EXHIBIT 10.1
1/23/02
SUBLEASE AGREEMENT
This sublease (the "Sublease"), dated as of January 22, 2002 is made between the
Sublandlord and Subtenant listed in Article I below.
ARTICLE I: Defined Terms; Background
1. Each reference in this Sublease to the capitalized terms set forth
below shall have the meanings given to them in this Article I.
Sublandlord: RSA Security, Inc., a Delaware corporation
(formerly known as Security Dynamics
Technologies, Inc.)
Sublandlord's Address
for Payment of Rent and Notices: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: CFO
With a copy of Notices to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Subtenant: Serena Software, Inc., a Delaware corporation
Subtenant's Notice Serena Software, Inc.
Address:
until the Commencement Date:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
after the Commencement Date:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Master Lease: Lease dated December 19, 1997 between Peninsula Office
Park, L.P. and Security Dynamics Technologies, Inc., a copy
of which, with certain portions redacted therefrom, is
attached hereto as Exhibit A.
Master Landlord: EOP-Peninsula Office Park, L.L.C.
Master Leased Premises: 26,728 rentable square feet ("RSF") on the 3rd floor of the
building located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ (the
"Building").
Subleased Premises: The entire Master Leased Premises as shown on the plan
attached hereto as Exhibit B.
Sublease Commencement Date: April 1, 2002. Tenant will have prior access to the
Subleased Premises to make Subtenant improvements,
including telephone and cable work beginning at 5 p.m.
January 29, 2002.
Sublease Term: The expiration of the term of the Master Lease (March 5,
2008).
Monthly Base Rent: Two and 25/100 Dollars ($2.25) per RSF for the first three
years of the Sublease Term. Commencing as of the first day
of the fourth year of the Sublease Term, the Monthly Base
Rent will increase to the then current market rental rate
for similar office space in the Peninsula Office Park as
determined in accordance with Section 3 below. Monthly
Base Rent shall be abated for the four months specified in
Section 3 below.
Base Year for Expenses and Taxes Calendar year 2002.
Pro Rata Share: 33.56%.
Security Deposit Amount: One Hundred Twenty Thousand Two Hundred Seventy-six and
No/100 Dollars ($120,276.00).
Permitted Uses: General office purposes.
Excluded Sections of the The following matters set forth in "Basic Lease
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Master Lease: Information": Term, Base Rent, Base Year, Security
Deposit, Tenant's Address for Notices, Existing Tenant;
Sections: 1.2 (regarding Master Landlord's construction
obligation), 2, 3.1, 4, 35(a) (prior to the 4th year of the
Sublease), 36(a), 38 and 39; and
Exhibit B (with respect to Master Landlord's work in Common
Areas and those sections dealing with construction of
Sublandlord's initial leasehold improvements.)
Parking Spaces Subtenant shall have the non-exclusive use of 88 parking
Available to Subtenant: spaces in accordance with Section 37 of the Master Lease.
Brokers: Cornish and ▇▇▇▇▇ Commercial and Colliers International.
2. Sublandlord is the tenant under the Master Lease. Sublandlord and
Subtenant wish to enter into a sublease of the Subleased Premises on
the terms and conditions set forth herein.
ARTICLE II: Agreements
NOW, THEREFORE, the parties agree as follows:
1. SUBLEASED PREMISES
Sublandlord hereby subleases to Subtenant, on the terms and conditions
set forth in this Sublease, the Subleased Premises. Sublandlord shall
deliver the Subleased Premises to Subtenant on the Sublease
Commencement Date with all building systems serving the Premises in
good working condition, broom clean, but otherwise in such "AS IS,
WHERE IS" condition as exists as of the date of this Sublease, free of
all occupants other than Subtenant. Subtenant acknowledges that
Sublandlord has made no other representations or warranties concerning
the Subleased Premises or the Building or their fitness for Subtenant's
purposes, except as expressly set forth in this Sublease. The taking of
possession of the Subleased Premises shall be deemed Subtenant's
acknowledgement that the same have been delivered in a good and
tenantable condition. Sublandlord agrees that Subtenant shall have
access to the Sublease Premises prior to the Sublease Commencement
Date, beginning at 5 p.m. on January 29, 2002 to and including March
31, 2002, to make Subtenant Improvements, including telephone and cable
work. Sublandlord represents that all improvements, additions,
alterations and other work done by it to the Sublease Premises was done
with the Master Landlord's consent and with all necessary permits and
approvals.
