1
EXHIBIT 10.21
CONSENT OF LANDLORD
Pursuant to a Lease Agreement dated for reference purposes as of May 15,
1996, as amended by First Amendment to Lease dated as of December 12, 1996 and
the Second Amendment to Lease dated as of February 13, 1998 (collectively
referred to as the "Lease") between 50 West San ▇▇▇▇▇▇▇▇ Associates, a
California limited partnership ("Landlord") and AboveNet, a California
corporation ("Tenant") relating to Premises commonly known as ▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇ of
Santa ▇▇▇▇▇ (the "Premises"), ▇▇▇▇▇▇ has requested that Landlord consent to
Tenant's Sublease to Halcyon Software California Inc., a California corporation
("Subtenant") of the said suites 1010 and 1015, which will hereafter be
known jointly as Suite 1012 (the "Subleased Premises") on the terms and
conditions set forth in the Sublease dated for reference purposes as of March
31, 1998 and attached to this Consent as Exhibit 'A" (the "Sublease").
In consideration of ▇▇▇▇▇▇'s and Subtenant's execution of this Consent of
Landlord and agreement to the terms and conditions set forth in this Consent,
Landlord consents to the Sublease on the following terms and conditions:
1. SUBRENT: Tenant represents and warrants to Landlord that the Sublease
contains a complete and accurate statement of all rent and other consideration
received or to be received from Subtenant in regard to the Sublease.
2. NO WAIVER: This Consent does not constitute consent to any subsequent
subletting or assignment, nor a waiver of the restriction on assignment and
subletting contained in the Lease. Any substantial modifications in the terms of
the Sublease, including but not limited to any change in the rent or other
payments made by the Subtenant or any change in the term of the Sublease,
constitutes a new sublease which requires ▇▇▇▇▇▇▇▇'s written consent. This
Consent shall not be deemed to be approval of any such modified Sublease.
3. TENANT'S PRIMARY OBLIGATIONS: Nothing herein shall release or alter the
primary obligations of Tenant under the Lease, nor shall this Consent be deemed
to create contractual obligations on the part of Landlord to the Subtenant. By
executing this Consent, Subtenant agrees to assume all obligations of Tenant
under the Lease related to the Subleased Premises arising after the date hereof
and during the term of the Sublease and to remain jointly and severally liable
therefore with ▇▇▇▇▇▇.
4. COSTS AND ATTORNEY'S FEES: This consent is conditional upon Landlord's
receipt of the Landlord's reasonable costs and attorney's fees, to which
Landlord is entitled under the Lease. Tenant shall immediately reimburse
Landlord for such fees and costs upon receipt of Landlord's statement.
5. NO EFFECT ON LEASE: In no event shall Landlord's consent to this
--------------------------------------------------------------------------------
2
CONSENT OF MASTER LESSOR PAGE 2 OF 4
--------------------------------------------------------------------------------
Sublease be, or be construed as, a modification of the terms of the Lease, and
in the event of any inconsistency between any term of the Sublease and the terms
of the Lease, the terms of the Lease shall prevail. To the extent that the
Sublease contains any terms or provisions which purport to bind Landlord, such
terms shall be of no force or effect.
6. HAZARDOUS MATERIALS: (a) Subtenant, at its sole cost, shall comply with
all laws relating to the storage, use, and disposal of Hazardous Materials (as
defined in the Lease) that Subtenant, its agents, employees, contractors, or
invitees bring or permit to be brought on to the Subleased Premises or on the
Premises or the Property. If Subtenant does store, use, or dispose of any
Hazardous Materials, Subtenant shall notify Landlord in writing at least five
(5) days prior to their first appearance on the Subleased Premises, and unless
disclosed prior to the execution of this Consent in a response provided by
Subtenant to ▇▇▇▇▇▇▇▇'s Hazardous Materials Questionnaire or other written
disclosure, such Hazardous Materials shall not be stored, used, or disposed of
on the Subleased or Premises without Landlords advance written approval.
Subtenant shall be subject to all obligations of Tenant under the Lease relating
to Hazardous Materials.
(b) Subtenant shall be responsible for and shall defend, indemnify, and
hold Landlord and its agents harmless from and against all claims, costs and
liabilities, including attorney's fees and costs, arising out of or in
connection with the storage, use, or disposal of Hazardous Materials in or about
the Subleased Premises, the Premises, or the Property by Subtenant, its agents,
employees, contractors, or invitees which occur prior to or after the Effective
Date, but Tenant shall remain responsible for any such matters to the extent set
forth in the Lease, and Subtenant's responsibility and duty as set forth above
shall not relieve Tenant of its responsibilities and duties pursuant to the
Lease.
