EXHIBIT 10.17
SUBLEASE
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THIS SUBLEASE dated April 13,1999, is entered into by and between ROBINS,
KAPLAN, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., a Minnesota limited liability partnership,
formerly Robins, Zelle, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ("RKMC"), as Sublessor, and SCIENT
CORPORATION, a Delaware Corporation, ("Sublessee"), as Sublessee with respect to
certain premises in the building located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ (the "Building").
RECITALS:
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▇. ▇▇▇▇▇▇▇ Corporation ("Shaklee") is the Lessee under that certain
Amended and Restated Office Lease dated June 25, 1985, by and between 444 MLHIRP
Partnership: a New York general partnership, as Lessor ("Master Lessor"), and
Shaklee, as Lessee and related documents (the "Master Lease"), an edited copy of
which is attached hereto as Exhibit A.
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B. RKMC is the Sublessee under that certain Sublease dated July 2, 1987
(as amended by that certain letter agreement dated November 22, 1995, and that
certain letter agreement dated July 25, 1995), by and between Shaklee and
Sublessor, and RKMC, as Sublessee, (collectively the "Prior Sublease").
C. Sublessee desires to sublease from RKMC, and Shaklee is prepared to
sublease to Sublessee, the portion of the premises demised under the Master
Lease that is the entire 27th floor at the Building, consisting of approximately
17,256 rentable square feet, the same being all of the space subleased by RKMC
from Shaklee (the "Subleased Premises").
AGREEMENT:
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NOW, THEREFORE, in consideration oft he premises and the mutual promises
contained herein, RKMC hereby subleases to Sublessee, and Sublessee hereby
subleases from RKMC, the Subleased Premises for the term and subject to the
terms, covenants, and conditions hereinafter set forth, to each and all of which
RKMC and Sublessee hereby mutually agree.
1. Term
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(a) The term of this Sublease shall commence on May 1,1999, and,
unless sooner terminated as hereinafter provided, shall end on April 30, 2001.
If RKMC, for any reason whatsoever, cannot deliver possession of the Subleased
Premises to Sublessee on the commencement date of said term, this Sublease shall
not be void or voidable, nor shall RKMC be liable to Sublessee for any loss or
damage resulting therefrom, but in such event, commencement of Sublessee's
obligation to pay rent hereunder (the "Rent Start Date") shall be delayed one
day for each day' s delay in delivery of the Subleased Premises. If possession
of the Subleased Premises cannot be delivered by May 15, 1999 (as such date may
be extended due to fire, accident, strike, governmental authority, acts of God,
delay in obtaining required building permits, or other causes beyond the
reasonable
control of RKMC), this Sublease and all rights hereunder shall terminate. No
delay in delivery of possession shall operate to extend the term hereof.
(b) In the event the Subleased Premises are ready for occupancy prior
to the commencement of the term of this Sublease, Sublessee shall have the fight
to take early occupancy of the Subleased Premises on such date, and
notwithstanding the provisions of paragraph (a) above, the term of the Sublease
shall commence upon such occupancy. Any such early occupancy shall not affect
the termination date of this Sublease, but, in such event, the commencement date
of the Sublease term shall be deemed to be the date the Subleased Premises are
made ready for such early occupancy; provided, however, that notwithstanding the
foregoing, the Rent Start Date shall be May 1, 1999.
2. Rental.
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(a) Base Sublease Rent. Sublessee shall pay to RKMC throughout the
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term of this Sublease as rental for the Subleased Premises the sum of Six
Hundred Twenty-one Thousand Two Hundred Sixteen Dollars ($621,216.00) per annum
as the Base Sublease Rent, in advance in 12 equal installments of Fifty-one
Thousand Seven Hundred Sixty-eight Dollars ($51,768.00), payable upon execution
hereof for the first two (2) months of the term hereof and on or before the
first of each and every successive calendar month thereafter. If the Rent Start
Date is other than the first day of a calendar month, the first payment of rent
shall be appropriately prorated on the basis of a 30-day month.
(b) Additional Sublease Rent. Commencing January, 2000 and for each
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whole or partial calendar year thereafter during the term of this Sublease,
Sublessee shall pay RKMC as Additional Sublease Rent of the mount by which
Operating Expenses and Taxes attributable to the Subleased Premises for such
year exceed Operating Expenses and Taxes for the 1999 calendar year, as those
terms are defined in paragraph 5.1 of the Master Lease (incorporated by
reference in paragraph 4 of this Sublease).
(c) Rental shall be paid to RKMC, without deduction or offset, in
lawful money of the United States of America at RKMC's address for notices
hereunder or to such other person or at such other place as RKMC may from time
to time designate in writing. All amounts of money payable by Sublessee to RKMC
hereunder, if not paid when due and within 5 days after receipt of written
notice thereof from RKMC, shall be subject to a one-time late charge of five
percent (5%) thereof and, in addition, bear interest from the due date until
paid at the highest rate legally permitted, but in no event to exceed 18%.