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2. SUBLEASE TERM
The term of this Sublease shall commence on the Commencement Date and
continue for the Sublease Term unless terminated prior to such date
pursuant to the terms hereof or pursuant to law. Promptly following the
actual Commencement Date and upon request of Sublandlord, Sublandlord
and Subtenant shall jointly execute a written declaration specifying
the actual Commencement Date.
3. RENT
Subtenant shall pay to Sublandlord the Monthly Base Rent (pro rated in
the case of any partial calendar month at the beginning or end of the
Term, based upon the actual number of days in the month), without
deduction, offset, notice, or demand, at Sublandlord's Address, or at
such other place as Sublandlord shall designate from time to time by
notice to Subtenant. Monthly Base Rent shall be paid for each calendar
month occurring during the term in advance two (2) business days prior
to the first day of the calendar month to which such Monthly Base Rent
is attributable, provided that the installment of Monthly Base Rent for
the second full calendar month of the Sublease Term shall be payable
upon the execution of this Sublease by Subtenant. Notwithstanding the
foregoing, the Monthly Base Rent for April, 2002, February, 2003,
March, 2003 and March, 2004 shall be abated. In addition, should more
than 20 days elapse between Subtenant's application for a building
permit for Subtenant's initial alterations and improvements and the
date of issuance of the permit, and should such delay result in the
Subleased Premises not being ready for occupancy by April 1, 2002
because of such delay in issuing the building permit, then Subtenant
shall be entitled to one day without Monthly Base Rent starting on
April 1, 2002 for every two days of such delay up to a maximum of seven
days of free rent.
All charges, costs, expenses and sums required to be paid or borne by
Subtenant under this Sublease in addition to Base Rent shall be deemed
"Additional Rent," and Base Rent and Additional Rent shall hereinafter
collectively be referred to as "Rent." Subtenant's covenant to pay Rent
shall be independent of every other covenant in this Sublease.
The Monthly Base Rent for the fourth year of the term commencing on
April 1, 2005 shall be adjusted to the then Fair Market Base Rental as
defined in Section 38(a) of the Master Lease; provided, however, if
Fair Market Base Rental is $2.25 per RSF or less, the Monthly Base Rent
shall remain at $2.25 per RSF for the fourth year of the Term (i.e.,
the twelve month period commencing on April 1, 2005). Approximately 30
days prior to the commencement of such lease year, Landlord and Tenant
shall endeavor to agree upon the Fair Market Base Rental. If they are
unable to do so within such 30 days period, the Fair Market Base Rental
shall be determined by three commercial real estate brokers - one
selected by Sublandlord, one by Subtenant and one by the two brokers so
selected. The Fair Market Base Rental shall be the average of the two
closest amounts
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determined by the brokers. The brokers shall make their determination
within 30 days of the selection of the third broker and any rent
adjustment shall be retroactive to April 1, 2005. Each party shall pay
the fee of the broker which it selected and one half of the fee of the
third.
On April 1, 2006 and April 1, 2007, the Monthly Base Rent for the
succeeding year shall be increased (but not decreased) in accordance
with the change in the cost of living according to the provision of
Section 35 of the Master Lease with appropriate adjustment to the terms
of that section to correspond to the dates and time periods set forth
in this paragraph.
At no time shall the Monthly Base Rent exceed that charged to
Sublandlord under the Master Lease.
4. EXPENSES AND TAXES
In addition to Monthly Base Rent Subtenant shall pay to Sublandlord the
Pro Rata share of all Expenses and Taxes (as those terms are defined in
the Master Lease), and all other additional rent and other charges,
however described, payable under the Master Lease by Sublandlord with
respect to the Subleased Premises; provided, however, Sublandlord's
Base Year for determining such Expenses and Taxes is 1998 and
Subtenant's Base Year is 2002. Subtenant shall pay such amount with its
next installment of Monthly Base Rent (or the following installment of
Monthly Base Rent if Subtenant has not had at least ten (10) days
notice of the additional rent charge. Sublandlord shall provide
Subtenant with copies of Master Landlord's statement as to Expenses and
Taxes. With respect to any portion of the Sublease Term not ending on
the last day of a calendar year or fiscal year, the amount of the
Expenses and/or the Taxes payable to Subtenant shall be pro rated based
on a 365 day year. Upon written request of Sublandlord, Subtenant shall
make monthly payments equal to one-twelfth of Sublandlord's estimate of
the Expenses and Taxes that will be payable for the current year. Such
payments shall be made monthly in advance together with the payments of
the Monthly Base Rent due hereunder. Any surplus shall be promptly
refunded to Subtenant and any deficiency shall be promptly paid by
Subtenant to Sublandlord once actual Expenses and Taxes for the
applicable period are finally determined.
