AMENDMENT TO LEASE AGREEMENT by and between
EXHIBIT 10.22.1
AMENDMENT TO
LEASE AGREEMENT
LEASE AGREEMENT
by and between
000 XXXX XXXXX ASSOCIATES, L.P.,
a California limited partnership
(“Landlord”)
and
BUSINESS OBJECTS AMERICAS, a Delaware corporation
(“Tenant”)
a California limited partnership
(“Landlord”)
and
BUSINESS OBJECTS AMERICAS, a Delaware corporation
(“Tenant”)
AMENDMENT TO LEASE AGREEMENT
This Amendment to Lease Agreement (this “Amendment”) is entered into as of February 1, 2006,
by and between 000 XXXX XXXXX ASSOCIATES, L.P., a California limited partnership (herein called
“Landlord”), and BUSINESS OBJECTS AMERICAS, a Delaware corporation (herein called “Tenant”).
RECITALS
A. On or about August 3, 2000, Landlord and Tenant entered into that certain Lease Agreement
(the “Lease”), pursuant to which Landlord leased to Tenant, and Tenant hired from Landlord, two
entire buildings (the “Buildings”) to be constructed on certain real property located in San Jose,
California and in the general location and configuration as shown on the site plan attached to the
Lease (the “Premises”), on the terms and conditions contained therein. The Buildings subsequently
were constructed and now are commonly known as 0000 Xxxxxxx Xxxxxxx (“Building 1”) and 0000 Xxxxxxx
Xxxxxxx (“Building 2”).
B. Tenant and Landlord now desire to amend the Lease to, among other things, extend the term
of the Lease for Building 1, modify the terms on which Tenant may extend the term of the Lease for
each Building, grant Landlord the right to terminate the Lease under certain circumstances, and
revise the provisions for Lease security, all in accordance with this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the adequacy of which is hereby
acknowledged by the parties, Tenant and Landlord hereby agree as follows:
1. Certain Defined Terms.
1.1 All capitalized terms used in this Amendment and not defined herein shall have the
meanings set forth in the Lease.
1.2 The term “Expiration Date” wherever it appears in the Lease shall mean and be amended to
read “the Building 1 Expiration Date or the Building 2 Expiration Date, as applicable,” except as
otherwise expressly provided in this Amendment.
1.3 The term “Premises” shall mean the Rentable Area within both Buildings or, during any
portion of the Term in which Tenant only leases Building 1, the Rentable Area within Building 1
only.
2. Lease Amendments.
2.1 Basic Lease Information. The “Basic Lease Information” from the Lease is amended
as follows:
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(a) The existing provision defining “Parking Spaces” shall be amended to read, in its
entirety, as follows:
| Parking Spaces: | During any portion of the Term in which Tenant leases both Building 1 and Building 2, all of the spaces located on the Project as it is initially defined. During any portion of the Term in which Tenant leases only Building 1, 262 spaces. |
(b) The existing provision defining the “Lease Term” is amended to read, in its entirety, as
follows:
| Lease Term: | With respect to Building 1 (commonly known as 0000 Xxxxxxx Xxxxxxx), the period of time commencing on the Commencement Date and ending on April 30, 2016 (the “Building 1 Initial Term”), with the right to extend for two (2) additional five (5) year terms (each, a “Building 1 Extension Term”) in accordance with Paragraph 42 of the Lease, as amended by this Amendment. The Building 1 Initial Term and any Building 1 Extension Term(s) that are exercised shall collectively be defined as the “Building 1 Term.” | ||
| With respect to Building 2 (commonly known as 0000 Xxxxxxx Xxxxxxx), the period of time commencing on the Commencement Date and ending on April 30, 2011 (the “Building 2 Initial Term”), with the right to extend for three (3) additional five (5) year terms (each, a “Building 2 Extension Term”) in accordance with Paragraph 42 of the Lease, as amended by this Amendment. The Building 2 Initial Term and any Building 2 Extension Term(s) that are exercised shall collectively be defined as the “Building 2 Term.” | |||
| The Building 1 Term and the Building 2 Term are sometimes collectively defined herein as the “Term.” |
(c) The existing provisions regarding “Monthly Base Rent” and “Monthly Base Rent Adjustment”
are retained from the Lease, but with the following addition:
With respect to Building 1, Monthly Base Rent shall be
adjusted commencing May 1, 2011 to be the greater of
$56,515.50 or the Fair Market Rental Value for the portion of
the Premises located in Building 1 (the “Building 1
Premises”) as of May 1, 2011, with the Fair Market Rental
Value determined pursuant to Paragraph 43 of the Lease (as
amended by this Amendment). For purposes of the
determination of Monthly Base Rent for the preceding
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sentence, all time periods specified in Paragraph 43 to run
from “receipt of Tenant’s Exercise Notice” shall run from May
1, 2010.