3. Use. The Subleased Premises shall be used for general office purposes
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and no other purpose. Sublessee shall not do or permit to be done in or about
the Subleased Premises, nor bring or keep or permit to be brought or kept
therein, anything that is prohibited by the Master Lease or the prior Sublease.
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4. Other Sublease Terms.
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(a) The following terms and provisions of the Master Lease are hereby
incorporated in this Sublease by this reference: paragraphs 2 (but not the third
and fourth sentences thereof), 5.1 (a), 5.1 Co) (first paragraph only), 5.3,
5.4, 5.5, 5.7, 6, 8(a)-(f) and (h)-(j) (but not the last sentence of 8(h) or the
portion of 8(i) deleted from Exhibit A to the Sublease), 10, 11 (but not 11.1 or
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the sentence stricken on Exhibit A to the prior Sublease), 12, 13, 15, 17 (but
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not the last sentence thereof), 18, 19, 20, 21, 22, 23, 24, 25, 27, 30.2(2),
30.2(4) (but not the second paragraph thereof), 33, 36, 37, 39, 40, 44, 45, 48
(second sentence, only), and 50 (as to Exhibits C (excluding the work letter)-
H, only). The letter agreement dated June 25, 1985, between Shaklee and Master
Lessor (the "Letter Agreement"), is incorporated to the extent it provides that
Shaklee, as Lessee, under the Master Lease, will not have to pay any part of any
increase in taxes due to a reassessment under Proposition 13, if Shaklee is
correct in its contention that any such increase in assessment does not include
the reassessment of Shaklee's, 30% of the building. Except as is specified in
this Sublease, this subletting is upon and subject to all of the terms of the
Master Lease and Letter Agreement, and the Prior Sublease so incorporated in
this Sublease. Such incorporated terms shall constitute the terms of this
Sublease as between RKMC and Sublessee as "Landlord" and "Tenant," respectively,
except that paragraph 5.1 shall be incorporated reading "Landlord" to refer to
the Master Lessor insofar as the calculation of Operating Expenses and Taxes is
concerned, and paragraphs 2, 18, and 27 shall be incorporated reading "Landlord"
to refer to both RKMC, Shaklee and Master Lessor. Sublessee shall assume and
perform for the benefit of RKMC, Shaklee and Master Lessor each and all of the
conditions, covenants, and obligations to be performed by RKMC under the Prior
Sublease and by Shaklee as Tenant under the Master Lease, to the extent said
conditions, covenants, and obligations are incorporated in this Sublease and are
applicable to the Subleased Premises. Master Lessor shall have the same fights
and privileges under this Sublease that it has under the Master Lease, to the
extent such rights and privileges are incorporated in this Sublease and are
applicable to the Subleased Premises, and shall have the fight, but not the
obligation, to enforce such conditions, covenants, and obligations directly
against Sublessee. Sublessee shall not commit or permit to be committed on the
Subleased Premises any act or omission that would constitute a breach of any of
the terms, conditions, covenants, or obligations of Shaklee, under the Master
Lease or of RKMC under the Prior Sublease. RKMC irrevocably assigns to Shaklee
all rent and obligations of Sublessee under this Sublease which Shaklee may
demand upon breach of the Prior Sublease by RKMC, and Sublessee agrees, upon
written demand from Shaklee, to pay the rent and other sums owed by Sublessee to
RKMC directly to Shaklee and to fulfill all of Sublessee obligations under this
Sublease for the benefit of Shaklee; provided any obligations so paid or
fulfilled to Shaklee will be deemed to be for the benefit of RKMC as well.
(b) Notwithstanding the incorporation herein of the foregoing
provisions of the Master Lease, Sublessee acknowledges that RKMC and Shaklee
shall have no responsibility or obligation with respect to (i) furnishing any
services under paragraph 8 of the Master Lease, including, but not limited to,
utilities, or (ii) making any alterations, repairs, or replacements under
paragraphs 11, 12, or 15 of the Master Lease, and the sole responsibility of
RKMC and Shaklee thereunder shall be to use reasonable efforts to cause Master
Lessor to furnish such services or make such alterations, repairs, or
replacements as are required under the Master Lease. Any notices given to Master
Lessor in connection with paragraphs 8, 11, 12, or 15 of the Master Lease, or
any other provisions of this Sublease, shall also simultaneously be given to
RKMC and Shaklee, whether or not RKMC and Shaklee have any responsibility to
take action in response to such notices. With
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respect to paragraph 8(h), it is understood that Sublessee's rent shall be
abated as and to the extent that RKMC's rent is abated under the Prior Sublease.
(c) Sublessee shall indemnify and save RKMC and Shaklee harmless
against any loss, damage, or injury that RKMC or Shaklee may suffer or incur
under the Prior Sublease as the result of any breach by Sublessee of its
obligations under this Sublease.
(d) RKMC and Sublessee acknowledge that certain of the provisions of
the Master Lease enumerated above that are not incorporated in this Sublease
have been deleted from the copy of the Master Lease attached hereto as Exhibit A
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in order to protect the confidential aspects of the contractual relationship
between Shaklee and Master Lessor. Sublessee agrees not to disclose the contents
of the Master Lease, the Letter Agreement or the Prior Sublease, or any portion
thereof, to any third parties, other than the listed brokers, and Sublessee's
attorneys, without the prior written consent of Shaklee.