5. INSURANCE/WAIVER OF CLAIMS AND SUBROGATION
(a) During the Sublease Term, Subtenant shall maintain
insurance of such types, in such policies, with such
endorsements and coverages, in such amounts as are set forth
in the Master Lease. All insurance policies shall name Master
Landlord and Sublandlord as additional insured and loss payees
and shall contain an endorsement that such policies may not be
modified or canceled without thirty (30) days prior written
notice to Master Landlord and Sublandlord. Subtenant shall
promptly pay all insurance premiums and shall provide
Sublandlord with policies or certificates that are acceptable
to Sublandlord and Master Landlord
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evidencing such insurance upon Subtenant's execution of this
Sublease.
(b) In the event Subtenant sustains a loss by reason of fire
or other casualty that is covered by its property insurance
policy (or would have been covered had Subtenant carried the
insurance required hereunder), and regardless of whether such
fire or other casualty is caused in whole or in part by the
acts or omissions of Sublandlord or Master Landlord or their
agents, servants, employees or invitees, then Subtenant agrees
to look first to the coverage provided by its insurance
proceeds, and Subtenant shall have no right of action against
Sublandlord, Master Landlord, or their agents, servants,
employees or invitees, and no third party shall have any right
by way of assignment, subrogation or otherwise against the
party causing such loss; provided, however, in the event of
such claims against Sublandlord, the foregoing release of
claims shall only apply to the extent of insurance proceeds
actually collected by such party (unless such party failed to
maintain the coverage required hereunder, in which event it
shall be deemed to have recovered the entire policy amount
required hereunder). In the event Sublandlord sustains a loss
by reason of fire or other casualty that is covered by its
property insurance policy, and regardless of whether such fire
or other casualty is caused in whole or in party by the acts
or omissions of Subtenant or its agents, servants, employees
or invitees, then Sublandlord agrees to look first to the
coverage provided by its insurance proceeds, and it shall have
no right of actions against Subtenant or its agents, servants,
employees or invitees, and no third party shall have any right
by way of assignment, subrogation or otherwise against
Subtenant; provided, however, the foregoing release of claims
shall only apply to the extent of insurance proceeds actually
collected by Sublandlord (unless Sublandlord failed to
maintain the coverage required hereunder, in which event it
shall be deemed to have recovered the entire policy amount
required hereunder.) The parties hereto agree that each of
their policies of property insurance shall include a waiver of
subrogation to effectuate this provision.
6. SECURITY DEPOSIT
(a) Subtenant shall deliver to Sublandlord, concurrently with
Subtenant's execution of this Lease, an unconditional, clean,
irrevocable standby letter of credit (the "L-C") in the
initial amount of the Security Deposit Amount (the "Security
Deposit"), which L-C shall be issued by a money-center bank
that is acceptable to Sublandlord, and which L-C may be
presented for payment in a U.S. location acceptable to
Sublandlord. The L-C shall be in form and content as attached
hereto as Exhibit C for a term of not less than one year.
Subtenant shall pay all expenses, points and/or fees incurred
by Subtenant in obtaining the L-C.
