EXHIBIT 10.27 (A)
SECOND AMENDMENT TO CORPORATE HEADQUARTERS LEASE
THIS SECOND AMENDMENT TO CORPORATE HEADQUARTERS LEASE (this "Amendment")
is made and entered into effective as of the 13th day of December, 2001, by and
between WDS-DUBLIN, LLC, a California limited liability company ("Landlord"),
and SYBASE, INC., a Delaware corporation ("Tenant"). The "Lease" shall mean the
Existing Lease as defined in the First Amendment as modified by such First
Amendment.
RECITALS
A. Landlord has represented to Tenant that Building B within the
Premises will receive a certificate of occupancy, and therefore be delivered,
prior to Building A receiving its certificate of occupancy and being delivered.
B. Given this, there has been a disagreement between the parties as to
when rent will commence under the Lease.
NOW, THEREFORE, in consideration of the recitals set forth above, the
covenants and agreements contained herein, and other good and valuable
consideration, the receipt, adequacy and total sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as set forth below. All terms not
otherwise defined herein shall have the meaning ascribed to them in the Lease.
1. References in the Lease to "First Increment" shall mean the first
building for which a certificate of occupancy is delivered (Building B) and to
"Second Increment" shall mean the second building for which a certificate of
occupancy is delivered (Building A), except for clause (iii) of Section 3.1(a)
which shall read "the Substantial Completion Date for Building B." Except as
amended by the foregoing clause, Section 3.1 of the Lease shall be unchanged.
2. Landlord and Tenant hereby agree that the Rent Commencement Date for
the Premises shall be December 16, 2001. Notwithstanding anything contained in
the Lease to the contrary, Base Rent for the months of December 2001, January
2002 and February 2002 shall be payable by Tenant to Landlord as follows;
(a) First Increment (Building B). For the month of December 2001,
Tenant shall pay Landlord fifty percent (50%) of the full month's rent
on Building B as if the Rent Commencement Date for Building B occurred
on December 1, 2001. Landlord anticipates receiving a Certificate of
Occupancy (hereinafter defined) for all spaces within Building B with
the exception of the cafeteria space located on the (1st) floor of
Building B on or before December 20, 2001. Landlord anticipates
receiving a Certificate of Occupancy on the cafeteria space located on
the first (1st) floor of Building B on or before January 2, 2002.
Subject to the rent credits set forth in subparagraph (c) below, Tenant
shall pay Landlord full monthly rent in accordance with the Lease on
Building B for the months of January 2002 and February 2002.
(b) Second Increment (Building A). For the month of December
2001, Tenant shall pay Landlord twenty-five percent (25%) of the full
month's rent on Building A as if the Rent Commencement Date for Building
A occurred on December 1, 2001. Commencing on January 1, 2002, and
continuing through and including January 13, 2002, Tenant shall pay to
Landlord an
amount of Base Rent equal to twenty-five percent (25%) of thirteen (13)
days of Per Diem Base Rent (hereinafter defined) for the month of
January 2002. Commencing on January 14, 2002, and continuing through and
including January 31, 2002, Tenant shall pay to Landlord one hundred
percent (100%) of eighteen (18) days of Per Diem Base Rent for Building
A. Subject to the rent credits set forth in subparagraph (c) below,
Tenant shall pay Landlord full monthly rent in accordance with the Lease
on Building A for the month of February 2002. As used herein, the term
"Per Diem Base Rent" shall mean the total rent that would be due and
payable by Tenant to Landlord under the Lease for the applicable month
as if the Rent Commencement Date occurred on the first day of such
month, divided by the number of days in the applicable month. Landlord
anticipates receiving a Certificate of Occupancy on all of the spaces in
Building A except for the fourth (4th) floor of Building A on or before
January 11, 2002. Landlord anticipates receiving a Certificate of
Occupancy on the fourth (4th) floor of Building A on or before January
26, 2002. As used in subparagraphs (a) and (b) hereof, the term
"Certificate of Occupancy" shall mean a certificate of occupancy
(whether temporary or final) from the City of Dublin, California, with
respect to the applicable space.