5. "AS IS" Condition; No Representations or Warranties; ADA Compliance.
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Sublessee accepts the Subleased Premises in its existing condition and repair,
in "as is" condition with all faults, and without representation or warranties,
express or implied, as the condition of the Subleased premises. In furtherance,
but not in limitation of the foregoing, no disclosure, representation or
warranty is requested or given with respect to environmental matters, the
presence of disposal of toxic substances or waste, seismic matters, problems or
concerns, or the compliance or non-compliance of the Subleased Premises with
applicable laws, codes or regulations, including but not limited to building
codes and the Americans with Disabilities Act or any rules, requirements or
regulations thereunder (collectively the "ADA").
6. Alterations. Sublessee shall not make any alterations, additions, or
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improvements to the Subleased Premises, or attach any fixtures or equipment
thereto, without RKMC'S, Shaklee's and Master Lessor's prior written consent,
which consent from RKMC shall not be unreasonably withheld or delayed.
7. Excess Electrical Usage. Sublessee shall pay RKMC for any electrical
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use in excess of that required for normal office use in the Building, as
provided in the portions of paragraph 8(i) of the Master Lease that are
incorporated herein.
8. Assignment of Parking, Fitness Center and Cafeteria Rights. RKMC hereby
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assigns to Sublessee, to 'the extent assignable under the Prior Sublease, all of
RKMC's rights (and subject to RKMC's obligations) under Paragraphs 4 and 9 of
the Prior Sublease.
9. Waiver and Indemnification.
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(a) Neither RKMC, Shaklee nor Master Lessor shall be liable or
responsible in any way for, and Sublessee hereby waives all claims against RKMC,
Shaklee and Master Lessor with respect to or arising out of, any death or injury
of any nature whatsoever that may be suffered or sustained by Sublessee or any
employee, licensee, invitee, guest, agent, or customer of Sublessee or any other
person, from any causes whatsoever, or any loss or damage or injury to any
property outside or within the Subleased Premises belonging to Sublessee or its
employees, agents, customers, licensees, invitees, guests, or any other person,
excepting, as to RKMC, Shaklee or Master Lessor,
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only injury or damage caused solely by the negligence or willful misconduct of
such party or its employees or agents.
(b) Sublessee shall hold RKMC, Shaklee and Master Lessor harmless from
and defend and indemnify RKMC, Shaklee and Master Lessor against any and all
losses, damages, claims, or liability for any damage to any property or injury,
illness, or death of any person (i) occurring in or on the Subleased Premises or
any part thereof arising at any time and from any cause whatsoever except, as to
RKMC, Shaklee or Master Lessor, to the extent of any negligence or Willful
misconduct of such party or its employees or agents; and (ii) occurring in, on,
or about any part of the Building other than the Subleased Premises, to the
extent such damage, injury, illness, or death has been caused in whole or in
part by the negligence or willful misconduct of Sublessee or its employees,
agents, customers, licensees, invitees, or guests.
(c) The provisions of this paragraph 8 shall survive the termination
of this Sublease with respect to any damage, injury, illness, or death occurring
prior to such termination.
10. Insurance.
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(a) Sublessee shall, at its sole cost and expense, obtain and keep in
force during the term of this Sublease fire and extended coverage insurance on
Sublessee's improvements, fixtures, furnishings, and equipment in and upon the
Subleased Premises in an amount not less than one hundred percent (100%) of the
full replacement cost (without deduction for depreciation) thereof. All amounts
that shall be received under the insurance specified in this paragraph shall
first be applied to the payment of the cost of repair or replacement of any of
Sublessee's improvements, fixtures, furnishings, and equipment that are damaged
or destroyed, or, if this Sublease terminates prior to such repair or
replacement being made, paid over to Shaklee to the extent that the improvements
or fixtures damaged or destroyed would have become Shaklee's property pursuant
to paragraph 19 hereof, provided, however, that Sublessee shall be entitled to
that portion of said insurance proceeds equal to the unamortized value of said
improvements and fixtures.
(b) Sublessee shall, at its sole cost and expense, obtain and keep in
force during the term of this Sublease (i) liability insurance with limits of
not less than One Million Dollars ($1,000,000) per person and Five Million
Dollars ($5,000,000) per occurrence for injury to or illness or death of persons
occurring in, upon, or about the Subleased Premises or the Building; and (ii)
liability insurance with a limit of not less than One Million Dollars
($1,000,000) per occurrence for damage to property occurring in, upon, or about
the Subleased Premises or the Building. All such insurance shall insure the
performance by Sublessee of the indemnity agreement as to liability for injury
to or illness or death of persons and damage to property set forth in paragraph
8 hereof.
