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EXHIBIT 10.17
SECOND AMENDMENT TO LEASE
(6020 CORNERSTONE COURT WEST)
THIS SECOND AMENDMENT TO LEASE ("Amendment") is made and entered into as
of the 13 day of April , 1998, by and between W9/PC REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited partnership ("LANDLORD"), and HNC SOFTWARE,
INC., a Delaware corporation ("TENANT").
RECITALS:
X. Xxxxxxxx Properties I, LLC and Xxxxxxxx Properties II, LLC ("ORIGINAL
LANDLORD") and Tenant entered into that certain Lease Agreement dated as of June
17, 1996 (the "ORIGINAL LEASE") as amended by that certain First Amendment to
Lease dated as of October 28, 1997, by and between Original Landlord and Tenant
("FIRST AMENDMENT"), whereby Original Landlord leased to Tenant and Tenant
leased from Original Landlord certain office space located in that certain
building located and addressed at 0000 Xxxxxxxxxxx Xxxxx Xxxx xx Xxx Xxxxx,
Xxxxxxxxxx (the "BUILDING"). The Original Lease, as amended by the First
Amendment, is referred to herein as the "LEASE." Landlord is the
successor-in-interest to Original Landlord.
B. By this Amendment, Landlord and Tenant desire to expand the Existing
Premises (as defined below) and to otherwise modify the Lease as provided
herein.
C. Unless otherwise defined herein, capitalized terms as used herein
shall have the same meanings as given thereto in the Lease.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. The Existing Premises. Landlord and Tenant hereby agree that pursuant
to the Lease, Landlord currently leases to Tenant and Tenant currently leases
from Landlord that certain office space in the Building containing 31,699
rentable square feet located on the second and third floors of the Building (the
"EXISTING PREMISES"), as more particularly described in the Lease.
2. Expansion of the Existing Premises. That certain space located on the
first floor of the Building outlined on the floor plan attached hereto as
Exhibit "A" and made a part hereof, is referred to herein as the "EXPANSION
SPACE." Landlord and Tenant hereby stipulate that the Expansion Space contains
2,903 rentable square feet. Effective as of the Expansion Commencement Date (as
that term is defined in the Tenant Improvement Agreement attached hereto as
Exhibit "B" and incorporated herein by reference), Tenant shall lease from
Landlord and Landlord shall lease to Tenant the Expansion Space. Accordingly,
effective upon the
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Expansion Commencement Date, the Existing Premises shall be increased to include
the Expansion Space. Landlord and Tenant hereby agree that such addition of the
Expansion Space to the Existing Premises shall, effective as of the Expansion
Commencement Date, increase the number of rentable square feet leased by Tenant
in the Building to a total of 34,602 rentable square feet. Effective as of the
Expansion Commencement Date, all references to the "Premises" shall mean and
refer to the Existing Premises as expanded by the Expansion Space.
3. Term and Basic Rent for the Expansion Space. The Term for Tenant's
lease of the Expansion Space ("EXPANSION SPACE TERM") shall commence on the
Expansion Commencement Date and shall expire co-terminously with Tenant's lease
of the Existing Premises, which the parties agree is July 31, 2003. During the
Expansion Space Term, Tenant shall pay in accordance with the provisions of the
Lease, Basic Rent for the Expansion Space in an amount equal to $4,209.35 per
month (net of utilities, as Tenant separately pays for the utilities to the
Premises in accordance with Article 8 of the Lease), which amount shall be
increased on each anniversary of the commencement of the Expansion Space Term by
an amount equal to four percent (4%) of the then-applicable Basic Rent for the
Expansion Space.
4. Tenant's Pro Rata Share. Notwithstanding anything to the contrary in
the Lease, during the Expansion Space Term, Tenant's Pro Rata Share of any
Excess Direct Operating Expenses for the Expansion Space only shall be 6.7% and
the Initial Direct Operating Expenses for the Expansion Space only shall be the
Direct Operating Expenses for calendar year 1998.
