Exhibit 10.33
LEASE TERMINATION
AGREEMENT
THIS LEASE TERMINATION AGREEMENT
(the “Agreement”) is made as of February 15
th
, 2006, between
SYMANTEC CORPORATION, a Delaware corporation
(“Symantec”) and PORTAL SOFTWARE, INC., a
Delaware corporation (“Tenant”).
RECITALS
A. Symantec is currently under
contract to acquire that certain real property located in the City
of Cupertino, County of Santa Clara, State of California, commonly
known as 10200 South De Anza Boulevard and 10201 Torre Avenue,
Cupertino, California, from Cupertino Property, L.P.
(“Landlord”).
B. Tenant and TST Cupertino, L.L.C.,
Landlord’s predecessor in interest, entered into a lease
dated June 25, 1999 (the “De Anza Lease”),
pursuant to which Landlord leased to Tenant office space on the
first (1 st ), second (2
nd
), third (3
rd
) and fourth
(4 th ) floors (the “De Anza
Premises”) of the building located at 10200 South De Anza
Boulevard, in the City of Cupertino, County of Santa Clara, State
of California (the “De Anza Building”).
C. Tenant and TST Torre, L.L.C.,
Landlord’s predecessor in interest, entered into a lease
dated September 28, 1999 (the “Torre Lease”, and
together with the De Anza Lease, sometimes referred to herein as
the “Leases”), pursuant to which Landlord leased to
Tenant office space on the first (1 st ), second (2
nd
) and third
(3 rd ) floors (the “Torre
Premises”, and together with the De Anza Premises, sometimes
referred to herein as the “Premises”) of the building
located at 10201 Torre Avenue, in the City of Cupertino, County of
Santa Clara, State of California (the “Torre Building”,
and together with the De Anza Building, sometimes referred to
herein as the “Buildings”).
D. Tenant has previously sublet a
portion of the Torre Building comprising approximately 29,191
rentable square feet (the “Proofpoint Premises”) to
Proofpoint, Inc., a Delaware corporation
(“Proofpoint”), pursuant to that certain Sublease
Agreement dated July 6, 2004 (the “Proofpoint
Sublease”). Tenant has previously sublet a portion of the
Torre Building comprising approximately 15,861 rentable square feet
(the “Certus Premises”) to Certus Software, Inc., a
Delaware corporation (“Certus”), pursuant to that
certain Sublease Agreement dated September 2, 2004 (the
“Certus Sublease”). Tenant has previously sublet a
portion of the Torre Building comprising approximately 16,871
rentable square feet (the “Kanisa Premises”) to Kanisa,
Inc., a Delaware corporation (“Kanisa”), pursuant to
that certain Sublease Agreement dated November 8, 2004 (the
“Kanisa Sublease”). The Proofpoint Premises, the Certus
Premises and the Kanisa Premises are referred to herein
collectively as the “Subleased Premises”. Proofpoint,
Certus and Kanisa are referred to herein individually as a
“Subtenant”, and collectively as the
“Subtenants”. The Proofpoint Sublease, the Certus
Sublease and the Kanisa Sublease are referred to herein
individually as a “Sublease”, and collectively as the
“Subleases”.
E. The initial term of the De Anza
Lease is presently scheduled to expire on December 21, 2010,
and the initial term of the Torre Lease is presently scheduled to
expire on December 31, 2010. Notwithstanding the foregoing, in
the event that Symantec acquires the Buildings, Symantec and Tenant
desire to terminate the Leases early, and to provide for
the
1
payment by Tenant to Symantec of a termination
fee in connection therewith, all on the terms and conditions as set
forth herein.
NOW, THEREFORE, in consideration of
the mutual covenants and promises contained in this Agreement, and
for other valuable consideration, the sufficiency of which is
acknowledged by both parties, Symantec and Tenant agree as
follows:
1. Lease Amendment . Upon
Symantec’s acquisition of the Buildings, this Agreement shall
constitute an amendment to the Leases by and between Tenant and
Symantec, as successor in interest to Landlord.
2. Termination of De Anza
Lease . If Symantec acquires the Buildings, then the De Anza
Lease shall terminate at 12:00 midnight on September 30, 2006
(the “De Anza Termination Date”), and all rights and
duties of the parties under the De Anza Lease shall end effective
as of that date; provided however that
(a) Tenant’s obligation to
comply with all other covenants and agreements under the De Anza
Lease shall continue through and including the De Anza Termination
Date, including, without limitation, Tenant’s obligation for
payment of all amounts payable by Tenant accruing prior to the De
Anza Termination Date;
(b) Tenant shall deliver possession
of the De Anza Premises to Symantec on or before the De Anza
Termination Date vacant and broom-clean, in the condition required
by the De Anza Lease; and
(c) If Tenant fails to deliver
possession of the De Anza Premises to Symantec by midnight on the
De Anza Termination Date, Tenant’s continued possession of
the De Anza Premises shall be on the basis of a tenancy at
sufferance at the rent specified for such a tenancy in
Section 22.2 of the De Anza Lease.