(b) The L-C shall be held by Sublandlord as security for the
faithful performance by Subtenant of all the terms, covenants,
and conditions of
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this Sublease to be kept and performed by Subtenant during the
Sublease Term. If Subtenant defaults with respect to any
provisions of this Sublease, including, but not limited to,
the provisions relating to the payment of Rent, or if
Subtenant fails to renew the L-C at least thirty (30) days
before its expiration, Sublandlord may, but shall not be
required to, draw upon all or any portion of the L-C for
payment of any Rent or any other sum in default, or for the
payment of any amount that Sublandlord may spend or may become
obligated to spend by reason of Subtenant's default; or to
compensate Sublandlord for any other loss, cost or damage that
Sublandlord may suffer by reason of Subtenant's default. The
use, application or retention of the L-C, or any portion
thereof, by Sublandlord shall not prevent Sublandlord from
exercising any other right or remedy provided by this Sublease
or by law, it being intended that Sublandlord shall not first
be required to proceed against the L-C, and shall not operate
as a limitation on any recovery to which Sublandlord may
otherwise be entitled. If any portion of the L-C is drawn
upon, Subtenant shall, within ten (10) days after written
demand therefor, reinstate the L-C to the amount then required
under this Lease, and Subtenant's failure to do so shall be a
default under this Sublease. The L-C or the balance remaining
if it has been drawn upon by Sublandlord as herein provided,
shall be returned to Subtenant within ten (10) days following
the later of the expiration of the Sublease Term or the
vacating of the Subleased Premises by Subtenant.
7. USE OF PREMISES
Subtenant shall use and occupy the Subleased Premises only for the
Permitted Uses, and only to the extent permitted by the Master Lease
and all laws governing or affecting Subtenant's use of the Subleased
Premises.
8. PROVISION OF SERVICES
No services are currently included in Monthly Base Rent or Expenses
except for those provided by Master Landlord to Sublandlord under the
Master Lease. If Sublandlord furnishes the Subleased Premises or
Subtenant with any additional services upon request of Subtenant,
Sublandlord shall charge Subtenant a reasonable charge therefor, and
Subtenant shall pay the additional charge with the next installment of
Monthly Base Rent (or the following installment of Monthly Base Rent if
Subtenant has not had at least ten (10) days notice of the additional
rent charge).
9. CONDITION OF PREMISES; TRADE FIXTURES
Subtenant shall have the right to furnish and install any trade
fixtures that are necessary for the conduct of its business; provided,
however, that at the termination of this Sublease, Subtenant shall
remove such trade fixtures and restore the Subleased Premises at
Subtenant's sole cost to the state and condition
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in which they existed on the Commencement Date, ordinary wear and tear
excepted. If Subtenant fails to comply with the provisions of the
Master Lease, Sublandlord may make such repairs or restoration, and the
reasonable cost thereof shall be additional rent payable by Subtenant
on demand. All trade fixtures shall be and remain the property of
Subtenant, provided that any such trade fixtures remaining on the
Premises after the expiration or termination of the term hereof shall
be deemed abandoned by Subtenant and shall, at Sublandlord's option,
become the property of Sublandlord without payment therefor.
10. ALTERATIONS AND IMPROVEMENTS
Sublandlord shall have no obligation to make any alterations or
improvements to the Premises for Subtenant's use or occupancy thereof;
however, Sublandlord shall reimburse Subtenant for up to $150,000.00 of
actual paid invoices reflecting alterations or improvements made by
Subtenant to the Subleased Premises on or before August 31, 2002. In
addition, Sublandlord shall cooperate with Subtenant to assist in
Subtenant's reuse of Sublandlord's network cabling and in resolving any
questions regarding the compliance of the Subleased Premises with
applicable life safety codes. Notwithstanding any provisions of the
Master Lease to the contrary, Subtenant shall not make any alterations,
additions, improvements or installments in the Subleased Premises
without in each instance obtaining the prior written consent of both
Master Landlord and Sublandlord, which consent shall not be
unreasonably withheld, delayed or conditioned. Sublandlord hereby
consents to Subtenant's initial proposed alterations, additions and
improvements shown on Exhibit D. If Sublandlord and Master Landlord
consent to any such alterations, improvements or installations,
Subtenant shall perform and complete such alterations, improvements and
installations at its expense, in compliance with applicable laws and
the Master Lease. If Subtenant performs any alterations, improvements
or installations without obtaining the prior written consent of both
Master Landlord and Sublandlord, Sublandlord (or Master Landlord) may
remove such alterations, improvements or installations, restore the
Subleased Premises and repair any damage arising from such removal or
restoration, and Subtenant shall be liable for all costs and expenses
incurred in the performance of such removal, repairs or restoration. At
the Master Landlord's option, all alterations, additions and
improvements (except trade fixtures) shall be and remain the property
of the Master Landlord upon installation and shall be surrendered to
the Master Landlord upon the termination of this Sublease, or (if the
Master Landlord has so advised Subtenant at the time it consented to
such alterations, additions or improvements) shall be removed by
Subtenant and the Premises restored to their condition on the
Commencement Date. If the Master Landlord requires such removal and
restoration and Subtenant fails to comply with such requirement,
Sublandlord may undertake such removal and restoration and Subtenant
shall be liable to Sublandlord for all costs and expenses incurred by
the Sublandlord in connection therewith.
