EXHIBIT 10.3
SUBLEASE
THIS SUBLEASE (the "Sublease") is entered into as of February,
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1997, by and between KPMG PEAT MARWICK LLP, a Delaware limited liability
partnership ("Sublandlord"), and BRIO TECHNOLOGY, INC., a California corporation
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("Subtenant").
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WHEREAS, by that certain Lease, dated as of November 6, 1989 (the
"Lease"), by and between BAYSHORE INVESTMENTS, a California General Partnership
(as predecessor-in-interest to SOBRATO BAYSHORE INVESTMENTS, a California
Limited Partnership), as landlord (the "Landlord"), and TFB/BBDO, INC., a
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California Corporation, as tenant and assignor, (the "Assignor"), Assignor
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leased a portion of that real property situated in the City of Palo Alto, County
of Santa Xxxxx, State of California, commonly known and referred to as 0000 Xxxx
Xxxxxxxx Xxxx (the "Premises"), and more particularly described in the Lease. A
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true and correct copy of the Lease is attached hereto as Exhibit "A" and
incorporated herein by this reference.
WHEREAS, by that certain Sublease, dated as of June 7, 1993 (the
"Original Sublease"), by and between Assignor and Sublandlord, Sublandlord
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subleased the Premises from Assignor. A true and correct copy of the Original
Sublease is attached hereto as Exhibit "B" and incorporated herein by this
reference.
WHEREAS, by that certain Lease and Sublease Assignment and Assumption
Agreement dated as of May 31, 1994 (the "Assumption Agreement"), by and among
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Landlord, Assignor and Sublandlord, Assignor assigned to Landlord all of
Assignor's right, title and interest in and to the Lease and the Original
Sublease. Pursuant to the terms of the Assumption Agreement, the Original
Sublease became a direct lease between Landlord and Sublandlord on the terms of
the Original Sublease except as expressly modified by the Assumption Agreement.
A true and correct copy of the Assumption Agreement is attached hereto as
Exhibit "C" and incorporated herein by this reference. The Lease, Original
Sublease and Assumption Agreement are hereinafter collectively referred to as
the "Master Lease." All capitalized terms used but not otherwise defined herein
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shall have the meaning described to them in the Master Lease.
WHEREAS, Sublandlord desires to sublease to Subtenant and Subtenant
desires to hire and take from Sublandlord the Premises, consisting of
approximately 30,000 square feet of space.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Subleasing of the Premises. Sublandlord hereby subleases to
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Subtenant and Subtenant hereby takes and hires from Sublandlord the Premises
upon and subject to the terms and conditions hereinafter set forth. Subtenant
agrees that the actual area of the Premises for purposes of this Sublease and
any and all calculations hereunder or in connection herewith shall be 30,000
square feet.
2. Term. Unless sooner terminated as provided for herein, this
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Sublease is for the term (the "Term"), commencing on the day on which
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Sublandlord delivers possession of the Premises to Subtenant (the "Commencement
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Date"), which Commencement Date is estimated to occur on or before March 1,
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1998, subject to completion of Sublandlord's new facility located at 000 Xxxx
Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx. The Term shall expire at 11:59
p.m. on March 13, 2000 (the "Expiration Date"). Notwithstanding the foregoing,
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if Sublandlord's new facility is completed early, such that Sublandlord has
vacated the Premises prior to Xxxxx 0, 0000, Xxxxxxxxxxx shall use commercially
reasonable efforts to deliver possession of the Premises to Subtenant upon such
earlier date. In the event that Sublandlord delivers a written confirmation of
the Commencement Date at the time possession of the Premises is delivered to
Subtenant, Subtenant shall execute such confirmation and immediately return the
same to Sublandlord. Notwithstanding anything to the contrary contained in this
Section, if Sublandlord has not delivered possession of the Premises to
Subtenant by August 1, 1998, Subtenant shall have the right to terminate this
Sublease, in which event Sublandlord shall promptly return to Subtenant all sums
paid by Subtenant to Sublandlord upon or in connection with its execution of
this Sublease, and neither party shall have any further rights or obligations
hereunder.
