Exhibit 10.12
SUBLEASE
1. PARTIES
This Sublease ("Sublease"), dated for -reference purposes only January
16, 1997, is entered into between ICF Xxxxxx Engineers, Inc., an Ohio
corporation ("ICF"), and Forte Software, Inc., a Delaware corporation ("Forte").
2. DEMISE OF SUBLEASE PREMISES
2.1 ICF Xxxxxx Engineers, Inc., an Ohio corporation, and the State of
California Public Employees Retirement System, a Unit of the State and Consumer
Services Agency of the State of California ("Landlord"), successor-in-interest
to 1800 Xxxxxxxx Limited Partnership, a Texas limited partnership, are parties
to an Amended And Restated Lease Agreement dated as of July 1, 1988 (the
"Restated Lease"), as modified and supplemented by Amendment to Amended and
Restated Lease Agreement dated March 27, 1991, Second Amendment to Lease dated
June 30, .1992, and Third Amendment to Lease dated April 27, 1993. The Restated
Lease, as so amended, is referred to in this Sublease as the " ICF Lease". A
true and complete copy of the ICF Lease is attached as Exhibit 1 to this
Sublease.
2.2 The ICF Lease demises to ICF certain premises in the building
commonly known as 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx (the "Building").
ICF desires to sublet a portion of the premises, as more particularly defined
below (tile "Sublease Premises") to Forte, and Forte also desires to take and
sublease the Sublease Premises.
2.3 Forte also occupies office space in the Building pursuant to a
Lease with Landlord dated December 1, 1994 (the "Forte Lease").,.
2.4 [Reserved]
2.5 In consideration of these facts and the mutual covenants of ICF and
Forte, and for other valuable consideration. ICF hereby sublets and demises to
Forte, and Forte hereby takes and hires from 1CF, the Sublease Premises on and
subject to the terms, covenants, and conditions set forth in this Sublease.
3. DEFINITIONS
3.1 As used in this Sublease, the following terms shall have the
meanings given in this Paragraph 3. 1:
"ICF Xxxxxx Engineers, Inc.", herein referred to as "ICF".
"Affiliate" means (i) a company which controls or is
controlled by a Party or is under common control with a Party, or (ii) is a
successor by merger or consolidation to a Party, or (iii) acquires all or
substantially all of the assets of a Party as a going concern at a time when
such Party is not in default under this Sublease.
"Building" means the 25-story office tower identified in
Paragraph 2.1 above and the related Parking Garage, all as more particularly
described in the ICF Lease.
"Base Rent" means the amounts payable pursuant to Paragraphs
7.1 and 7.2.
"Building" means the 25-story office tower identified in
Paragraph 2.1 above and the related Parking Garage, all as more particularly
described in the ICF Lease.
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"Commencement Date" means January 1, 1997.
"Forte Lease" has the meaning given in Paragraph 2.3,
"ICF Lease" has the meaning given in Paragraph 2.1 above-
"Initial Alterations" has the meaning given in Paragraph 10. 1.
"Landlord's Consent and Agreement" means that certain Consent
to Sublease and Nondisturbance, Recognition and Attornment Agreement to be
executed by Forte, ICF, and Landlord in the form attached as Exhibit 2 to this
Sublease-
"Lease" means either the ICF Lease or the Forte Lease, depending on the
context in which such word is used.
"Operating Expenses" means with respect to the Sublease Premises those
items defined in the ICF Lease as "Basic Costs."
"Party" means each of ICF and Forte and the authorized assignees of
each of them, and "Parties" refers to both of them.
"Phase One" means the first phase of Forte's occupancy of the
Sublease Space beginning on the Commencement Date and continuing until January
31, 1998,; and "Phase One Space" means that portion of the Sublease Premises,
located on the 7th Floor and consisting of a significant portion of the
northeast and southeast quadrants of such Floor, containing approximately 16,636
square feet of Net Rentable Area, as depicted on Exhibit 4 to this Sublease. The
subleased premises shall include a pro rata portion of ICF's basement storage at
a rate of $0.675 per square foot per month.
