Exhibit 10.8
SECOND AMENDMENT TO LEASE
This SECOND AMENDMENT TO LEASE (this "Second Amendment") is made and
entered into as of the 6th day of August, 2000, by and between BELLEVUE XXXXX
DEVELOPMENT, L.L.C., a Delaware limited liability company ("Landlord"), and ONYX
SOFTWARE CORPORATION, a Washington corporation ("Tenant") with reference to that
certain Lease (as defined below) covering certain premises located in the One
Twelfth @ Twelfth project in Bellevue, Washington.
RECITALS
A. Landlord and Tenant are parties to that certain Office Building Lease
dated as of June 6, 2000, as amended by that First Amendment to Lease dated June
20, 2000, (the "Lease") pursuant to which Tenant leased certain space in the
East Building and South Building. Capitalized terms used herein shall have the
meanings given in the Lease.
B. Tenant now wishes to add additional space to the Premises and to
modify the Initial Term for that portion of the Premises located in the East
Building, and the parties now wish to enter into this Second Amendment to
document such modifications.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties hereto agree
as follows:
1. Expansion of Premises; Restated Basic Lease Information Sheet. Tenant
hereby leases from Landlord and Landlord hereby leases to Tenant all of Floors
4, 5, and 6 in the South Building (the "Additional Premises"). The Additional
Premises are deemed to contain Eighty-three Thousand Nine Hundred Fifty-six
(83,956) square feet of Net Rentable Area with Seventy-eight Thousand Two
Hundred Fifty-six (78,256) square feet of Useable Area. The Additional Premises
shall be added to the Premises so that from and after the date hereof, the term
"Premises" shall include the Premises (as described in the Lease) and the
Additional Premises. Except as provided herein, the Additional Premises shall be
subject to all of the terms and conditions of the Lease applicable to the
Premises. The Basic Lease Information Sheet for the Lease is hereby restated and
replaced in its entirety by Exhibit A attached hereto and incorporated herein by
---------
this reference, which reflects the modifications set forth herein.
2. Recalculations. From and after the date hereof, the Premises shall be
deemed to contain Two Hundred Sixty-two Thousand One Hundred Ninety-five
(262,195) square feet of Net Rentable Area with Two Hundred Forty-four Thousand
Four Hundred Eight (244,408) square feet of Useable Area subject to verification
as provided in the Lease.
3. Rent for Additional Premises. Tenant shall pay Base Rent and Operating
Costs for the Additional Premises in the same manner as Tenant pays Base Rent
and Operating Costs on the initial Premises except that the Base Rent for the
Additional Premises shall be as set forth below:
Lease Year Base Rent Per Square Foot of Net Rentable Area in Additional Premises
-----------------------------------------------------------------------------------------------
1 Twenty Eight and 00/100 Dollars ($28.00)
2 Twenty Nine and 00/100 Dollars ($29.00)
3 Thirty and 00/100 Dollars ($30.00)
4 Thirty One and 00/100 Dollars ($31.00)
5 Thirty Two and 00/100 Dollars ($32.00)
6 Thirty Three and 00/100 Dollars ($33.00)
7 Thirty Four and 00/100 Dollars ($34.00)
8 Thirty Five and 00/100 Dollars ($35.00)
9 Thirty Six and 00/100 Dollars ($36.00)
10 Thirty Seven and 00/100 Dollars ($37.00)
Extension Term Fair Market Rent determined pursuant to Section 2.6(b).
--------------
Base Rent for the East Building shall be as indicated in Item 11 of the
-------
Basic Lease Information Sheet attached hereto as Exhibit A.