3. Rent.
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(a) Basic Rent. Commencing on the Commencement Date, Subtenant
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shall pay to Sublandlord, in lawful money of the United States of America, a
monthly rental (the "Basic Rent") of Two Dollars and Seventy Cents ($2.70) per
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square foot of the Premises, per month, prorated for any partial month. Based
on this calculation, the Basic Rent shall be Eighty-One Thousand Dollars
($81,000) per month. The Basic Rent shall be due and payable, in advance, on
the first day of each month during the Term, without set-off or deduction of any
kind. The first monthly installment of Basic Rent shall be due on June 1, 1997.
(b) Additional Rent. In addition to the Basic Rent, Subtenant
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covenants and agrees to pay to Sublandlord as additional rent (the "Additional
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Rent"), in lawful money of the United States of America, within five (5) days
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after personal delivery or within ten (10) days after mailing of a notice of
Additional Rent due (together with a copy of the applicable xxxx or statement
received by Sublandlord from Landlord and/or other evidence, if any, that
Additional Rent is due), the following amounts:
(i) all additional rent, taxes, utilities, maintenance and
operating expenses, and other amounts attributable to the Premises which are
payable by Sublandlord in accordance with the terms of the Master Lease
(collectively, the "Operating Expenses"); and
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(ii) any and all other costs, charges or expenses (other
than the fixed rent payable by Sublandlord under the Master Lease) attributable
to the Premises and payable by Sublandlord pursuant to the provisions of the
Master Lease.
In the event that the amount payable by Sublandlord under the Mater
Lease for Operating Expenses and other amounts is adjusted by Landlord at the
end of a year or other period, then (i) if there has been a corresponding
underpayment of Additional Rent paid by Subtenant, Subtenant shall pay to
Sublandlord, at least seven (7) days prior to the date that same are due and
payable to Landlord, an amount equal to Subtenant's share of the adjustment; or
(ii) if there has been an overpayment in the Additional Rent paid by Subtenant,
Sublandlord shall credit against the next pay-
ments of Additional Rent coming due hereunder an amount equal to Subtenant's
share of such adjustment, or promptly refund such amount to Subtenant if no
further Additional Rent shall be due hereunder. The provisions of this paragraph
shall survive the Expiration Date or earlier termination of this Sublease.
Subtenant's obligation to pay accrued Additional Rent hereunder and
Sublandlord's obligation to refund any overpayments of Additional Rent hereunder
shall survive the expiration or earlier termination of this Sublease.
In the event that Landlord reduces or abates Sublandlord's rental
obligations pursuant to the terms of the Master Lease, Subtenant shall be
entitled to its allocable share of such abatement or diminution.
(c) Place for Payment of Rent. All Basic Rent and Additional
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Rent payments shall be made in lawful money of the United States of America and
shall be paid to KPMG Peat Marwick LLP at 0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Accounts Receivable Department, or
to such other party or address as Sublandlord may designate in writing to
Subtenant.
(d) Late Charge. Subtenant acknowledges and agrees that any
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late payment of Basic Rent and/or Additional Rent will cause Sublandlord to
incur certain additional costs and expenses which are difficult or not
reasonably susceptible to being calculated. Accordingly, (i) any and all Basic
Rent which is not both postmarked on or before the fifth (5th) day of the month
and received by Sublandlord on or before the tenth (10th) day of the month, and
(ii) any and all Additional Rent which is not received by Sublandlord within
five (5) days after receipt of written notice from Sublandlord that such amount
is due, will be subject to a late charge equal to five percent (5%) of the
amount due. Subtenant agrees that such late charge represents a fair and
reasonable estimate of the costs which may be incurred by Sublandlord.
