exv10w73w2



 







Exhibit 10.73.2




SECOND LEASE MODIFICATION AGREEMENT



THIS LEASE MODIFICATION AGREEMENT dated for reference the 1st day of April, 2006. In
Pursuance of the Land Transfer Form Act, Part 2



BETWEEN:



855 HOMER STREET INC.

1100 – 505 Burrard Street

Vancouver, B.C.

V7X 1M5)



(the “Landlord”)



AND:



BUSINESS OBJECTS CORP.

840 Cambie Street

Vancouver, B.C.

V6B 4J2



(the “Tenant”)



AND:



BUSINESS OBJECTS AMERICAS

3030 Orchard Parkway

San Jose, California

U.S.A. 95134



(the “Indemnifier”)



WHEREAS:





	A.	 	By a lease dated December 23, 2004, and modified by a lease modification agreement dated
September 15, 2005 (together the “Lease”) between the Landlord and the Tenant, the Tenant
leased premises on lands legally described as:




Parcel Identifier: 017-524-695

Strata Lot 2, District Lot 541, Strata Plan LMS156,

together with an interest in the common property to the unit entitlement of the strata lot as
shown on Form 1



(the “Lands”).





	B.	 	The Lease commenced on May 1, 2005, and the initial term of the Lease terminates on April 30,
2015.




 









 






	C.	 	The Landlord and the Tenant have agreed to modify the Lease to include additional premises on
the terms and conditions set forth in this agreement (the “Agreement”).
	 
	D.	 	The Indemnifier is a party to the Lease and has consented to the modification of the Lease on
the terms set out in this Agreement.




NOW THEREFORE in consideration of the sum of $10.00 paid by each party to each of the other parties
and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by each party, the Landlord and the Tenant covenant and agree that:





	1.	 	DEFINITIONS
	 
	 	 	In this Agreement:






	 	(a)	 	“Additional Premises” means that area adjacent to the Original Leased Premises
shown cross-hatched on the plan attached as Schedule “A” hereto, consisting of the
Additional Premises Area;
	 
	 	(b)	 	“Additional Premises Additional Rental” means that portion of Additional Rental
that the Tenant is obligated to pay under the Lease in relation to the Additional
Premises;
	 
	 	(c)	 	“Additional Premises Area” means 23,069 square feet of rentable area on the
second (2nd) floor of the Building;
	 
	 	(d)	 	“Additional Premises Minimum Rental” means that portion of Minimum Rental that
the Tenant is obligated to pay under the Lease in relation to the Additional Premises
as specified in clause 4 of this Agreement;
	 
	 	(e)	 	“Additional Premises Minimum Rental Free Period” means the period from August
1, 2006 to August 31, 2006;
	 
	 	(f)	 	“Additional Premises Rental” means that portion of Rental that the Tenant is
obligated to pay under the Leas in relation to the Additional Premises;
	 
	 	(g)	 	“Additional Premises Rental Free Period” means the period from June 1, 2006 to
July 31, 2006;
	 
	 	(h)	 	“Additional Premises Term” means the period commencing on the Effective Date
and terminating April 30, 2015, as such term may be renewed pursuant to the Lease;
	 
	 	(i)	 	“Effective Date” means June 1, 2006;
	 
	 	(j)	 	“Fixturing Period” means April 1, 2006 to May 31, 2006;
	 
	 	(k)	 	“Lease” means the Lease referred to in Recital A above, and from and after the
Effective Date means the Lease as modified by this Agreement;
	 
	 	(l)	 	“Original Leased Premises” means the premises demised to the Tenant under the
Lease;






	 	 	and other words which are capitalized herein will have the meanings given to them in the
Lease, or in this Agreement if defined in this Agreement.




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	2.	 	DEMISE
	 
	 	 	The Landlord hereby demises and leases to the Tenant, and the Tenant hereby leases and takes
from the Landlord, the Additional Premises for the Additional Premises Term.
	 
	3.	 	MODIFICATION






	 	(a)	 	From and after the Effective Date, the Lease will be modified to include the
Additional Premises for the Additional Premises Term as set out in this Agreement and,
except for the payment of Minimum Rental for the Additional Premises, all provisions of
the Lease will apply to the Additional Premises as they do to the Original Leased
Premises, and all references in the Lease to “Premises” will include the Original
Leased Premises and the Additional Premises.
	 
	 	(b)	 	For the purposes of any right of renewal contained in the Lease, including the
determination of the rental rate during any such renewal term, the Original Leased
Premises and the Additional Premises shall be considered as one premises and any right
of renewal exercised by the Tenant must be exercised with respect to both the Original
Leased Premises and the Additional Premises.
	 
	4.	MINIMUM RENTAL
	 
	 	The Tenant will pay to the Landlord, during the Additional Premises Term (but excluding the
Additional Premises Rental Free Period and the Additional Premises Minimum Rental Free
Period), additional Minimum Rental (“Additional Premises Minimum Rental”) for the Additional
Premises, monthly in advance on the first day of each calendar month, from the Effective
Date to and including April 1, 2015 the sum of $16.00 per square foot of Additional Premises
Area per annum. Additional Premises Minimum Rental will be treated for all purposes under
the Lease as Minimum Rental for the Additional Premises during the Additional Premises Term
and any renewal thereof in accordance with the Lease and this Agreement. For greater
certainty, the Tenant is not required to pay Additional Premises Rental during the
Additional Premises Rental Free Period. The Tenant is also not required to pay Additional
Premises Minimum Rental but must pay Additional Premises Additional Rental during the
Additional Premises Minimum Rental Free Period.
	 
