Exhibit 10.21
FACILITIES AGREEMENT
This Facilities Agreement (the "Agreement") is entered into as of
March 29, 2000, between The Titan Corporation, a Delaware corporation ("Titan"),
and Cayenta, Inc., a Delaware corporation, and majority-owned subsidiary of
Titan (the "Company").
RECITALS
WHEREAS, Titan has entered into that certain deed of lease
(hereinafter collectively called the "Master Lease"), dated January 19, 1993,
between USAA Real Estate Limited Partnership, as Landlord (hereinafter called
"Landlord") and Titan, covering premises including portions of the building
located at 0000 Xxxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx, as set forth in the
Master Lease (the "Master Premises"). A copy of the Master Lease and its
amendments, which Titan represents to the Company to be true and complete,
are attached hereto as Exhibit A and made a part hereof;
WHEREAS, the Company requires certain portions of the Master Premises
and the use of certain furniture, equipment, systems and services in the conduct
of its business; and
WHEREAS, Titan wishes to sublease to the Company certain portions of
the Master Premises (the "Subleased Premises") and to provide the use of certain
furniture, equipment, systems and services in accordance with the terms of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and obligations contained herein, the parties agree as follows:
1. TERM.
The term of this Agreement shall commence on March 29, 2000 (the
"Commencement Date") and shall expire on June 30, 2003, the termination of the
Master Lease, unless sooner terminated pursuant to any of the provisions hereof.
2. REGIONAL OCCUPANCY SERVICES.
(a) GENERAL. During the term of this Agreement, Titan shall sublease to
the Company a base of 26,248 square feet of the Master Premises ("Subleased
Premises"), subject to the parties' agreement to increase or decrease the size
of the Subleased Premises on a monthly basis. In addition, Titan shall provide
rent, maintenance, property taxes, utilities, landlord pass-through expenses,
property insurance, reception desk services, telephone services (including use
of the telephone system) and centralized mail and postage and other services and
operating expenses currently provided as part of Titan's regional occupancy
services allocated to its subsidiaries ("Regional Occupancy Services"). Titan
will allow the Company to continue to use furniture and equipment owned by Titan
but used by the Company in its business as of the date of this Agreement,
subject to the parties' agreement to eliminate or add furniture and equipment.
(b) REGIONAL OCCUPANCY FEE. The Company shall pay Titan an annual fee
determined by the Company's percentage of Titan's annual costs of its Regional
Occupancy Services ("Regional Occupancy Fee"). The Company's percentage shall be
the percentage of the
1.
Company's square footage occupied to the total square footage occupied by Titan
and its subsidiaries occupying the Master Premises. Titan will estimate the
Regional Occupancy Fee for each fiscal year and the Company shall pay Titan the
estimated annual Regional Occupancy Fee in twelve equal monthly installments,
subject to adjustment quarterly for any material changes (as determined by
Titan) in the amount of square feet subleased or the amount of other Regional
Occupancy Services used. At the end of each fiscal year, Titan will calculate
the actual Regional Occupancy Fee and shall credit the Company for any
overpayments against the first payments due on the Regional Occupancy Fee for
the new fiscal year and invoice the Company for any underpayments of the
Regional Occupancy Fee.
(c) PAYMENTS. The Company shall pay Titan on the first day of each
month except the first payment of a new fiscal year shall be made within ten
(10) days of the receipt of the estimated allocation for the current fiscal year
the monthly installment of the estimated annual Regional Occupancy Fee. All
invoices not paid when due will accrue interest at a rate of 1 1/2 per month for
each day past due until paid full, subject to the maximum rate allowable by law.
3. OTHER FACILITIES OBLIGATIONS.
(a) This Agreement is subject and subordinate to all of the terms and
conditions of the Master Leases. Except for the direct payment of rent, landlord
pass-through expenses or other payment under the Master Lease below, the Company
shall perform the obligations of Titan as Tenant under the Master Lease to the
extent such obligations are applicable to the Subleased Premises pursuant to the
Agreement. Subject to Paragraph 4 of this Agreement, in the event of the
termination of the Titan's interest as Tenant under the Master Lease for any
reason, then this Agreement shall terminate coincidentally therewith without any
liability of Titan to the Company.
(b) All applicable terms and conditions contained in the Master Lease
are incorporated in this Agreement by reference, and made a part hereof as if
set forth herein at length; with Titan being substituted for the "Landlord"
under the Master Lease, and Subleased Premises being substituted for "Premises"
under the Master Lease. Notwithstanding the foregoing, it is understood and
agreed that Titan shall not be obligated to perform any of the obligations of
Landlord under the Master Lease with respect to the provisions of the Master
Lease incorporated into this Agreement and the Company agrees to look solely to
Landlord for the performance of such obligations. Subject to Paragraph 3(d) of
this Agreement, Titan will not be liable to the Company for any failure by
Landlord to perform its obligations under the Master Lease, nor will such
failure by Landlord excuse performance by the Company of its obligations
hereunder.
(c) The Company hereby agrees to indemnify and hold Titan harmless from
and against any and all claims, liabilities, losses, damages and expenses
(including reasonable attorneys' fees) incurred by Titan arising out of, from or
in connection with (i) the use or occupancy of the Subleased Premises by the
Company, (ii) any breach or default by the Company under this Agreement, or
(iii) the failure of the Company to perform any obligation under the terms and
provisions of the Master Lease assumed by the Company hereunder or required to
be performed by the Company as provided herein from and after the Commencement
Date of this Agreement.