(e) Security Deposit. Subtenant shall deposit with
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Sublandlord, in immediately available funds, Two Hundred Forty-Three Thousand
Dollars ($243,000) as security for Subtenant's faithful performance of
Subtenant's obligations hereunder (the "Deposit"). The Deposit shall be payable
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in three equal installments of Eighty-One Thousand Dollars ($81,000). Subtenant
shall pay the
first installment to Sublandlord upon execution hereof, Subtenant shall pay the
second installment to Sublandlord on the Commencement Date, and Subtenant shall
pay the third installment to Sublandlord on the thirtieth (30th) day after the
Commencement Date. If Subtenant fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this Sublease,
Sublandlord may use, apply or retain all or any portion of the Deposit for the
payment of any rent or other charge in default or for the payment of any other
sum to which Sublandlord may become obligated by reason of Subtenant's default,
or to compensate Sublandlord for any loss or damage which Sublandlord may suffer
thereby. If Sublandlord so uses or applies all or any portion of the Deposit,
Subtenant shall have ten (10) calendar days after receipt of written demand
therefor to deposit, in immediately available funds with Sublandlord, an amount
sufficient to restore the Deposit to the full amount hereinabove stated, and any
failure of Subtenant to restore the Deposit as set forth herein shall constitute
a material breach of this Sublease. If Subtenant performs all of Subtenant's
obligations hereunder, the Deposit, or so much thereof as has not theretofore
been applied by Sublandlord, shall be returned, without payment of interest or
other increment for its use, to Subtenant within thirty (30) calendar days from
the later of either the Expiration Date or the date upon which Subtenant
completely vacates the Premises. Sublandlord shall be entitled to commingle the
Deposit with its general funds.
4. Signage. Subtenant shall be entitled, at its sole cost and
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expense, to place signs on the Premises; provided, however, that (i) Subtenant
must obtain the prior written consent of Sublandlord as to the design and exact
placement of such signs, which consent shall not be unreasonably withheld or
delayed, and (ii) such signs must conform to all requirements of the Master
Lease including, without limitation, obtaining the prior written consent of
Landlord.
5. Subordination to and Incorporation of Terms of Master Lease.
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(a) Subordination. This Sublease is in all respects subject and
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subordinate to the terms and conditions of the Master Lease and to the matters
to which the Master Lease is subordinate. This Sublease shall also be subject
to and Subtenant accepts the Sublease also subject to any amendments,
modifications or supplements to the Master Lease hereafter made, provided that
Sublandlord shall not enter into any amendment, modification or supplement that
would prevent or materially adversely affect the use by Subtenant of the
Premises in accordance with the terms hereof, increase the obligations of
Subtenant or decrease its rights hereunder, shorten or lengthen the term hereof
or increase the rent required to be paid by Subtenant hereunder. Sublandlord
shall provide written notice to Subtenant of any permitted amendment,
modification or supplement to the Master Lease. Except as otherwise expressly
provided in this Sublease, Subtenant assumes and shall keep, observe and perform
every term, provision, covenant and condition on Sublandlord's part to be kept,
observed and performed pursuant to the Master Lease, insofar as such pertain to
the Premises, for the Term. Subtenant hereby agrees that it will conduct itself
and its operations, and cause its agents, contractors, servants, employees,
partners, invitees and any subtenants and licensees (collectively, "Agents") to
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conduct themselves and their operations, so as not to cause Sublandlord to be in
default under the Master Lease. Sublandlord has delivered a true and correct
copy of the Master Lease (subject to the redaction of certain financial
information). Subtenant hereby acknowledges receipt of a copy of the Master
Lease and that it is familiar with all of the terms and conditions thereof. As
an inducement to Subtenant to enter into this Sublease, Sublandlord represents
and warrants with respect to the Premises that, to Sublandlord's actual
knowledge, (i) the Master Lease is in full force and effect, and Sublandlord has
received no written notice from Landlord that there exists under the Master
Lease any default or event of default, or that any event has occurred which,
with the giving of notice or passage of time or both, could constitute such a
default or event of default; and (ii) there are no pending or threatened
actions, suits or proceedings before any court or administrative agency against
Sublandlord which could, in the aggregate, adversely affect the Premises or
Sublandlord's ability to perform its obligations under this Sublease, and
Sublandlord is not aware of any facts which might result in any such actions,
suits or proceedings.