7. CONSTRUCTION AND SIGNAGE: Any and all construction to be performed by
Tenant or Subtenant on the Subleased Premises shall be subject to the advance
written approval of Landlord and all other provisions relating to construction
which are set forth in the Lease. Any signage called for in the Sublease shall
be subject to Landlord's approval as per the terms of the Lease, and subject to
the procurement of approval and permits from the City of San ▇▇▇▇ if required.
By approving the Sublease, Landlord shall not be deemed to have approved any
signage or construction referenced therein
8. INSURANCE: The Subtenant shall comply with all of the provisions of the
Lease as to insurance as if it were the Tenant named thereunder, and shall name
the Landlord as an additional insured on all policies of insurance required by
the Sublease and Lease, and provide the Landlord with a documentary proof
thereof as required by the Lease.
9. USE: Subtenant shall use the Subleased Premises only for the uses for
which Tenant is allowed to use the Subleased Premises pursuant to the Lease.
--------------------------------------------------------------------------------
3
CONSENT OF MASTER LESSOR PAGE 3 OF 4
--------------------------------------------------------------------------------
10. ASSIGNMENT OF TENANT'S RIGHTS: Tenant irrevocably assigns to Landlord,
as security for the performance of each and all of Tenant's obligations under
the Lease, all rent and other consideration received or to be received from
Subtenant. Landlord, as assignee of Tenant, or a receiver for Tenant appointed
on Landlord's application, may (but is not required to) collect such rent or
other consideration provided, however, that until and unless Tenant commits an
Event of Default under the Lease, Tenant shall have the right to collect such
rent or other consideration (subject to any obligation set forth in the Lease
whereby Tenant is to pay all or a part of such rent or other consideration to
Landlord). Such assignment shall be subject to the following terms and
conditions:
(a) Landlord may collect such rent or other consideration from
Subtenant only so long as Tenant shall continue to be in default of
its obligations under the Lease.
(b) Upon ▇▇▇▇▇▇▇▇'s written request following the occurrence of
an Event of Default under the Lease, Tenant shall execute such
documents as are reasonably requested by Landlord for the purpose of
confirming to Subtenant that Landlord has the right to collect all
rent and other consideration otherwise due to Tenant from such
subtenant or assignee.
(c) Subtenant has the right and duty to pay rent or other
consideration otherwise due to Tenant directly to Landlord upon
receipt from Landlord of a declaration under penalty of perjury
stating that an Event of Tenant's Default exists under the Lease, and
in such event, each payment made to Landlord shall be deemed to
satisfy the obligations of Subtenant to Tenant, but only to the extent
of such payment.
(d) Subtenant's payment to Landlord pursuant to this assignment
shall not create or evidence any direct landlord tenant relationship
between Subtenant and Landlord, and Landlord may exercise all remedies
to terminate the Lease (including the termination of Subtenant's
possession of the Premises or the Subleased Premises) in the event of
any Event of Default by Tenant, notwithstanding its receipt of any
payment from Subtenant pursuant to this assignment, unless the receipt
of such payment completely cures Tenant's default. The acceptance of a
payment from Subtenant pursuant to this assignment shall not affect
▇▇▇▇▇▇▇▇'s right to its remedies with regard to all defaults remaining
uncured after such payment.
11. TERMINATION: The Sublease is and remains subject and subordinate to the
Lease, and a termination of the Lease for any reason (including but not limited
to a default of Tenant) shall terminate the Sublease.
--------------------------------------------------------------------------------
4
CONSENT OF MASTER LESSOR PAGE 4 OF 4
--------------------------------------------------------------------------------
12. BROKERAGE COMMISSIONS: Landlord has not been represented by a real
estate broker in regard to the transaction represented by this Amendment, and no
brokerage commissions or finder's fees are due from Landlord in regard to the
transaction. Tenant will hold Landlord harmless and indemnify Landlord against
any claim, loss, or damage, including reasonable attorney's fees, in regard to
a brokerage commission or finder's fee claim by a broker or finder and arising
out of this transaction.