During the Extension Term(s) (if any), Monthly Base Rent
shall be determined as provided in Paragraph 43 of the Lease
as amended by this Amendment, with annual increases as
specified in the “Monthly Base Rent Adjustment” provision of
the Basic Lease Information included in the Lease.
(d) The existing provision regarding “Tenant’s Share of Expenses and Taxes” is amended to
read, in its entirety, as follows:
| Tenant’s Share of Expenses and Taxes: | During any portion of the Term in which Tenant leases both Building 1 and Building 2, 100%. During any portion of the Term in which Tenant leases only Building 1, (i) 100% of Expenses and Taxes paid or incurred by Landlord for the benefit of only Building 1, plus 59.7% of Expenses and Taxes paid or incurred by Landlord for the benefit of the Project as a whole (including without limitation for Project Common Area) and not only for the benefit of Building 1 or Building 2. |
2.2 Term. Paragraph 3(a) of the Lease is amended to read, in its entirety, as
follows:
(a) Term. The term of this Lease (the “Term) shall commence on March 15, 2001
(the “Commencement Date”) and, unless sooner terminated pursuant to the express
provisions of this Lease, shall expire (i) on April 30, 2016 (as it may be extended
pursuant to Paragraph 42, the “Building 1 Expiration Date”) with respect to the
Building 1, and (ii) on April 30, 2011 (as it may be extended pursuant to Paragraph
42, the “Building 2 Expiration Date”) with respect to the Building 2 Premises,
subject to extension in accordance with Paragraph 42.
2.3 Building System Maintenance. Paragraph 8(b) of the Lease is amended by replacing
the second sentence of such paragraph with the following:
If Tenant exercises its right to extend the Building 2 Term for the first Building 2
Extension Term, at Tenant’s election Tenant may, by written notice to Landlord
delivered at any time at least thirty (30) days prior to expiration of the Building 2
Initial Term, cause Landlord to assume Tenant’s maintenance obligations with respect
to the Building Systems under clause (ii) above, which assumption by Landlord shall
be effective during the remaining Xxxxxxxx 0 Xxxxxxx Xxxx and first Xxxxxxxx 0
Xxxxxxxxx Xxxx. Thereafter, if Tenant exercises its right to extend for
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any subsequent Xxxxxxxx 0 Xxxxxxxxx Xxxx xxx Xxxxxxxx 0 Xxxxxxxxx Term, but only if
Tenant exercises such right with respect to both Buildings, then at Tenant’s election
Tenant may, by written notice to Landlord delivered at any time at least thirty (30)
days prior to expiration of the previous Initial or Extension Term (as applicable),
cause Landlord to assume Tenant’s maintenance obligations with respect to the
Building Systems under clause (ii) above, which assumption by Landlord shall be
effective during the next subsequent Xxxxxxxx 0 Xxxxxxxxx Xxxx xxx Xxxxxxxx 0
Xxxxxxxxx Xxxx.
2.4 Holding Over. Paragraph 15 of the Lease is amended by adding the words “with
respect to the applicable Premises” after the phrase “after the expiration or termination of this
Lease” wherever it appears.
2.5 Re-Entry by Landlord. Paragraph 18 of the Lease is amended by replacing the
parenthetical “(as to prospective tenants, only during the last twelve (12) months of the Term)”
with the parenthetical “(but only during the last twelve (12) months of the Building 1 Term, as it
may be extended pursuant to Paragraph 42, as to prospective tenants of Building 1; and only during
the last twelve (12) months of the Building 2 Term, as it may be extended pursuant to Paragraph 42,
as to prospective tenants of Building 2).”