(b) Incorporation of Terms of Master Lease. Except as otherwise
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expressly provided in this Sublease, the terms, provisions, covenants,
stipulations, conditions, rights, obligations, remedies and agreements contained
in the Master Lease are incorporated herein by reference and are made a part
hereof, and shall, as between Sublandlord and Subtenant (as if Sublandlord were
the Landlord under the Master Lease and Subtenant were the Tenant under the
Master Lease) constitute the terms of this Sublease except to the extent that
they are inapplicable, inconsistent with, or modified by the terms of this
Sublease. Notwithstanding the foregoing, as between Sublandlord and Subtenant,
the following provisions of the Master Lease do not apply and shall be of no
force or effect with respect to this Sublease: Sections 1, 4, 5, 6, 7, the first
two sentences of Section 8, 26, 37, 38, and 45 of the Lease; the first sentence
of Section 1, Sections 2, 10(B), 11, 14, 15, 18, 22, 23, 24, 25, 26, and 27 of
the Original Sublease; and Sections 2 and the last 3 sentences of Section 4 of
the Assumption Agreement.
(c) Provision of Services; Enforcement. Subtenant agrees that,
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notwithstanding anything to the contrary in this Sublease or in the Master
Lease, (i) Sublandlord shall not be required to keep, observe or perform any of
Landlord's obligations under the Master Lease, including, without limitation, to
provide any of the services or make any of the repairs or restorations that
Landlord has agreed to provide or make or cause to be provided or made under the
Master Lease, and Sublandlord's sole obligation with respect thereto shall be to
use reasonable efforts to cause Landlord to provide such services and make such
repairs or restorations as are required to be provided or made under the Master
Lease, and (ii) any and all requests for any special or additional services
furnished at the expense of Sublandlord under the Master Lease shall be made
only with Sublandlord's prior written consent, which shall not be unreasonably
withheld or delayed, and Sublandlord shall reasonably cooperate with Subtenant
in such requests. Subtenant shall pay all reasonable out-of-pocket costs and
expenses incurred by Sublandlord in connection with any such requests and all
costs and expenses incurred in connection with the provision by Landlord of any
such special or additional services. Subtenant shall not make any claim against
Sublandlord for any damage which may arise nor shall Subtenant's obligations
hereunder be impaired by reason of (a) the failure of Landlord to keep, observe
or perform its obligations pursuant to the Master Lease, except to the extent
caused by the gross negligence or willful misconduct of Sublandlord or its
agents, or (b) the acts or omissions of Landlord, its agents, contractors,
servants, employees,
invitees or licensees. In the event of any default by Landlord under the Master
Lease, Subtenant may, at its option, conduct proceedings in its own name, and at
its sole cost and expense, in order to obtain Landlord's performance of
Landlord's obligations pursuant to the Master Lease; provided, however, that
prior to initiating any such proceeding, Subtenant shall obtain Sublandlord's
prior written consent, which consent shall not be unreasonably withheld or
delayed.
6. Use of the Premises. Subtenant covenants not to use the Premises
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for any purpose other than for the conduct of Subtenant's business or any other
lawful business use specifically permitted by the terms of the Master Lease, and
in a manner consistent in all respects with the provisions of the Master Lease.
7. Parking. Subtenant shall be entitled only to the parking spaces
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expressly provided to Sublandlord under the Master Lease.
