services
or rights to which Sublessee is entitled hereunder are those to which Sublessor
is entitled under the Lease except for Sublessor's maintenance and repair
obligations described in paragragh 7 above. In all instances where consent of
the "Landlord" is required by the Lease, for purposes of this Sublease consent
of both the Sublessor and the Landlord shall be required.
(c) Except as otherwise specifically provided in this Sublease,
Sublessee covenants and agrees to comply with all of the terms, covenants,
conditions and obligations of the Lease to be kept and performed on the part of
the tenant thereunder insofar as they relate to the Demised Premises. Sublessee
shall not commit or permit to be committed any act or omission or allow any
condition to exist which shall violate any term or condition of the Lease.
Sublessee shall neither do nor permit anything to be done which would cause the
Lease to be terminated or forfeited by reason of any right of termination or
forfeiture reserved or vested in the Landlord under the Lease, and Sublessee
shall indemnify and hold Sublessor harmless from and against all claims,
liabilities and damages of any kind whatsoever by reason of any breach or
default on the part of Sublessee.
(d) To the extent that the Lease requires or obligates Landlord to
maintain, repair, restore, or otherwise expend any monies for preserving and
maintaining all or any portion of the Demised Premises or to furnish any
services to the Demised Premises, such obligation shall not pass to the
Sublessor by reason of this Sublease and shall remain with the Landlord.
(e) Sublessor hereby represents and warrants to Sublessee that it
is not in default under any provision under the Lease and that the Lease is in
full force and effect. Sublessor hereby acknowledges that Sublessor's failure to
pay the rent owing by Sublessor to Landlord under the Lease will cause Sublessee
to incur damages, costs and expenses not contemplated by this Sublease.
Accordingly, during any period in which Sublessor is in default of its
obligation to pay rent under the Lease, Sublessee shall, upon giving Sublessor
at least five (5) days' prior written notice, have the right to pay all rent and
other sums owing by
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Sublessee to Sublessor hereunder directly to Landlord. Any sums paid directly
to Landlord in accordance with this Subparagraph shall be credited toward the
amount payable by Sublessee to Sublessor under this Sublease.
(f) Sublessor agrees, upon receipt from Sublessee of written
notice of any default, obligation or duty of the Landlord under the Lease, to
promptly notify the Landlord of Sublessee's notice and to use its best efforts
to cause Landlord to rectify or fulfill any default, obligation or duty as
listed in Sublessee's notice.
(g) Notwithstanding anything herein contained, as between
Sublessor and Sublessee, and for purposes of this Sublease, the following
provisions of the Lease are hereby deleted: Paragraph 1, 3, 4, 7.1, 9.5(a),
12.2, 13.4, 26, 39, 48(a), 48(b), 48(c), 48(d), 49, 50, 62, 63, 65, 66 and the
second paragraph of 55.
14. This Sublease shall, at the option of Sublessor, be terminated upon
the happening of any of the following events:
(a) if default shall be made in the payment of rent or any
installment thereof or any other sum required to be paid by Sublessee under this
Sublease and such default shall continue for five (5) days after receipt of
notice from Sublessor to Sublessee;
(b) if default shall be made in the observance or performance of
any other covenant or condition in this Sublease which Sublessee is required to
observe or perform, and such default shall continue for thirty (30) days after
written notice to Sublessee (provided however that if the nature of Sublessee's
default is such that more than thirty (30) days are reasonably required for its
cure, then Sublessee shall not be deemed to be in default if Sublessee commenced
such cure within said 30-day period and thereafter diligently prosecutes such
cure to completion);
(c) if the leasehold interest of Sublessee shall be taken on
execution or by other process of law which would permit a third party to have
possession of the Demised Premises;
(d) if Sublessee shall be judicially declared bankrupt or
insolvent according to law;
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(e) if any assignment shall be made of the property of Sublessee
for the benefit of creditors;
(f) if a receiver, guardian, conservator, trustee in involuntary
bankruptcy or other similar officer shall be appointed to take charge of all or
any substantial part of Sublessee's property by a court of competent
jurisdiction;
(g) if a petition shall be filed for the reorganization of
Sublessee under any provisions of the Bankruptcy Code now or hereafter enacted
and such proceeding is not dismissed within sixty (60) days after it is begun;
or
(h) if Sublessee shall file a petition for such reorganization, or
for arrangements under any provisions of the Bankruptcy Code now or hereafter
enacted and providing a plan for a debtor to settle, satisfy or extend the time
for the payments of debts.
