California-San Francisco-444 Market Street Sublease [Addendum] - Charles Schwab & Co. Inc. and Scient Corp.
ADDENDUM TO SUB-SUB-SUB-SUBLEASE
AND SUB-SUB-SUB-SUB-SUBLEASE
This Addendum to Sub-sub-sub-sublease and Sub-Sub-sub-sub-sublease
("Addendum") is made and entered into as of October 8, 1998 by and between
Charles Schwab & Co., Inc., a California Corporation ("Landlord") and Scient
Corporation, a California Corporation ("Scient").
RECITALS
WHEREAS, Schwab and Scient entered into a Sub-sub-sub-sublease dated
October 7, 1998 and Sub-sub-sub-sub-sublease dated October 7, 1998
(respectively, the "Sub-sub-sub-sublease" and "Sub-sub-sub-sub-sublease" for
which reference is made for the definition of capitalized terms used and not
otherwise defined herein) for the lease of certain Premises (described
respectively as the entire 28th floor and the entire 29th floor) located in the
building commonly known as 444 Market Street, San Francisco, California, as more
particularly described therein. The Sub-sub-sub-sublease and the Sub-sub-sub-
sub-sublease are collectively referred to as the "Subleases".
WHEREAS the parties desire to enter into this Addendum to amend and clarify
certain of their obligations under and other terms and conditions of the
Subleases.
NOW, THEREFORE, in consideration of the foregoing and for good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged,
Schwab and Scient agree that the Subleases shall be amended as follows:
1. The parties acknowledge and agree that, as of the date of this Addendum,
satisfactory consents to the Subleases have been obtained from Shaklee, TIG, ADP
and PBNI. Notwithstanding any provisions of the Subleases to the contrary, the
parties agree and confirm that: (a) the actual Commencement Date of each of the
Subleases is October 8, 1998; and (b) each of the Subleases shall be in full
force and effect as of October 8, 1998.
2. In the first sentence of paragraph 2(a) of each of the Subleases, the words
"Commencement Date" are deleted and replaced by the following: "October 10, 1998
(the 'Rent Start Date')". In the first line of paragraph 2(e) of each of the
Subleases, the words "Commencement Date" are deleted and are replaced by the
words: "Rent Start Date". The amount of the first month's Base Rent under each
Sublease shall be $38,446.06 (or a total of $76,892.12 for both Subleases).
3. Schwab agrees to leave the existing cabling on the Premises and to leave the
existing racks and patch panels located in the IDF rooms and Scient agrees to
accept such property.
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4. Notwithstanding any provision to the contrary contained in the Subleases,
Schwab and Scient agree that their respective obligations to restore the
Premises upon expiration,. or earlier termination of either or both of the
Subleases shall be as follows:
a) If Schwab is required pursuant to the Agreement Regarding Improvements
between Master Lessor, Shaklee and Schwab referenced in paragraph 7A of each of
the -Subleases (which was executed on or about February 11, 1997) to perform
removal or restoration work regarding the HVAC Work (as defined in said
agreement), then Scient shall, at Schwab's option, either perform such work at
its sole cost and expense or reimburse Schwab for its cost of performing such
work upon presentation of documentation of such cost;
b) If Master Lessor, Shaklee, TIG, ADP or PBNI require the removal or
restoration of any alterations, additions or improvements to the Premises
("Alterations"), then: (i) Scient shall be obligated to remove or restore such
Alterations made by or on behalf of Scient, including, without limitation, the
Scient Improvements and Scient shall be obligated to remove any and all cabling,
patch panels and racks from the Premises whether installed by Scient, Schwab or
any other person or entity; and (ii) Schwab shall be obligated to remove or
restore any other such Alterations to the Premises.
The provisions of this paragraph 4 are intended only to divide between Schwab
and Scient such removal and restoration obligations as exist under the Subleases
and Agreement Regarding Improvements and not to confer any fights on other
person or entity, including, without limitation, Master Lessor, Shaklee, TIG,
ADP or PBNI. No other party shall be entitled to rely on or receive any benefit
from this paragraph 4 or to enforce it against any party hereto.
5. Attached hereto as Exhibit C and incorporated herein by reference is the
form of the letter of credit to be furnished by Scient to Schwab in accordance
with paragraph 23 of the Subleases. The parties acknowledge that only one letter
of credit in the amount of Four Hundred Thousand Dollars ($400,000.00) (subject
to reduction as provided in paragraph 23 of each of the Subleases) is required
by the Subleases.
6. Notwithstanding any provision of the Subleases to the contrary, Scient shall
be entitled to occupy the Premises under each of the Subleases upon delivery to
Schwab of all of the following: (a) the Subleases and this Addendum duly
executed on behalf of Scient; (b) the letter of credit in the form of Exhibit C
hereto; and (c) certificates of insurance evidencing the coverages required by
the Subleases and in the form required by the Subleases.
