EXHIBIT 10.5.2
FIRST ADDENDUM TO SUBLEASE
This First Addendum to Sublease (this "Addendum") is made by and between
Artisan Components, Inc. (formerly VLSI Libraries Incorporated) as sublandlord
("Sublandlord"), and Unison Software, Inc. as subtenant ("Subtenant"), to be a
part of that certain Sublease of even date herewith between Sublandlord and
Subtenant (the "Sublease"). Sublandlord and Subtenant agree that,
notwithstanding anything to the contrary in the Sublease, the Sublease is hereby
modified and supplemented as set forth below.
1. Other Provisions of Sublease. The provisions of the Master Lease
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shall be incorporated into the Sublease, except to the extent the context would
make it inapplicable, as follows: (a) each reference in such incorporated
sections to "Lease" shall be deemed a reference to "Sublease"; (b) each
reference therein to "Landlord" and "Tenant" shall be deemed a reference to
"Sublandlord" and "Subtenant," respectively; and (c) the following portions of
the Master Lease shall not be incorporated: Basic Lease Information (except for
definitions of Premises, Permitted Use, Schedule Term Expiration Date, Occupancy
Density and Tenant's Proportionate Share), Introductory Paragraph, Paragraph 3,
Paragraph 10(a)(i) (except that Sublandlord shall have the right to terminate
this Sublease to the extent such termination is made by Master Landlord under
the Master Lease under Paragraph 10(a)(i)), Xxxxxxxxx 00, Xxxxxxxxx 16 (except
that Sublandlord shall have the right to substitute for the Premises other
premises in the Building to the extent such substitution is made by Master
Landlord under the Master Lease), Paragraph 21(e), Paragraph 24 (except that
Master Landlord retains its right to sell or convey the Building), Interior
Improvements (Exhibit C); (d) references to "Landlord" in Paragraphs 20, 22 and
23 shall mean Master Landlord and references to "either party" shall be deemed a
reference to Subtenant and Master Landlord; provided, however, that Sublandlord
shall be protected from and against all claims and liabilities to the extent
Master Landlord is under Paragraphs 20, 22 and 23; and (e) "by Subtenant" shall
be added to the end of the phrase "or when first installed" in Paragraph 8 and
the phrase "or first installed" in Paragraph 26(b); and (f) the reference in
Paragraph 40 "to the extent of Landlord's interest in the Project" shall be
changed to "to the extent of Master Landlord's interest in the Project".
2. Insurance and Indemnification. Except as set forth in Section 12
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of the Master Lease, neither party shall be released or indemnified from any
damages, liabilities, judgments, actions, claims, attorney's fees, consultants'
fees, payments, costs or expenses arising from the negligence or willful
misconduct of it or its agents, contractors, licensees or invitees, its
violation of laws or a breach of its obligations or representations under the
Sublease.
3. Assignment and Subletting. Subtenant, without Sublandlord's prior
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written consent (but subject to any required consent of Master Landlord), may
sublet the Premises or assign the Sublease upon at least forty-five days prior
written notice to Sublandlord to: (a) a corporation controlling, controlled by
or under common control with Subtenant; (b) a purchaser of substantially all of
Subtenant's assets; or (c) in the event Subtenant merges into or with another
entity, the surviving entity of such merger.
4. Rental Adjustments. In no event shall Subtenant's obligation to
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pay Basic Operating Costs exceed the amount of Basic Operating Costs due and
payable by Sublandlord under the
Master Lease. Subtenant shall pay Subtenant's share of such expenses as and when
the same are due and payable to Master Landlord under the Master Lease.
Subtenant shall be entitled to its pro rata share of all credits, if any, given
by Master Landlord to Sublandlord for Sublandlord's overpayment of such expenses
for the period of this Sublease. Notwithstanding anything to the contrary in the
Sublease, Subtenant shall not be required to pay any additional rent or perform
any obligation that is (i) fairly allocable to any period of time prior to the
commencement date of the Sublease or following the expiration or sooner
termination of the Sublease or (ii) payable as a result of a default by
Sublandlord of any of its obligations under the Master Lease; provided such
default is not caused directly or indirectly by any act or omission of
Subtenant.
5. Surrender of Premises. In no event shall Subtenant's obligation
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to surrender the Premises require Subtenant to repair or restore the Premises to
a condition better than the condition in which the Premises existed as of the
commencement date of the Sublease and Subtenant shall only be responsible for
repairing or restoring those elements of the Premises damaged during the
Sublease Term. Additionally, Subtenant shall not be required to remove at the
expiration of the Sublease term or otherwise, alterations or improvements to the
Premises made by or for the account of Sublandlord.
6. Taxes Payable by Subtenant. Subtenant shall have no obligation to
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pay for taxes, if any, levied or assessed on the value of any leasehold
improvements, alternations or additions made by or for the account of
Sublandlord for any period of time other than the term of the Sublease.