15. (a) In case of termination of this Sublease because of violation
or default on Sublessee's part, including but not limited to a failure to pay
rent as provided herein, Sublessor may, at its option, in accordance with
applicable law, immediately or at any time thereafter, and without demand or
notice, enter into and upon the Demised Premises or any part thereof in the name
of the whole and repossess the same and expel Sublessee and those claiming
through or under it and remove its effects (forcibly, if necessary) without
being deemed guilty of any manner of trespass and without prejudice to any
remedy which might otherwise be used for arrears of rent or for preceding breach
of covenant. In addition, Sublessor may, at its option, without notice, either
in its own name or as agent of Sublessee, re-let the Demised Premises, or any
part thereof, on such terms and for such rent as it may deem expedient or
proper, and such re-letting shall not operate as a waiver of any right which
Sublessor would otherwise have to hold Sublessee responsible for the rent
previously stated. Upon such re-letting, Sublessor shall collect the rent
therefor from the person or persons to whom the same shall be re-let, and, after
paying the expenses of such re-letting and collection, shall apply what remains
from the amount received by it against the amount due or to become due from
Sublessee under this Sublease. Notwithstanding any such re-letting, Sublessor
retains the option of recovering as
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damages a sum which at the time of termination would represent the difference
between the rental value of the Demised Premises and the rent and other payments
herein required for the residue of the term, and Sublessee agrees to indemnify
Sublessor against any loss of rent and other payments which Sublessor may suffer
or incur by reason of termination of this Sublease because of violation or
default on Sublessee's part.
(b) Sublessee shall pay and discharge all costs of Sublessor,
including reasonable attorneys' fees, expenses and court costs, that shall arise
from successfully enforcing any of the terms, covenants and agreements contained
in this Sublease.
16. Sublessee covenants with Sublessor that the failure of Sublessor to
insist in any one or more instances upon the strict and literal performance of
any of the covenants, terms or conditions of this Sublease, or to exercise any
option of Sublessor herein contained, shall not be construed as a waiver or a
relinquishment for the future of such covenant, term, condition or option, but
the same shall continue and remain in full force and effect. The receipt by
Sublessor of rent with knowledge of the breach of any covenant, term, condition
or provision hereunder shall not be deemed to be a waiver of such breach, and no
waiver by Sublessor of any such covenant, term, condition or provision, or of
the breach thereof, shall be deemed to have been made by Sublessor unless
expressly agreed to in writing by Sublessor. No acceptance of partial payment of
rent or any other payments required hereunder shall be deemed to be in full
satisfaction of the amount due unless agreed to in writing by Sublessor.
17. The respective successors and assigns of Sublessor and Sublessee,
subject to the foregoing provisions as to transfers, assignments, insolvency or
by operation of law or legal process, shall bear the burdens and enjoy the
benefits of all of the covenants, terms, conditions, privileges and agreements
contained in or acquired by the provisions of this Sublease, the same as if such
successors and assigns had been specifically mentioned in each and every case
where Sublessor or Sublessee is mentioned.
18. All notices provided for hereunder shall be in writing and sent by
overnight courier service or by registered or certified mail, return receipt
requested, to the Sublessor at
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Viacom International Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx X. Xxxxxxxxxx, with a copy thereof similarly sent to Viacom
Inc., at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel,
and to the Sublessee at the Demised Premises, with a copy to Remedy Corporation,
0000 Xxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, Attention: Manager of
Contracts. Either party may at any time change the address for such notices by
mailing to the other party as aforesaid a notice setting forth the changed
address.
19. This Sublease is subject to the consent of the Landlord.
20. Sublessor and Sublessee each represent to the other that there was
no real estate broker involved with respect to this transaction other than
Xxxxxxx Realty Corporation, and they hereby indemnify and hold each other
harmless from and against any and all brokerage claims arising out of this
Sublease. Sublessor agrees that any commission due Xxxxxxx Realty Corporation
shall be paid by Sublessor under a separate agreement.
21. Time shall be of the essence for the performance of each and every
term, condition and covenant of this Sublease on the part of Sublessee to be
performed.