"Phase Two" means the second phase of Forte's occupancy of the
Sublease Space beginning February1, 1998, and continuing until June 30, 2000;
and "Phase Two Space" means (i) that portion of the Sublease Premises located on
the 7th Floor, consisting of the remaining Net Rentable Area of such Floor,
containing approximately 22,066 square feet of Net Rentab1e Area and (ii) the
entire 6th Floor containing approximately 38,702 square feet of Net Rentable
Area. The Phase Two Space shall include all of ICF's basement storage space
(2,500 square feet of Net Rentable Area), at $0.675 per square foot/month..
During Phase Two, Forte shall continue to occupy the Phase One Space.
"Rent" means all amounts due from Forte to ICF under this
Sublease including, without limitation, Base Rent, Operating Expenses, and
Taxes.
"Sublease" means this Sublease and all exhibits referred to
herein and attached to this Sublease, which are incorporated herein by reference
as if set forth in full and made a part of this Sublease.
"Sublease Date" means the date upon which this Sublease is
fully executed by the Parties and all contingencies to its effectiveness are
satisfied.
"Sublease Premises" means these portions of the Building which
Forte is entitled to possess pursuant to this Sublease.
"Sublease Term" has the meaning given in Paragraph 6.1.
"Taxes" means: (i) with respect to the Sublease Premises those
items defined in the ICF Lease as "Tax Expenses."
3.2 Capitalized words and phrases used in this Sublease and not
otherwise defined herein shall have the meanings given them in the ICF Lease
where applicable to the Sublease Premises.
4. DELIVERY OF PREMISES
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4.1 ICF shall deliver to Forte possession of the Sublease Premises
according to the following schedule:
4.1.1 ICF shall deliver the Phase One Space to Forte on
January 1, 1997.
4.1.2. ICF shall deliver the Phase Two Space to Forte on
February 1, 1998.
4.2 [Reserved]
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5. CONDITION OF PREMISES UPON DELIVERY
5.1 At the time ICF delivers possession of any portion of the Sublease
Premises to Forte (i) ICF shall have removed all personal property, trade
fixtures, and equipment owned or controlled by ICF, and shall have repaired all
damage to the Sublease Premises occurring in connection with such removal, and
(ii) the Sublease Premises shall be in a clean, functioning order with all
Building systems serving the Sublease Premises in proper operating condition.
Subject to ICF's compliance with the covenants contained in the preceding
sentence, and without waiving or otherwise limiting Forte's right to rely on
ICF's representations and warranties elsewhere in this Sublease, Forte agrees to
accept possession of the Sublease Premises in the same condition as exists on
the Sublease Date, "AS IS", and "WITH ALL FAULTS," and ICF shall have no duty to
alter or otherwise improve the Sublease Premises prior to Forte's occupancy
under this Sublease.
5.2 [Reserved]
5.3 [Reserved]
5.4 ICF represents and warrants with respect to the Sublease
Premises that:
(a) The Sublease Premises are now, and on the date possession
is to be delivered under this Sublease the Sublease Premises shall be, in
compliance with all municipal, county, state, federal and other applicable laws,
ordinances, and regulations (collectively, "Laws"), governing or pertaining to
the Sublease Premises (but without regard to any change in the use or occupancy
of the Sublease Premises or alterations or improvements thereto occurring after
the delivery of possession hereunder to Forte under this Sublease or any other
sublease prior to the Commencement Date).
(b) The Sublease Premises, and all elements, systems, and
equipment serving the Sublease Premises, have been maintained in accordance with
the requirements imposed on ICF by the ICF Lease.
5.5 [Reserved]
6. SUBLEASE TERM
6.1 The term of this Sublease (the "Sublease Term") shall begin on the
Commencement Date and shall expire on June 30, 2000. If the commencement date
has not occurred by January 15, 1997, Forte may thereafter upon ten (10) day's
prior written notice to ICF terminate this sublease and all rights and
obligations of the parties hereunder.
7. BASE RENT
7.1 Beginning on the Commencement Date, Forte shall pay to ICF Base
Rent on the first day of each calendar month during the Sublease Term, in
advance and without prior notice, set off or demand, other than as permitted by
this Sublease. as follows:
7.1.1 During Phase One the Base Rent shall be Thirty Thousand
Seven Hundred Seventy-Six and 60/100's Dollars ($30,776.60) per month. Plus any
storage space occupied.
