THIRD AMENDMENT TO LEASE
------------------------
THIS THIRD AMENDMENT TO LEASE ("Third Amendment") is made as of June 8th,
1993 ("Effective Date"), between MENLO OAKS PARTNERS, L.P., a Delaware limited
partnership ("Landlord"), and INFORMIX SOFTWARE, INC., a Delaware corporation
("Tenant").
THE PARTIES ENTER INTO THIS THIRD AMENDMENT based upon the following facts,
understandings and intentions:
A. Landlord and Tenant are now parties to that certain Menlo Oaks
Corporate Center Standard Business lease (Net), dated September 4, 1987, as
amended by: (i) that certain First Amendment of Lease of 4300 Xxxxxxxx
Building, Option to Lease 4500 Xxxxxxxx Building and Exercise of Extension
Option, dated June 22, 1988, (ii) that certain First Amendment to Lease (4300
Xxxxxxxx Drive), dated as of June 18, 1991, (iii) that certain letter
agreement dated February 7, 1992, and (iv) that certain Second Amendment to
Lease, dated as of July 17, 1992 (as amended, the "Lease"). The Lease is
attached hereto as EXHIBIT A. Pursuant to the terms of the Lease, Landlord
currently leases to Tenant the following (collectively, the "Existing
Premises"): (i) approximately 62,920 rentable square feet of space in
Landlord's building located at 0000 Xxxxxxxx Xxxxx in Menlo Park, California,
and (ii) approximately 13,884 rentable square feet of space in Landlord's
building located at 0000 Xxxxxxxx Xxxxx (the "4400 Building") in Menlo Park,
California.
B. Tenant has recently requested that Landlord also lease to Tenant
approximately Three Thousand One Hundred Forty-six (3,146) rentable square feet
of space (the "Additional Space") more particularly known as Xxxxx 000 xxx Xxxxx
000 of the 4400 Building. The Additional Space is more particularly shown as
the cross-hatched areas on EXHIBIT B attached hereto.
C. Landlord and Tenant now desire to amend the Lease to provide that the
Additional Space shall be included as a part of the Premises upon the terms and
conditions more particularly described herein. The capitalized terms used in
this Third Amendment shall have the meanings given to such terms within the
Lease, unless otherwise set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of
the parties, the parties hereto agree as follows:
1. ADDITIONAL SPACE. Commencing on the date which is the earlier
of: (i) July 1, 1993; or (ii) the date upon which Tenant actually takes
possession of any portion of the Additional Space for the conduct of Tenant's
business thereon (the
1
"Additional Space Commencement Date"), Landlord hereby leases to Tenant and
Tenant leases from Landlord the Additional Space, subject to the provisions of
the Lease and the terms and conditions set forth herein. If the Additional
Space is not ready for occupancy on the Additional Space Commencement Date for
any cause beyond the control of Landlord, this Third Amendment shall remain in
effect and Landlord shall not be subject to any liability, provided the
Additional Space Commencement Date shall be delayed until the date Tenant
actually occupies the Additional Space. From and after the Additional Space
Commencement Date, the term "Premises" shall include both the Existing Premises
and the Additional Space for all purposes under the Lease.
2. CONDITION OF ADDITIONAL SPACE. Tenant hereby accepts the
Additional Space in an "as-is, where-is" condition, as exists as of the
Effective Date, with all defects, whether or not disclosed to Tenant by
Landlord, and subject to all applicable laws, ordinances and regulations and
any covenants or restrictions of record relating to the Additional Space.
Landlord makes no representations or warranties, express or implied, as to
the physical condition of the Additional Space, its current compliance with
law or its fitness for Tenant's intended use, or the condition of the
structural and nonstructural portions of the Additional Space or whether any
repairs are necessary to correct pre-existing conditions.
3. TERM. The term ("Additional Space Term") shall commence on
the Additional Space Commencement Date and shall terminate on August 30,
1995, unless terminated earlier pursuant to the terms of the lease.
4. BASE RENT. From and after the Additional Space Commencement
Date, the Base Rent for the Premises payable pursuant to Article 4 of the
lease shall be increased to the following amounts:
BASS RENT/RENTABLE BASE RENT
PERIOD SQUARE FOOT/MONTH PER MONTH
------ ----------------- ----------
July 1, 1993- $1.505 for Existing Premises $115,590.02
July 31, 1993 $0.00 for Additional Space (based on 79,980
rentable square
feet)
August 1, 1993- $1.505 $120,369,90
April 30, 1994 (based on 79.980
rentable square
feet)
2.