7. Notwithstanding any provision of the Subleases to the contrary, the parties
acknowledge and agree that certain of Schwab's equipment described in Exhibit D
hereto (the "Equipment") will remain in the IDF Room on the 28~ Floor of the
Premises, that Schwab retains the right to remove such Equipment after the
Commencement Date, that Schwab will use all reasonable efforts to remove such
Equipment no later than November 30, 1998 and that the Rent Start Date has been
delayed from October 5, 1998 to October
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10, 1998 in consideration of the agreements set forth in this paragraph 7.
Scient agrees to maintain power and HVAC for the Equipment. Schwab will
indemnify and hold Scient harmless from any loss or damage incurred by Scient as
a result of the maintenance of the Equipment in the Premises after the
Commencement Date and/or the removal of the Equipment by Schwab and will repair
any material damage to the Premises caused by the removal of the Equipment by
Schwab. Schwab shall have 7 day a week 24 hour access to the Premises after the
Commencement Date (upon reasonable notice to Scient except in case of emergency)
for purposes of servicing, using and maintaining and then removing the Equipment
and Scient shall provide Schwab with a key, card key, entry code or other access
device for such purpose. Scient agrees not to tamper, interrupt or interfere
with the operation of the Equipment and to have its electrician consult with
Schwab's electrician in order to prevent interruption or interference with the
operation of the Equipment. Schwab shall maintain comprehensive general
liability insurance and personal property insurance on the Equipment during the
time the Equipment is on the Premises.
8. Except as herein specifically modified and amended, each of the Subleases
shall remain in full force and effect and all provisions of the Subleases are
hereby ratified and confirmed.
9. If any portions of this Addendum conflict with any portion of either of the
Subleases, the terms of this Addendum shall govern.
10. This Addendum shall be binding on and inure to the benefit of the parties
hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Schwab and Scient have executed this Addendum as
of the day and year first written above.
SCHWAB SCIENT:
CHARLES SCHWAB & CO., INC., SCIENT CORPORATION,
a California corporation a California Corporation
By: /s/ Parkash P. Ahuja By: /s/ William H. Kurtz
---------------------------- ----------------------------
Name: Parkash P. Ahuja Name: William H. Kurtz
---------------------------- ----------------------------
Its: Senior Vice President Its: CFO
---------------------------- ----------------------------
By: ____________________________
Name: __________________________
Its: ___________________________
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[Letter of Credit]
October __ , 1998
Charles Schwab & Co., Inc.
101 Montgomery Street
San Francisco, CA 94104
Re: Our Irrevocable Letter of Credit No.
______________
("Letter of Credit")
-------------------------------------------------
Gentlemen:
We hereby establish our irrevocable letter of credit in your favor for
account of Charles Schwab & Co., Inc., 101 Montgomery Street, San Francisco,
California 94104 for the sum not exceeding U.S. $400,000.00 (Four Hundred
Thousand Dollars and 00/100).
Available by your sight draft drawn on ________________________________,
accompanied by one of the following documents:
- Your signed statement that, pursuant to the Sub-sub-sub-sublease or Sub-
sub-sub-sub-sublease (collectively, the "Lease") dated September __ , 1998
between Charles Schwab & Co., Inc. ("Schwab") and Scient Corporation ("Scient),
Schwab is entitled to draw on the Letter of Credit in the amount of the sight
draft.
- Your signed statement that Scient has failed to renew or replace the
Letter of Credit prior to September 15 of the year of the Expiration Date (as
defined below). Upon receipt by us of such document, you may draw down the
entire proceeds of the Letter of Credit.
All drafts drawn under this credit must bear in their face the clause:
"Drawn Under __________________________ Credit No. ____________________"
We hereby engage with the drawer and/or bona fide holders that drafts drawn
under and in compliance with the terms of this credit will be duly honored on
presentation at the office of ______________________ on or after October 5, 1998
and on or before October 4, 1999 (the "Expiration Date").
Except so far as otherwise expressly stated, this credit is subject to the
Uniform Customs and Practice for Documentary Credits (1983 Revision)
International Chamber of Commerce, Publication No. 400.
_______________________ __________________
Authorized Signature Authorized Signature
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EXHIBIT D
SCHWAB EQUIPMENT
1 Cisco Catalyst 5000 with cards:
Supervisor Module (WS-X5509)
10/100 Base Ethernet Module (WS-5213A)
1 Cisco 2514 Router
1 3COM AB6100 inverse Mux
7 MFS T1 circuits with MFS circuit boards.
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