EXHIBIT 10.29
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE (the "Amendment") is made and entered
into as of the 27th day of June, 2002, by and between EOP-BREA PARK CENTRE,
L.L.C., a Delaware limited liability company ("Landlord"), and HOLLYWOOD
SOFTWARE, INC, a California corporation ("Tenant").
RECITALS
A. Landlord (as successor in interest to Xxxxxxx Properties, L.P., a
California limited partnership) and Tenant are parties to that certain
lease dated March 31, 1999, which lease has been previously amended by
First Amendment to Lease dated May 10, 2000, Second Amendment to Lease
dated February 16, 200l and a Holdover Agreement Letter dated May 2,
2002 ("Holdover Agreement") (collectively, the "Lease"). Pursuant to
the Lease, Landlord has leased to Tenant space currently containing
approximately 2,281 rentable square feet (the "Original Premises")
consisting of (i) 879 rentable square feet known as Suite No. 104 and
(ii) 1,402 rentable square feet known as Suite No. 300 on the 1st and
3rd floors of the building commonly known as Brea Park Centre located
at 0000 Xxxxxx Xxxxxx, Xxxx, Xxxxxxxxxx (the "Building").
B. Tenant and Landlord agree to relocate Tenant from the Original Premises
to 1,520 rentable square feet of space described as Suite No. 106 on
the 1st floor of the Building shown on Exhibit A attached hereto
(the "Substitution Space").
C. The Lease by its terms expired on April 30, 2002 ("Prior Expiration
Date") and the parties have entered into a Holdover Agreement. The
parties desire to extend the Term, all on the following terms and
conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. Substitution.
A. Effective as of the Substitution Effective Date (hereinafter
defined), the Substitution Space is substituted for the
Premises and, from and after the Substitution Effective Date,
the Premises, as defined in the Lease, shall be deemed to mean
the Substitution Space containing 1,520 rentable square feet
and described as Suite No. 106 on the 1st floor of the
Building.
B. The Term for the Substitution Space shall commence on the
Substitution Effective Date and, unless sooner terminated
pursuant to the terms of the Lease, shall end on the Extended
Expiration Date (as hereinafter defined). The Substitution
Space is subject to all the terms and conditions of the Lease
except as expressly modified herein and except that Tenant
shall not be entitled to receive any allowances, abatements or
other financial concessions granted with respect to the
Original Premises unless such concessions are expressly
provided for herein with respect to the Substitution Space
Effective as of the Substitution Effective Date, the Lease
shall be terminated with respect to the Original Premises,
and, unless otherwise specified, "Premises" shall mean the
Substitution Space. Tenant shall vacate the Original Premises
as of the Substitution Effective Date (such date that Tenant
is required to vacate the Original Premises being referred to
herein as the "Original Premises Vacation Date") and return
the same to Landlord in "broom clean" condition and otherwise
in accordance with the terms and conditions of the Lease.
II. Substitution Effective Date.
A. The "Substitution Effective Date" shall be the date upon which
the Landlord Work (as defined in the Work Letter attached as
Exhibit B hereto) in the Substitution Space has been
substantially completed, which is estimated to be August 15,
2002 (the "Target Substitution Effective Date"); provided
however, that if Landlord shall be delayed in substantially
completing the Landlord work in the Substitution Space as a
result of the occurrence of a Tenant Delay (defined below),
then, for purposes of determining the Substitution Effective
Date, the date of substantial completion shall be deemed to be
the day that said Landlord Work would have been substantially
completed absent any such Tenant Delay(s). A "Tenant Delay"
means any act or omission of Tenant or its agents, employees,
vendors or contractors that actually
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delays substantial completion of the Landlord Work, including,
without limitation, the following:
1. Tenant's failure to furnish information or approvals
within any time period specified in the Lease or this
Amendment, including the failure to prepare or
approve preliminary or final plans by any applicable
due date;
2. Tenant's selection of equipment or materials that
have long lead times after first being informed by
Landlord that the selection may result in a delay;
3. Changes requested or made by Tenant to previously
approved plans and specifications;
4. The performance of work in the Substitution Space by
Tenant or Tenant's contractor(s) during the
performance of the Landlord Work; or
5. if the performance of any portion of the Landlord
Work depends on the prior or simultaneous performance
of work by Tenant, a delay by Tenant or Tenant's
contractor(s) in the completion of such work.
