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EXHIBIT 10.10
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT PROPERTIES, INC.,(the "Amendment") is
made as of the 29 day of April, 1996, by and between GATEWAY VIRGINIA
PROPERTIES, INC. California corporation ("Landlord"), and CYBERCASH, INC., a
Delaware corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease
dated November 30, 1994 together with that First Amendment to Lease dated
November 7, 1995 (the "First Amendment") (collectively the "Lease") pursuant to
which Tenant leased that certain space located on the fourth (4th) floor and
known as Suite Number 430 (the "Original Premises") and on the third (3rd)
floor and known as Suite Number 300 (the "Additional Premises") of the building
located at 0000 Xxxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx (the "Building"), said
Original Premises and Additional Premises containing approximately 33,702
square feet (collectively the "Demised Premises");
WHEREAS, Landlord and Tenant desire to amend the Lease to
increase the Demised Premises and to modify and amend certain terms and
conditions of the Lease as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing premises,
the mutual covenants set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant, intending to be legally bound, hereby agree as follows:
1. RECITALS. The rentals set forth above are
incorporated herein by this reference with the same force and effect as if fully
set forth hereinafter.
2. CAPITALIZED TERMS.Capitalized terms not otherwise
defined herein shall have the meaning ascribed to them in the Lease.
3. PREMISES.
a. Commencing on the date of substantial
completion of the Improvements as defined in Paragraph 10 hereof (the
"Expansion Premises Commencement Date"), the Lease is amended to increase the
Demised Premises by approximately Five Thousand Six Hundred Forty-Two (5,642)
square feet of space on the first (1st) floor of the Building (the
"Expansion Premises"), as shown on the
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space plan attached hereto as Exhibit A-2 to approximately Thirty-Nine Thousand
Three Hundred Forty-Four (39,344) square feet.
b. As of the Expansion Premises Commencement Date, Section
1.2 of the Lease as amended by Paragraph 3.b. of the First Amendment shall be
deleted in its entirety and the following Section 1.2 substituted in lieu
thereof:
"1.2 Suite Number 100, as shown on Exhibit A-2 of the
Amendment, Suite Number 300, as shown on Exhibit A-1 of the
First Amendment and Suite 430, as shown on Exhibit A of the
Lease."
C. As of the Expansion Premises Commencement Date,
Section 1.3 of the Lease as amended by Paragraph 3.c. of the First Amendment
shall be deleted in its entirety and the following Section 1.3 substituted in
lieu thereof.
"1.3 Rentable Area of Premises: 39,344 square feet comprised
of the following: Suite 100 containing 5,642 square feet
("Expansion Premises"), Suite 300 containing 25,962 square
feet ("Additional Premises") and Suite 430 containing 7,740
square feet ("Original Premises")."
d. As of the Expansion Premises Commencement Date, all
references in the Lease to "Premises" or "Demised Premises" shall, unless
specifically stated otherwise herein, refer collectively to the Original
Premises, the Additional Premises and the Expansion Premises.
4. Term.
a. As of the Expansion Premises Commencement Date, Section
1.6 of the Lease as amended by Paragraph 4.a. of the First Amendment shall be
deleted in its entirety and the following Section 1.6 substituted in lieu
thereof:
"1.6 Term: Original Premises: Five (5) years,
expiring February 28,
2000.
Additional Premises: Seven (7) years,
expiring March 3 1,
2003.
Expansion Premises: Five (5) years."
b. Section 3.1 of the Lease, as amended by Paragraph 4.b.
of the First Amendment, shall be further amended by adding the following to the
end of Section 3. 1: "Notwithstanding the Commencement Dates as to the Original
Premises and the Additional Premises, the Term of the Lease as to the Expansion
Premises set forth in Section 1.6 of the Lease shall be computed from the
Expansion Premises Commencement Date (unless the Expansion Premises Commencement
Date is other than the first day of a calendar month, in which event the Term of
the
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Lease as to the Expansion Premises shall be computed from the first day of the
calendar month following the Expansion Premises Commencement Date). Once the
actual Expansion Premises Commencement Date has been established by Landlord,
Tenant shall, within five (5) business days after Landlord's request, complete
and execute the letter attached hereto as Exhibit B-2 and deliver it to
Landlord."