7.1.2. During Phase Two, the Base Rent shall be One Hundred
Forty Four Thousand Eight Hundred Eighty-four and 90/10's Dollars ($144,884.90)
per month. This includes the basement storage space.
7.2 Notwithstanding anything to the contrary in this Agreement, upon
any default by ICF of its obligations hereunder, at Forte's option upon written
notice to ICF, Forte may pay Base Rent and other amounts owed herein directly to
Landlord for the account of ICF.
7.3 [Reserved]
7.4 Upon execution of the Sublease, Forte shall deposit the amount of
Thirty Thousand Seven Hundred Seventy Six and 60/100's Dollars ($30,776.60),
with ICF as Trustee of the Security
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Deposit. Said Deposit shall be held in a non-interest-bearing account which
shall be held as security during the Sublease Term for the faithful performance
by Forte of its obligations under this Sublease including, but not limited to,
payment of rent. As the Sublease Premises increase during Phase Two, so will the
amount of the deposit; the total deposit shall be increased to One Hundred
Fourteen Thousand One Hundred Eight and 30/100th's Dollars ($114,108.30), upon
the commencement of Phase Two on February 1, 1998.. Upon expiration of the
Sublease, ICF shall promptly return the deposited funds to Forte provided Forte
is not in default under the Sublease.
7.5 If the Commencement Date or any other day upon which Forte is to
commence paying Base Rent for an element of the Sublease Premises is a day other
than the first day of a calendar month, or if the Sublease Term with respect to
a portion of the Sublease Premises ends on a day other than the last day of a
calendar month, the Base Rent for such Sublease Premises during such calendar
month shall be prorated based upon a thirty (30) day month.
7.6 Base Rent and all other Rent shall be paid in immediately available
funds to the same place as is set forth below for the delivery of notices to ICF
subject, however, to Forte's right to pay Rent directly to Landlord as permitted
in Section 7.2.
8. OPERATING EXPENSES AND TAXES
8.1 Forte shall pay to ICF (or directly to Landlord for the account of
ICF as permitted in Section 7.2), Operating Expenses as follows:
8.1.1 No Operating Expenses or Taxes shall be payable for the
Sublease Premises during Phase One.
8.1.2. During Phase Two, Forte shall pay the Operating
Expenses and Taxes for the Sublease Premises as follows: Forte shall pay the
Operating Expenses and Taxes on the Phase One Space which are in excess of a
1997 Base Year and Forte shall pay the Operating Expenses and Taxes on the Phase
Two Space which are in excess of a 1998 Base Year.
8.2 [Reserved]
8.3 In determining the Operating Expenses and Taxes payable by Forte
hereunder, Landlord's statement of Operating Expenses and Taxes shall be used as
the basis for such calculations. However, ICF agrees, upon written request by
Forte, to exercise such audit rights as may be granted to ICF under the ICF
Lease and to contest any discrepancy in Landlord's statements of Operating
Expenses or Taxes disclosed by such audit by appropriate means. Reasonable costs
of such audit or contest shall be borne by the Parties in proportion to the
benefit derived by each of them therefrom, or shall be borne by Forte if there
is no benefit to such audit or contest.
8.4 Forte shall reimburse ICF within thirty (30) days after written
notice (accompanied by a copy of Landlord's invoice and satisfactory evidence of
payment by ICF), for any amounts paid to the Landlord as a consequence of
services provided to the Sublease Premises, or the acceleration of depreciation
of building systems which are in excess of that typically provided to tenants of
the Building and for which Landlord retains a right to separately charge ICF
under the ICF Lease. Such additional charges may be imposed only for
extraordinary electrical, heating, ventilating, and air conditioning, and other
Building services, with no overhead or xxxx-up beyond what is due Landlord under
the ICF Lease.
9. ASSIGNMENT AND SUBLETTING
9.1 Forte may assign its rights and interests under this Sublease, or
further sublet all or a portion of the Sublease Premises occupied by Forte, to
an Affiliate of Forte, provided (i) notice of such assignment or subletting is
given to ICF at least thirty (30) days in advance of the effective date, and
(ii) any consent or approval of Landlord required by the ICF Lease is first
obtained.