The Substitution Space shall be deemed to be substantially
completed on the date that Landlord reasonably determines that
all Landlord Work has been performed (or would have been
performed absent any Tenant Delay[s]), other than any details
of construction, mechanical adjustment or any other matter,
the nonperformance of which does not materially interfere with
Tenant's use of the Substitution Space. The adjustment of the
Substitution Effective Date and, accordingly, the postponement
of Tenant's obligation to pay Rent on the Substitution Space
shall be Tenant's sole remedy and shall constitute full
settlement of all claims that Tenant might otherwise have
against Landlord by reason of the Substitution Space not being
ready for occupancy by Tenant on the Target Substitution
Effective Date. During any period that the Substitution
Effective Date is postponed and Tenant's obligation to pay
Rent for the Substitution Space is correspondingly postponed,
Tenant shall continue to be obligated to pay Rent for the
Original Premises in accordance with the terms of the Lease.
B. In addition to the postponement, if any, of the Substitution
Effective Date as a result of the applicability of Paragraph
II. A. of this Amendment, the Substitution Effective Date
shall be delayed to the extent that Landlord fails to deliver
possession of the Substitution Space for any other reason
(other than Tenant Delays), including, but not limited to,
holding over by prior occupants. Any such delay in the
Substitution Effective Date shall not subject Landlord to any
liability for any loss or damage resulting therefrom. If the
Substitution Effective Date is delayed, the Extended
Expiration Date shall not be similarly extended.
III. Extension. The Term of the Lease is extended for a period of
approximately 40 months and 14 days and shall expire on August 14,
2005 ("Extended Expiration Date"), unless sooner terminated in
accordance with the terms of the Lease. That portion of the Term
commencing the day immediately following the Prior Expiration Date
("Extension Date") and ending on the Extended Expiration Date shall be
referred to herein as the "Extended Term".
IV. Base Rent. As of the Substitution Effective Date, the schedule of Base
Rent payable with respect to the Premises during the remainder of the
current Term and the Extended Term is the following:
----------------------------------------------------------------------------------------------
Months of Term Annual Rate Annual Monthly
or Period Per Square Foot Base Rent Base Rent
----------------------------------------------------------------------------------------------
8/15/02-8/31/02 $18.00 $27,360.00 $1,176.80
($73.55 per diem x 16
days)
----------------------------------------------------------------------------------------------
9/1/02-8/31/03 $18.00 $27,360.00 $2,280.00
----------------------------------------------------------------------------------------------
9/1/03-8/31/04 $18.60 $28,272.00 $2,356.00
----------------------------------------------------------------------------------------------
9/1/04-7/31/05 $19.20 $29,184.00 $2,432.00
----------------------------------------------------------------------------------------------
8/1/05-8/14/05 $19.20 $29,184.00 $1,098.30
($78.45 per diem x 14
days)
----------------------------------------------------------------------------------------------
All such Base Rent shall be payable by Tenant in accordance with the
terms of the Lease.
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Landlord and Tenant acknowledge that the foregoing schedule is based on
the assumption that the Substitution Effective Date is the Target
Substitution Effective Date. If the Substitution Effective Date is
later than the Target Substitution Effective Date, (i) the schedule set
forth above with respect to the payment of any installment(s) of Base
Rent for the Substitution Space shall be appropriately adjusted on a
per diem basis to reflect the actual Substitution Effective Date and
the actual Substitution Effective Date shall be set forth in a
confirmation letter to be prepared by Landlord, and (ii) Tenant shall
continue to pay Landlord Base Rent for the Original Premises at the
rate in effect immediately prior to the Extension Date until the
Substitution Effective Date. However, the effective date of any
increases or decreases in the Base Rent rate shall not be postponed as
a result of an adjustment of the Substitution Effective Date as
provided above.
V. Additional Security Deposit. No additional security deposit shall be
required in connection with this Amendment.
