Exhibit 10.5.3
THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT (hereinafter called the "Third
Amendment") entered into this 22ND day of JULY, 1997, by and between SOARING
EAGLES ORCHARDS, INC., a Washington Corporation, (hereinafter called "Landlord"
or "Lessor") and Mission Critical Software, Inc. (hereinafter called "Tenant" or
"Lessee").
WITNESSETH:
WHEREAS, under that certain Lease Agreement dated October 22, 1996
(hereinafter called the "Lease"), by and between Tenant and Landlord, Tenant
leased approximately 7,067 rentable square feet of space (hereinafter called the
"Leased Premises") on the fifth (5th) floor of the 000 Xxxxx Xxxx Xxx Xxxx
Xxxxxx Building (hereinafter called the "Building") situated at 000 Xxxxx Xxxx
Xxx Xxxx, Xxxxxxx, Xxxxx for a term of sixty-four (64) months;
WHEREAS, Landlord and Tenant amended the Lease by the First Amendment to
Lease Agreement dated February 13, 1997 where Tenant expanded the Premises by an
additional 2,205 square feet of Rentable Area creating a new total square
footage for the Premises of 9,272 square feet of Rentable Area; and
WHEREAS, Landlord and Tenant amended the Lease by the Second Amendment to
Lease Agreement dated April 1, 1997 where Tenant expanded the Premises by an
additional 1,455 square feet of Rentable Area creating a new total square
footage for the Premises of 10,727 square feet of Rentable Area; and
WHEREAS, Landlord and Tenant have agreed to further amend the terms of the
Lease upon the terms and conditions contained herein.
NOW, THEREFORE, as of the November 1, 1997 (hereinafter defined) it is
mutually covenant and agreed as follows:
1. EXPANSION AREA: The Premises shall be expanded in two (2) stages as
outlined below:
A. The "Third Expansion" shall expand the premises by an
additional 1,801 square feet of Rentable Area as shown on the
attached Exhibit A, creating a new total Rentable Area of
12,528 square feet.
B. The "Fourth Expansion" shall expand the premises by an
additional 19,170 square feet of Rentable Area as shown on the
attached Exhibit B and Exhibit B-1, creating a new total
Rentable Area of 31,698 square feet.
2. PRIMARY TERM: The Term of the "Third Expansion" shall commence on
November 1, 1997 or upon Tenant's possession of the "Third Expansion"
area, whichever occurs first. The "Fourth Expansion" shall commence on
February 1, 1998 or upon Tenant's possession of the Fourth Expansion
which ever occurs first. The Term of the Lease shall continue until
the expiration date of the Lease which shall be revised and extended
to January 31, 2003.
3. BASE RENT: Effective November 1, 1997, the Base Rent for the Premises
shall be as follows:
November 1, 1997 through January 31, 1998 $13,630.22
February 1, 1998 through May 31, 1998 $33,598.97
June 1, 1998 through August 31, 1998 $32,680.22
September 1, 1998 through January 31, 2001 $32,073.97
February 1, 2001 through March 31, 2002 $34,695.35
April 1, 2002 through January 31, 2003 $36,981.00
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4. TENANTS INITIAL PRO RATA SHARE:
Commencing November 1, 1997 the Tenant's Initial Pro Rata Share
for the building shall be 13.15%, and commencing February 1,
1998 the Tenants Initial Pro Rata Share shall be 33.27%.
5. TENANT IMPROVEMENTS: Tenant accepts the "Third Expansion" and "Fourth
Expansion in their current "as-is" condition and Landlord shall not be
liable or required to make any improvements to such space.
6. CANCELLATION OPTION: On August 1, 2000, Tenant shall have the option
to cancel all or a portion of Leased Premises so long as Tenant
provides six (6) months prior written notice to Landlord along with a
payment in cash equal to $14.00 for each square foot of Rentable Area
to be vacated. However, should the space which Tenant decides to
cancel be less than 10,000 square feet in Rentable Area, Landlord
shall have the option to, at Landlord's sole and absolute discretion,
approve the location of such partial reduction in space.
7. RIGHT OF FIRST REFUSAL: Lessor hereby grants Lessee a Right of First
Refusal ("Refusal Right") with respect to any space on the sixth
(6th) floor of the building; However, the Refusal Right may not be
exercised during any time when there is an uncured Event of Default
under the Lease. Additionally, the Refusal Right shall be subject to
the rights of any Lessee presently occupying space in the Building, as
of the date of execution of this amendment.
If any space subject to the Refusal Right becomes available and Lessor
receives an offer from a third party to lease all or part of the
Refusal Space which Lessor desires to accept, Lessor shall so notify
Lessee ("Refusal Notice"), describing the general terms of the offer
(i.e. rent, location of the premises, size of the premises, length of
the term, improvement allowance (if any)). Lessee shall have five (5)
days from the receipt of the Refusal Notice to notify Lessor in
writing of the desire by Lessee to exercise Lessee's Refusal Right
with respect to the subject Refusal Space, which shall be on the same
terms and conditions with respect to the entire space as set forth in
the Refusal Notice. If Lessee fails to so notify Lessor within such
five (5) day period, Lessee shall be deemed to have irrevocably waived
its Refusal Right and Lessor shall have the right to enter into a
lease with any party with respect to that portion of the Refusal
Space. If Lessee properly exercised its Refusal Right in the manner
and within the time period specified herein, Lessor and Lessee shall,
within thirty (30) days after Lessee delivers to Lessor notice of its
election, enter into a written amendment modifying and supplementing
the Lease and containing such other terms and provisions as Lessor may
reasonably deem appropriate. If Lessee fails to enter into such
amendment within the thirty (30) day period, Lessee shall be deemed to
have irrevocably waived its Refusal Right for said particular space,
and Lessor shall have the right to enter into a lease with any party
with respect to that portion of the Refusal Space.
The Refusal Right shall automatically terminate upon the termination
of the Lease.
8. Unless otherwise defined herein all capitalized terms shall have the
same meaning as identified in the Lease.
9. This Third Amendment supersedes all previous legal documents between
Tenant and Landlord and except as specifically herein amended, all
other terms and conditions of the Lease shall remain in full force and
effect throughout the term of this Third Amendment.
10. The submission of this Third Amendment to Tenant shall not be
construed as an offer, reservation or option. Tenant has no additional
rights under this lease unless Tenant and Landlord execute this Third
Amendment, and Landlord delivers the executed Third Amendment to
Tenant.
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IN WITNESS WHEREOF, the parties hereto executed this Third Amendment to
Lease Agreement as of the day and year hereinabove written.
LANDLORD:
SOARING EAGLES ORCHARDS, INC., a
Washington Corporation by Xxxxxxxx-Xxxxxx
Interest its authorized agent
By: /s/ X. Xxxxxxx Xxxxxx
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Name: X. Xxxxxxx Xxxxxx
Title: Vice President
TENANT:
MISSION CRITICAL SOFTWARE, INC.
By: /s/ Xxxx X. Xxxxxxx, Xx.
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Name: XXXX X. XXXXXXX, XX.
Title: CFO
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