LANDLORD: TENANT:
50 West San ▇▇▇▇▇▇▇▇ Associates, a AboveNet, a California corporation
California limited partnership
By: SFG San ▇▇▇▇ Company, LLC, an /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Indiana limited liability company, ------------------------------------
General Partner ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By Exec. V.P. & CFO
By: ▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., ---------------------------------
an Indiana corporation, Manager [Print Name and Title]
Dated: 3/31/98
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇, Vice President SUBTENANT
Dated: 4-20-98 Halcyon Software California, Inc., a
California corporation
/s/ ▇▇▇ ▇▇▇
------------------------------------
By ▇▇▇ ▇▇▇ President & CEO
---------------------------------
[Print Name and Title]
Dated: 3/31/98
--------------------------------------------------------------------------------
5
EXHIBIT "A"
Sublease
6
SUBLEASE
This Sublease (the "Sublease") is dated as of March 31, 1998, for reference
purposes only, and is made between AboveNet, a California corporation ("Tenant")
and Halcyon Software California, Inc., a California corporation ("Subtenant")
with reference to the following facts and circumstances, which are conclusively
agreed between the parties:
A. 50 West San ▇▇▇▇▇▇▇▇ Associates, a California limited
partnership ("Landlord") and Tenant are parties to that certain Office
Lease dated for reference purposes as of May 15, 1996, as amended by
First Amendment to Lease dated as of December 12, 1996 and the Second
Amendment to Lease dated as of February 23, 1998 (collectively
referred to as the "Lease"). A copy of the Lease is attached as
Exhibit "A" and incorporated herein by this reference.
B. The Lease relates to Landlord's premises located on the 10th
floor of Landlord's property located at ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Building"). Pursuant to the Lease, Tenant
occupies 1,986 rentable square feet of space in the Building, commonly
known as Suite 1010, and 3,211 rentable square feet of space in the
Building, commonly known as Suite 1015, and totaling 5,197 rentable
square feet in area. The location of these spaces are shown on the
floor plan attached as Exhibit "B", which is incorporated herein.
▇. ▇▇▇▇▇▇ and Subtenant wish to enter into a sublease whereby
Subtenant will sublease Suites 1010 and 1015 (collectively referred to
as the "Subleased Premises") from Tenant for a portion of Tenant's
Lease Term for such Premises.
Now , therefore, in consideration of all of the foregoing facts and
circumstances, and for good and valuable consideration, the receipt of which is
acknowledged by each party, Tenant agree to and do amend the Lease as follows:
1. Demise Of Subleased Premises
Commencing on April 1, 1998 (the "Sublease Commencement Date") and subject
to the terms and provisions hereof, Tenant hereby subleases to Subtenant, and
Subtenant subleases from Tenant, the Subleased Premises. In the event that
▇▇▇▇▇▇ does not deliver possession of the Subleased Premises on April 1, 1998,
the Sublease Commencement Date shall be the actual date of delivery. This
Sublease shall not be void or voidable, nor shall Tenant be liable to Subtenant
for any loss or damage resulting therefrom, if Tenant is unable to deliver the
Subleased Premises by April 1,
7
Sublease Page 2 of 6
--------------------------------------------------------------------------------
1998, provided, that no Rent shall be payable by Subtenant on the Subleased
Premises for any period prior to the date on which possession of the Subleased
Premises is delivered by Tenant.
2. INCORPORATION OF PROVISIONS OF THE LEASE
The parties hereby incorporate all provisions of the Lease, except for
provisions which are specifically addressed or the inclusion of which is
disavowed hereby, specifically or by context. The incorporated provisions shall
be applicable between Tenant and Subtenant in regard to the Subleased Premises
as if the word "Landlord" set forth therein was "Tenant" and the word "Tenant"
therein was "Subtenant". Notwithstanding anything set forth herein, such
incorporation shall not extend to any provisions relating to options or rights
of first refusal or expansion rights as to any space in the Building, nor to any
options to renew or extend the term of the Lease, nor shall such incorporation
extend the Term hereof or change the Rent set forth herein, nor shall such
incorporation grant Subtenant any rights relating to construction of
improvements or paying the cost thereof except for those rights specifically
granted to Subtenant in this Sublease. Paragraphs 1.1 through 1.9; 1.11 through
1.12, 1.14, 1.15; 2.1, 2.4, 2.5; 3.1, 3.2, 3.4.5.1, 5.5; 7.4 (insofar as it
obligates Tenant to pay for such signage, or to obtain signage other than that
allowed by Landlord) of the original the Lease, and Paragraphs A through F of
the Recitals and Paragraphs 1 through 6, 8 through 10, 14 through 16 in the body
of the Second Amendment to Lease shall not be deemed incorporated herein.