11. SUBORDINATION TO MASTER LEASE
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This Sublease shall at all times be subject and subordinate to the
terms and provisions of the Master Lease. Except for the Excluded
Sections of the Master Lease and except as otherwise set forth in this
Sublease, all of the terms and conditions contained in the Master Lease
are hereby incorporated herein by this reference as terms and
conditions of this Sublease, except that references in the Master Lease
to the terms listed in Column A below shall be deemed to be references
to the terms set forth in this Sublease listed in the same row in
Column B below:
Column A Column B
-------- --------
Lease Sublease
Landlord Sublandlord
Tenant Subtenant
Term Sublease Term
Base Rent Monthly Base Rent (which amount shall be
annualized where the context so admits)
Premises Subleased Premises
Commencement Date Sublease Commencement Date
References within the first two (2) sentences of Master Lease Section
21.1 to "Landlord" shall, however, be construed to refer solely to
Master Landlord, and such references in the remainder of said Section
shall be deemed to refer to both Master Landlord and Sublandlord.
Subtenant shall not cause a default under the Master Lease and shall
use reasonable efforts to prevent its employees, agents, contractors or
invitees from causing a default under the Master Lease.
Notwithstanding any other provision of this Sublease, Sublandlord, as
sublandlord under this Sublease, shall have the benefit of all rights,
waivers, remedies and limitations of liability enjoyed by Master
Landlord, as the landlord under the Master Lease, but (i) Sublandlord
shall have no obligation under this Sublease to perform the obligations
of Master Landlord, as landlord under the Master Lease, including,
without limitation, any obligation to provide services or maintain
insurance; (ii) Sublandlord shall not be bound by any representations
or warranties of the Master Landlord under the Master Lease; (iii) in
any instance where the consent of Master Landlord, as the landlord
under the Master Lease, is required under the terms of the Master
Lease, the consent of Sublandlord and
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Master Landlord shall be required; (iv) Sublandlord shall not be liable
to Subtenant for any failure or delay in Master Landlord's performance
of its obligations, as landlord under the Master Lease.
Upon the default by Subtenant in the full and timely payment and
performance of its obligations under the Sublease, Sublandlord may
exercise any and all rights and remedies granted to Master Landlord by
the Master Lease with respect to default by the Tenant under the Master
Lease. In the event that Subtenant breaches any of the terms,
conditions or covenants of this Sublease or of the Master Lease and
fails to remedy such breach within twenty (20) days after written
notice, Sublandlord shall have the right, but not the obligation, to
cure such breach and charge Subtenant for the costs incurred thereby,
which costs Subtenant shall pay to Sublandlord upon demand. Subtenant
shall not commit or suffer any act or omission that will violate any of
the provisions of the Master Lease. If the Master Lease terminates for
any reason, this Sublease shall terminate and the parties shall be
relieved of any further liability or obligation under this Sublease;
provided, however, that Subtenant shall pay to Sublandlord all sums due
and accrued under this Sublease as of the termination date.
Notwithstanding any contrary provision of this Sublease, (i) in any
instances where Master Landlord, as landlord under the Lease, has a
certain period of time in which to notify Sublandlord, as tenant under
the Master Lease, whether Master Landlord will or will not take any
particular action, Sublandlord, as landlord under this Sublease, shall
have an additional five (5) business days after receiving such notice
in which to notify Subtenant (except in the case of a request by
Subtenant for consent by Sublandlord to a Transfer, in which event
Sublandlord shall so notify Subtenant within fifteen (15) days), (ii)
in any instance where Sublandlord, as tenant under the Master Lease,
has a certain period of time in which to notify Master Landlord as
landlord under the Master Lease, Subtenant, as tenant under this
Sublease will notify both the Master Landlord and Sublandlord within
the time prescribed in the Master Lease, (iii) in any instance where a
specific grace period is granted to Sublandlord, as tenant under the
Master Lease, before Sublandlord is considered in default under the
Master Lease, Subtenant, as tenant under this Sublease, shall be deemed
to have a grace period that is three (3) days less than Sublandlord had
before Subtenant is considered in default under this Sublease, but in
no event shall any grace period be reduced to less than five days
unless the relevant period under the Master Lease is six (6) days or
less, in which case the period under this Sublease shall be two (2)
days less than the period provided to Sublandlord under the Master
Lease. In no event shall Master Landlord or Sublandlord be liable for
any consequential damages suffered by Subtenant in connection with any
breach of this Sublease or otherwise.