May 1, 1994- $1.55 $123,969.00
April 30, 1995 (based on 79,980
rentable square
feet)
May 1, 1995- $1.70 $135,966.00
August 30, 1995 (based on 79,980
rentable square
feet)
September 1, 1995- $1.70 $130,566.80
March 31, 1998 (based on 76,804
rentable square
feet)
5. TENANT'S SHARE. From the time period commencing on the
Additional Space Commencement Date and terminating on August 31, 1995,
Tenant's Share, as set forth in Article 7.1 of the Lease, shall be thirty-six
and 82/100 percent (36.82%) of the Operating Expenses attributable to the
4400 Building, which includes Fifteen and 60/100 percent (15.60%) of the
Operating Expenses attributable to Phase II, and one hundred percent (100%)
of Operating Expenses attributable to the 4300 Building, which includes
Fifty-Seven and 63/100 percent (57.63%) of the Operating Expenses
attributable to Phase II. As of September 1, 1995, Tenant's Share shall be
reduced to thirty percent (30%) of the Operating Expenses attributable to the
4400 Building, which includes Twelve and 72/100 percent (12.72%) of the
Operating Expenses attributable to Phase II, and one hundred percent (100%)
of the Operating Expenses attributable to the 4300 Building, which includes
Fifty-Seven and 63/100 percent (57.63%) of the Operating Expenses
attributable to Phase II.
6. PARKING ACCESS. From and after the Additional Space
Commencement Date until August 31, 1995, Tenant's allocation for the use of
the parking spaces provided for Phase II of Menlo Oaks Corporate Center, as
indicated in EXHIBIT F and in Article 10.3 of the Lease, shall be increased
to seventy-three and 23/100 percent (73.23%). As of September 1, 1995,
Tenant's allocation for the use of the parking spaces provided for Phase II
of Menlo Oaks Corporate Center, as indicated in EXHIBIT F and in Article 10.3
of the Lease, shall be reduced to seventy and 35/100 percent (70.35%).
7. SECURITY DEPOSIT. Upon the Effective Date, Tenant shall
deliver to Landlord the amount of Four Thousand Seven Hundred Thirty-Four
Dollars and Seventy-Three Cents ($4,734.73) ("Additional Space Security
Deposit") as an additional security deposit to secure Tenant's obligations
under the Lease. Landlord's use, retention and return of the Additional Space
3.
Security Deposit, and Tenant's remittance obligations with respect thereto,
shall be governed by Article 4.6 of the Lease.
8. TENANT IMPROVEMENTS. Subject to the terms of this Section 8,
Tenant shall have the right, without need for Landlord's consent, to make the
alterations to the Additional Space more particularly described in EXHIBIT C
attached hereto ("Approved Improvements") . All of the Approved Improvements
shall be performed: (i) in a good and workmanlike manner, (ii) in compliance
with all applicable laws or permits, (iii) using materials and methods that
are at least equal to Landlord's then existing building standards for tenant
improvements to the 4400 Building, and (iv) by a contractor reasonably
satisfactory to Landlord. The final plans and specifications for any
Approved Improvements shall be subject to the prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed.
Notwithstanding anything to the contrary in the Lease, Tenant shall not be
obligated to remove the Approved Improvements from the Additional Space at
the expiration or earlier termination of the Additional Space Term.
9. REPRESENTATIONS AND WARRANTIES. Tenant hereby represents,
warrants and agrees that: (i) there exists no breach, default or event of
default under the Lease, or any event or condition which, with notice or
passage of time or both, would constitute a breach, default or event of
default under the Lease; (ii) the Lease continues to be a legal, valid and
binding agreement and obligation of Tenant; and (iii) Landlord is not in
default under the Lease and neither Tenant nor any other party has any offset
or defense to their performance or obligations under the Lease.
10. CONTINUING OBLIGATIONS. Except as expressly set forth to the
contrary in this Third Amendment, the Lease remains unmodified and in full
force and effect. To the extent of any conflict between the terms of this
Third Amendment and the terms of the Lease, the terms of this Third Amendment
shall control.
4.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
with duplicate counterparts as of the day and year first above written.
"LANDLORD"
MENLO OAKS PARTNERS, L.P., a
Delaware limited partnership
By: AM LIMITED PARTNERS,
as a General Partner
By: AMAROK MENLO, INC.,
as a General Partner
By: /s/ J. Xxxxx Xxxxx, Xx.
J. Xxxxx Xxxxx, Xx.
President
"TENANT"
INFORMIX SOFTWARE, INC.,
a Delaware corporation
By: /s/ Authorized Signature
Its: Vice President
By: /s/ Authorized Signature
Its: Director Corporate Real Estate