---------
4. Term. The following provisions shall fully replace and supercede
Section 2.1(a) of the Lease:
-------------
(a) Except as otherwise provided herein, the term "Term Commencement Date"
shall mean the later of (i) the Rent Commencement Date for the final floor of
the Premises pursuant to Section 2.6(a) below, or (ii) the Scheduled
--------------
Commencement Date, as stated in the Basic Lease Information Sheet as Item 9. If
------
Tenant commences business on all floors of the Premises prior to the Scheduled
Commencement Date, the date such business begins shall be the Term Commencement
Date. The "Initial Term" of this Lease with respect to each Building shall mean
the number of years and/or months set forth as the "Initial Term" in the Basic
Lease Information Sheet as Item 10 for such Building, commencing on the first
-------
day of the calendar month following the Term Commencement Date (or on the Term
Commencement Date if it is the first day of a calendar month) through and
including the Expiration Date. "Expiration Date" with respect to each Building
shall mean the last day of the Term or such earlier date upon which this Lease
is terminated pursuant to the terms hereof. The "Term" of this Lease with
respect to each Building shall mean the Initial Term and the Extension Term(s)
(as defined in Section 2.1(b)), if any. For all purposes hereunder, the term
--------------
"Lease Year" shall mean a twelve (12) month period starting on the Term
Commencement Date or any anniversary thereof, the first Lease Year shall begin
on the Term Commencement Date and the final Lease Year may contain more than
twelve (12) months. The Scheduled Commencement Date (as set forth in the Basic
Lease Information Sheet as Item 9) represents merely the parties' estimate of
------
the Term Commencement Date and is the date before which Tenant is not obligated
to accept possession of the Premises. If the Premises are Substantially Complete
prior to the Scheduled Commencement Date, Tenant shall have the option to take
occupancy of the Premises and the Term Commencement Date shall be the date
Tenant commences business therein. Landlord shall provide Tenant as much notice
as circumstances reasonably allow of the date when Landlord expects to achieve
Substantial Completion, based upon the progress of the work. The covenants and
conditions of this Lease shall be effective as of the mutual execution of this
Lease notwithstanding the Term Commencement Date set forth herein.
5. Extension Term. The first sentence of Section 2.1(b) is amended to
-------------
read as follows:
Provided that (a) no Event of Default has occurred and not been cured prior
to such time, and (b) Tenant is not in default of this Lease at the time of
exercise or at any time thereafter prior to the scheduled Expiration Date,
Tenant shall have two (2) consecutive options to extend the Term of this
Lease with respect to any one or more of the Buildings (the
2
"Extension Options") for the number of years and/or months set forth as the
"Extension Terms" in the Basic Lease Information Sheet as Item 10,
-------
commencing on the day after the expiration of the Initial Term or the first
Extension Term for such Building, as applicable, and continuing through the
Expiration Date, subject to all of the terms and conditions of this Lease,
except that (i) Base Rent shall be adjusted as provided in Section 2.6(b),
-------------
(ii) Landlord shall have no obligation to alter the Premises for the
Extension Terms, and (iii) Tenant shall not have any additional rights to
extend the Term, except to the extent an Extension Option remains to be
exercised hereunder. Tenant shall provide Landlord with irrevocable written
notice of Tenant's intent to exercise each Extension Option no later than
fifteen (15) months prior to the expiration of the Initial Term or the
first Extension Term for such Building, as applicable.
6. Signage. The following provisions shall fully replace and supercede
Section 5.6(b) of the Lease:
-------------
(b) Limited Right to Exterior Signage. So long as Tenant is leasing and
occupying (which shall include for purposes hereof space initially
subleased prior to Tenant's occupancy) a minimum of three (3) full floors
in the South Building and Tenant is not in default under this Lease, Tenant
shall have the exclusive right, at Tenant's sole cost and expense, to
install and maintain a sign identifying Onyx Software Corporation (a
"Tenant Sign") on the upper portion of the South Building in a location
selected by Landlord and approved by the City of Bellevue. The Tenant Sign
shall be the highest exterior sign permitted on the South Building that is
visible from Interstate 405. In addition, Tenant shall have the exclusive
right without charge to install one additional sign per Building (each of
which shall be referred to herein as a "Lower Tenant Sign") (i) on the
exterior of the East Building below the third floor windows facing NE 12th
Street, and (ii) on the exterior of the South Building below the third
floor windows facing 000xx Xxxxxx XX. The design and method of installation
of all signs hereunder shall be subject to Landlord's reasonable approval
and all City of Bellevue and other applicable governmental requirements.
The exclusive right provided in the preceding sentences shall not apply
with respect to typical retail signage for retail tenants of the Project.