(c) Rent Credits. In the event Landlord does not obtain a
Certificate of Occupancy with respect to any of the applicable spaces
referred to in subparagraph (a) or (b) hereof on or before the
respective delivery dates set forth above, Tenant shall receive a rent
credit against Base Rent due through February 2002 on a floor-by-floor
basis in an amount equal to two (2) days of Per Diem Base Rent for such
applicable space for each day of delay in delivering the applicable
space times a factor of seventy-five percent (75%). For example, in the
event Landlord delivers a Certificate of Occupancy for the cafeteria
space on the first (1st) floor of Building B on January 4, 2002, instead
of on January 2, 2002, then Tenant shall be entitled to receive a rent
credit against the Base Rent due and owing for Building B in the amount
equal to seventy-five percent (75%) of four (4) days of Per Diem Base
Rent for the first (1st) floor, being the floor on which the cafeteria
space is located. All of such credits shall be taken by Tenant against
the Base Rent due and payable through February, 2002. In the event there
are rent credits attributable to February, 2002 and Tenant has not
applied such credits to rents payable for the month of February, 2002,
Landlord shall pay to Tenant a refund in the amount of such unapplied
credits on or before March 1, 2002. In no event shall Tenant be entitled
to any rent credits under this Amendment for the period of time after
March 1, 2002. Tenant's remedies in the event the Substantial Completion
Date for Building A is after February 28, 2002, shall include the
provisions of Section 2.3(b) of the Lease providing for liquidated
damages and its rights under the Continuing Guaranty of Lease and
Reimbursement Agreement by Xxxxxx Development Services, Inc., Xxxxxx
Holdings Ltd. and Xxxxxx Development Services I, Ltd. in favor of Sybase
effective January 28, 2000. Tenant shall not be required to pay any
additional rent to Landlord in the event the spaces in the buildings for
which a Certificate of Occupancy is anticipated to be delivered by the
anticipated dates set forth in this Amendment are in fact delivered
prior to the anticipated dates set forth in this Amendment.
3. Section 2.4 of the Lease is hereby amended and modified by revising
the first sentence thereof to read in its entirety as follows: "Subject to
extension as provided in Section 2.5 below, the "Expiration Date" shall be
January 31, 2017, unless Landlord has not obtained a Certificate of Occupancy on
all of the spaces in the Premises prior to January 31, 2002, in which case the
Expiration Date shall be extended on a day for day basis for each day after
January 31, 2001 until Landlord has received a Certificate of Occupancy on all
spaces in the Premises. For example, in the event Landlord obtains a Certificate
of Occupancy on all of the spaces in the Premises on February 9, 2002, then the
Expiration Date shall be February 8, 2017. In no event shall the Expiration Date
be later than February 28, 2017."
4. Landlord shall be responsible for notifying iStar Financial, Inc. of
this Amendment and obtaining approvals that are required by iStar, if any.
Landlord and Tenant acknowledge that a prior draft of this Amendment was
executed by Landlord and Tenant and dated November 19, 2001 and was not approved
by iStar (the "Prior Draft"). The Prior Draft of the Second Amendment to
Corporate Headquarters Lease is null and void as if such document was not signed
and delivered by Landlord and Tenant.
Except as modified above, the Lease remains in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to be
executed and delivered, each by its duly authorized representative, effective as
of the date and year set forth above.
LANDLORD: TENANT:
WDS-DUBLIN, LLC, SYBASE, INC.,
a California limited liability company a Delaware corporation
By: Xxxxxx Interest, Inc., By: /S/ PIETER VAN DER VORST
a Texas corporation, --------------------------------
its Managing Member Name: Pieter Van der Vorst
Title: Chief Financial Officer
By: /S/ XXXXXXX X. XXXXX
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