(c) All insurance required under this paragraph and all renewals
thereof shall be issued by such good and responsible companies qualified to do
and doing business in the State of California as may be approved by Master
Lessor, Shaklee and RKMC, which approvals shall not be withheld unreasonably.
Each policy shall expressly provide that the policy shall not be cancelled or
altered without 45 days' prior written notice to Master Lessor, Shaklee and
RKMC, and shall remain
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in effect notwithstanding any such cancellation or alteration until such notice
shall have been given to Master Lessor, Shaklee and RKMC and such 45-day period
shall have expired. All insurance under this paragraph shall name Master Lessor,
Shaklee, RKMC and Master Lessor's mortgagee as additional insureds, shall be
primary and noncontributing with any insurance that may be carried by Master
Lessor, Shaklee or RKMC, and shall expressly provide that Master Lessor,
Shaklee, and Master Lessor's mortgagee, although named as insureds, shall
nevertheless be entitled to recover under the policy for any loss, injury, or
damage to Master Lessor, Shaklee and RKMC, the employees or contractors of
either, or Master Lessor's mortgagee. Upon the issuance thereof, each such
policy or a duplicate or certificate thereof shall be delivered to Master
Lessor, Shaklee and RKMC for retention by both of them. In the event that
Sublessee (i) shall fail to insure or (ii) shall fail to furnish to Master
Lessor, Shaklee and RKMC, within 15 days after written request therefor, any
such policy, duplicate policy, or certificate as herein required, Master Lessor,
Shaklee and RKMC may from time to time effect such insurance for the benefit of
Sublessee, Master Lessor, Shaklee and RKMC, or any or all of them for a period
not exceeding one year, and any premium paid by Master Lessor, Shaklee or RKMC
shall be recoverable from Sublessee as additional rent on demand.
11. Assignment and Subletting.
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(a) Except as set forth in this paragraph, Sublessee shall not: (i)
assign, encumber, or otherwise transfer this Sublease, the term or estate hereby
granted, or any interest hereunder; (ii) permit the Subleased Premises or any
part thereof to be used by anyone other than Sublessee (whether as licensee,
permittee, or otherwise); or (iii) sublet or offer or advertise for subletting
the Subleased Premises or any part thereof. Any attempted assignment,
encumbrance, transfer, or sublease not done in accordance with the provisions of
this paragraph shall be voidable and, at RKMC's election, shall constitute a
default hereunder. RKMC hereby assigns, to the extent assignable under the Prior
Sublease, RKMC's rights (but subject to RKMC's obligations) to assign or sublet
to a Small Tenant (as defined in the Prior Sublease and to subdivide the
Subleased Premises as shown in Exhibit B to the Prior Sublease.
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(b) If at any time during the term hereof Sublessee desires to sublet
all or any part of the Subleased Premises, then Sublessee shall submit to RKMC
and Shaklee, in writing, a notice of intent to assign or sublease, setting
forth: (i) the proposed effective date of the assignment or sublease; (ii) the
name of the proposed subtenant or assignee (collectively hereinafter,
"subtenant/assignee"): and (iii) the nature of the proposed subtenant/assignee's
business to be carried on in the Subleased Premises. Such notice shall be
accompanied by (x) such reasonable financial information as Master Lessor, RKMC
or Shaklee may request concerning the proposed subtenant/assignee, including
recent financial statements and bank references; and (y) a conformed or
photostatic copy of the proposed sublease or assignment agreement (or, if not
yet available, a description of the contemplated form of agreement).
(c) In the event that Sublessee complies with the provisions of
subparagraph Co), RKMC's consent to a proposed sublease or assignment, subject
to approval by Master Lessor and Shaklee, shall not be unreasonably withheld.
RKMC shall respond to Sublessee's notice to sublet
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within five (5) business days of receipt by RKMC of all information required
herein concerning the proposed subtenant or assignee. Sublessee shall promptly
reimburse Shaklee's reasonable out-of-pocket costs actually incurred in
reviewing the proposed sublease or assignment, including reasonable attorney's
fees following the demand therefor accompanied by reasonable backup
documentation. In determining whether to grant or withhold such consent, RKMC,
Master Lessor and Shaklee may consider any reasonable factor. Without limiting
what may be construed as a reasonable factor, it is hereby agreed that any one
of the following factors will be reasonable grounds for disapproval of a
proposed assignment or sublease:
(i) The proposed subtenant/assignee does not, in the
reasonable judgment of RKMC or Shaklee, have sufficient financial
worth in view of the responsibility involved;
(ii) The proposed subtenant/assignee does not, in the
reasonable judgment of RKMC or Shaklee, have a good reputation as a
tenant of property;
(iii) RKMC or Shaklee has received from any prior lessor of the
proposed subtenant/assignee a significant negative report concerning
such prior lessor's experience with the proposed subtenant/assignee as
a tenant;
(iv) RKMC or Shaklee has been involved in a previous
landlord/tenant dispute with the proposed subtenant/assignee;
(v) The proposed subtenant/assignee is not, in the reasonable
judgment of RKMC or Shaklee, of the type, character, and quality
consistent with the high quality and prestigious image of the
Building;
(vi) In the reasonable judgment of RKMC, Master Lessor or
Shaklee, the proposed assignment or sublease would violate the Master
Lease;
(vii) The use of the Premises by the proposed subtenant/assignee
would violate some applicable law, ordinance, or regulation;
(viii) The proposed subtenant/assignee is a person with whom
Shaklee is negotiating to lease space in the Building comparable in
both length of term and net rentable square footage to the space
Sublessee is seeking to assign or sublet;
(ix) The proposed subtenant/assignee is in the business of
manufacturing or in the general business of selling nutritional
supplements, household or personal care products, gourmet foods, or
flowers, or deals in any other product lines that Shaklee manufactures
or sells, or plans to manufacture or sell as of the date of the
proposed sublease or assignment, or is in the business of marketing
any such merchandise through direct sale or direct mail, at the time
of the proposed assignment or sublease;
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(x) In the case of a proposed sublease, the proposed sublease
would cause there to be more than one subtenant of the Subleased
Premises;
(xi) The proposed assignment or sublease fails to include all
of the terms and provisions required to be included therein pursuant
to this paragraph;
(xii) Sublessee is in default of any-of its obligations under
this Sublease, or has defaulted under this Sublease on three or more
occasions during the twelve months preceding the date Sublessee
requests Sublessee's consent to the proposed assignment or sublease;
or
(xiii) Shaklee or Master Lessor shall not consent to the
proposed assignment or sublease.