2.6 Casualty at End of Term. Paragraph 21(b) of the Lease is amended to give Tenant
the right to terminate the Lease with respect to a Damaged Building only (i) during the final
twelve (12) months of the Building 1 Term if the Damaged Building is Building 1, or (ii) during the
final twelve (12) months of the Building 2 Term if the Damaged Building is Building 2, as
applicable.
2.7 Uninsured Casualty. Paragraph 21(c) of the Lease is amended to apply only with
respect to damage or destruction of a Building in which, at the time of such damage or destruction,
all or a portion of the Premises is located.
2.8 Surrender of Premises. Paragraph 25(a) of the Lease is amended to provide that
all of Tenant’s obligations thereunder with respect to the Building 1 Premises shall commence upon
expiration or earlier termination of the Building 1 Term, and Tenant’s obligations thereunder with
respect to the Building 2 Premises shall commence upon expiration or earlier termination of the
Building 2 Term.
2.9 Security Deposit. Paragraph 33 is amended as follows:
(a) Paragraph 33(a) is amended by amending the fifth and sixth sentences to read, in their
entirety, as follows: “The term “Required Amount” shall mean Three Million Four Hundred
Seventy-Seven Thousand Dollars ($3,477,000). Tenant shall keep the Letter of Credit, at its
expense, in full force and effect until the sixtieth (60th) day after the expiration or earlier
termination of the Term, to insure the faithful performance by Tenant of all of the covenants,
terms and conditions of this Lease, including, without limitation, Tenant’s obligations to repair,
replace or maintain the Premises.”
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(b) Paragraph 33(b) is amended by replacing the phrase “on each of the fourth through tenth
anniversaries of the Commencement Date in the amount of one-seventh (1/7th) of the initial Required
Amount on each such anniversary” with the phrase “on each of the sixth through tenth anniversaries of the Commencement Date in the amount of
one-fifth (1/5th) of the Required Amount specified in Paragraph 33(a) on each such anniversary.”
(c) Paragraph 33(c) is amended to provide that satisfaction of the financial benchmarks
required for return of the Letter of Credit in such paragraph will be evaluated on a pro-forma,
(non-GAAP), basis after taxes and shall exclude charges associated with mergers and acquisitions
and other one time write offs, including without limitation any such charges and/or write offs
resulting from or in connection with this Amendment.
2.10 Signage. Paragraph 40 is amended to provide that, at any time when Tenant leases
only Building 1, Tenant shall be allowed only its proportionate share of a monument sign on the
Orchard Parkway frontage of the Project, and exterior signage and signage in the lobby only of
Building 1, all on the terms and conditions of Paragraph 40.
2.11 Option to Renew. Paragraph 42 is amended to read, in its entirety, as follows:
42. OPTION TO RENEW.
(a) Building 1. Upon condition that (i) no Default is continuing
under this Lease at the time of exercise or at the commencement of the applicable
Building 1 Extension Term, and (ii) Tenant continues to physically occupy the
entire Building 1 Premises, then Tenant shall have the right to extend the Building
1 Term for two periods of five years each (each, a “Building 1 Extension Term” and
collectively, the “Building 1 Extension Terms”), by giving written notice to
Landlord at least twelve (12) months prior to the Expiration of the Building 1
Initial Term or the first Building 1 Extension Term, as applicable. The initial
Monthly Base Rent (subject to Paragraph 4(b)) for the Building 1 Premises during
each Building 1 Extension Term shall be the Fair Market Rental Value for the
Building 1 Premises as of the commencement of the applicable Building 1 Extension
Term.
(b) Building 2. Upon condition that (i) no Default is continuing
under this Lease at the time of exercise or at the commencement of the applicable
Building 2 Extension Term, and (ii) Tenant continues to physically occupy the
entire Building 1 Premises, then Tenant shall have the right to extend the Building
2 Term for three periods of five years each (each, a “Building 2 Extension Term”
and collectively, the “Building 2 Extension Terms”), by giving written notice to
Landlord at least twelve (12) months prior to the Expiration of the Building 2
Initial Term or the immediately preceding Building 2 Extension Term, as applicable.