5. BASE RENT. As of the Expansion Premises Commencement
Date,
a. Section 1.8 of the Lease as amended by Paragraph 5.a.
of the First Amendment shall be deleted in its entirety and the following
Section 1.8 substituted in lieu thereof.
"1.8 Base Rent: Original Premises: $10,739.25 per month.
Additional Premises: $38,402.13 per month.
Expansion Premises: $8,815.63 per month."
b. Paragraph 1 of the Addendum attached to the Lease and
made a part thereof as amended by Paragraph 5.b. of the First Amendment shall be
further amended by adding the following at the end of Paragraph 1 of the
Addendum:
"EXPANSION PREMISES:
Lease Year Annual Base Rent Monthly Base Rent
---------- ---------------- -----------------
1 $ 105,787.56 $ 8,815.63
2 $ 110,019.12 $9,168.26
3 $ 114,419.88 $ 9,534.99
4 $ 118,996.68 $ 9,916.39
5 $ 123,756.60 $10,313.05"
6. BASE RENT PAID UPON EXECUTION. Upon the execution of this
Amendment, Tenant shall pay to Landlord the sum of $8,815.63 for payment of the
first full calendar month's Base Rent due under the Lease on or after the
Expansion Premises Commencement Date, in accordance with the terms and
conditions set forth in Section 4.1 of the Lease.
7. TENANT'S SHARE. As of the Expansion Premises Commencement Date,
Section 1.11 of the Lease as amended by Paragraph 7 of the First Amendment,
shall be deleted in its entirety and the following substituted in lieu thereof:
"1.11 Tenant's Share: Original Premises 4.92%
Additional Premises: 16.52%
Expansion Premises: 3.59%"
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8. PARKING. As of the Expansion Premises Commencement Date,
Section 1.13 of the Lease as amended by Paragraph 8 of the First Amendment shall
be deleted in its entirety and the following Section 1.13 substituted in lieu
thereof.
"1.13 Number of Parking Spaces:
Original Premises: Reserved:None; Unreserved: 28.
Additional Premises: Reserved:None; Unreserved: 93
Expansion Premises: Reserved:None; Unreserved: 20."
9. 0PERATING EXPENSES INCREASES. Notwithstanding anything to the
contrary in Section 4.2 of the Lease, Tenant shall Pay Tenant's Share of
increases in Operating Expenses for: (i) the Original Premises Commencing
February 1, 1996; (ii) the Additional Premises commencing April 1, 1997, and
(iii) the Expansion Premises commencing on the first anniversary of the
Expansion Premises Commencement Date. The Base Year shall be 1995 for the
Original Premises, the Additional Premises and the Expansion Premises.
10. IMPROVEMENTS.
a. Tenant acknowledges that all obligations of Landlord
under the Work Letter Agreement attached as Schedule 1 to the Lease pertaining
to the Original Premises and the Work Letter Agreement attached as Schedule 2 of
the First Amendment pertaining to the Additional Premises have been met.
Landlord and Tenant hereby affirm that Tenant shall pay to Landlord the sum of
Twelve Thousand Four Hundred Sixty-One and 76/100 Dollars ($12,461.76), which
represents four percent (4%) of the Improvement Allowance granted to Tenant for
the Additional Premises as a construction supervisory fee for the supervision
of the construction of improvements to the Additional Premises by Landlord.
