EXHIBIT 10.20
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE ("Amendment") is made and entered into as of
July 29, 2002, by and between Xxxxxxx Corporation, doing business as "Xxxxxxxx
Properties", a California corporation ("Landlord") and Niku Corporation, a
Delaware corporation ("Tenant") with reference to the following facts:
RECITALS
A. Landlord and Tenant entered into a Lease Agreement with Addendum
as of May 7, 1999 and an Addendum dated March 15, 2001 ("Lease") regarding those
certain premises (the "Premises") situated in the City of Redwood City, County
of San Mateo, State of California, described as follows: approximately
FIFTY-FIVE THOUSAND EIGHT HUNDRED SEVENTY (55,870) square feet of floor space
commonly known as the Xxxxxxx Building, located at 000 Xxxx Xxxxxx, Xxxxxxx
Xxxx, Xxxxxxxxxx 00000 on a parcel of land containing a parking lot and other
structures, all as shown on the site plan attached to the Lease as Exhibit "A".
B. A dispute arose between Landlord and Tenant (collectively "the
Parties") regarding, among other things, the respective obligations of the
Parties arising out of the Lease and subsequent events related thereto, which
dispute led to filing of a lawsuit between the Parties.
C. As part of the settlement of the Parties' dispute and lawsuit,
the Parties have agreed that the Lease, as amended herein, and subject to
additional terms and
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conditions contained in a Settlement Agreement and Mutual Release ("Settlement
Agreement") concurrently executed by the Parties, shall be in full force and
effect.
NOW, THEREFORE, in consideration of the above recitals and the mutual
promises contained herein and in the Settlement Agreement, the Parties agree to
amend and supplement the Lease as follows:
AGREEMENT
1. AMENDMENT OF LEASE
A. Paragraph 4(B) (Monthly Installment) is hereby deleted in its
entirety and replaced with the following:
"Monthly Installment. The Monthly Installment of rent payable each month
during the Lease Term shall be ONE HUNDRED TWENTY FIVE THOUSAND SEVEN HUNDRED
SEVEN DOLLARS AND FIFTY CENTS ($125,707.50). The Monthly Installment will be
subject to annual increases during the Lease Term corresponding with the
Consumer Price Index for the previous year, provided that such increases shall
in no event be less than four percent (4%) nor greater than six (6%). In the
event of a Default under the Lease, and provided all conditions necessary to
entitle Xxxxxxx to obtain Judgment pursuant of the Stipulation Re Filing and
Entry of Judgment executed herewith have been satisfied, the Monthly Installment
shall revert to the Monthly Installment in effect in 2001 and be subject to the
annual increases as provided in the Lease ("Default Monthly Installment").
During the last nine (9) months of the Lease Term, that is from October 2004
through June 2005, Tenant shall not be required to pay
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a Monthly Installment under this paragraph. Instead, for each such month, at the
beginning thereof, Landlord shall automatically draw down the letter of credit
and apply from the Security Deposit held by Xxxxxxx as Niku's Monthly
Installment such amount as otherwise would be required to pay the Monthly
Installment for the month. Nothing in this paragraph shall affect Niku's monthly
obligation to pay "Additional Rent" under paragraph 4(D) of the Lease."
B. The first sentence of Paragraph 5 (Security Deposit) is hereby
deleted in its entirety and replaced with the following:
"Security Deposit. Tenant shall cause a commercial
bank with offices in the Bay Area, California to issue a
letter of credit for the benefit of Landlord in the sum of ONE
MILLION ONE HUNDRED SEVEN THOUSAND SIX HUNDRED FOUR DOLLARS
($1,107,604) in addition to the amount of ONE HUNDRED SIXTY
THOUSAND DOLLARS ($160,000) currently held by Landlord
("Security Deposit"), to secure the faithful performance by
Tenant of each term, covenant and condition of this Lease."
The remainder of Paragraph 5 is unchanged.
C. Paragraph 10 is hereby amended by adding Paragraphs 10(C) and
10(D) as follows:
"C. Landscaping. Notwithstanding any provision herein to the
contrary, Landlord shall provide landscaping services at the Premises,
and
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Tenant shall pay directly to the vendor the cost of reasonable
landscaping services provided by Landlord.
D. Furniture and Personal Property. Notwithstanding any provision
herein to the contrary, Landlord shall, at no additional expense or rent
to Tenant and so long as Tenant is a lessee of the Premises, lease all
furniture and personal property currently located at the Premises to
Tenant at no additional charge. Upon the conclusion of Tenant's tenancy,
all such furniture and personal property shall be returned to Landlord
in the condition received by Tenant upon its reoccupancy of the
building, reasonable wear and tear excepted. Tenant may not move the
personal property out of the Premises without Landlord's prior written
consent. Additional personal property not currently on the Premises but
brought by Tenant to the Premises shall remain the property of Tenant
and shall not be subject to any restrictions. "
E. Paragraph 15(B) is hereby amended by adding subparagraph
15(B)(4) as follows:
"(4) Effect of Landlord's Obtaining Judgment Pursuant to
Stipulation. Notwithstanding any provision in the Lease or Amendment, or
in the parties' Stipulation re Filing and Entry of Judgment
("Stipulation") to the contrary or any remedy otherwise available to
Landlord hereunder, in the event Landlord elects to and obtains a
Judgment against Tenant pursuant to the Stipulation and Settlement
Agreement, then such Judgment shall constitute the total and exclusive
monetary relief that
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Landlord may obtain from Tenant and Landlord shall have no additional
entitlement to recover damages or other monetary relief from Tenant
regardless of the claimed basis therefor.
F. The Addendum at section 1. Option, is deleted in its
entirety. The Lease terminates on June 30, 2005 with no extensions or
options. In the event of a Holdover, the rent payment shall be 150% of
the Default Monthly Installment, G. Tenant, as of the date of this
Amendment, accepts the Premises, including the personal property in the
Premises, as set forth in paragraph 14 (b) of the Lease.
2. EFFECT OF AMENDMENT
Except as hereinabove amended, and subject to the provisions of the
Settlement Agreement, the Lease shall be in full force and effect. In the event
of a conflict between the provisions of the Lease and those of this Amendment or
the Settlement Agreement, this Amendment and the Settlement Agreement shall
control.
3. ENTIRE AGREEMENT
This Amendment contains all of the agreements of the parties hereto with
respect to the subject matter hereof. No provision of this Amendment may be
amended except by an express agreement in writing signed by the parties hereto
or their respective successors in interest.
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4. ATTORNEYS' FEES
If either party commences an action against the other party arising out
of or in connection with this Amendment, the prevailing party shall be entitled
to have and recover from the losing party reasonable attorney's fees and costs
of suit.
5. COUNTERPARTS; FACSIMILE SIGNATURES
This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Executed copies of this Amendment transmitted by
facsimile shall be fully binding and effective upon receipt, but each Party
promptly shall deliver to the other an execution copy of this Amendment bearing
an original signature.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
Xxxxxxx Corporation Niku Corporation
By /s/ Xxxxxx Xxxxxxx By /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxxx Xxxxxx Xxxxxx
President Chief Financial Officer