7. Sublandlord's Obligations. Provided Subtenant is not in breach of
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the Sublease beyond any applicable notice and cure period, Sublandlord shall
not, without Subtenant's prior written consent, terminate the Master Lease
during the term of the Sublease, commit any acts that would entitle Master
Landlord to terminate the Master Lease during the term of the Sublease, or, to
the extent they apply to the term of the Sublease, amend or waive any provisions
of the Master Lease or make any elections, exercise any right or remedy or give
any consent or approval under the Master Lease. Sublandlord, with respect to
the obligations of Master Landlord under the Master Lease, shall use
Sublandlord's diligent good faith efforts to cause Master Landlord to perform
such obligations for the benefit of Subtenant, meaning that (a) upon Subtenant's
written request, immediately notifying Master Landlord of its nonperformance
under the Master Lease, and requesting that Master Landlord perform its
obligations under the Master Lease; and (b) not to unreasonably withhold or
delay in permitting Subtenant to commence a lawsuit or other action in
Subtenant's name to obtain the performance required from Master Landlord under
the Master Lease; provided, however, that if Subtenant commences a lawsuit or
other action, Subtenant shall pay all costs and expenses incurred in connection
therewith, and Subtenant shall indemnify Sublandlord against, and hold
Sublandlord harmless from, all reasonable costs and expenses incurred by
Sublandlord in connection therewith.
8. Authorization to Direct Sublease Payments. Subtenant shall have
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the right to pay all rent and other sums owing by Subtenant to Sublandlord
hereunder for those items which also are owed by Sublandlord to Master Landlord
under the Master Lease directly to Master Landlord if either (a) Subtenant
reasonably believes that Sublandlord has failed to make any payment required to
be made by Sublandlord to Master Landlord under the Master Lease and Sublandlord
fails to provide adequate proof of payment within two (2) business days after
Subtenant's written demand
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requesting such proof. Notwithstanding the foregoing: (i) Subtenant shall
provide to Sublandlord concurrently with any payment to Master Landlord
reasonable evidence of such payment, and (ii) if Sublandlord notifies Subtenant
that it disputes any amount demanded by Master Landlord, Subtenant shall not
make any such payment to Master Landlord unless Master Landlord has provided a
three-day notice to pay such amount or forfeit the Master Lease.
Any sums paid directly by Subtenant to Master Landlord in accordance with
this paragraph shall be credited toward the amounts payable by Subtenant to
Sublandlord under the Sublease. In the event Subtenant tenders payment directly
to Master Landlord in accordance with this paragraph and Master Landlord refuses
to accept such payment, Subtenant shall have the right to deposit such funds in
an account with a national bank for the benefit of Master Landlord and
Sublandlord, and the deposit of said funds in such account shall discharge
Subtenant's obligations under the Sublease to make the payment in question.
9. Quiet Enjoyment. Subtenant shall peacefully have, hold and enjoy
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the Premises, subject to the terms and conditions of the Sublease, provided that
there is not an event of default by Subtenant.
10. Assignment of Rights. With respect to all warranties given and
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indemnities made by Master Landlord to Sublandlord under the Master Lease, to
the extent they apply to Subtenant during the term of the Sublease and would
reduce Subtenant's obligations hereunder, Sublandlord shall cooperate with
Subtenant to enforce all such warranties and indemnities.
11. Notice. All notices and demands shall be sent by certified or
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registered United States Mail, or courier service that provides for a signed
receipt indicating delivery, and shall be deemed delivered upon receipt.
12. Approvals. Whenever the Sublease requires an approval, consent,
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designation, determination, selection or judgment by either Sublandlord or
Subtenant, such approval, consent, designation, determination, selection or
judgment and any conditions imposed thereby shall be reasonable and shall not be
unreasonably withheld or delayed and, in exercising any right or remedy
hereunder, each party shall at all times act reasonably and in good faith.
13. Waiver of Subrogation. The parties hereto release each other and
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their respective agents, employees, successors and assigns from all liability
for damage to any property that is caused by or results from a risk to the
extent it is actually insured against or required to be insured against under
the Master Lease or this Sublease by such damaged party, without regard to the
negligence or willful misconduct of the entity so released. Each party shall
use reasonable efforts to cause each applicable insurance policy it obtains to
provide that the insurer thereunder waives all right of recovery by way of
subrogation as required herein in connection with any damage covered by the
policy.
14. Effect of Addendum. All terms with initial capital letters used
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herein as defined terms shall have the meanings ascribed to them in the Sublease
unless specifically defined herein.
In witness whereof, said parties hereunto subscribe their names.
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SUBLANDLORD: SUBTENANT:
ARTISAN COMPONENTS, INC. UNISON SOFTWARE, INC.
/s/ Xxxx Xxxxxx /s/ Xxxxxx Xxxxxx
By:________________________ By:____________________________
Xxxx Xxxxxx Xxxxxx Xxxxxx
Name:______________________ Name:__________________________
Controller
Title:_____________________ Title:_________________________
10/6/97 10/6/97
Dated:_____________________ Dated:_________________________
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