(d) The instrument by which assignment or subletting is accomplished
shall (i) expressly provide that the subtenant/assignee shall perform and
observe all the agreements, covenants, and conditions to be performed and
observed by Sublessee under this Sublease (except as to rent and term or as
otherwise agreed to by RKMC); (ii) be expressly subject and subordinate to each
and every provision of this Sublease; (iii) have a term that expires on or
before the expiration of the term of this Sublease; (iv) provide that if
Shaklee, Master Lessor, or RKMC succeeds to Sublessee' s position as landlord
vis-a-vis the subtenant/assignee, neither Shaklee, Master Lessor nor RKMC shall
be liable to such subtenant/assignee for advance rental payments, rental
deposits, or other payments that have not actually been delivered to Shaklee,
Master Lessor or RKMC by Sublessee, and (v) provide that Sublessee or the
subtenant/assignee shall reimburse RKMC for any additional costs or expenses
incurred by RKMC for repairs or maintenance or otherwise as a result of the
change in occupancy.
(e) No assignment or sublease shall be valid, and no
subtenant/assignee shall take possession of the Subleased Premises or any part
thereof, until consented to in writing by Shaklee and until an executed
counterpart Of the assignment or sublease has been delivered to RKMC and
Shaklee.
(f) Notwithstanding RKMC' s consent, no subletting or assignment
shall release or otherwise alter Sublessee's obligations to pay the rent and to
perform all other obligations to be performed by Sublessee hereunder. The
acceptance of rent by RKMC from any other person shall not be deemed to be a
waiver by RKMC of arty provision hereof. Consent to one assignment or subletting
shall not be deemed consent to any subsequent assignment or subletting. If any
assignee of Sublessee or any successor of Sublessee defaults in the performance
of any of the terms hereof, Sublessee may proceed directly against Sublessee
without the necessity of exhausting remedies against such assignee or successor.
(g) In the event that RKMC assigns, transfers, or conveys its
interest in the Sublease, and provided that the instrument of assignment,
transfer, or conveyance shall expressly require the assignee or transferee to
assume all such liabilities and obligations, all liabilities and
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obligations on the part of RKMC under this Sublease shall terminate. Sublessee
agrees to attorn to such assignee or transferee.
12. Holdover. Sublessee shall have no fight to remain on possession of the
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Subleased Premises after expiration or earlier termination of this Sublease. If
Sublessee remains in possession of the Subleased Premises after expiration, but
not earlier termination, of this Sublease, all of the terms, covenants, and
agreements hereof shall continue to bind Sublessee to the extent applicable,
except that, if Sublessee remains in possession without RKMC's, Shaklee's and
Master Lessor's written consent, then: (a) the monthly rent shall be two (2)
times the monthly rent payable for the last month of the Sublease term, prorated
on a daily basis for each day Sublessee remains in possession, and (b) Sublessee
shall indemnify RKMC and Shaklee against any and all claims, losses, and
liabilities for damages, consequential or otherwise, resulting from Sublessee's
failure to surrender possession, including without limitation any claims by
Master Lessor or any succeeding sublessee.
13. Notices. All notices and demands that may or are required to be given
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by either party to the other hereunder shall be in writing and shall be deemed
to have been fully given when deposited in the United States mail, certified or
registered, postage prepaid, and addressed as follows: to Sublessee on the 28th
floor of the Building, or to such other place as Sublessee may from time to time
designate in a notice to RKMC; to RKMC at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, or to
such other place as RKMC may from time to time designate in a notice to
Sublessee. Sublessee hereby appoints as its agent to receive the service of all
dispossessory or distraint proceedings and notices thereunder the person in
charge or occupying the Subleased Premises at the time.