The initial Monthly Base Rent (subject to Paragraph 4(b)) for the Building 2
Premises during the first Xxxxxxxx
0
0 Xxxxxxxxx Xxxx shall be the greater of $38,167.50 or the Fair Market Rental
Value for the Building 2 Premises as of the commencement of the first Xxxxxxxx 0
Xxxxxxxxx Xxxx. The initial Monthly Base Rent (subject to Paragraph 4(b)) for the
Building 2 Premises during each subsequent Building 2 Extension Term shall be the
Fair Market Rental Value for the Building 2 Premises as of the commencement of the
applicable Building 2 Extension Term.
(c) Exercise Notice. Any written notice from Tenant to Landlord
exercising its right to extend for any Xxxxxxxx 0 Xxxxxxxxx Xxxx or Xxxxxxxx 0
Xxxxxxxxx Xxxx shall be defined herein as an “Exercise Notice.”
2.12 Determination of Fair Market Rental Value. Paragraph 43 is renamed
“Determination of Fair Market Rental Value” and amended as follows:
(a) The first sentence is amended to read, in its entirety, as follows: “‘Fair Market Rental
Value’ shall be as determined below:”
(b) Paragraphs 43(a) and 43(b) are amended by replacing the word “Premises” wherever it
appears with the phrase “Building 1 Premises or Building 2 Premises, as applicable” and by
replacing the term “Expiration Date” wherever it appears with the phrase “Building 1 Expiration
Date or Building 2 Expiration Date, as applicable.”
3. Landlord Termination Right. The following new Paragraph 44 is added to the Lease:
44. LANDLORD’S TERMINATION RIGHT. If Tenant fails to exercise its
right to extend for the second Building 2 Extension Term on or before April 30,
2015, then Landlord shall have the right, in Landlord’s sole discretion, to
terminate the Lease in its entirety effective as of April 30, 2016 by delivering
written notice to Tenant on or before May 31, 2015. If Tenant fails to exercise
its right to extend for the third Building 2 Extension Term on or before April 30,
2020, then Landlord shall have the right, in Landlord’s sole discretion, to
terminate the Lease in its entirety effective as of April 30, 2021 by delivering
written notice to Tenant on or before May 31, 2020.
4. Brokers and Commissions. Each party represents that it has not had dealings with
any real estate broker, finder or other person with respect to this Amendment in any manner, except
for Newmark Pacific representing Tenant, whose fees or commissions, if earned, shall be paid by
Tenant. Each party shall hold harmless the other party from all damages resulting from any claims
that may be asserted against the other party by any broker, finder or other person with whom the
other party has or purportedly has dealt.
5. Counterparts. This Amendment may be executed in counterparts, each of which shall
be deemed an original, but all of which taken together shall constitute one and the same
instrument. Facsimile copies of original signatures shall be deemed originals.
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6. No Other Amendments. Except as amended hereby, the terms of the Lease, including
all exhibits and schedules attached thereto, shall remain unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written
above.
| LANDLORD: 000 XXXX XXXXX ASSOCIATES, L.P. a California limited partnership |
||||
| By: | M-D Ventures, Inc. a California corporation |
|||
| Its: | General Partner | |||
| By: | /s/ Xxxx Xxxxxx | |||
| Xxxx Xxxxxx | ||||
| President | ||||
| TENANT: BUSINESS OBJECTS AMERICAS, a Delaware corporation |
|||||
| By: | /s/ Xxx Xxxxxxx | ||||
| Its: Chief Financial Officer | |||||
| By: | ||||
| Its: | ||||
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GUARANTOR’S CONSENT
The undersigned, as Guarantor under that certain Guaranty of Lease dated as of August 3, 2000 for
the benefit of Landlord, hereby consents to the foregoing Amendment and the transactions
contemplated thereby, reconfirms its obligations under the Guaranty of Lease and its waivers as set
forth in the Guaranty of Lease, and further reconfirms that its obligations under the Guaranty of
Lease are separate and distinct from Tenant’s obligations under the Lease, as amended by the
Amendment.
| Business Objects, S.A., a company organized under the laws of France |
||||
| By: | /s/ Xxx Xxxxxxx | |||
| Its: | Chief Financial Officer | |||
| By: | ||||
| Its: | ||||
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