5. Tenant Improvements. Improvements in the Expansion Space shall be
installed and constructed in accordance with the terms of the Tenant Improvement
Agreement attached hereto as Exhibit "B" and made a part hereof.
6. Notice of Lease Term Dates. Landlord may deliver to Tenant a
commencement letter in a form substantially similar to that attached hereto as
Exhibit "C" and made a part hereof at any time after the Expansion Commencement
Date. Tenant agrees to execute and return to Landlord said commencement letter
within five (5) days after Tenant's receipt thereof.
7. Brokers. Each party represents and warrants to the other that no
broker, agent or finder negotiated or was instrumental in negotiating or
consummating this Amendment, except for The Xxxxxx Xxxxxx Group, Inc.
("BROKER"). Each party further agrees to defend, indemnify and hold harmless the
other party from and against any claim for commission or finder's fee by any
person or entity (other than Broker) who claims or alleges that they were
retained or engaged by the indemnifying party or at the request of such party in
connection with this Amendment.
8. Defaults. Tenant hereby represents and warrants to Landlord that, as
of the date of this Amendment, Tenant is in full compliance with all terms,
covenants and conditions of the Lease and that there are no breaches or defaults
under the Lease by Landlord or Tenant, and that Tenant knows of no events or
circumstances which, given the passage of time, would constitute a default under
the Lease by either Landlord or Tenant.
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9. Signing Authority. Concurrently with Tenant's execution of this
Amendment, Tenant shall provide to Landlord a copy of a resolution of Tenant's
board of directors authorizing the execution of this Amendment, which resolution
shall be duly certified by the secretary or an assistant secretary of Tenant to
be a true copy of a resolution duly adopted by Tenant's board of directors and
shall be in the form of Exhibit "D" or in some other form reasonably acceptable
to Landlord. In the event Tenant fails to comply with the requirements set forth
in this Section 9, then each individual executing this Amendment shall be
personally liable for all of Tenant's obligations in the Lease.
10. Waiver of Jury Trial. Each party hereby waives any right to trial by
jury in any action seeking specific performance of any provision of the Lease,
for damages for any breach under the Lease, or otherwise for enforcement of any
right or remedy under the Lease.
11. No Further Modification. Except as set forth in this Amendment, all
of the terms and provisions of the Lease shall apply with respect to the
Expansion Space and shall remain unmodified and in full force and effect. All
references to the "Lease" shall refer to the Lease as amended by this Amendment.
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IN WITNESS WHEREOF, this Amendment has been executed as of the day and year
first above written.
"Landlord":
W9/PC REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited partnership
By: W9/PC, INC., Delaware corporation,
general partner
By: /s/ Xxxx X. Xxxxx
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Print Name: Xxxx X. Xxxxx
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Title: Senior Vice President
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By:
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Print Name:
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Title:
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"Tenant":
HNC SOFTWARE INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Print Name: Xxxxxxx X. Xxxxxx
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Title: Chief Financial Officer
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By: /s/ Xxxx Xxxxxx
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Print Name: Xxxx Xxxxxx
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Title: Controller
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EXHIBIT "B"
TENANT IMPROVEMENT AGREEMENT
1. Tenant shall, at Tenant's sole cost and expense (but subject to partial
reimbursement by Landlord pursuant to Paragraph 5 below), construct improvements
to the Expansion Space (the "Tenant Improvements") in accordance with plans and
specifications approved in writing by Landlord. Within ten (10) days following
the full execution of the Lease, Tenant shall provide to Landlord preliminary
plans for the Tenant Improvements prepared by Xxxxxxx & Xxxxx ("Tenant's Space
Planner"). Within five (5) business days following Landlord's receipt of such
preliminary plans, Landlord shall notify Tenant of any required changes to the
preliminary plans as may be reasonably required by Landlord. Landlord's failure
to so notify Tenant of any such required changes to the preliminary plans within
said five (5) day period shall be deemed to constitute Landlord's disapproval