8. Condition of the Premises; Alterations.
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(a) Condition of the Premises. Subtenant has examined the
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Premises, is familiar with the physical condition thereof and agrees to take the
same "AS IS" in the condition in which they exist as of the date hereof and on
the Commencement Date. Subtenant hereby acknowledges that Sublandlord has made
no representations or warranties with respect to the condition of the Premises,
including, without limitation, the suitability of the Premises for Subtenant's
intended use, and that Sublandlord shall not, now or at any time in the future,
be required to make any expenditures whatsoever with respect to the Premises.
Subtenant further agrees that its act of taking possession of the Premises will
be an acknowledgement that the Premises are in a tenantable and good condition.
(b) Consent to Alterations. Subtenant shall not make any
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alterations to the Premises without the prior written consent of Sublandlord
(which shall not be unreasonably withheld or delayed) and Landlord in accordance
with the terms and provisions of Section 10 of the Lease. Subtenant shall obtain
all necessary permits and deliver copies of all plans and specifications to
Sublandlord and obtain Sublandlord's consent to and approval of all plans,
specifications and the costs of the work, prior to the commencement of
construction of any alterations to the Premises by Subtenant. In addition,
Subtenant shall coordinate any and all construction activi-
ties in connection with any alterations with Landlord and Sublandlord, shall
otherwise conduct such activities in accordance with all procedures required
under the terms of the Master Lease (including, but not limited to, Section 10
of the Lease), and shall give Sublandlord reasonable advance notice of any
meetings between Subtenant and Landlord or Landlord's agents or employees in
connection with any proposed alterations. In the event that Subtenant alters,
changes or modifies the Premises or the improvements thereon in any way,
Subtenant shall, to the extent required by Sublandlord or Landlord, completely
restore and reconstruct the Premises (including all improvements) to
substantially the same condition as that which existed immediately prior to the
Commencement Date. The foregoing provisions are in addition to, and not in lieu
of, any terms of the Master Lease, which may require, among other things,
Landlord's consent to any alterations to the Premises.
(c) Alterations. Subtenant shall reimburse Sublandlord for
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any and all actual reasonable costs, fees and expenses incurred by Sublandlord
in connection with any alterations to the Premises by Subtenant.
9. Assignment and Subletting.
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(a) Consent Required. Subtenant shall not assign this Sublease
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or further sublet the Premises without the prior written consent of the
Sublandlord and Landlord (with respect to both Sublandlord and Landlord, any
such consent shall not be unreasonably withheld or delayed, and shall be subject
to and in accordance with the provisions of Section 29 of the Lease, except as
otherwise provided herein). Any such subletting or assignment shall be subject
to all of the rights of Landlord under the Master Lease, and such rights shall
apply equally to Sublandlord. Subtenant agrees that any consent to an assignment
or subletting of this Sublease or the Premises shall not be deemed to be a
consent to any other subletting or assignment and shall not thereby release or
discharge Subtenant of its obligations or liabilities hereunder.
(b) Profits. Sublandlord shall be entitled to 100% of the
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amount by which any amounts paid or any other consideration received pursuant to
or in connection with any permitted subleasing of the Premises or assignment of
this Sublease exceeds the sum of the amount required to be paid by Subtenant
under this Sublease.
10. Time Limits. The time limits set forth in the Master Lease for
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the giving of notices, making demands, performance of any act, condition or
covenant, or the exercise of any right, remedy or option, apply with equal force
and effect to the terms of this Sublease.
11. Brokers and Finders. In connection with the transaction
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contemplated by this Sublease, each party hereby represents and warrants that it
has not had, and shall not have, any dealings with any third party to whom the
payment of any broker's fee, finder's fee, commission or other similar
compensation shall or may become due or payable; provided, however, that
Subtenant has engaged the services of BT Commercial through a separate written
agreement. Any commission due to BT Commercial shall be paid by Sublandlord
pursuant to a separate written agreement executed by Sublandlord. Sublandlord
and Subtenant shall each indemnify, defend, and hold the other harmless from and
against, any and all claims of or liability to any broker, finder or like agent
who shall claim to have dealt with Sublandlord or Subtenant, respectively, in
connection with this transaction and this Sublease. The provisions of this
Section 11 shall survive the expiration or earlier termination of this Sublease;
provided, however, in no event shall Sublandlord have any obligation hereunder,
or under any separate agreement, to pay any commissions to BT Commercial in the
event that this Sublease is terminated pursuant to Section 16 hereof.