14. Subordinate to Master Lease and Prior Sublease. This Sublease is and
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shall be at all times subject and subordinate to all of the terms and conditions
of, and all fights of Master Lessor and Shaklee under, the Master Lease and
Prior Sublease, respectfully. Without limiting the generality of the foregoing,
any termination of the Master Lease prior to the end of the term of this
Sublease shall terminate this Sublease. So long as Sublessee is not in default
hereunder, beyond any applicable cure period, RKMC shall not voluntarily
terminate the Prior Sublease without the prior written consent of Sublessee.
15. No Privity. Nothing contained in this Sublease shall be construed to
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create privity of estate or of contract between Sublessee, Shaklee and Master
Lessor. RKMC and Sublessee each agrees not to do or permit to be done any act or
thing that will constitute a breach or violation of any of the terms, covenants,
conditions, or provisions of the Master Lease.
16. No Representations. In making and executing this Sublease, Sublessee
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has not relied upon or been induced by any statements or representations of any
persons with respect to the physical condition of the Building or the Subleased
Premises or with respect to any other matter affecting the Subleased Premises or
this transaction, that might be pertinent in considering the leasing of the
Subleased Premises or the execution of this Sublease. Sublessee has, on the
contrary, relied solely on such representations, if any, as are expressly made
herein and on such investigations, examinations, and inspections as Sublessee
has chosen to make or have made. Sublessee
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acknowledges that RKMC has afforded Sublessee the opportunity for full and
complete investigations, examinations, and inspections.
17. Time Limits. The time limits provided in the Master Lease for the
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giving of notices, making demands, performance of any act, condition, or
covenant, or the exercise of any fight or remedy, are changed solely for the
purposes of incorporation as the terms of this Sublease by lengthening or
shortening the same in each instance 3 days, as appropriate, so that notices may
be given, demands made, or any act, condition, or covenant performed, or any
fight or remedy exercised, by RKMC or Sublessee, as the case may be, within the
time limit relating thereto contained in the Master Lease. RKMC shall, no later
than 5 business days after receipt thereof, give to Sublessee a copy of each
notice and demand received from Master Lessor or Shaklee concerning the
Subleased Premises.
18. Security Deposit. Sublessee has deposited (subject to Sublessee's
----------------
fight to substitute a letter of credit (the "LOC") therefor as hereafter
provided) with RKMC the sum of One Hundred Three Thousand Five Hundred Thirty-
six Dollars ($103,536.00) (the "Deposit"). At sublessee's option, the Deposit
may be a LOC, drawn to RKMC's account on a federally insured banking
institution, in form reasonably acceptable to RKMC. The LOC shall be for a term
of not less than one (1) year, and shall be renewed by Sublessee each year of
the term of this Sublease. Such new LOC shall be delivered to RKMC not less than
thirty (30) days before the expiration of the then current LOC. All expenses for
obtaining, maintaining and replacing the LOC shall be paid by Sublessee. If RKMC
uses or applies all or any portion of the LOC as provided for with respect to
the application of the Deposit, Sublessee shall, within ten (10) days after
notice from RKMC, deposit with RKMC an amount sufficient to restore the Deposit
to its full amount, as required above.
The Deposit shall be held by RKMC as security for the faithful performance
by Sublessee of all of the provisions of this Sublease. In the event Sublessee
fails to perform or observe any such provisions, then, at the option of RKMC,
RKMC may (but shall not be obligated to) apply the Deposit or so much thereof as
may be necessary to remedy any default and reimburse RKMC for any out-of-pocket
costs incurred thereby, and Sublessee shall forthwith upon demand restore the
Deposit to the sum so specified. If a LOC shall not be utilized by Sublessee,
RKMC shall not be required to keep the Deposit separate from its general
accounts. No trust relationship is created herein between RKMC and Sublessee
with respect to the Deposit.
19. Broker. Sublessee warrants and represents that it dealt with no
------
leasing agent or broker in connection with this Sublease other than The CAC
Group and ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Commercial Real Estate, and that no conversations or
prior negotiations were had by Sublessee with any agent or broker other than the
Brokers concerning the Subleased Premises that could give rise to liability for
payment of a commission in connection with this Sublease. Any commission due the
Brokers shall be paid by RKMC. Sublessee agrees to hold RKMC harmless against
any claims for brokerage commissions arising out of any conversations or
negotiations had by Sublessee with any agent or broker other than the Brokers.
