October 27, 1987
Informix Software, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn: Xx. Xxxxx Xxxxx
Gentlemen:
This letter shall serve as an additional side agreement to that certain Lease
("Lease") dated September 4, 1987 between Menlo Oaks Partners L.P. ("Landlord")
and Informix Software, Inc. ("Tenant") for the Premises known as 0000 Xxxxxxxx
Xxxxx and constitutes additional covenants and agreements thereto, and to the
side agreement between Landlord and Tenant dated August 31, 1987 with the
covenants and agreements set forth herein to prevail in the event of any
conflict between the covenants and agreements contained herein and those in the
Lease and the side agreement dated August 31, 1987. The capitalized terms
employed herein shall have the meanings employed in the Lease or as otherwise
defined herein.
Tenant has notified Landlord of its desire to occupy one-half of the Premises
"Initial Premises" at the earliest date that such Initial Premises can be made
available for occupancy. Landlord and Tenant agree to work together diligently
to develop a preliminary plan indicating the Improvements to be constructed in
the Initial Premises by Landlord.
Tenant agrees to take occupancy of the premises described as Area III of the
Building known as 0000 Xxxxxxxx Xxxxx ("Area III Premises") (pursuant to a lease
between Landlord and Tenant dated 11/7/86, the "4200 Building Lease") on the
first day immediately following vacation thereof by the present tenant Allstate
Insurance Company, and to commence payment of rent thereon upon such date ("Area
III Occupancy Date"). Landlord and Tenant agree that the Area III Premises
shall be deemed to be delivered to Tenant upon the Area III Occupancy Date for
purposes of determining Liquidated Damages described in Paragraph 1.B. of
Special Provisions Rider To Lease of the 4200 Building Lease. The Liquidated
Damages payable by Landlord to Tenant due on the Area III Occupancy Date shall
therefore be $500 for each business day, payable monthly from December 2, 1987
to the business day immediately preceeding the Area III Occupancy Date, Upon
completion of the Initial Premises, Tenant agrees to vacate the Area III
Premises in order to allow Landlord to construct Tenant's improvements to the
Area III Premises pursuant to plans
prepared by MMAP, Inc. described as Informix Software, Inc., Job. No. 7051.00
pages A-0, A1.1, A1.2, A1.3, A1.4 and A.4 and dated 9-23-87 which improvements
Landlord agrees shall be constructed without cost to Tenant.
In consideration of the foregoing, Landlord agrees to pay Tenant in cash the sum
of $20,326.32 not later than the 15th day after the Area III Occupancy Date, an
additional $20,326.32 not later than the 45th day after the Area III Occupancy
Date, and Landlord agrees to reimburse Tenant within five (5) business days for
the pro rata share of Additional Rent (as defined in the 4200 Building Lease)
attributable to the Area III Premises from the date Tenant vacates the Area III
Premises to permit Landlord to construct Tenant's improvements as provided in
the third paragraph of this letter until Tenant reoccupies the Area III
Premises, but in no event for a period of greater than 60 days.
Landlord further agrees that in the event Landlord is unable to deliver the
Initial Premises to Tenant by March 31, 1987, Landlord shall pay Tenant the sum
of One Thousand Dollars ($1,000.00) for each business day for which Landlord is
delinquent in delivering the Initial Premises to Tenant; provided, however,
Landlord shall not pay such amount for the period of any delay caused by Tenant.