3. TERM
The Lease Term for the Subleased Premises shall be from the Sublease
Commencement Date to March 31, 2000, unless sooner terminated pursuant to the
terms hereof
4. RENUMBERING
Suites 1010 and 1015 shall be renumbered so that they have a joint suite
number of Suite 1012. Tenant will use Suite 1010 as the number of another suite
on the 10th floor of the Building which Tenant is also leasing from Landlord.
5. BASE RENT
Subtenant shall pay Tenant monthly base rent as follows: (a) from the
Sublease Commencement Date through May 31, 1998, the sum of $9,387.75 per month,
(b)
--------------------------------------------------------------------------------
8
Sublease Page 3 of 6
--------------------------------------------------------------------------------
from June 1, 1998 through August 31, 1998, the sum of $9,884.25 per month; and
(c) from September 1, 1998 to March 31, 2000, the sum of $14,811.45 per month.
Said sums shall be prorated for any partial months.
6. OPERATING EXPENSES AND OTHER CHARGES
Subtenant shall pay to Tenant, as additional rent hereunder, an amount
equal to Subtenant's Share (defined below) of all operating expenses which
Tenant is obligated to pay to Landlord under the Lease. Subtenant shall pay
Tenant monthly, on the first day of each month, Subtenant's Share of any
estimated operating expense payments for which Tenant is liable under the Lease,
and Tenant shall further pay, within thirty days of receiving Tenant's invoice
therefor, Subtenant's Share of any reconciliation payment required of Tenant
pursuant to Landlord's reconciliation of estimated operating expenses with
actual operating expenses.
Subtenant's Share shall be a percentage derived by dividing the rentable
square feet of the Subleased Premises by the total rentable-square feet which
Tenant is leasing directly from Landlord under the Lease (not to include any
space subleased by Tenant in the Building from other tenants, nor space leased
from Landlord by Tenant which is not on the 10th floor of the Building). When
the Sublease begins, Subtenant's Share will be 100%.
In addition, Subtenant shall pay to Tenant, as additional rent, any and all
sums which Tenant is required to pay to Landlord for excess utility consumption,
after hours HVAC or lighting, administrative services, services rendered at the
request of or for the benefit of Subtenant relating to the Subleased Premises,
and any and all other charges arising from occupancy of the Subleased Premises
which Tenant is required to pay to Landlord.
Subtenant shall repair and maintain the Premises to the extent that such
matters are required of Tenant under the Lease.
7. USE
Subtenant shall use the Premises only for office purposes allowed pursuant
to the Lease, and subject to all other use restrictions set forth in the Lease.
--------------------------------------------------------------------------------
9
Sublease Page 4 of 6
--------------------------------------------------------------------------------
8. CONDITION OF SUBLEASED PREMISES.
Subtenant is familiar with the condition of the Subleased Premises, and has
had the opportunity to perform any investigations of its condition and
suitability as Subtenant deemed necessary or appropriate. Subtenant accepts the
Subleased Premises in their current condition, "AS-IS", with all faults, and
acknowledges that neither ▇▇▇▇▇▇, nor any agent, employee, manager, or attorney
of Tenant, has made any representations or warranties with respect to the
Subleased Premises or the Building, or with respect to the suitability of either
for the conduct of Subtenant's business.
9. CONSTRUCTION OF SUBTENANT IMPROVEMENTS IN THE SUBLEASED PREMISES
Subtenant may construct Subtenant Improvements in the Subleased Premises
under the terms and conditions of the rules and requirements of Paragraphs 10.1
of the Lease. Subtenant understands and agrees that all consents and approvals
set forth therein must be given by both Tenant and Landlord, and that all
insurance must name, both Landlord and Tenant as insureds or additional
insureds.
Subtenant's contractor shall obey all regulations and directives of
Landlord's management staff, and shall cooperate with said staff to minimize any
inconvenience and/or damage to the Building in regard to such construction.