Tenant must submit detailed plans for all signs hereunder to Landlord for
review and approval before Tenant installs the signs on the exterior of
either Building. Tenant shall remove the Tenant Sign and Lower Tenant Signs
and shall restore each Building to its condition prior to installation of
the signage, at Tenant's sole cost and expense, (A) at the end of the Lease
Term, or (B) if Tenant no longer leases and occupies at least one (1) full
floor in such Building, or (C) upon request by Landlord if an Event of
Default is outstanding under this Lease. The right to install and maintain
the signs hereunder is personal to Onyx Software Corporation and shall not
be assignable to any other party without the Landlord's prior written
consent which may be given or withheld in Landlord's sole discretion. Any
change in the Tenant Signs or the Lower Tenant Signs requested by Tenant
shall be subject to Landlord's prior written approval, which shall not be
unreasonably withheld (unless in Landlord's opinion such change may
adversely affect the exterior appearance of the Project); provided,
however, that with respect to any requested change in the Tenant Signs or
the Lower Tenant Signs to reflect the name of a Permitted Transferee or a
new name for Onyx Software Corporation, Landlord shall not unreasonably
withhold its approval unless, in Landlord's judgment, the proposed new name
will: (1) have an adverse effect on the value of the Project (including any
adverse effect, in Landlord's judgment, on its ability to lease space in
the Project) or its
3
reputation; (2) be offensive; or (3) violate the provisions of any other
tenant lease in the Project.
7. Entry for Repairs, Inspection, Posting Notices, etc. The second
sentence of Section 6.10 is amended to read as follows:
------------
Unless Tenant is in default, Landlord shall only show the Premises to
prospective tenants during the last twelve (12) months of the Initial Term
with respect to each Building, if Tenant has not exercised an Extension
Option, or during the last twelve (12) months of either Extension Term with
respect to each Building.
8. Surrender. The first two sentences of Section 6.13 are amended to read
------------
as follows:
On or before the ninetieth (90th) day preceding the Expiration Date for
each Building, Tenant shall notify Landlord in writing of the precise date
upon which Tenant plans to surrender the Premises to Landlord. On
expiration of the Term for any Building, Tenant shall quit and surrender
that portion of the Premises located in such Building to Landlord, broom
clean, in good order, condition and repair as required by this Lease, with
all of Tenant's movable equipment, furniture, trade fixtures and other
personal property removed therefrom (ordinary wear and tear and damage to
an extent consistent with the Premises remaining in good condition and
casualty damage which is not required to be restored by Tenant pursuant to
Section 12 excepted).
----------
9. Assignment or Sublease; Landlord's Options. The first sentence of
Section 8.2 is amended to read as follows:
-----------
If Tenant proposes a Transfer the term of which (considering any options to
renew or extend) could be more than three (3) years or for more than fifty
percent (50%) of the remainder of the Term for the Building in which the
Transfer is proposed hereunder (except under Section 8.1(b)), then Landlord
--------------
may elect to (a) terminate this Lease pursuant to the following paragraph
as of the date specified by Tenant in its notice under Section 8.1, in
-----------
which event Tenant shall be relieved of all further obligations hereunder
as to such space; (b) permit Tenant to complete the Transfer on the terms
set forth in such notice, subject, however, to such reasonable conditions
as Landlord may require and to the balance of this Article 8; or (c) deny
---------
the request to Transfer the Lease.
10. Damage and Destruction. Section 12.1(c) is amended to read as follows:
---------------
If (i) the Premises should be damaged by any occurrence not covered by
Landlord's insurance, or (ii) the Premises or the Building should be
damaged to the extent that the damage cannot, in Landlord's reasonable
opinion be restored within six (6) months from the date of damage, or (iii)
the Building should be damaged to the extent of more than fifty percent
(50%) of the cost of replacement thereof, notwithstanding that the Premises
may be undamaged, or (iv) if the damage occurs during the last two (2)
years of the Term for the Building in which the damage occurs, Landlord may
elect either to repair or rebuild the Premises or the Building or to
terminate this Lease upon giving notice in writing of such election to
Tenant within sixty (60) days after the happening of the event causing the
damage; provided, however if only one of the Buildings is affected by the
casualty, and
4
Landlord has elected to terminate this Lease pursuant to this Section
-------
12.1(c), such termination shall only be effective as to the portion of the
------
Premises in the Building affected by the casualty.
Section 12.1(f) is amended to read as follows:
---------------
If the Premises, or any part thereof, or any portion of the Building
necessary for Tenant's use of the Premises, are damaged or destroyed during
the last twelve (12) months of the Term for the Building in which the
damage occurs, or any extension thereof, Landlord or Tenant may terminate
this Lease by giving written notice thereof to the other party within
thirty (30) days after the date of the casualty, in which case this Lease
shall terminate as of the later of the date of the casualty or the date of
Tenant's vacation of the Premises; provided, however, if only one of the
Buildings is affected by the casualty, and either Landlord or Tenant has
elected to terminate this Lease pursuant to this Section 12.1(f), then
unless otherwise agreed to by Landlord and Tenant, such termination shall
only be effective as to the portion of the Premises in the Building
affected by the casualty.
