SECOND AMENDMENT TO OFFICE LEASE
EXHIBIT
10.28C
SECOND AMENDMENT TO OFFICE LEASE
This SECOND AMENDMENT TO OFFICE LEASE (this “Second Amendment”) is entered into as of the
7th day of December, 2005 (the “Effective Date”), by and between SEAVIEW PFG, LLC, a Delaware
limited liability company (“Landlord”), and WEBSIDESTORY, INC., a California corporation
(“Tenant”), with reference to the following facts:
RECITALS
A. Landlord’s predecessor-in-interest, LNR Seaview, Inc., a California corporation
(“LNR”) and Tenant previously entered into that certain Office Lease dated as of August 23,
1999 (the “Original Lease”), whereby Tenant leased certain office space (“Premises”) in the
Building located at 00000 Xxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 (the “Building”) also
known as Seaview Corporate Center, as the same is more particularly described in the Original
Lease.
B. LNR and Tenant also previously entered into that certain First Amendment to
Lease (the “First Amendment”) dated as of July 3, 2001 amending certain terms of the Lease.
The Original Lease and First Amendment are hereinafter collectively referred to as the
“Lease.”
C. LNR’s interest as landlord under the Lease was previously assigned to Landlord
by that certain Assignment of Leases dated April 17, 2002.
D. Landlord and Tenant now desire to extend the term of the Lease and to further
amend certain provisions of the Lease upon the terms set forth herein.
E. Terms used herein beginning with capital letters and not otherwise defined herein
shall have the meanings given to them in the Lease.
AGREEMENT
NOW, THEREFORE, for and in consideration of the covenants and agreements herein contained and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree, effective as of the Effective Date, as follows:
1. Premises. Landlord and Tenant hereby acknowledge and agree that the Premises
consists of 61,211 rentable square feet and 57,549 useable square feet located on the forth,
fifth and sixth floors of the Building.
2. Term. Section 1.6 of the Summary is hereby amended to provide for an
Extended Term (the “Extended Term”) of an additional seventy two (72) months with the
Extended Term commencing on February 1, 2007 and ending on January 31, 2013.
3. Monthly Basic Rent. Section 1.8 of the Summary is hereby amended to add the
following schedule of Monthly Basic Rent
| Extension Period | ||||
| Years/Months | Monthly Basic Rent | |||
2/1/07-1/31/08 |
$ | 146,906.40 | ||
2/1/08-1/31/09 |
$ | 151,313.59 | ||
2/1/09-1/31/10 |
$ | 155,853.00 | ||
2/1/10-1/31/11 |
$ | 160,528.59 | ||
2/1/11-1/31/12 |
$ | 165,344.45 | ||
2/1/12-1/31/13 |
$ | 170,304.78 | ||
4. Base
Year. Section 1.10 of the Summary is hereby amended to provide
that during the Extension Period, the Base Year shall be the calendar year 2005.
5. Tenant
Improvement Allowance. As of the Effective Date, and for a period of
twelve (12) months following the first day of the first month thereafter, Tenant shall be
entitled to a tenant changes allowance (the “Tenant Changes Allowance”) of up to TEN DOLLARS
($10.00) per useable square foot of the Premises for a total maximum Tenant Changes
Allowance of Five Hundred Seventy Five Thousand Four Hundred Dollars ($575,400.00) for
Tenant’s use in making Tenant Changes, as that term is defined in Section 12 of the Lease, to
the Premises. Alternatively, Landlord will allow Tenant to apply up to Eight Dollars ($8.00) per
useable square foot of the Premises ($460,320.00) to offset (“Rent Offset”) Monthly Basic Rent
during the twelve month period commencing on the first day of the first month following the
Effective Date. No later than sixty (60) days after the Effective Date, Tenant shall give
Landlord
written notice of its election to use either the Tenant Changes Allowance to effect Tenant
Changes to the Premises or the Rent Offset to offset Monthly Basic Rent or a combination of
both on a per square foot basis. For example, Tenant may elect to use $250,000 of Tenant
Changes Allowance and $325,400 of Rent Offset. In the event and to the extent that Tenant
elects to utilize the Tenant Changes Allowance, the provisions of Section 12 of the Lease
shall apply to all such Tenant Changes completed within the aforementioned twelve (12) month period
and the provisions of Exhibit “C”, Work Letter Agreement, shall apply to the disbursement of
the Tenant Changes Allowance just if such Tenant Change Allowance were in fact the Tenant
Improvements Allowance under Exhibit “C”. In the event and to the extent that Tenant fails to
utilize the Tenant Changes Allowance or notify Landlord of its intent to apply the Rent Offset
as provided in this Second Amendment, then and in such event, the Tenant will be deemed to have
elected the Rent Offset and will be entitled to the Rent Offset described in this paragraph.