thereof. Tenant shall revise the preliminary plans in accordance with Landlord's
comments and deliver the same to Landlord within ten (10) days of Tenants
receipt of Landlord's comments. The foregoing procedure shall continue until
Landlord has approved of the preliminary plans. Within fourteen (14) days
following Landlord's approval of the preliminary plans, Tenant shall provide to
Landlord working drawings prepared by Tenant's Space Planner and other
appropriate consultants for the Tenant's Improvements based upon and conforming
with the preliminary plans. Within five (5) business days of Landlord's receipt
of such working drawings, Landlord shall notify Tenant of any changes to the
working drawings as may be reasonably required by Landlord. Landlord's failure
to so notify Tenant of any such required changes to the working drawings within
said five (5) day period shall be deemed to constitute Landlord's disapproval
thereof. Tenant shall revise the working drawings in accordance with Landlord's
comments and deliver the same to Landlord within ten (10) days of Tenant's
receipt of Landlord's comments. The foregoing procedure shall continue until
Landlord has approved the working drawings. Tenant shall, at its sole cost and
expense, be responsible for obtaining all permits and approvals from
governmental authorities necessary for the construction of the Tenant
Improvements and shall submit copies thereof to Landlord prior to commencement
of construction. Landlord's review and approval of the plans and specifications
for the Tenant Improvements shall create no liability or responsibility on the
part of Landlord for the completeness of such plans or their design sufficiency
or compliance with Laws.
2. Except for Landlord's reimbursement pursuant to Paragraph 5 below, Landlord
shall not be responsible for any costs associated with Tenant's construction of
the Tenant Improvements and Tenant acknowledges that Tenant is accepting the
Expansion Space in its "as-is" and "where-is" state, subject to Landlord's
obligations under the Lease.
3. No work of any kind shall be commenced and no building or other material
shall be delivered until (i) Landlord has approved the plans and specifications
for the Tenant Improvements, (ii) copies of all permits for the construction of
Tenant Improvements have been delivered to Landlord and (iii) at least five (5)
business days after written notice has been given by Tenant to Landlord of the
commencement of such work or the delivery of such materials.
EXHIBIT "B" - Page 1
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4. The improvements shall be constructed, and all work performed on the
Expansion Space, shall be in accordance with all laws. All work performed on the
Expansion Space shall be done in a good, workmanlike and lien free manner and
only with new materials of good quality and high standards. All work required in
the construction of the Tenant Improvements shall be performed only by competent
contractors duly licensed as such under the laws of the State of California.
Tenant shall enter into a construction contract approved by Landlord (which
approval shall not be unreasonably withheld or delayed) with the selected
contractor to construct the Tenant Improvements, which contract will name
Landlord as a third party beneficiary and permit an assignment to Landlord, at
Landlord's election, upon a default by Tenant under the Lease. Landlord approves
of Xxxxxxx Construction as the contractor.
5. Landlord agrees to contribute the sum ("CONSTRUCTION ALLOWANCE") of up to
Twenty-One Thousand Seven Hundred Seventy-Two and 50/00 Dollars ($21,772.50)
toward the cost of the Tenant Improvements and payment of Landlord's agent's
construction management fee of 5% of the hard construction costs for the Tenant
Improvements. Landlord shall only be obligated to make disbursements from the
Construction Allowance to the extent costs are incurred by Tenant for the design
and construction of Tenant Improvements. If the cost of the Tenant Improvements
does not exceed the Construction Allowance, Landlord shall retain the
difference. Provided Tenant is not in material under the Lease (and no
circumstance exists that would, with notice or lapse of time, or both,
constitute a default under the Lease), Landlord shall disburse the Construction
Allowance, or the applicable portion thereof, only when Landlord has received
the following:
(a) Tenant has delivered to Landlord a draw request ("DRAW REQUEST")
specifying that the Tenant Improvements have been completed, together with
invoices, receipts and bills evidencing the costs and expenses set forth
in such Draw Request and unconditional lien releases from the contractor
and all relevant subcontractors and materialmen;
(b) Landlord or Landlord's construction representative has inspected the
Tenant Improvements and determined that the Tenant Improvements have been
completed in a good and workmanlike manner.