22. THE TERMS AND CONDITIONS OF THIS SUBLEASE SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF CALIFORNIA.
23. In case any one or more of the provisions contained herein shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Sublease, and the Sublease shall be construed as if such provision had
not been contained herein.
24. The parties represent and warrant that this Sublease has been duly
authorized and the party signing is so authorized to execute this Sublease.
25. This Sublease may not be modified or amended except by a written
agreement signed by the parties hereto.
26. This Agreement may be executed in counterparts, each of which shall
be deemed an original, and all of which together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the date and year first above written.
SUBLESSOR:
ATTEST: VIACOM INTERNATIONAL INC.
BY: /s/ XXXXX X. XXXXXX BY: /s/ XXXXXXX XXXXXX
------------------------------- ----------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx Xxxxxx
----------------------------- --------------------------------
Title: Assistant Secretary Title: Senior Vice-President
---------------------------- -------------------------------
SUBLESSEE:
ATTEST: REMEDY CORPORATION
BY: /s/ XXXXXXXX XXXX BY: /s/ XXXXXXXX XXXXXXX
------------------------------- ----------------------------------
Name: Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxxxxx
----------------------------- --------------------------------
Title: VP of Employee Services Title: Chairman & CEO
---------------------------- -------------------------------
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CONSENT AND AGREEMENT OF LANDLORD
The undersigned ("Landlord") is the Landlord named in the that certain
Lease dated December 27, 1985, as amended (the "Lease"), by and between
Landlord and Viacom International, Inc., an Ohio corporation (Viacom-Ohio").
Viacom International, Inc., a Delaware corporation, successor-in-interest to
Viacom-Ohio ("Sublessor"), and Remedy Corporation ("Sublessee") have executed
that certain Sublease dated March 17, 1997 (the "Sublease"), a copy of which is
attached hereto as Exhibit A, for the purpose of subleasing the Demised
Premises (as defined in the Sublease) to Sublessee. All capitalized terms not
defined in this Consent and Agreement of Landlord (this "Consent") shall have
the meanings attributed to them in the Sublease.
1. Consent. Landlord hereby consents to the terms and conditions of
the Sublease and Xxxxxxxxx's use and occupancy of the Demised Premises as set
forth hereinbelow. In addition, by executing this instrument, Xxxxxxxx
expressly agrees to the provisions of Paragraphs 5(b), 6(c) and 7(b) of the
Sublease and Landlord agrees that Paragraph 8.5 of the Lease shall constitute a
three party agreement binding among and inuring to the benefit of Sublessor,
Sublessee, and Landlord. Notwithstanding the consent granted herein, Sublessee
expressly agrees that (a) the Sublease is and shall be, at all times, subject
to and subordinate to the Lease, (b) Landlord is not and shall not be bound by
the terms, provisions and conditions of the Sublease, and (c) the Sublease and
this Consent, or either of them, in no way modify, amend or alter the terms of
the Lease, except as otherwise provided herein. Subject to subparagraph 2(d)
below, nothing in either this Consent or the Sublease shall be construed to
release or discharge Sublessor from any liability under the Lease. Except as
provided in Paragraph 5 of this Consent, any further subletting of the Premises
by either Sublessor or Sublessee or any assignment of the Lease by Sublessor or
assignment of the Sublease by either Sublessor or Sublessee shall require
Landlord's prior written consent as provided in the Lease. Any and all
amendments to the Sublease shall be subject to Landlord's prior written consent.
2. Option to Extend.
(a) Provided there exists no event of default under the Lease, Landlord
hereby agrees that Sublessee shall have the option to extend (the "Extension
Option") its occupancy of the Demised Premises by electing to assume all of
Sublessor's obligations, as tenant, arising under the Lease after December 31,
2000, on the same terms and conditions as the Lease, except as otherwise
provided in subparagraph 2(b) below. Sublessee shall be entitled to exercise
the Extension Option by notifying Landlord in writing during the period from
February 1, 1999, to March 1, 1999. The foregoing notice shall specify whether
the term of the Lease, as extended, shall expire on May 31, 2001, or May 31,
2003, as described below in subparagraphs 2(b) and 2(c). If Sublessee fails to
timely exercise the Extension Option in accordance with this paragraph, the
Extension Option shall automatically terminate.