2.
(d) Titan hereby agrees to indemnify and hold the Company harmless from
and against any and all claims, liabilities, losses, damages and expenses
(including reasonable attorneys' fees) incurred by the Company arising out of,
from or in connection with (i) Titan's breach of any provision of this
Agreement, or (ii) acts or omissions of Titan under the Master Lease in
connection with the Master Premises prior to the Commencement Date of this
Agreement.
(e) By execution of this Agreement, the Company accepts the Subleased
Premises as being in good and sanitary order, condition, and repair, and accepts
the Premises and appurtenances "as is" in their present condition without any
representation or warranty by Titan as to the condition of said Subleased
Premises and appurtenances or as to the use or occupancy which may be made
thereof.
4. DEFAULT. In addition to all other rights and remedies of Titan hereunder,
should the Company be in default under any of the covenants and obligations of
the Master Lease, then Titan shall have the rights set forth in the Master Lease
in the event of such default.
5. QUIET ENJOYMENT. Titan covenants that so long as the Company keeps and
substantially performs each and every term, provision and condition herein
contained on the part of the Company to be kept and performed, the Company shall
peacefully and quietly enjoy the Subleased Premises without hindrance or
molestation by Titan or any other person claiming by, through or under Titan.
6. AMENDMENTS OF MASTER LEASE. Titan may cause or permit any reasonable
amendment of the Master Lease during the term of this Agreement. The Company
shall be bound by such amendment to the extent applicable, unless otherwise
agreed by Titan and the Company.
7. CONDITION TO EFFECTIVENESS. This Agreement is subject to the Landlord giving
its consent to this Agreement in writing, if required under the terms of the
Master Lease.
8. NOTICES. All communications, notices and demands of any kind which either
party may be required or desires to give to or serve upon the other party shall
be sent by prepaid, first class mail, registered or certified, with return
receipt requested. Any such notice shall be addressed to the parties as follows:
If to Titan: The Titan Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Legal Department
If to the Company: Cayenta, Inc.
000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
3.
Any notice sent by U.S. mail as described above shall be deemed
effective within two (2) days after the posted date of mailing. Either party may
change its address by notifying the other party of a changed address in
accordance with the provisions of this paragraph.
9. BROKERS. Each party represents to the other that no brokerage commission or
finder's fee has been incurred in connection with this transaction, and each
party shall indemnify the other against any such commission or fee that may be
alleged to have been incurred by it in connection with this Agreement.
10. SIGNAGE. The Company shall have the right to place its name on the existing
lobby directory, unless otherwise agreed by the parties hereto.
11. ATTORNEYS' FEES. If there is any legal action or proceeding between Titan
and the Company to enforce any provision of this Agreement or to protect or
establish any right or remedy of either Titan or the Company hereunder, the
unsuccessful party to such action or proceeding shall pay to the prevailing
party all costs and expenses, including reasonable attorneys' fees, incurred by
such prevailing party in such action or proceeding and in any appeal in
connection therewith, and if such prevailing party recovers a judgment in any
such action, proceeding or appeal, such costs, expenses and attorneys' fees
shall be included as part of such judgment.
12. ENTIRE AGREEMENT. This Agreement, together with the Master Lease,
constitutes the entire agreement between the parties with respect to the subject
matter thereof, and shall supersede all other agreements, oral or in writing,
between the parties respecting said subject matter. Neither this Agreement nor
the Master Lease shall be amended or modified in any way except in a written
instrument signed by both parties hereto.
13. ASSIGNMENT AND SUBLETTING. The Company shall not assign, sell, transfer
(whether by operation of law or otherwise), or otherwise encumber this Agreement
or any portion of its interest in the Subleased Premises, or sublet all or any
portion of the Subleased Premises or permit any other person to occupy or use
the Subleased Premises, without the prior written consent of Titan and Landlord.
14. GOVERNING LAW. This Agreement shall be construed in accordance with and
governed by the internal laws of the State of California.
15. SUCCESSORS. This Agreement shall be binding on and shall inure to the
benefit of the parties and their successors.
16. HEADINGS. The paragraph headings appearing in this Agreement are for the
purpose of convenience only and are not deemed to be a part of this Agreement.
17. COOPERATIVE USE OF SUBLEASED PREMISES. The parties understand that they may
or will be sharing space on the Master Premises and that such sharing may expose
each other's confidential information. The parties shall cooperate with each
other and shall make reasonable efforts to respect each other's privacy and
confidential information. The Company shall comply with all reasonable rules and
regulations established by Titan for the use of the Subleased Premises and any
relevant adjoining space.
4.
IN WITNESS WHEREOF, Titan and the Company have duly executed this
Agreement as of the day and year first above written.
THE TITAN CORPORATION,
a Delaware corporation
By: /s/ L.L. Xxxxxx
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Print Name: L.L. Xxxxxx
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Title:
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CAYENTA, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Lake
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Print Name: Xxxxxx X. Lake
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Title: Chief Financial Officer
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5.
EXHIBIT A
MASTER LEASE
A-1