12. Quiet Enjoyment. Sublandlord covenants with Subtenant that as
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long as Subtenant shall pay the Basic Rent and Additional Rent and shall duly
perform all the terms, covenants, conditions and agreements of this Sublease on
its part to be performed, Subtenant shall, subject to the terms hereof and of
the Master Lease, peaceably have, hold and enjoy the Premises during the Term
without hindrance or molestation by Sublandlord.
13. Indemnification. Neither Sublandlord nor its agents shall be
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liable to Subtenant, its Agents, and Subtenant shall indemnify, defend and hold
Sublandlord harmless from and against any and all losses, costs, claims,
damages, expenses or liabilities (including, without limitation, reasonable
attorneys' fees, charges and disbursements), incurred in connection with or
arising from any injury to Subtenant or to any other person or for any damage to
or loss (by theft or otherwise) of any of Subtenant's property and/or the
property of any other person, irrespective of the cause
of such injury, damage or loss. Sublandlord shall, however, be responsible for
any of the foregoing if caused by or due to the gross negligence or willful
misconduct of Sublandlord or its agents. Subtenant agrees to indemnify, defend
and hold Sublandlord harmless from and against any and all losses, costs,
claims, damages, expenses or liabilities (including, without limitation,
reasonable attorneys' fees, charges and disbursements), incurred in connection
with or arising from (i) any default by Subtenant in the observance or
performance of any of the terms, covenants, conditions or agreements of this
Sublease on Subtenant's part to be observed or performed, or (ii) the use or
occupancy or manner of use or occupancy of the Premises by Subtenant or any
person claiming through or under Subtenant, or (iii) the condition of the
Premises, or (iv) any acts, omissions or negligence of Subtenant or its agents
on the Premises either prior to, during, or after the expiration of the Term.
Sublandlord shall indemnify, defend and hold Subtenant free and harmless from
and against any and all liability, judgments, costs, damages, claims or demands
arising out of (i) any default by Sublandlord of Sublandlord's obligations under
this Sublease; (ii) any default by Sublandlord of Sublandlord's remaining
obligations under the Master Lease to the extent such obligations are not the
obligations of Subtenant pursuant hereto; (iii) any breach of any representation
or warranty made by Sublandlord in this Sublease; or (iv) the gross negligence
or willful misconduct of Sublandlord or its agents to the extent the same has a
material adverse impact on Subtenant's use or enjoyment of the Premises. The
provisions of this Section 13 shall survive the expiration or sooner termination
of this Sublease.
14. Notices. All notices, requests, demands and other communications
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which are required or may be given pursuant to the terms of this Sublease shall
be in writing and shall be given personally, by registered or certified mail, by
a reputable national overnight delivery service, or by facsimile transmission as
follows:
If to Sublandlord:
KPMG Peat Marwick LLP
Three Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
KPMG Peat Marwick LLP
0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Subtenant:
Brio Technology, Inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
General Counsel Associates LLP
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Landlord:
Sobrato Bayshore Investments
0000 X. Xx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: ___________________
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
________________________
________________________
________________________
________________________
Every notice, demand, request or other communication hereunder shall be deemed
to have been given or served at the time that the same is personally delivered,
deposited in the United States mails (postage prepaid, in the manner aforesaid),
or received by facsimile transmission. Sublandlord and Subtenant may, by notice
given hereunder, designate any further or different addresses to which
subsequent notices, demands, requests, or other communications shall be sent.