9.2 Where Forte desires to assign this Sublease, or further sublet all
or any part of the Sublease Premises to a person or entity other than an
Affiliate, Forte shall first obtain the written consent of ICF. Such consent
shall not be unreasonably withheld. However, ICF may reasonably withhold consent
under this Paragraph 9.2 where Landlord's consent also is required under the ICF
Lease and Landlord fails or refuses to give such consent (although nothing
herein shall relieve Landlord of liability for failure to give such consent
where the same is required by the ICF Lease).
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9.3 If the ICF Lease imposes a right of recapture or a right of
Landlord to obtain or participate in any consideration received in excess of the
Rent payable under the ICF Lease, ICF shall be permitted to impose these same
requirements as a condition to consenting to an assignment or further subletting
under this Sublease.
9.5 No assignment of this Sublease or further subletting of
the Sublease Premises shall relieve Forte of its liability under this Sublease,
which shall remain the primary obligation of Forte.
10. ALTERATIONS
10.1 Forte shall have the right (subject to Landlord's consent, which
is to be obtained pursuant to Landlord's Consent and Agreement), to
substantially alter the Sublease Premises, as conceptually described in Exhibit
6 to this Sublease (the "Initial Alterations"). ICF shall make available to
Forte all plans and drawings (including CAD materials) pertaining to the
existing improvements in the Sublease Premises. Forte shall have no duty to
remove the Initial Alterations or restore the Sublease Premises except to the
extent such removal and restoration is required by Landlord's Consent and
Agreement.
10.2 Forte may at its option and expense during Phase One install
temporary wall and lockable doors between the Phase One Space to be occupied by
Forte and the remainder of the 7th Floor which will be occupied by ICF during
Phase One. ICF acknowledges and agrees that during Phase One Forte personnel and
invitees to the Phase One Space will pass through ICF's 7th Floor offices to
gain access to the Phase One Space and the 7th Floor kitchen facilities.
10.3 Forte's Initial Alterations in the Phase One Space will be
conducted while ICF is occupying the other half of the 7th Floor. Forte shall
undertake all reasonable efforts to mitigate disruption to ICF's use while such
work is being performed.
11. APPLICABLE LEASE PROVISIONS
11.1 1CF and Forte acknowledge that this Sublease, as it pertains to
the Sublease Premises, is subject and subordinate to the ICF Lease, and the
Parties agree with respect to the ICF Lease that:
11.1.1 The following Sections of the Restated Lease are hereby
incorporated as provisions of this Sublease applicable to the demise of the
Sublease Premises, with the same force and effect as if such incorporated
Sections were set forth word for word herein: 6.01, 6.02, 7.01, 7.02, 7.03,
8.01, 8.02, 8.03, 9.01, 9.02, 10.01, 10.02, 10.03, 11.01, 11.02, 11.03, 12.01,
12.02, 12.03, 13.01, 13.02, 13.03, 14.01, 14.03, 15.01, 15.02, 17.01, 17.02,
19.01, 20.01, 21.01, 22.01, 24.01, 25.01, and 27.01.
11.1.2 The incorporated sections of the ICF lease referenced in
paragraph 11.1.1 are amended or qualified as follows:
(a) Without limiting any of its other obligations under this
Sublease, ICF specifically agrees to pass through to Forte
all financial and other benefits received by ICF under
section 6.02 of the ICF lease.
(b) Forte shall obtain the use of eleven (11) parking spaces
during Phase I of the sublease term and the use of
thirty-eight (38) additional parking spaces during Phase
II.
(c) Notwithstanding any contrary provision of Subsection 14.01
(a) of the Restated Lease; Forte's vacation of the
Sublease Premises shall not be an event of default under
subpart (i) of Subsection 14.01(a) so long as Forte is
performing all other covenants and obligations imposed by
this Sublease, including without limitation, the payment
of all Rent; on no more than two (2) occasions during any
twelve (12) month period commencing on November 1 and
ending on October 31 of each calendar year. Forte shall be
entitled to a written notice of delinquency in the payment
of Rent and a three (3) business day grace period before
an event of default is declared under subpart (ii) of
Subsection 14.01 (a); the reference to "thirty (30) days"
in subpart (iii) of Subsection 14.01 (a) is changed to
"fifteen (15) business days"; and subparts (ix) and (x) of
Subsection 14.01 (a) are not incorporated as part of this
Sublease.
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(d) The second sentence of Section 14.03 of the Restated Lease
are not incorporated as part of this Sublease.