12. ATTORNEYS' FEES; OTHER FEES
If Sublandlord or Subtenant shall commence an action against the other
arising out of or in connection with this Sublease, the prevailing
party shall be entitled to
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recover its costs of suit and reasonable attorneys' fees.
13. NOTICES OR DEMANDS
All notices and demands under this Sublease shall be in writing and
shall be effective (except for notices to Master Landlord, which shall
be given in accordance with the provisions of the Master Lease) upon
the earlier of (i) receipt at the Sublandlord's Notice Addresses or the
Subtenant's Notice Addresses, or the notice address of the Master
Landlord set forth in the Master Lease, as the case may be, by the
party being served, or (ii) upon delivery being refused. All such
notices or demands shall be sent by United States certified mail,
return receipt requested, postage prepaid, or by a nationally
recognized overnight delivery service that provides tracking and proof
of receipt. Either party may change its address for notices and demands
under this Sublease by ten (10) days' notice to the other party.
14. SIGNAGE
If approved by the Master Landlord, Subtenant may be listed, at
Subtenant's sole cost and expense, on the alphabetical directory board
or other directory device listing tenants in the main lobby of the
Building. Subtenant may also install, at Subtenant's sole cost and
expense, a sign of Subtenant's name and standard logo on the main entry
to the Subleased Premises, subject to Master Landlord's written
approval, and in compliance with all applicable laws and codes.
Subtenant shall not place any other sign in or on the Building or the
Subleased Premises without the prior written consent of Sublandlord and
Master Landlord. Subtenant acknowledges that it has no rights to any
monument sign referenced in Section 41 of the Master Lease unless
Subtenant obtains Master Landlord's approval therefor.
15. MASTER LANDLORD'S CONSENT
This Sublease is expressly conditioned upon the receipt of Master
Landlord's written consent hereto. Subtenant agrees to cooperate with
Sublandlord in providing such information as is necessary to satisfy
such condition and to execute all agreements reasonably requested by
Master Landlord in connection therewith.
16. CHOICE OF LAW
This Sublease shall be governed by the laws of the State of California.
17. ENTIRE AGREEMENT
This Sublease, together with any exhibits and attachments hereto and
the Master Lease, constitutes the entire agreement between Sublandlord
and Subtenant relative to the Subleased Premises, and this Sublease and
the exhibits and attachments may be altered, amended or revoked only by
an instrument in writing signed by both Sublandlord and Subtenant.
Sublandlord and Subtenant agree
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hereby that all prior or contemporaneous oral discussions, letters or
written documents between and among themselves and their agents and
representatives relative to the subleasing of the Subleased Premises
are merged in or revoked by this Sublease.
18. SUCCESSORS AND ASSIGNS
This Sublease shall inure to the benefit of and be binding upon the
respective heirs, administrators, executors, successors and assigns of
the parties hereto; provided, however, that this provision shall not be
construed to allow an assignment or subletting that is otherwise
specifically prohibited hereby.
19. SECTION AND PARAGRAPH HEADINGS
The section and paragraph headings are included only for the
convenience of the parties and are not part of this Sublease and shall
not be used to interpret the meaning of provisions contained herein or
the intent of the parties hereto.
20. REPRESENTATIONS AND WARRANTIES; AUTHORITY
Sublandlord and Subtenant each represent and warrant to the other that
the individual(s) executing and delivering this Sublease on its behalf
is/are duly authorized to do so and that this Sublease is binding on
Subtenant and Sublandlord in accordance with its terms. Simultaneously
with the execution of this Sublease, Subtenant shall deliver evidence
of such authority to Sublandlord in a form reasonably satisfactory to
Subtenant.