6. Option
Term. Landlord and Tenant acknowledge and agree that the Extended
Term provided by this Second Amendment constitutes the exercise of the first of the two
options for the extension of the Lease as provided for in Section 36 of the Lease and that the Lease
is hereby extended according to the terms set forth in this Second
Amendment.
7. Proposition
13 Protection. Landlord and Tenant acknowledge and agree that
this Second Amendment constitutes the exercise of the first of the two option periods provided
for in Section 36 of the Lease, and as such, the provisions of Section 4.6 of the Lease are no
longer applicable to the Lease. Accordingly, Section 4.6 of the Lease is hereby deleted in its
entirety and is of no further force or effect.
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8. No
Further Modification. Except as set forth in this Second Amendment, all
of the terms and provisions of the Lease shall remain unmodified and in full force and effect.
Effective as of the Effective Date, all references to the “Lease” shall refer to the Lease as
modified by this Second Amendment.
9. Ratification;
Controlling Effect. The Lease, as amended by this Second
Amendment, is hereby ratified by Landlord and Tenant, and Landlord and Tenant hereby agree
that the Lease, as so amended, shall continue in full force and effect. In the event of any
conflict between the terms of this Second Amendment and the provisions of the Original Lease as
previously amended, the terms of this Second Amendment shall control.
10. Tenant
Changes Allowance and/or Rent Offset. The amount of the Tenant
Changes Allowance and/or the amount of any Rent Offset actually used by Tenant shall be
deemed added to Section 23.2(d) of the Lease and included in the list of amounts necessary to
compensate Landlord for any detriment proximately caused by any default of Tenant, as further
described therein.
11. Address
Change. Tenant acknowledges and agrees that the address of Landlord
for notice under the Lease is the following:
| SEAVIEW PFG, LLC | ||
| c/o The Xxxxxxx Group | ||
| 00000 Xxxxxxx Xxxxx, Xxxxx 000 | ||
| Xxx Xxxxx, XX 00000 | ||
| Attn: Xx. Xxxxxxx X. Xxxx |
12. Miscellaneous.
(a) Voluntary Agreement. The parties have read this Second Amendment
and on the advice of counsel they have freely and voluntarily entered
into this Second
Amendment.
(b) Successors. This Second Amendment shall be binding on and inure to the
benefit of the parties and their successors.
(c) Counterparts. This Second Amendment may be signed in two or more
counterparts. When at least one such counterpart has been signed by each party, this Second
Amendment shall be deemed to have been fully executed, each counterpart shall be deemed to be
an original, and all counterparts shall be deemed to be one and the same agreement.
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IN
WITNESS WHEREOF, this Second Amendment has been entered into as of
the date first set forth above.
| “Landlord” | SEAVIEW PFG, LLC, | ||||||||
| a Delaware limited liability company | |||||||||
| By: | Principal Real Estate Investors, LLC, | ||||||||
| a Delaware limited liability company, | |||||||||
| its authorized signatory | |||||||||
| By: | /s/ Xxxx X. Koersolmes | ||||||||
| Name: | Xxxx X. Koersolmes | ||||||||
| Its: | Investment Director Asset Management | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | ||||||||
| Name: | Xxxxxxx X. Xxxxxxx | ||||||||
| Its: | Assistant Managing Director Asset Management |
||||||||
| “Tenant” | WEBSIDESTORY, INC., | ||||||
| a Delaware corporation | |||||||
| By: | /s/ Xxxx Xxxxxxxx | ||||||
| Name: | Xxxx Xxxxxxxx | ||||||
| Its: | CEO | ||||||
| By: | |||||||
| Name: | |||||||
| Its: | |||||||
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