(e) Subsection 27.01 (g) of the Restated Lease is not
incorporated as part of this Sublease.
11.1.3 Wherever the words " Landlord " and " Tenant " appear
in those provisions of the ICF Lease which are incorporated by reference in this
Sublease, they are changed to read 'ICF" and "Forte, respectively.
11.3 [Reserved]
11.3 In case of any conflict between the incorporated provisions of the
ICF Lease and the other terms and conditions of this Sublease which are
applicable to the Sublease Premises governed by the ICF Lease, the latter shall
control. If any incorporated provision of the ICF Lease cross-references another
provision of the ICF Lease which is not expressly incorporated in this Sublease,
such cross-referenced ICF Lease provision shall not be a part of this Sublease
except to the extent the same is integral to a fair and reasonable
interpretation of the incorporated ICF Lease provision.
12. MISCELLANEOUS
12.1 ICF represents and warrants with respect to the ICF Lease that:
(i) the attached Exhibit A is a true, correct and complete copy of the ICF
Lease; (ii) there are no other or additional documents forming a part of the ICF
Lease or constituting an amendment thereto; (iii) the ICF Lease is in full force
and effect and has not been amended or modified; (iv) ICF is not now, and as of
the Commencement Date will not be, in default or breach of any of the provisions
of the ICF Lease; and (v) ICF has no knowledge of any claim by Landlord that ICF
is in default or breach of any of the provisions of the ICF Lease.
12.2 Each of ICF and Forte further represents and warrants that there
is no brokerage commission, finder's fee ,or other similar compensation due to
any person as a result of the Parties' entry into this Sublease, except for such
fees as may be payable solely by ICF (and not by Forte), to Colliers Damner
Pike. Each of ICF and Forte shall defend, indemnify, and hold harmless the other
of and from all loss, cost, liability, and expense arising due to any actual or
alleged breach of the foregoing representation and warranty by the indemnifying
Party.
12.3 Whenever this Sublease calls for a Party to perform. any act, such
Party shall be obligated to do so at its sole cost and expense unless otherwise
expressly provided herein. Whenever this Sublease calls for either Party to give
its consent or approval, such consent or approval shall not be unreasonably
withheld or delayed.
12.4 So long as this Sublease remains in effect, ICF shall fully
observe, perform, and discharge all covenants and obligations imposed on ICF by
the ICF Lease. So lung as Forte is not in default under this Sublease after
notice and passage of the applicable grace period, Forte shall be entitled to
quiet and peaceable possession of the Sublease Premises, without interference or
hindrance by persons claiming by, through, or under ICF.
12.5 All notices required or permitted to be given hereunder shall be
in writing and shall be (i) delivered personally; (ii) sent by first class mail,
postage prepared, and simultaneously transmitted by facsimile; (iii) sent by
registered or certified mail, return receipt requested; or (iv) sent by
overnight courier with receipted delivery, in each case to ICF or Forte at its
address indicated below or at such other place or places as either ICF or Forte
may hereafter designate by written notice to the other.
To ICF: ICF Xxxxxx International, Inc.
0000 Xxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Attn.: Xxx Xxxxx
Facsimile No.: 703/934-9740
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To Forte: Forte Software, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn.: Chief Financial Officer
Facsimile No.: 510/869-3480
With a copy to. Forte Software, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn.: Director of Legal Affairs
Facsimile No.: 510/869-3480
Any notice delivered or sent shall be deemed to have been delivered under this
Sublease as follows: (a) on the date such notice is personally delivered; or (b)
on the next business day in the case of delivery pursuant to clause (ii) or (iv)
above; and (c) on the date shown on the return-receipt or, if no date is shown,
three days after the mailing of notice pursuant to clause (iii) above.
13. CONTINGENCY
This Sublease is contingent upon Landlord executing and delivering the Consent
to Sublease and Agreement, which ICF and Forte hereby agree to execute.
IN WITNESS WHEREOF, ICF and Forte have duly executed this Sublease on the dates
set forth below.
ICF Forte
ICF Xxxxxx Engineers, Inc., Forte Software, Inc.,
an Ohio corporation a Delaware Corporation
BY: Xxx Xxxxx BY: Xxxxxx Xxxxxx
Its: Vice President Its: Director of Legal Affairs
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