10
20. Surrender of Premises. Except for those trade fixtures of Sublessee of
---------------------
which Sublessee notifies Master Lessor, Shaklee and RKMC in writing within 6
months of their installation, all alterations, additions, and improvements by
Sublessee to the Subleased Premises (the "Tenant Improvements") shall
immediately become RKMC's property and, at the end of the term hereof, shall
remain on the Subleased Premises without compensation to Sublessee. So long as
the Tenant Improvements in the Subleased Premises at the end of the term are of
the same general character, quantity and configuration as RKMC's Initial Tenant
Improvements under the sublease, except for normal wear and tear, Sublessee
shall have no obligation to make any changes in the then existing Tenant
Improvements; otherwise, at RKMC's request, Sublessee shall take such action at
Sublessee's expense as shall be necessary to restore the Tenant Improvements to
their condition as initially constructed or installed under the Sublease, except
for normal wear and tear. Subject to the prior written approval of Master Lessor
and Shaklee, RKMC agrees that so long as RKMC is not required to do so,
Sublessee shall not be required to remove Sublessee's Tenant Improvements,
alterations or modifications, and in no event shall Sublessee be required to
remove RKMC or Shaklee Tenant Improvements, alterations or modifications.
Notwithstanding the foregoing, nothing in this paragraph shall be construed to
waive the requirements of this Sublease.
21. Approval. This Sublease shall be of no force or effect until fully
--------
executed by Sublessee and RKMC and approved by Master Lessor and Shaklee.
22. Miscellaneous.
-------------
(a) The paragraph titles in this Sublease are used for convenience in
finding the subject matter. Such titles are not to be taken as part of this
instrument or to be used in determining the intent of the parties or otherwise
in interpreting this instrument.
(b) This Sublease shall apply to and bind the respective heirs,
distributees, executors, administrators, successors, and assigns of the parties
hereto. This subparagraph shall not be construed, however, as a consent to any
assignment or subletting by Sublessee.
(c) The failure of either party to insist on strict performance of
any covenant or condition hereof, or to exercise any option herein contained,
shall not be construed as a waiver of such covenant, condition, or option in any
other instance.
(d) This Sublease cannot be changed or terminated orally. All
understandings and agreements heretofore made between the parties are merged in
this Sublease, including any exhibits hereto, which alone fully and completely
expresses the agreement between RKMC and Sublessee.
(e) Shaklee represents that the Master Lease is in full force and
effect as of the date hereof and will be in full force and effect as of the
commencement of the term hereof and that no notice or notices of default have
been served thereunder by Master Lessor that have not been cured.
11
(f) Submission of this Sublease for examination by Sublessee does not
constitute a reservation of or option far the Subleased Premises and does not
become effective unless and until executed and delivered by both parties.
IN WITNESS WHEREOF, the parties have executed this Sublease of the day and
year first April 13 1999, hereinabove set forth.
RKMC:
ROBINS, KAPLAN, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P. a
Minnesota limited partnership
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Managing Partner
SUBLESSEE:
SCIENT CORPORATION
a Delaware corporation
By /s/ [signature illegible]
__________________________________
Its CFO
____________________________
12
APPROVAL - 27th Floor
---------------------
By executing this Approval, Shaklee hereby consents to the making of the
attached Sublease by and between RKMC and Sublessee, on, and only on the terms
set forth herein, without releasing RKMC from any obligations of RKMC under the
Prior Sublease and without waiving any restriction on further assignment of the
Sublease, or the Prior Sublease. This Approval shall not constitute consent to
any other or further sub-sublease, modify in any way the terms of the Sublease,
or create any privity of estate or contract between the undersigned and any
other person or entity. Shaklee shall not require Sublessee or RKMC to remove
and/or restore any of Sublessee's Tenant Improvements, alterations or
modifications at the end of the Sublease Term.
SHAKLEE:
SHAKLEE CORPORATION,
a Delaware corporation
By: ______________________
Name: ____________________
Its: _______________________
Date: _________________,1999
13
Shaklee Corporation
Shaklee Terraces Telephone 415/▇▇▇-▇▇▇▇ ▇▇▇ ▇. Childs
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Fax 415/▇▇▇-▇▇▇▇ Vice President
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Human Resources
November 22, 1995
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
Robins, Kaplan, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇:
This letter agreement amends the sublease agreement between Shaklee Corporation
("Shaklee") and Robins, Kaplan, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ("Sublessee"), dated .July
2,1987 and amended on July 25. 1995 (the "Agreement").
Sublessee wishes to use the security access system located in the high-rise
elevator at 444 Market owned by Shaklee to access Sublesee's 27th floor
subleased premises. Elevator access is the only portion of the security system
Sublessee desires to use. Shaklee agrees that the Sublessee can use this system
effective upon signing of this letter agreement and for as long as Shaklee
continues to own and operate the system but no later than April 30, 2001.
Sublessee understands that Shaklee has purchased the security access system and
acknowledges that Sublessee must use the system as is under the term, and
conditions in which Shaklee purchased the system, and Shaklee cannot customize
the system in any way for Sublessee.
The terms and conditions for use of the card access system are as follows:
Sublessee shall pay to Shaklee an initial set up fee of seven hundred dollars
($700) for fifty (50) access cards. This payment shall be paid upon signing of
this agreement. If there are less than fifty (50) cards installed, the fee
remains the same.
Sublessee shall pay to Shaklee a monthly usage fee of three hundred dollars
($300i for fifty (5(3) cards accessing the system. This monthly fee will include
any changes to the data base far not more than fifty (59) cards. Payment of this
fee is upon the same terms as Section 2 of the Agreement.