15. Termination of the Master Lease. Sublandlord shall not
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voluntarily terminate the Master Lease during the Term unless and until Landlord
has agreed in writing to continue this Sublease in full force and effect as a
direct lease between Landlord and Subtenant upon and subject to all of the
terms, covenants and conditions of this Sublease for the balance of the Term
hereof. If Landlord so consents, Subtenant shall attorn to Landlord in
connection with any such voluntary termination and shall execute an attornment
agreement in such form as may reasonably be requested by Landlord; provided,
however, that the attornment agreement does not materially adversely affect the
use by Subtenant of the Premises in accordance with the terms of this Sublease,
materially increase Subtenant's obligations under this Sublease, or materially
decrease Subtenant's rights under this Sublease. If the Master Lease terminates
solely due to a breach by Sublandlord under the Master Lease or this Sublease,
with the result that this Sublease is terminated, Sublandlord shall indemnify,
defend and hold Subtenant harmless from any and all liability, judgments, costs,
damages, claims or demands arising out of such termination, including, without
limitation, Subtenant's reasonable attorneys' fees, charges and disbursements.
If the Master Lease is terminated as a result of damage, destruction or
condemnation, this Sublease thereupon shall terminate. If the Master Lease
terminates as a result of any breach by Subtenant under this Sublease, then this
Sublease shall terminate and Subtenant shall indemnify, defend and hold
Sublandlord harmless from any and all loss, costs, liability and expense as a
result thereof, including, without limitation, Sublandlord's reasonable
attorneys' fees, charges and disbursements, and any liability to Landlord under
the Master Lease and any losses (including, without limitation, lost profits due
to Sublandlord's inability to sublease the Premises) incurred by Sublandlord as
a result of such termination. The provisions of this Section 15 shall survive
the expiration or sooner termination of this Sublease.
16. Landlord Consent. Sublandlord and Subtenant agree and
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acknowledge that this Sublease is subject to and contingent upon the consent of
Landlord to the provisions of this Sublease, including, without limitation, the
Commencement Date hereof. Sublandlord shall use its reasonable good faith
efforts to secure Landlord's consent and approval prior to the Commencement
Date, but in no event shall Sublandlord be required to pay more than One
Thousand Dollars ($1,000) or engage in any litigation to secure such consent or
approval. In the event that (i) Landlord has not consented to this Sublease
within ninety (90) days following execution
hereof, or (ii) Landlord expressly withholds its consent to this Sublease, then,
in either such event, this Sublease shall terminate and be of no further force
or effect whatsoever and, except for those obligations contained herein which
expressly survive the termination of this Sublease, neither party shall have any
further rights or obligations against the other, except that Sublandlord shall
promptly return to Subtenant all sums paid by Subtenant to Sublandlord upon or
in connection with its execution of this Sublease, and, if Subtenant has taken
possession of the Premises, Subtenant shall, without any further demand by
Sublandlord, restore the Premises to their condition existing immediately prior
to the Commencement Date and immediately vacate and surrender the Premises.
17. Holding Over. Subtenant shall not be permitted to hold over in
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or remain in possession of the Premises or any part thereof following the
Expiration Date or earlier termination of this Sublease. Subtenant acknowledges
that the Expiration Date occurs one (1) day prior to the expiration of the term
of the Master Lease with respect to the Premises, and any such holding over may
result in or cause Sublandlord to suffer significant direct and consequential
damages. Subtenant shall indemnify, defend and hold Sublandlord harmless from
any and all loss, costs, liability and expense (including, without limitation,
the payment of any holdover rent or penalties and Sublandlord's reasonable
attorneys' fees, charges and disbursements) incurred in connection with
Subtenant's holdover beyond the Expiration Date or earlier termination of this
Sublease.
18. Subtenant Representations. Subtenant represents and warrants
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that (a) it is a corporation duly organized and validly existing under the laws
of the State of California, (b) it has full power and authority to execute and
deliver this Sublease, and (c) each person executing this Sublease on behalf of
Subtenant is authorized and empowered to do so.