Sublandlord represents and warrants that (i) to Sublandlord's actual
knowledge, Master Landlord is not in material default under the Master
Lease, nor has any event occurred which, after any applicable notice
and/or the expiration of any grace period, shall constitute a material
default by Master Landlord under the Master Lease; and (ii) to
Sublandlord's actual knowledge, Sublandlord is not in material default
under the Master Lease, nor has any event occurred which, after any
applicable notice and/or the expiration of any grace period, shall
constitute a material default by Sublandlord under the Master Lease.
Except as expressly set forth in this Sublease, no representation or
warranty has been given by either party, its agents and
representatives, with respect to the subject matter of this Sublease,
and neither party has relied upon any representations or warranty not
expressly set forth herein.
21. BROKERS
Sublandlord and Subtenant each represent and warrant to the other that
it has not dealt with any broker other than the Brokers identified in
Article I hereof in connection with the consummation of this Sublease.
Sublandlord and Subtenant each shall indemnify and hold harmless the
other against any loss, damage, claims or liabilities arising out of
the inaccuracy of its representation or the breach of its
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warranty set forth in the previous sentence. Sublandlord shall be
solely responsible for the payment of the brokerage commission due to
the Brokers pursuant to a separate written agreement.
22. NO OFFER
The submission of this Sublease or some or all of its provisions for
examination does not constitute an option or an offer to enter into
this Sublease, it being understood and agreed that neither Sublandlord
or Subtenant shall be legally bound hereunder unless and until this
Sublease has been executed and delivered by both Sublandlord and
Subtenant, and then approved by Master Landlord.
IN WITNESS WHEREOF, the parties have caused this Sublease to be signed by their
duly authorized representatives to be effective on the date first set out above.
Sublandlord: Subtenant:
----------- ---------
RSA SECURITY, INC. SERENA SOFTWARE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Print Title: CFO
----------------------
Print Title: President & CEO
-----------------------
Date: 1/24/02
-----------------------------
Date: Jan 23, 2002
-----------------------------
13
List of Exhibits
Exhibit A - Master Lease
Exhibit B - Plan showing Subleased Premises
Exhibit C - Form of L-C
Exhibit D - Subtenant's Initial Alterations, Additions and Improvements
14
EXHIBIT B
[Plan showing Subleased Premises]
15
EXHIBIT C
IRREVOCABLE STANDBY LETTER OF CREDIT
LETTER OF CREDIT NO.: [INSERT NUMBER]
DATE OF ISSUE: [INSERT DATE]
APPLICANT: Serena Software, Inc.
BENEFICIARY: RSA Security, Inc.
AMOUNT: $120,276.00
EXPIRATION DATE [INSERT DATE]
PLACE FOR PRESENTATION OF DOCUMENTS: [INSERT LOCAL ADDRESS]
BANK HEREBY ESTABLISHES AN IRREVOCABLE STANDBY LETTER OF CREDIT IN FAVOR OF THE
BENEFICIARY BY ORDER AND FOR THE ACCOUNT OF THE APPLICANT FOR A SUM OR SUMS NOT
TO EXCEED $_____________ IN THE AGGREGATE.
THIS CREDIT IS AVAILABLE WITH BANK AGAINST THE PRESENTATION OF DRAFTS DRAWN AT
SIGHT, SIGNED BY THE BENEFICIARY, AND ACCOMPANIED BY THE FOLLOWING DOCUMENTS:
1. THE ORIGINAL OF THIS STANDBY LETTER OF CREDIT AND ALL AMENDMENT(S), IF
ANY.
2. THE WRITTEN STATEMENT PURPORTEDLY SIGNED BY THE BENEFICIARY STATING
THAT:
"BENEFICIARY IS ENTITLED TO DRAW UNDER THIS LETTER OF CREDIT PURSUANT
TO THE TERMS OF THAT CERTAIN SUBLEASE BETWEEN RSA SECURITY, INC. AND
SERENA SOFTWARE, INC. DATED JANUARY ___, 2002 WITH RESPECT TO PROPERTY
LOCATED AT ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
PARTIAL DRAWINGS MAY BE MADE UNDER THIS LETTER OF CREDIT.