11. Parking. The third sentence of Section 14.22(a) is amended to read as
---------------
follows:
The base monthly fee shall be Seventy-five and 00/100 Dollars ($75.00) per
Parking Pass during the first Lease Year and is subject to change at any
time; provided, however, that the base monthly fee shall not increase by
-------- -------
more than Seven and 00/100 Dollars ($7.00) per year on a cumulative basis
over the Initial Term, as applied to the Parking Passes allotted to each
Building within the Premises, as shown in the chart below:
Lease Year Maximum Base Monthly Fee
---------- per Parking Pass
----------------
1 $ 75.00
2 $ 82.00
3 $ 89.00
4 $ 96.00
5 $103.00
6 $110.00
7 $117.00
8 $124.00
9 $131.00
10 $138.00
*11 $145.00
*12 $152.00
*Applies to Parking Passes allotted to Premises located in East Building
only
12. Cash Allowance. Landlord shall provide a total of up to Thirty and
00/100 Dollars ($30.00) per square foot of Useable Area in the Additional
Premises toward the payment for the design and construction of the Tenant
Improvements in the Premises (the "Additional Premises Cash Allowance"). Such
payment shall be paid in accordance with the provisions of the Lease governing
the Cash Allowance, and from and after the date hereof, the term "Cash
5
Allowance" shall include the Cash Allowance and the Additional Premises Cash
Allowance. In addition, the first sentence of Exhibit C, Paragraph 14 is amended
-----------------------
to read as follows:
Landlord shall provide a total of up to Thirty and 00/100 Dollars ($30.00)
per square foot of Useable Area in the Premises, and an additional Two
Dollars ($2.00) per square foot of Useable Area in the portion of the
Premises located in the East Building having an Initial Term of twelve (12)
years (collectively the "Cash Allowance") toward the payment for the design
and construction of the Tenant Improvements in the Premises.
13. Amended and Restated Lease. In the event Landlord so requests, Tenant
shall execute and deliver to Landlord a comprehensive amended and restated Lease
incorporating the terms of the Lease as amended by the First Amendment to Lease
and this Second Amendment.
14. Contingent Effective Date. The obligations and rights of Landlord and
Tenant under this Second Amendment are subject to and contingent upon
termination of an existing lease between Landlord and XxxxXxxxxx.xxx, Inc.
covering the Additional Premises, upon terms and conditions acceptable to
Landlord in its sole discretion. Landlord shall provide written notice to
Tenant upon the termination of such lease. Within thirty (30) days of receipt
of such notice, the parties shall execute an acknowledgement that this Second
Amendment is in full force and effect. If Landlord has failed to deliver such
notice to Tenant by September 1, 2000, then this Second Amendment shall
automatically terminate and be of no force nor effect, unless extended by the
written agreement of both parties. If this Second Amendment is terminated as
provided in this Paragraph 14, then Landlord will reimburse Tenant for its out
of pocket costs incurred by Tenant in designing improvements to the Additional
Premises, up to a maximum amount of Twenty-four Thousand Dollars ($24,000). Any
costs to be reimbursed to Tenant pursuant to the preceding sentence shall be
paid to Tenant within thirty (30) days after Landlord receives an invoice from
Tenant and such reasonable supporting evidence of the costs incurred by Tenant
as Landlord may request.
15. Conflict. Capitalized terms used herein and not otherwise defined
shall have the meanings given in the Lease. If there is any conflict between the
terms, conditions and provisions of this Second Amendment and the terms and
conditions of the Lease, the terms, conditions and provisions of this Second
Amendment shall prevail.
16. No Further Amendment. Except as expressly modified by this Second
Amendment, all terms, covenants and provisions of the Lease shall remain
unmodified and in full force and effect and are hereby expressly ratified and
confirmed.