19. Surrender. Notwithstanding anything to the contrary contained in
---------
this Sublease or the Master Lease, Subtenant's obligation to surrender the
Premises shall be fulfilled if Subtenant surrenders possession of the Premises
in the condition existing immediately prior to the Commencement Date, except
for: (i) ordinary wear and tear, (ii) hazardous materials or waste placed on or
about the Premises prior to the Commencement Date, (iii) other conditions which
Landlord and Sublandlord state in writing may remain upon the termination of
this Sublease, and (iv) any additions, alterations or improvements made to the
Premises by Sublandlord or any predecessor in interest of Sublandlord prior to
the Commencement Date.
20. Right to Cure. In the event that Sublandlord defaults in the
-------------
performance or observance of any of Sublandlord's remaining obligations under
the Master Lease, or fails to perform Sublandlord's stated obligations under
this Sublease, including, without limitation, the
enforcement, for Subtenant's benefit, of Landlord's obligations under the Master
Lease, then Subtenant shall give Sublandlord notice specifying in what manner
Sublandlord has defaulted, and if such default shall not be cured by Sublandlord
within thirty (30) days thereafter (except that if such default cannot be cured
within said thirty (30) day period, this period shall be extended for an
additional reasonable time, provided that Sublandlord commences to cure such
default within such thirty (30) day period and proceeds diligently thereafter to
effect such cure as quickly as possible), then in addition, Subtenant shall be
entitled, at Subtenant's option, to cure such default and promptly collect from
Sublandlord Subtenant's reasonable expenses in so doing (including, without
limitation, reasonable attorneys' fees and court costs).
21. Access by Sublandlord and Landlord. Notwithstanding anything to
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the contrary in this Sublease, in entering upon the Premises in non-emergency
situations only, Sublandlord shall use reasonable efforts to minimize
interference with Subtenant's use of the Premises to the extent possible and
shall comply with Subtenant's reasonable safety and security regulations.
Sublandlord agrees that prior to entering the Premises under any right conferred
under the Master Lease, Sublandlord shall give Subtenant twenty-four (24) hours'
prior telephonic or written notice, except in the case of an emergency.
22. Entire Agreement. This Sublease sets forth the entire agreement
----------------
between the parties and there are no other agreements or understandings of any
kind or nature between the parties with respect to the subject matter, except as
set forth herein. This Sublease may not be modified, altered, or amended, other
than by an agreement in writing, signed by the party against whom enforcement of
said agreement is sought.
23. Counterparts. This Sublease may be executed in as many
------------
counterparts as may be deemed necessary and convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original, but all such counterparts shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Sublease as of
the date first above written.
SUBLANDLORD:
KPMG PEAT MARWICK LLP, a Delaware limited liability
partnership
By: /s/ Xxxxxx X. Xxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxx
__________________________
Title: Chief Financial Officer
__________________________
SUBTENANT:
BRIO TECHNOLOGY, INC., a California corporation
By: /s/ Xxxxxx X. Xxxxx
_________________________________
Name: Xxxxxx X. Xxxxx
__________________________
Title: Executive Vice President,
Operations and CFO
__________________________
LANDLORD'S CONSENT
The undersigned is the Landlord under the Master Lease described in
the foregoing Sublease, and hereby consents to all of the terms and conditions
of the Sublease, including, but not limited to, the sublease of the Premises to
BRIO TECHNOLOGY, INC., a California corporation. Landlord agrees that the
provisions of Section 12 of the Lease regarding waiver of subrogation shall be
extended to Subtenant and effective by and between Subtenant and Landlord.
LANDLORD:
SOBRATO BAYSHORE INVESTMENTS, a California Limited
Partnership (as successor-in-interest to BAYSHORE
INVESTMENTS, a California General Partnership)
By: /s/ Xxxx X. Xxxxxxx
________________________________
Name: Xxxx X. Xxxxxxx
_________________________
Title:
_________________________