(c) If applicable, a final or temporary certificate of occupancy for the
Expansion Space (if a temporary certificate, the conditions set forth
therein shall be satisfactory to Landlord in its reasonable judgment) has
been issued by the appropriate governmental body;
(d) If requested by Landlord, Tenant shall have delivered to Landlord one set
of reproducible "As Built" plans for the Tenant Improvements as prepared
by Tenant's Space Planner and/or consultant;
(e) No claim of lien shall be of record respecting the Tenant Improvements;
and
(f) Copies of all building permits, indicating inspection and approval of the
Expansion Space by the issuer of said permits.
EXHIBIT "B" - Page 2
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EXHIBIT "C"
NOTICE OF LEASE TERM DATES
TO: ____________________________________ DATE: ___________, 199_
____________________________________
Attention: _________________________
RE: ________ Amendment dated ___________, 199__between
__________________________ ("LANDLORD"), and _____________________________
a _________________________ ("Tenant"), concerning Suite ____ (the
"EXPANSION SPACE"), located at _____________, California.
Dear Mr. [or Ms.] ________________:
In accordance with the ______ Amendment, Landlord wishes to advise and/or
confirm the following:
1. That the Tenant is in possession of the Expansion Space and
acknowledges that under the provisions of the Amendment, the Expansion Space
Term commenced as of ________, 199_ and shall expire on ______________________ .
2. That in accordance with the ________ Amendment, Basic Rent for the
Expansion Space Term commenced to accrue on ________, 199_.
AGREED AND ACCEPTED:
TENANT:
____________________________________,
a __________________________________
By:_________________________________
Print Name:_________________________
Its:_________________________
By:_________________________________
Print Name:_________________________
Its:_________________________
EXHIBIT "C" - Page 1
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EXHIBIT "D"
CERTIFIED COPY OF
BOARD OF DIRECTORS RESOLUTIONS
OF
HNC SOFTWARE INC.
The undersigned, being the duly elected Corporate Secretary of HNC
Software, Inc., a Delaware corporation ("CORPORATION"), hereby certifies that
the following is a true, full and correct copy of the resolutions adopted by the
Corporation by unanimous written consent in lieu of a special meeting of its
Board of Directors, and that said resolutions have not been amended or revoked
as of the date hereof.
RESOLVED, that the Corporation, is hereby authorized to execute, deliver
and fully perform that certain document entitled Second Amendment to Lease
("Amendment") by and between the Corporation and W9/PC Real Estate Limited
Partnership, a Delaware limited partnership, for the lease of space at 0000
Xxxxxxxxxxx Xxxxx Xxxx.
RESOLVED FURTHER, that the Corporation is hereby authorized and directed
to make, execute and deliver any and all, consents, certificates, documents,
instruments, amendments, confirmations, guarantees, papers or writings as may be
required in connection with or in furtherance of the Amendment (collectively
with the Amendment, the "Documents") or any transactions described therein, and
to do any and all other acts necessary or desirable to effectuate the foregoing
resolution.
RESOLVED FURTHER, that the following officer acting together:___________
_________________ as ______________________________________________________ and
______________________________ as ______________ are authorized to execute and
deliver the Documents on behalf of the Corporation, together with any other
documents and/or instruments evidencing or ancillary to the Documents, and in
such forms and on such terms as such officer(s) shall approve, the execution
thereof to be conclusive evidence of such approval and to execute and deliver on
behalf of the Corporation all other documents necessary to effectuate said
transaction in conformance with these resolutions.
Date: ___________, 1998 _____________________________________________
________________________, Corporate Secretary
EXHIBIT "D" - Page 1