Prior to the start of construction, Subtenant's contractor shall deposit with
Landlord the sum of $1,000.00, which Landlord shall hold as a deposit against
any damages to the Building, damage to neighboring tenants, completion of any
common area or Building punchlist items, and full compliance with all Building
regulations and directives.
Subtenant shall pay all rent which is due under this Sublease during any
period of construction of Subtenant Improvements in the Subleased Premises.
10. INSURANCE.
Subtenant shall, procure and maintain, at its own cost and expense, such
liability insurance as is required to be carried by Tenant under the Lease,
naming Tenant as well as Landlord, in the manner required therein and such
property insurance as is insurance required to be carried by Tenant under the
Lease to the extent such property pertains to the Subleased Premises. Subtenant
shall furnish to Tenant and Landlord a certificate of Subtenant's insurance
required hereunder not later than ten (10) days before ▇▇▇▇▇▇ takes possession
of the Subleased Premises. Each party hereby waives claims against the other for
property damage covered (or if not covered, which is
--------------------------------------------------------------------------------
10
Sublease Page 5 of 6
--------------------------------------------------------------------------------
required hereby to be covered) by the party's insurance, provided such waiver
shall not invalidate the waiving party's property insurance. Each party shall
attempt to obtain from its insurance carrier a waiver of its right of
subrogation. Subtenant hereby waives claims against ▇▇▇▇▇▇ and Landlord for
property damage to the Premises or its contents if and to the extent that Tenant
waives such claims against Landlord under the Lease. ▇▇▇▇▇▇ agrees to obtain,
for the benefit of ▇▇▇▇▇▇ and Landlord, such waivers of subrogation rights from
its insurer as required of Tenant under the Lease.
11. PARKING:
Tenant will make available to Subtenant fifteen (15) non-exclusive parking
spaces which are available to Tenant pursuant to its Lease with Landlord, 8
spaces in the Off-Site Parking Facilities and 7 spaces in the On-Site Parking
Facilities. Subtenant will pay all costs and charges associated with such
spaces, and at Tenant's election, will contract directly with, or pay monthly
fees directly to, the Landlord or its designated parking contractor.
12. NOTICE ADDRESS
The notice address for Tenant pursuant to the Sublease shall be as
follows:
AboveNet
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The notice address for Subtenant pursuant to this Sublease shall be:
Halcyon Software California, Inc.
Attn: ▇▇▇ ▇▇▇
▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
13. BROKERAGE COMMISSION
Neither party has been represented by a real estate broker in regard to the
transaction represented by this Sublease and no brokerage commissions or
finder's fees are due in regard to the transaction. Subtenant will hold Tenant
harmless and indemnify Tenant against any claim, loss, or damage, including
reasonable attorney's
--------------------------------------------------------------------------------
11
Sublease Page 6 of 6
--------------------------------------------------------------------------------
fees, in regard to a brokerage commission or finder's fee claim by a broker or
finder under contract with or working with Subtenant. Tenant will hold Subtenant
harmless and indemnify Subtenant against any claim, loss, or damage, including
reasonable attorney's fees, in regard to a brokerage commission or finder's fee
claim by a broker or finder under contract with or working with ▇▇▇▇▇▇.
14. ENTIRE AGREEMENT
This Sublease constitutes and contains the entire agreement between the
parties, and there are no binding agreements or representations between the
parties except as expressed herein. Subtenant acknowledges that neither
Landlord, Tenant, nor Landlord's or Tenant's agents have made any legally
binding representations or warranties as to any matter except for such matters
which are expressly set forth herein, including any representations or
warranties relating to the condition of the Subleased Premises or the
improvements thereto or the suitability of the Subleased Premises or the
Building for Subtenant's business.
15. LANDLORD'S CONSENT
This Sublease is subject to the written consent of Landlord, and Subtenant
agrees to execute such Consent of Landlord as shall be requested pursuant to the
granting of such consent.
16. SUBORDINATION TO LEASE
This Sublease is subject to and subordinate to the Lease. Subtenant agrees
that it will not, by its act or omission to act, cause a default under the
Lease.
TENANT: SUBTENANT:
AboveNet, a California corporation Halcyon Software California, Inc., a
California corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇
------------------------------- ---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Exec. V.P. & CFO ▇▇▇ ▇▇▇, President & CEO
------------------------------------- ------------------------------------
[Print Name and Title] [Print Name and Title]
Dated: 3/31/98 Dated: 3/31/98
-------- -------
--------------------------------------------------------------------------------