(b) Unless Sublessee elects to extend the term of the Lease as provided
in subparagraph 2(c) below, the term under the Lease shall be extended for a
period of five (5) months and shall terminate on May 31, 2001 (the "5-Month
Extended Term"). Monthly rent during the 5-Month
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Extended Term shall be the same as the monthly Rent payable by Sublessor, as
tenant, under the Lease as of the last month of the term of the lease (the
"Last Month's Rent").
(c) In lieu of extending the term of the Lease for only five (5) months,
Sublessee shall be permitted to extend the term of the Lease for a period of
twenty-nine (29) months (the "29-Month Option)". If Sublessee elects to extend
the term of the Lease for a period of twenty-nine (29) months, the Lease shall
terminate on May 31, 2003 (the "29-Month Extended Term"). The monthly rent
during the 29-Month Extended Term shall be the then current fair market rent for
similar facilities within the geographic area in which the Demised Premises are
located, but shall not be less than the Last Month's Rent nor more than 112% of
the Last Month's Rent. On or before June 30, 2000, Landlord and Sublessee shall
mutually determine the monthly rent for the 29-Month Extended Term and if the
parties fail to reach agreement by June 30, 2000, then the 29-Month Option shall
automatically terminate, unless on or prior to June 30, 2000, Sublessee
notifies Landlord that a monthly Rent for the 29-Month Extended Term equal to
112% of the Last Month's Rent is acceptable to Sublessee. In the event the
29-Month Option terminates, Sublessee shall be permitted to extend the term of
the Lease for the 5-Month Extended Term by notifying Landlord of its election
to so do during the period from July 1, 2000 through July 31, 2000. If
Sublessee fails to provide Landlord with such written notice, Sublessee's right
to occupy the Demised Premises during the 5-Month Extended Term shall
automatically terminate.
(d) If Sublessee exercises the Extension Option and assumes all of
Sublessor's obligations, as tenant, arising under the Lease after December 31,
2000, Sublessor shall be released from all liability for obligations arising
under the Lease after December 31, 2000.
3. Sublessee's Improvements. Landlord acknowledges that Sublessee intends
to make certain alterations to and improvements of the Demised Premises subject
to the Sublease, which alterations and improvements are described on Exhibit B
to the Sublease. By executing this Consent, Landlord consents to the making of
the alterations and improvements shown on Exhibit B, except for those
alterations and improvements identified on Exhibit B as being disapproved by
Landlord. The alterations and improvements shown on Exhibit B that are not
disapproved by Landlord are referred to herein as the "Approved Improvements."
By executing this Consent, Xxxxxxxx also agrees that, notwithstanding anything
to the contrary in the Lease or the Sublease, the undersigned and its successors
and assigns shall not require the removal of the Approved Improvements from the
Premises at the expiration or sooner termination of the Sublease or the Lease
(as the Lease may be extended by Sublessee's exercise of the Extension Option).
The foregoing consent shall not apply to any other alterations, additions or
improvements made to the Premises. Landlord further agrees that, upon surrender
of the Demised Premises at the expiration of the Sublease or the Lease (as the
lease may be extended by Sublessee's exercise of the Extension Option), (i)
Landlord will not require the removal by Sublessor or Sublessee of any
alterations, additions or improvements which have been made by Sublessor to the
Demised Premises as of the date of this Consent, and (ii) Landlord will not
require Sublessor to remove any alterations, additions or improvements that
Sublessee may make to the Demised Premises during the term of the Sublease;
provided that Landlord reserves the right to require Sublessee to remove any
alterations, additions or improvements made to Demised Premises during the term
of the
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Sublease (other than the Approved Improvements) if so requested by Landlord in
accordance with the Lease (as modified by subparagraph 9(b) of this Consent).
4. Sublessee's Insurance. Landlord agrees that the insurance
requirements set forth in Paragraphs 8.2 and 8.3 of the Lease shall be
satisfied by the Sublessee's maintenance of the policies required thereby in
lieu of Sublessor maintaining such insurance; provided that if Sublessee fails
to maintain such insurance, Sublessor shall not be released from its
obligations under Paragraphs 8.2 and 8.3 of the Lease.