b. Landlord shall construct tenant improvements
("Improvements") for the Expansion Premises in accordance with the Work Letter
Agreement attached hereto and incorporated herein as Schedule 3. In connection
thereto, Landlord hereby grants to Tenant an "Improvement Allowance" of Seven
Dollars ($7.00) per square foot of space in the Expansion Premises, which
Improvement Allowance shall be used for the items specified in the Work Letter
Agreement
c. Any and all Improvements shall become the property of
Landlord during the Term of the Lease pertaining to the Expansion Premises and
any renewals or extensions thereof, and notwithstanding anything to the contrary
contained in the Lease, shall remain the property of Landlord at the end of the
Term of the Lease pertaining to the Expansion Premises, as the same may be
extended, unless Landlord shall require Tenant to remove any Improvements, in
which event Tenant shall return the Expansion Premises to their condition
existing prior to the installation of the Improvements. Landlord agrees to
notify Tenant
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concurrently with Landlord's decision concerning such Improvements whether
Landlord will require Tenant to remove such Improvements at the end of the Term
of the Lease pertaining to the Expansion Premises. Notwithstanding the
foregoing, Landlord shall not require Tenant to remove any building standard
office Improvements but may require Tenant to remove any Improvements which are
structural or non-standard in nature (e.g., raised computer flooring, built-in
workstations, etc.) such that the Expansion Premises would be returned to
"tenant-ready" standard office condition, ordinary wear and tear excepted.
11. OPTION TO RENEW.
a. Section 26 of the Lease, as amended by Paragraph 12
of the First Amendment, is further amended by adding the following subsection
26.6(d) at the end of Section 26.6:
"d. Tenant shall have the option
(the "Expansion Premises Option") to extend the Term of the Lease
applicable to the Expansion Premises from its initial expiration date
through March 31, 2003 (the "Expansion Renewal Period"). Tenant
shall provide to Landlord on a date which is at least one hundred
eighty (180) days Prior to the commencement of the Expansion Renewal
Period, a written notice of Tenant's exercise of the Expansion
Premises Option, time being of the essence. Such notice shall be
given in accordance with Section 40 of the Lease. If notification of
the exercise of the Expansion Premises Option is not so given and
received, the Expansion Premises Option shall automatically expire.
Base Rent applicable to the Expansion Premises shall be Ten Thousand
Seven Hundred Eighty-Three and 22/100 Dollars ($10,783.22) per month
for the first twelve (12) months of the Expansion Renewal Period, and
Eleven Thousand One Hundred Six and 72/100 Dollars ($11,106.72) per
month thereafter through March 31, 2003."
b. Tenant's Option to renew the Term of the Lease for
the two five-(5)year periods commencing April 1, 2003, as set forth in Section
26 of the Lease, as amended by Paragraph 12 of the First Amendment, shall also
pertain to the Expansion Premises. The Base Rent applicable to the Expansion
Premises during any such renewal term shall be at Market Rental, as that term
is defined in Section 26 of the Lease as amended by Paragraph 12 of the First
Amendment.
12. BROKERS. Tenant represents and warrants to Landlord that
Tenant has not dealt with any realtor, broker, agent or finder in connection
with this Amendment other than Barnes, Morris, Xxxxxx & Xxxxxx, Inc. and Nova
Commercial Realty, Inc. (the "Brokers"). Landlord shall pay a commission to
the Brokers in accordance with the terms of a separate agreement. Tenant shall
indemnify and hold harmless Landlord from and against any loss, claim, damage,
expense (including costs of suit and reasonable attorneys' fees) or liability
for any
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compensation, commission or charges claimed by any other realtor, broker, agent
or finder claiming to have dealt with Tenant in connection with this Amendment
or resulting from any other act of Tenant.
13. REPRESENTATIONS. Tenant hereby represents and warrants to
Landlord that Tenant (i) is not in default of any of its obligations under the
Lease and that such Lease is valid, binding and enforceable in accordance with
its terms, (ii) has full power and authority to execute and perform this
Amendment, and (iii) has taken all action necessary to authorize the execution
and performance of this Amendment.
14. REAFFIRMATION OF TERMS. All other terms, covenants and
provisions of the Lease are hereby confirmed and ratified and, except as
modified herein, shall remain unchanged and in full force and effect.
15. COUNTERPART COPIES. This Amendment may be executed in one or
more counterpart copies, each of which shall be deemed to be an original and
all of which counterparts shall have the same force and effect as if the
parties hereto had executed a single copy of this Amendment.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment
as of the day and year first above written:
GATEWAY VIRGINIA PROPERTIES,
INC., a California corporation
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title:
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CYBERCASH, INC., a Delaware
corporation
By: /s/ X.X XXXXXX
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Name: X.X. XXXXXX
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Title: C.O.O.
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