WITH REFERENCE TO THE SUM OF ONE THOUSAND AND N0/100 DOLLARS ($1000.00) PER DAY,
LANDLORD AND TENANT AGREE THAT THE ACTUAL DAMAGES AND COSTS SUSTAINED BY TENANT
DUE TO THE DELAY IN THE DELIVERY OF THE INITIAL PREMISES TO TENANT WOULD BE
EXTREMELY DIFFICULT TO MEASURE AND THAT THE AMOUNT SPECIFIED ABOVE REPRESENTS A
REASONABLE ESTIMATE BY LANDLORD AND TENANT OF A FAIR AVERAGE COMPENSATION FOR
SUCH DAMAGES AND COSTS. EXCEPT FOR THE TERMINATION RIGHTS SET FORTH IN ARTICLE
2.3 OF THE LEASE, AS MODIFIED BY THIS SIDE AGREEMENT, THE AMOUNT STATED ABOVE
SHALL BE TENANT'S SOLE REMEDY IN THE EVENT OF THE ABOVE-DESCRIBED DELAY IN
DELIVERY OF THE INITIAL PREMISES SPACE TO TENANT, AND TENANT WAIVES ANY OTHER
RIGHT TENANT MAY HAVE AGAINST LANDLORD INCLUDING THE RIGHT TO SPECIFIC
PERFORMANCE. LANDLORD AND TENANT ELECT THE LIQUIDATED DAMAGES CLAUSE BY
INITIALING THIS SECTION AS FOLLOWS:
LANDLORD:/s/ Authorized Signature
TENANT: /s/ Authorized Signature
Landlord shall not be in breach of the Lease or any term or covenant thereof if
Landlord is unable to deliver the Initial Premises to Tenant within the
timeframe provided for herein, it being understood and acknowledged by Tenant
that the liquidated damages described herein shall be Tenant's sole remedy for
Landlord's failure to deliver the Initial Premises to Tenant.
Tenant agrees to provide Landlord with Tenant's Floor Plans for the Initial
Premises pursuant to Article 2.1(a) of the Lease on or before November 16, 1987,
and delivery of said plans on a date
later than November 16, 1987, shall constitute a delay caused by Tenant.
Landlord's obligation for the payments and reimbursements provided for in the
fourth, fifth and sixth paraqraphs of this agreement is conditioned upon the
faithful performance of Tenant's agreements contained in this letter and the
side agreement dated August 31, 1987 and Tenant not being in default of any
provision of the Lease, the 4200 Building Lease or Tenant's Lease on the
building known as 0000 Xxxxxxxx Xxxxx at the time such payments are due.
Landlord and Tenant agree that should the Initial Premises be made Ready for
Occupancy on or before the date three months following the Scheduled Term
Commencement Date and thereafter Landlord fails to complete construction of the
balance of the improvements to the Premises ("Remaining Premises") as provided
for in the Lease, the Rights of both parties to terminate the Lease pursuant to
Article 2.3 of the Lease shall be effective only as to the Remaining Premises.
In the event of such termination with respect to the Remaining Premises,
("Partial Termination") Landlord and Tenant agree that Landlord shall make such
modifications to the Initial Premises as Landlord may reasonably determine are
necessary for the subsequent marketing and occupancy of the Remaining Premises,
and Landlord shall in its reasonable judgement designate such areas of the
Building including portions of the Initial Premises as Building Common Area for
the enjoyment of all Building Tenants. Landlord shall redesignate the area of
the Initial Premises reflecting a reasonable allocation of the Building Common
Area, The cost of any Building Common Area Improvements shall be reasonably
determined by Landlord and allocated on a ratable per square foot basis, The
Actual Cost of Tenant's Initial Premises shall be reasonably redetermined by
Landlord pursuant to Article 4.2 of the Wage and Landlord shall prepare a
revised Actual Cost statement. In the event the Actual Cost of Tenant's Initial
Premises exceeds the sum ("Revised Allowance") which is the product of the
number of square feet in the Area of the initial Premises (as redesignated by
Landlord) multiplied by thirty one dollars ($31.00) Tenant shall reimburse
Landlord for such difference in cash upon Landlord's notice thereof to Tenant
pursuant to Article 4.2 of the Lease. In the event the Actual Cost of Tenant's
Initial Premises is less than the Revised Allowance, Landlord shall reimburse
Tenant in cash for such difference immediately upon Landlord's determination
thereof.
In the event of such Partial Termination, Landlord and Tenant agree to execute
an amendment to the Lease reflecting a revised description of the Premises, a
ratable reduction in the allocation of parking spaces to the Premises and such
other provisions as may be appropriate to conform to the intent of this letters.
Very truly yours,
MENLO OAKS PARTNERS L.P.
By: A.M. Limited Partners,
Its General Partner
By: Amarok Menlo Inc.
Its General Partner
By:/s/ Authorized Signature
Its: President
Agreed and accepted by:
INFORMIX SOFTWARE INC.
By: /s/ Authorized Signature
Its: President
Date: 10-28-97