VI. Tenant's Proportionate Share. For the period commencing with the
Substitution Effective Date and ending on the Extended Expiration Date,
Tenant's Proportionate Share for the Premises is 3.1367%.
VII. Operating Expenses. For the period commencing with the Substitution
Effective Date and ending on the Extended Expiration Date, Tenant shall
pay for Tenant's Proportionate Share of Operating Expenses applicable
to the Premises in accordance with the terms of the Lease, provided,
however, during such period, the Base Year for the computation of
Tenant's Proportionate Share of Operating Expenses applicable to the
Premises is 2002. If the Substitution Effective Date is later than the
Extension Date, Tenant shall continue to pay Additional Rent for the
Original Premises in accordance with the terms of the Lease until the
Substitution Effective Date.
VIII. Improvements to Substitution Space.
A. Condition of Substitution Space. Tenant has inspected the
Substitution Space and agrees to accept the same "as is"
without any agreements, representations, understandings or
obligations on the part of Landlord to perform any
alterations, repairs or improvements, except as may be
expressly provided otherwise in this Amendment.
B. Responsibility for Improvements to Substitution Space.
Landlord shall perform improvements to the Substitution Space
in accordance with the Work Letter attached hereto as
Exhibit B.
IX. Early Access to Substitution Space. During any period that Tenant shall
be permitted to enter the Substitution Space prior to the Substitution
Effective Date (e.g., to perform alterations or improvements), if any,
Tenant shall comply with all terms and provisions of the Lease, except
those provisions requiring payment of Base Rent or Additional Rent as
to the Substitution Space. If Tenant takes possession of the
Substitution Space prior to the Substitution Effective Date for any
reason whatsoever (other than the performance of work in the
Substitution Space with Landlord's prior approval), such possession
shall be subject to all the terms and conditions of the Lease and this
Amendment, and Tenant shall pay Base Rent and Additional Rent as
applicable to the Substitution Space to Landlord on a per diem basis
for each day of occupancy prior to the Substitution Effective Date.
X. Holding Over. If Tenant continues to occupy the Original Premises after
the Original Premises Vacation Date (as defined in Section I above),
occupancy of the Original Premises subsequent to the Original Premises
Vacation Date shall be that of a tenancy at sufferance and in no event
for month-to-month or year-to-year, but Tenant shall, throughout the
entire holdover period, be subject to all the terms and provisions of
the Lease and shall pay for its use and occupancy an amount (on a per
month basis without reduction for any partial months during any such
holdover) equal to three times the sum of the Base Rent and Additional
Rent due for the period immediately preceding such holding over,
provided that in no event shall Base Rent and Additional Rent during
the holdover period be less than the fair market rental for the
Original Premises. No holding over by Tenant in the Original Premises
or payments of money by Tenant to Landlord after the Original Premises
Vacation Date shall be construed to prevent Landlord from recovery of
immediate possession of the Original Premises by summary proceedings or
otherwise. In addition to the obligation to pay the amounts set forth
above during any such holdover period, Tenant also shall be liable to
Landlord for all damage, including any consequential damage, which
Landlord may suffer by reason of any holding over by
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Tenant in the Original Premises, and Tenant shall indemnify Landlord
against any and all claims made by any other tenant or prospective
tenant against Landlord for delay by Landlord in delivering possession
of the Original Premises to such other tenant or prospective tenant.
XI. Other Pertinent Provisions. Landlord and Tenant agree that, effective
as of the date of this Amendment (unless different effective date(s)
is/are specifically referenced in this Section), the Lease shall be
amended in the following additional respects:
A. Rent Adjustment. Notwithstanding the Base Rent schedule set
forth in Section IV of this Amendment, upon the full and final
execution of this Amendment by Landlord and Tenant, Tenant
shall be entitled to a rent adjustment shall be In the amount
of $917.75 for each month (the "Rent Adjustment") for the
period commencing on May 1, 2002 and ending on the date of
execution of this Amendment (the "Rent Adjustment Period"). By
way of example, should Tenant occupy the Substitution Space on
August 15, 2002, Tenant shall receive a credit against Base
Rent in the amount of $3,212.13 (3.5 months x $917.75). In the
event Tenant defaults at any time during the Extended Term,
the Rent Adjustment shall immediately become due and payable.