17. Entire Agreement. This Second Amendment reflects the entire agreement
of the parties with respect to amending the terms of the Lease and this Second
Amendment supersedes any and all correspondence and oral agreements between the
parties hereto regarding the amendment of the Lease which are prior in time to
this Second Amendment. With respect to the subject matter hereof, neither party
will be bound by any understanding, agreement, promise, representation or
stipulation, express or implied, not specified herein.
18. Counterparts. This Second Amendment may be executed in counterparts,
each of which will be deemed to be an original, but all of which together will
constitute one and the same document.
6
19. Brokers. Tenant and Landlord each represent and warrant to the other
that it has had no dealing with any broker or agent other than the Broker(s)
identified in the Lease. Commissions, if any shall be payable to the Brokers in
accordance with a separate agreement between Landlord and Brokers. Tenant and
Landlord shall each indemnify, defend and hold the other party harmless from and
against any and all liabilities for commissions or other compensation or charges
claimed by any other broker or agent based on dealings with the indemnifying
party with respect to this Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
in triplicate originals as of the day and year first above written.
LANDLORD: BELLEVUE XXXXX DEVELOPMENT, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
TENANT: ONYX SOFTWARE CORPORATION
a Washington corporation
By: /s/ Xxx Xxxxxxxx
--------------------------------------
Name: Xxx Xxxxxxxx
----------------------------------
Title: Corp. Controller & Asst. Secretary
----------------------------------
Attachment:
----------
Exhibit A - Updated Basic Lease Information Sheet
7
STATE OF TEXAS )
) ss.
COUNTY OF XXXXXX )
On this 10th day of August, 2000, before me, the undersigned, a Notary
Public in and for the State of Texas, duly commissioned and sworn, personally
appeared Xxxxxx X. Xxxxx, to me known as, or providing satisfactory evidence
that he is the Manager of BELLEVUE XXXXX DEVELOPMENT, L.L.C., a Delaware limited
liability company, the limited liability company that executed the foregoing
instrument and acknowledged the said instrument to be the free and voluntary act
and deed of said limited liability company for the uses and purposes therein
mentioned and on oath stated that he/she is authorized to execute said
instrument.
WITNESS my hand and official seal hereto affixed the day and year in this
certificate above written.
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
NOTARY PUBLIC in and for the State of Texas
residing at 0000 Xxxx Xxx Xxxx.
------------------
My commission expires 6-12-2004
--------------------
Print Name: Xxxxx X. Xxxxxxx
--------------------------------
STATE OF WA )
) ss.
COUNTY OF KING )
On this 3rd day of August, 2000, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn,
personally appeared Xxx Xxxxxxxx, to me known as, or providing satisfactory
evidence that he/she is the Interim CFO of ONYX SOFTWARE CORPORATION., a
Washington corporation, the corporation that executed the foregoing instrument
and acknowledged the said instrument to be the free and voluntary act and deed
of said corporation for the uses and purposes therein mentioned and on oath
stated that he/she is authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed the day and year in this
certificate above written.
/s/ Al Kimisky
---------------------------------------------
NOTARY PUBLIC in and for the State
of WA
-------------------------------------------
residing at Onyx Software
---------------------------------
My commission expires 8-25-02
-----------------------
Print Name: Al Kimisky
-------------------------------
EXHIBIT A
---------
Restated Basic Lease Information Sheet
(Effective August ___, 2000)
1. Date of Lease June 6, 2000, as amended June 20, 2000 and August ___, 2000.
2. Tenant: ONYX SOFTWARE CORPORATION
3. Tenant's Address Onyx Software Corporation
Prior to Occupancy: 0000 000xx Xxxxxx X.X., Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attn: General Counsel
With a copy to:
Xxxxxx, Xxxxxxxxx & Bassetti LLP
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxx
4. Tenant's Address Onyx Software Corporation
After Occupancy 0000 000xx Xxxxxx, XX
Xxxxxxxx, XX 00000
Attn: General Counsel
With a copy to:
Xxxxxx, Xxxxxxxxx & Bassetti LLP
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxx
5. Landlord: Bellevue Xxxxx Development, L.L.C.
6. Landlord's Address: c/o Hines Interests Limited Partnership
00000 XX 0xx Xx., Xxxxx 000
Xxxxxxxx, XX 00000
7. Premises: Subject to Section 1.1(b) below, all or a portion of Floor 1 and all
--------------
of Floors 2 and 3 in the East Building located at 0000 000xx Xxxxxx,
X.X., Xxxxxxxx, Xxxxxxxxxx; and all of Floors 1 through 6 in the
South Building located at 0000 000xx Xxxxxx, X.X., Xxxxxxxx,
Xxxxxxxxxx
8. Net Rentable Net Rentable Area of Premises: Two Hundred Sixty-two Thousand One
Area/Tenant's Hundred Ninety-five (262,195) square feet;
Proportionate
Share: Useable Area of Premises: Two Hundred Forty-four Thousand Four
------------------------
Hundred Eight (244,408) square feet;
Tenant's Proportionate Share of East Building: 54.47%
Tenant's Proportionate Share of South Building: 100%
Tenant's Proportionate Share of Project: 54.58%
9. Scheduled March 1, 2001 (East Building) April 1, 2000 (South Building)
Commencement Date:
10. Term: Initial Term South Building: Ten (10) years and Zero (0) months
----------------------------
Initial Term East Building: Twelve (12) years and Zero (0) months
---------------------------
Extension Term: Two (2) consecutive terms of Five (5) years and Zero
--------------
(0) months each
11. Base Rent: TABLE A - Premises Located in East Building and Floors 1, 2 & 3 of
-------
South Building
Period Rent Per Square Foot of Net Rentable Area (net of Operating Costs)
------------------------------------------------------------------------------------------------
Lease Year 1 Twenty-six and 00/100 Dollars ($26.00)
Lease Year 2 Twenty-seven and 00/100 Dollars ($27.00)
Lease Year 3 Twenty-eight and 00/100 Dollars ($28.00)
Lease Year 4 Twenty-nine and 00/100 Dollars ($29.00)
Lease Year 5 Thirty and 00/100 Dollars ($30.00)
Lease Year 6 Thirty-one and 00/100 Dollars ($31.00)
Lease Year 7 Thirty-two and 00/100 Dollars ($32.00)
Lease Year 8 Thirty-three and 00/100 Dollars ($33.00)
Lease Year 9 Thirty-four and 00/100 Dollars ($34.00)
Lease Year 10 Thirty-five and 00/100 Dollars ($35.00)
*Lease Year 11 Thirty-six and 00/100 Dollars ($36.00)
*Lease Year 12 Thirty-seven and 00/100 Dollars ($37.00)
Extension Term(s) See Section 2.6(b) below
--------------
10
TABLE B - Premises Located on Floors 0, 0 & 0 xx Xxxxx Xxxxxxxx
-------
Base Rent Per Square Foot of
Period Net Rentable Area
----------------------------------------------------------------------------
Lease Year 1 Twenty Eight and 00/100 Dollars ($28.00)
Lease Year 2 Twenty Nine and 00/100 Dollars ($29.00)
Lease Year 3 Thirty and 00/100 Dollars ($30.00)
Lease Year 4 Thirty One and 00/100 Dollars ($31.00)
Lease Year 5 Thirty Two and 00/100 Dollars ($32.00)
Lease Year 6 Thirty Three and 00/100 Dollars ($33.00)
Lease Year 7 Thirty Four and 00/100 Dollars ($34.00)
Lease Year 8 Thirty Five and 00/100 Dollars ($35.00)
Lease Year 9 Thirty Six and 00/100 Dollars ($36.00)
Lease Year 10 Thirty Seven and 00/100 Dollars ($37.00)
Extension Term** Fair Market Rent determined pursuant to Section
-------
2.6(b).
-----
12. Security Deposit: Twenty-five and 00/100 Dollars ($25.00) per square
foot of Net Rentable Area, subject to adjustment
pursuant to Section 3.2 below
-----------
13. Parking: Three and one-fourth (3.25) parking passes per one
thousand (1,000) square feet of Useable Area in
the Premises
14. Plan Delivery Date: September 11, 2000
15. Cash Allowance: Thirty Dollars ($30.00) per square foot of Useable
Area in the Premises, to be allocated as provided
in Exhibit C
---------
16. Broker(s): Landlord's broker: Xxxxxxxxx Group
Tenant's broker: Xxxxxxxxx Group
* Does not apply to Xxxxxx 0, 0 & 0 xx Xxxxx Xxxxxxxx
** Also applies to Floors 1, 2 & 3 of South Building
/s/ AK / 8-3-00 /s/TO / 8-10-00
----------------------- ----------- --------------------- ---------
Tenant's Initials/Date Landlord's Initials/Date
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement is entered into as of
November 8, 2000 by and among SILICON VALLEY BANK, as agent (in such capacity
"Agent") for itself and the Lenders (as defined in the Loan and Security
Agreement), on the one hand, and ONYX SOFTWARE CORPORATION ("Grantor"), on the
other hand.