3. Termination of Torre Lease
. If Symantec acquires the Buildings, then the Torre Lease shall
terminate (i) with respect to that portion of the Torre
Building that is not subject to any of the Subleases (the
“Unoccupied Premises”), at 12:00 midnight on
September 30, 2006 (the “Unoccupied Premises Termination
Date”), and all rights and duties of the parties under the
Torre Lease with respect to the Unoccupied Premises shall end
effective as of that date; (ii) with respect to the Proofpoint
Premises, upon the later of (1) Unoccupied Premises
Termination Date, and (2) the date upon which Proofpoint
vacates the Proofpoint Premises (the “Proofpoint Termination
Date”), and all rights and duties of the parties under the
Torre Lease with respect to the Proofpoint Premises shall end
effective as of that date; (iii) with respect to the Certus
Premises, upon the later of (1) Unoccupied Premises
Termination Date, and (2) the date upon which Certus vacates
the Certus Premises (the “Certus Termination Date”),
and all rights and duties of the parties under the Torre Lease with
respect to the Certus Premises shall end effective as of that date;
and (iv) with respect to the Kanisa Premises, upon the later
of (1) Unoccupied Premises Termination Date, and (2) the
date upon which Kanisa vacates the Kanisa Premises (the
“Kanisa Termination Date”), and all rights and duties
of the parties under the Torre Lease with respect to the Kanisa
Premises shall end effective as of that date. The last of the
Proofpoint
2
Termination Date, the Certus Termination Date
and the Kanisa Termination Date to occur shall be referred to
herein as the “Torre Termination Date”. Notwithstanding
the foregoing:
(a) Tenant’s obligation to
comply with all other covenants and agreements under the Torre
Lease with respect to the Unoccupied Premises shall continue
through and including the Unoccupied Premises Termination Date,
including, without limitation, Tenant’s obligation for
payment of all amounts payable by Tenant with respect to the
Unoccupied Premises accruing prior to the Unoccupied Premises
Termination Date;
(b) Tenant’s obligation to
comply with all other covenants and agreements under the Torre
Lease with respect to the Proofpoint Premises shall continue
through and including the Proofpoint Termination Date, including,
without limitation, Tenant’s obligation for payment of all
amounts payable by Tenant with respect to the Proofpoint Premises
accruing prior to the Proofpoint Termination Date, subject to
Section 6 below;
(c) Tenant’s obligation to
comply with all other covenants and agreements under the Torre
Lease with respect to the Certus Premises shall continue through
and including the Certus Termination Date, including, without
limitation, Tenant’s obligation for payment of all amounts
payable by Tenant with respect to the Certus Premises accruing
prior to the Certus Termination Date, subject to Section 6
below;
(d) Tenant’s obligation to
comply with all other covenants and agreements under the Torre
Lease with respect to the Kanisa Premises shall continue through
and including the Kanisa Termination Date, including, without
limitation, Tenant’s obligation for payment of all amounts
payable by Tenant with respect to the Kanisa Premises accruing
prior to the Kanisa Termination Date, subject to Section 6
below;
(e) Tenant shall deliver possession
of the Unoccupied Premises to Symantec on or before the Unoccupied
Premises Termination Date vacant and broom-clean, in the condition
required by the Torre Lease; provided that Tenant may request
Symantec’s approval to allow Tenant to leave any portion of
the Unoccupied Premises in a condition that does not fully comply
with the condition required by the Torre Lease with respect to
specific improvements located within the Unoccupied
Premises;
(f) Tenant shall deliver possession
of the Proofpoint Premises to Symantec on or before the date that
is two (2) weeks after the Proofpoint Termination Date vacant
and broom-clean, in the condition required by the Torre Lease;
provided that Tenant may request Symantec’s approval to allow
Tenant to leave any portion of the Proofpoint Premises in a
condition that does not fully comply with the condition required by
the Torre Lease with respect to specific improvements located
within the Proofpoint Premises;
(g) Tenant shall deliver possession
of the Certus Premises to Symantec on or before the date that is
two (2) weeks after the Certus Termination Date vacant and
broom-clean, in the condition require