5. Further Sublettings. Landlord agrees that it shall have no right to
withhold its consent to any sub-sublease of the Demised Premises during the term
of the Sublease so long as (1) the sub-sublease (or sublease) is for a term of
not greater than one year and is with respect to not more than one-half of the
Demised Premises, (2) Sublessee is not in default of its obligations under the
Sublease at the time of such sub-sublease (or sublease), (3) Sublesee remains
liable for the performance of all obligations Sublessee under the Sublease, and
(4) the sub-sublessee (or the sublessee) does not, by the nature of its
activities in the Demised Premises, either increase the cost of insuring he
Demised Premises or present an increased risk of Hazardous Materials
contamination of the Demised Premises.
6. Brokerage Commissions. If Sublessee exercises the Extension Option
and notifies Landlord that Xxxxxxx Realty Corporation ("Broker") represents
Sublessee in connection with the Lease as so extended, Landlord agrees to pay
to Broker a commission in connection with the extended Lease pursuant to the
terms and conditions of a separate agreement between Landlord and Broker.
7. Delivery of Notices. From and after the date hereof, Landlord shall
deliver to Sublessee xxxxx of any notices it delivers to Sublessor in
connection with the Lease, including, without limitation, any notices of breach
or default by Sublessor of its obligations under the Lease.
8. Contest of Property Taxes. Xxxxxxxx agrees to cooperate with
Sublessee and Sublessor as requested from time to time in the contest of any
property taxes payable with respect to the Demised Premises or any protests or
appeals regarding the assessed valuation of the Demised Premises, provided that
Landlord shall not be obligated to incur any out-of pocket costs or expenses in
connection therewith. During the term of the Sublease, any savings or
reductions in property taxes respecting the Demised Premises resulting from
said contests shall inure to the benefit of Sublessee and Sublessor in
accordance with the terms of the Sublease. Following the expiration or
termination of the Sublease or the Lease (as extended by Sublessee's exercise
of the Extension Option), any such savings or reductions shall be prorated among
Sublessee and Landlord as of the expiration or termination date such that
Sublessee receives the benefit of any portion of the savings attributable to
the term of the Sublease or the Lease (as extended), as applicable. The terms
of this paragraph shall survive the term of the Sublease and the Lease (as
extended).
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9. Related Provisions in Lease. In connection with the Sublease and the
Lease, the parties agree as follows:
(a) Any earthquake damage to the Demised Premises, even if covered by
earthquake insurance, shall not be an "Insured Loss" for the purposes of
subparagraph 9.1(c) of the Lease.
(b) Landlord shall have the right to require Sublessee to remove any
alterations, additions or improvements made to the Demised Premises during the
term of the Sublease (collectively, "Sublease Term Improvements") and to
restore the Demised Premises to their condition existing prior to the
installation of such Sublease Term Improvements, regardless of whether the
Sublease Term Improvements (i) reduce the value of the Building, or (ii) reduce
the value of the rental income Landlord can obtain for the Demised Premises, or
(iii) inhibit or impair the use of the Demised Premises as general office
space. The parties acknowledge that the purpose of this provision is to
eliminate the conditions set forth in paragraph 53 of the Lease which otherwise
would limit Landlord's right to require the removal of the Sublease Term
Improvements. Notwithstanding the two preceding sentences, in no event shall
Landlord have the right to require the removal of the Approved Improvements.
10. Counterparts. This Consent may be executed in counterparts, and
transmitted by facsimile by and to each of the parties, and each such
counterpart shall be deemed an original, and all of them together shall
constitute a single instrument.
LANDLORD
Dated: March 19, 1997 XXXX X. XxXXXXXXX, TRUSTEE OF
------------------------ THE X. X. XxXXXXXXX 1991 TRUST
By: /s/ XXXX X. XxXXXXXXX
-------------------------------
Its: Trustee
------------------------------
SUBLESSEE
Dated: March 17, 1997 REMEDY CORPORATION
------------------------ a Delaware corporation
By: /s/ XXXXXXXX XXXXXXX
-------------------------------
Its: Xxxxxxxx Xxxxxxx
------------------------------
Chairman & CEO
SUBLESSOR
Dated: March 18, 1997 VIACOM INTERNAITONAL, INC.
------------------------ a Delaware corporation
By: /s/ XXXXXXX XXXXXX
-------------------------------
Its: Xxxxxxx Xxxxxx
------------------------------
Senior Vice-President
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EXHIBIT B
Approved Improvements
[Floor Plan -- Remedy Corporation -- Viacom Building, Pleasanton]