RECITALS
--------
A. Agent and Lenders have agreed to make certain advances of money
and to extend certain financial accommodation to Grantor (the "Loans") in the
amounts and manner set forth in that certain Loan and Security Agreement by and
between Agent, Lenders, and Grantor dated as of even date herewith (as the same
may be amended, modified or supplemented from time to time, the "Loan
Agreement"; capitalized terms used herein are used as defined in the Loan
Agreement). Agent and Lenders are willing to make the Loans to Grantor, but only
upon the condition, among others, that Grantor shall grant to Agent for the
ratable benefit of Lenders, a security interest in certain Copyrights,
Trademarks, Patents, and Mask Works to secure the obligations of Grantor under
the Loan Agreement.
B. Pursuant to the terms of the Loan Agreement, Grantor has granted
to Agent for the ratable benefit of Lenders, a security interest in all of
Grantor's right, title and interest, whether presently existing or hereafter
acquired, in, to and under all of the Collateral.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound, as collateral security
for the prompt and complete payment when due of its obligations under the Loan
Agreement, Grantor hereby represents, warrants, covenants and agrees as follows:
AGREEMENT
---------
To secure its obligations under the Loan Agreement, Grantor grants and
pledges to Agent for the ratable benefit of Silicon Valley Bank and Comerica
Bank-California (collectively, "Lenders"), a security interest in all of
Grantor's right, title and interest in, to and under its Intellectual Property
Collateral (including without limitation those Copyrights, Patents, Trademarks
and Mask Works listed on Schedules A, B, C, and D hereto), and including without
limitation all proceeds thereof (such as, by way of example but not by way of
limitation, license royalties and proceeds of infringement suits), the right to
xxx for past, present and future infringements, all rights corresponding thereto
throughout the world and all re-issues, divisions continuations, renewals,
extensions and continuations-in-part thereof.
This security interest is granted in conjunction with the security interest
granted to Agent for the ratable benefit of Lenders, under the Loan Agreement.
The rights and remedies of Agent and Lenders with respect to the security
interest granted hereby are in addition to those set forth in the Loan Agreement
and the other Loan Documents, and those which are now or hereafter available to
Agent and Lenders as a matter of law or equity. Each right, power and remedy of
Agent and Lenders provided for herein or in the Loan Agreement or any of the
Loan Documents, or now or hereafter existing at law or in equity shall be
cumulative and concurrent and shall be in addition to
every right, power or remedy provided for herein and the exercise by Agent and
Lenders of any one or more of the rights, powers or remedies provided for in
this Intellectual Property Security Agreement, the Loan Agreement or any of the
other Loan Documents, or now or hereafter existing at law or in equity, shall
not preclude the simultaneous or later exercise by any person, including Agent
and Lenders, of any or all other rights, powers or remedies.
IN WITNESS WHEREOF, the parties have cause this Intellectual Property
Security Agreement to be duly executed by its officers thereunto duly authorized
as of the first date written above.
GRANTOR:
Address of Grantor: ONYX SOFTWARE CORPORATION
0000 000xx Xxx. XX, Xxxxx 000 By: /s/ Xxx Xxxxxxxx
Xxxxxxxx, XX 00000 ---------------------------------
Title: Acting CFO/Asst. Secretary
------------------------------
AGENT:
Address of Agent: SILICON VALLEY BANK,
as Agent and a Lender
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000 By: /s/ Xxxx X. Xxxxxx
---------------------------------
Attn: ______________________________
Title: Vice President
------------------------------
LENDER:
Address of Lender: COMERICA BANK-CALIFORNIA
as a Lender
000 Xxxx Xxxxx Xxxxx Xxxx.
Xxx Xxxx, XX 00000 By: Signature Illegible
---------------------------------
Attn: ______________________________
Title: Vice President
------------------------------
2
EXHIBIT A
---------
Copyrights
----------
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
N/A
EXHIBIT B
---------
Patents
-------
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
N/A
EXHIBIT C
---------
Trademarks
----------
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
N/A
EXHIBIT D
---------
Mask Works
----------
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
N/A