1
Shaklee Corporation
Sublessee is responsible for purchasing its own-access cards and issuing the
same to those who should have access to the card access system. Sublessee shall
notify Shaklee of the names of each person to whom a card is issued. Sublessee
shall also notify Shaklee if a card is to be deleted from the system.
Sublessee can have use of the system for more than fifty cards but for no
greater than eighty (80) cards. There will be an additional monthly fee of $5.00
for each card above fifty (50) that is added to the system. Them will be no
additional charge for set up for these additional cards. If a card is required
on or before the 15th day of the month, it is counted for the entire month. If
it is required after the 15a day of the month, it is not counted until the
following month. All additions and deletions should be submitted in writing to
▇▇▇▇▇ ▇▇▇. at ▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇ floor, via hand delivery or facsimile (415-
986-0808).
Shaklee agrees to input all card access data into the system within five (5)
business days of receipt of written notice of original information or of any
change.
Sublessee understands that the system is not monitored by Shaklee or anyone
else; therefore, Shaklee has no responsibility for controlling unauthorized
attempts to gain entry.
Sublessee understands that in the case of system failures Shaklee will promptly
attempt to have the system repaired in a timely manner. Sublessee also
understands that Shaklee uses outside vendors for repairs to the system and has
therefore no control over their response time.
Further, Sublessee agrees to defend, indemnify and hold Shaklee and Shaklee's
agents, employees, directors and officers harmless from and against any and all
losses, actions, costs, liabilities or claims, arising out of or in connection
with Sublessee's use of the card access system.
Either party has the right to terminate this agreement upon ten days written
notice to the other party.
2
Shaklee Corporation
Except as set forth in this letter agreement, all other terms and conditions of
the Agreement shall remain the same.
Please indicate your approval of this amendment by signing below and returning a
fully executed copy of this letter to me.
Sincerely yours,
/s/ ▇▇▇ ▇. Childs
-----------------
▇▇▇ ▇. Childs
Vice President
Human Resources
Agreed and accepted:
by: /s/ [signature illegible]
_______________________________
its: Managing Partner
_______________________________
Robins, Kaplan, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
Date: 12-4-95
_______________________________
cc: ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
3
Shaklee Corporation
Shaklee Terraces
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Telephone 415/▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
July 25, 1995
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
Robins, Kaplan, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Amendment to July 2, 1987, Sublease Agreement
Dear ▇▇. ▇▇▇▇▇:
This letter amends the sublease agreement between Shaklee Corporation and
Robins, Kaplan, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ dated July 2, 1987 ("Agreement"). Robins,
Kaplan, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ("Sublessee") wishes to remodel the Sublease ▇▇▇▇▇ (as
that term is defined in the Agreement). The scope of the currently anticipated
remodeling is set forth in the drawings prepared by ADP dated July 20, 1995.
Shaklee Corporation ("Shaklee") agrees that the Sublessee can perform the
proposed remodeling and any further remodeling and/or construction during the
term of the Agreement, provided that the Sublessee agrees to the following terms
and conditions:
With respect to the currently anticipated remodeling and any future
remodeling and/or construction to be performed by Sublessee on the Sublease
Premises, Sublessee shall obtain both Master Lessor and Shaklee's written
approval before beginning any remodeling and/or construction work on the
Sublease Premises. Sublessee agrees to reimburse Shaklee for any and all costs
that Shaklee may incur as a result of sublessee's remodeling.1 Sublessee shall
reimburse Shaklee for such costs within 30 days of the date of Shaklee's
invoice.
Further, in accordance with the terms of the Agreement and/or the Master
Lease, Sublessee agrees to defend, indemnify and hold Shaklee and Shaklee's
agents, employees, directors and officers harmless from and against any and nil
losses, actions, costs, liabilities or claims, arising out of or in connection
with Sublesee's remodeling and/or construction an the Sublease Premises.
Sublessee warrants that upon expiration or sooner termination of its Agreement,
it will
__________________________________
1 As of the date of this letter there am no such expenses envisioned.
Shaklee Corporation
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
Page Two of Two
remove all remodeling and/or construction work that the Master Lessor requires
to be removed which is installed on the Sublease Premises.
If, Sublessee fails to remove any remodeling end/or construction work by
the expiration or sooner termination of the Agreement, then Shaklee will do so
at Sublesee's cost and expense. Sublessee shall reimburse Shaklee for such costs
within 30 days of the date of Shaklee's invoice.
Except as set forth in this letter, the terms of the Agreement remain in
full force and effect.
If the terms of this amendment are acceptable to you, please sign where
indicated below end return a copy of this letter to me.
Sincerely,
/s/ ▇▇▇ Childs
_______________________________
▇▇▇ Childs
Vice President, Human Resources
KC/dkp
Accepted and agreed to on be. haft of Robins, Kaplan, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
this 2nd day of August, 1995.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
__________________________
Signature
▇▇▇▇▇ ▇▇▇▇▇
__________________________
Print Name
Partner
__________________________
Title