IT IS A CONDITION OF THIS STANDBY LETTER OF CREDIT THAT IT SHALL BE DEEMED
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR ONE YEAR PERIODS FROM THE PRESENT
EXPIRATION DATE HEREOF, UNLESS, AT LEAST 30 DAYS PRIOR TO ANY SUCH EXPIRATION
DATE, WE SHALL NOTIFY YOU IN WRITING BY CERTIFIED MAIL OR COURIER SERVICE AT THE
ABOVE LISTED ADDRESS THAT WE ELECT NOT TO CONSIDER THIS IRREVOCABLE LETTER OF
CREDIT RENEWED FOR ANY SUCH ADDITIONAL PERIOD. UPON RECEIPT BY YOU OF SUCH
NOTICE, YOU MAY DRAW HEREUNDER BY MEANS OF YOUR DRAFT(S) ON US AT SIGHT, SIGNED
BY THE BENEFICIARY, ACCOMPANIED BY A STATEMENT, SIGNED BY THE BENEFICIARY,
STATING THAT:
16
AS OF THE DATE OF THIS DRAWING, THE BENEFICIARY HAS NOT RECEIVED A
SUBSTITUTE LETTER OF CREDIT OR OTHER INSTRUMENT ACCEPTABLE TO THE
BENEFICIARY AS SUBSTITUTE FOR BANK LETTER OF CREDIT NO. [INSERT L/C
NO.]
NOTWITHSTANDING THE ABOVE, THE FINAL EXPIRATION DATE SHALL BE NO EARLIER THAN
_________, 200___ [SIXTY DAYS AFTER EXPIRATION DATE].
THIS LETTER OF CREDIT IS TRANSFERABLE. YOU MAY TRANSFER THIS LETTER OF CREDIT TO
YOUR TRANSFEREE OR SUCCESSOR AT NO COST TO YOU OR YOUR TRANSFEREE. APPLICANT
SHALL BE RESPONSIBLE FOR THE PAYMENT OF ANY TRANSFER FEE AND ANY OTHER
REQUIREMENTS RELATIVE TO THE UCP 500 (AS HEREINAFTER DEFINED) AND U.S.
GOVERNMENT REGULATIONS.
IN THE EVENT THIS LETTER OF CREDIT IS TRANSFERRED, THE TRANSFEREE SHALL BE THE
BENEFICIARY HEREOF AND DRAFTS AND DOCUMENTS PURSUANT HERETO MUST BE EXECUTED BY
A REPRESENTATIVE OF THE TRANSFEREE.
ALL DRAFTS, ACCOMPANYING DOCUMENTS AND OTHER COMMUNICATIONS REQUIRED OR
PERMITTED UNDER THIS LETTER OF CREDIT MUST BE MARKED: "DRAWN UNDER BANK LETTER
OF CREDIT NO. [INSERT L/C NO.]"
ALL DRAFTS AND ACCOMPANYING DOCUMENTS MAY BE REPRESENTED AT, AND ALL
COMMUNICATIONS WITH RESPECT TO THIS LETTER OF CREDIT SHALL BE IN WRITING AND
DELIVERED TO, OUR OFFICES AT [INSERT ADDRESS OF A BANK LOCATION ACCEPTABLE TO
BENEFICIARY].
THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING, AND SUCH
UNDERTAKING SHALL NOT BE IN ANY WAY MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE
TO ANY DOCUMENT, INSTRUMENT OR AGREEMENT REFERRED TO HEREIN OR IN WHICH THIS
LETTER OF CREDIT IS REFERRED TO OR TO WHICH THIS LETTER OF CREDIT RELATES, AND
ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY
DOCUMENT, INSTRUMENT OR AGREEMENT. BANK SHALL HAVE NO OBLIGATION TO INVESTIGATE
THE FACTUAL REPRESENTATIONS CONTAINED IN A DRAW REQUEST.
WE HEREBY ENGAGE WITH YOU THAT ALL DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE
TERMS OF THIS CREDIT WILL BE DULY HONORED IF DRAWN AND PRESENTED FOR PAYMENT AT
THE OFFICES SPECIFIED ABOVE ON OR BEFORE THE EXPIRATION DATE OF THIS LETTER OF
CREDIT.
EXCEPT SO FAR AS OTHERWISE EXPRESSLY STATED, THIS CREDIT IS SUBJECT TO THE
UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION),
INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500 (THE "UCP 500").
17
EXHIBIT D
SUBTENANT'S INITIAL ALTERATIONS,
ADDITIONS AND IMPROVEMENTS
[Plan showing Subtenant's initial alterations, additions and improvements]
18