The payment by Tenant of the Rent Adjustment in the event of a
default shall not limit or affect any of Landlord's other
rights, pursuant to the Lease or at law or in equity. Only the
Rent Adjustment shall be abated during the Rent Adjustment
Period and all other Additional Rent and other costs and
charges specified in the Lease shall remain as due and payable
pursuant to the provisions of the Lease.
B. Parking. Effective as of the Substitution Effective Date,
Article 37 of the Lease shall be amended by decreasing the
number of non-reserved parking spaces to 5 non-reserved
parking spaces (the "Parking Spaces") in the parking areas at
no charge. Except as modified herein, the use of the Parking
Spaces shall be subject to the terms of Article 37 of the
Lease.
C. Utility Deregulation. Notwithstanding anything to the contrary
set forth in the Lease, Operating Expenses shall include, to
the extent permitted by applicable laws, a fee for the
services provided by Landlord in connection with the selection
of utility companies and the negotiation and administration of
contracts for electricity, provided that such fee shall not
exceed 50% of any savings obtained by Landlord.
D. Landlord's Notice Address and Remittance Address. Effective as
of the date of this Amendment, Landlord's Notice Address and
Remittance Address set forth in the Basic Lease Information
section of the Lease shall be deleted in its entirety and the
following shall be substituted therefor:
"Landlord: With a copy to:
EOP-BREA PARK CENTRE, Equity Office Properties Trust
L.L.C. Two North Riverside Plaza
C/o Equity Office Suite 2100
Properties Trust Xxxxxxx, Xxxxxxxx 00000
0000 Xxxxxxxx Xxxxxxx Attention: Regional Counsel--Los
Xxxxx 000 Xxxxxxx Xxxxxx
Xxxx, Xxxxxxxxxx 00000
Attention: Building
Manager
Rent is payable to the order of Equity Office Properties at
the following address: XXX-Xxxx Xxxx Xxxxxx, X.X.X.,
Xxxxxxxxxx 00000, XX Xxx 00000, Xxx Xxxxxxx, XX 00000-0000."
XII. Miscellaneous.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein There
have been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to
any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Substitution Space, or any
similar economic incentives that may have been provided Tenant
in connection with entering into the Lease, unless
specifically set forth in this Amendment.
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B. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain unchanged and
in full force and effect.
C. In the case of any inconsistency between the provisions of
the Lease and this Amendment, the provisions of this Amendment
shall govern and control.
D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for
such an offer by Tenant. Landlord shall not be bound by this
Amendment until Landlord has executed and delivered the same
to Tenant.
E. The capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease to the extent that
such capitalized terms are defined therein and not redefined
in this Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt
with no broker in connection with this Amendment. Tenant
agrees to indemnify and hold Landlord, its members,
principals, beneficiaties, partners, officers, directors,
employees, mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively, the
"Landlord Related Parties") harmless from all claims of any
brokers claiming to have represented Tenant in connection with
this Amendment. Landlord hereby represents to Tenant that
Landlord has dealt with no broker in connection with this
Amendment. Landlord agrees to indemnify and hold Tenant, its
members, principals, beneficiates, partners, officers,
directors, employees, and agents, and the respective
principals and members of any such agents (collectively, the
"Tenant Related Parties") harmless from all claims of any
brokers claiming to have represented Landlord in connection
with this Amendment.
G. Each signatory of this Amendment represents hereby that he or
she has the authority to execute and deliver the same on
behalf of the party hereto for which such signatory is acting.
[SIGNATURES ARE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
LANDLORD:
EOP-BREA PARK CENTRE, L.L.C., a Delaware limited
liability company
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
-----------------------------
Title: Managing Director-Leasing
----------------------------
TENANT:
HOLLYWOOD SOFTWARE, INC., a California
corporation
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: CFO
-------------------------------
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
--------------------------------
Title: Vice President
-------------------------------
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