	5.	TENANT IMPROVEMENTS
	 
	 	The Tenant, at its cost, will be responsible for all work required to fixture the Additional
Premises for the Tenant’s intended use. Provided that prior to installing any such
improvements or fixtures the Tenant shall have received approval of the same in writing from
the Landlord, such approval not to be unreasonably refused by the Landlord.
	 
	6.	FIXTURING PERIOD
	 
	 	The Tenant shall have possession of the Leased Premises for the Fixturing Period for the
purpose of fixturing the Additional Premises. Notwithstanding any other provision of this
Agreement and the Lease, the Tenant shall not be required to pay any Rental for the
Additional Premises during the Fixturing Period. In the event the Tenant completes its
fixturing of the Additional Premises prior to the end of the Fixturing Period, the Tenant
may occupy and open for business in the Additional Premises prior to the Effective Date, but
the Tenant’s obligation to pay Rental for the Additional Premises shall not begin until the
Effective Date. Except with respect to the payment




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	 	of Rental for the Additional Premises during the Fixturing Period, the Tenant shall be bound
by all terms and conditions of this Agreement and the Lease during the Fixturing Period.
	 
	7.	DEMOLITION ALLOWANCE
	 
	 	Subject to the provisions of this section 7, and on the basis of the Landlord’s
representation that the following areas have been calculated in accordance with BOMA, and
provided the Landlord delivers to the Tenant surveyed plans showing the calculation in
accordance with BOMA, the Landlord shall pay to the Tenant an allowance (the “Additional
Premises Demolition Allowance”) calculated on an amortized basis of $1.87 per square foot of
the actual useable area of the Additional Premises Area being an amount equal to $43,139.03.
It is expressly understood and agreed that the Additional Premises Demolition Allowance is
to be paid for the purpose of reimbursing the Tenant for the demolition work to be carried
out by the Tenant on the Additional Premises (the “Additional Premises Demolition Work”).
Provided the Tenant is not then in breach of the Lease and this Agreement, and further
provided that the Tenant is occupying all of the fourth and fifth floors of the Building,
the Additional Premises Demolition Allowance shall be paid by the Landlord after the last to
occur of the following:






	 	(a)	 	the receipt by the Landlord from the Tenant of a statutory declaration executed
no less than sixty (60) days after completion of the Additional Premises Demolition
Work stating that there are no claims of builders’ lien or other liens or encumbrances
affecting the Additional Premises with respect to work, services, materials and
equipment relating to the Additional Premises, and that the Tenant’s designers,
contractors, subcontractors, works, and suppliers of materials and equipment have been
paid in full for all work and services performed and materials and equipment supplied
by them on or to the Additional Premises;
	 
	 	(b)	 	receipt by the Landlord of a copy of this Agreement duly executed by the
Tenant; and
	 
	 	(c)	 	receipt by the Landlord of a written notice requesting payment of the
Additional Premises Demolition Allowance.






	 	 	The Landlord agrees that any portion of the Additional Premises Demolition Allowance not
applied by the Tenant to reimbursement of the Additional Premises Demolition Work may be
used by the Tenant as a credit against the Rental owing.






	8.	 	TENANT IMPROVEMENT ALLOWANCE
	 
	 	 	Subject to the provisions of this section 8, the Landlord shall pay to the Tenant an
allowance (the “Additional Premises Tenant Improvement Allowance”) calculated on an
amortized basis of $23.39 per square foot of the Additional Premises Area being an amount
equal to $539,583.91. It is expressly understood and agreed that the Additional Premises
Tenant Improvement Allowance is to be paid for the purpose of reimbursing the Tenant for a
portion of its out of pocket expenses in completing the Tenant’s Work in the Additional
Premises, and fully equipping the Additional Premises with all trade equipment, lighting
fixtures, furniture and operating equipment, installing appropriate signage and moving into
the Additional Premises. Provided the Tenant is not then in material breach of this
Agreement, the Additional Premises Tenant Improvement Allowance shall be paid by the
Landlord on a monthly draw basis to the Tenant upon receipt by the Landlord of a statutory
declaration stating that there are no claims of builders’ lien or other liens or
encumbrances affecting the Additional Premises with respect to work, services, materials and
equipment relating to the Additional Premises, and that the Tenant’s designers, contractors,
subcontractors, works, and suppliers of materials and




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	 	 	equipment have been paid in full for all work and services performed and materials and
equipment supplied by them on or to the Additional Premises. Notwithstanding the foregoing,
the Landlord shall not be obligated to pay the Additional Premises Tenant Improvement
Allowance until the Tenant has executed and delivered a copy of this Agreement. The
Landlord shall be permitted to set off and deduct from the Additional Tenant Improvement
Allowance any outstanding amounts owing by the Tenant to the Landlord pursuant to the Lease
or this Agreement, provided that the Tenant is first given forty eight (48) hours notice
with respect to such outstanding amounts in order to remedy such breach.
	 
	9.	 	AREA OF LEASED PREMISES
	 
	 	 	The parties agree and acknowledge that as and from the Effective Date the Area of Leased
Premises consists of a total rentable area of 94,135 square feet consisting of:






	 	(a)	 	23,069 square feet (2nd floor);
	 
	 	(b)	 	23,082 square feet (3rd floor);
	 
	 	(c)	 	23,130 square feet (4th floor);
	 
	 	(d)	 	21,802 square feet (5th floor); and
	 
	 	(e)	 	3,052 square feet (6th floor).






	10.	 	CONTINUING EFFECT
	 
	 	 	This Agreement as and from the date hereof will be read and construed along with the Lease
and treated as a part thereof; and the Lease, as hereby modified, will continue to be of
full force and effect; and the Landlord and Tenant confirm and ratify the Lease as hereby
modified.




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	11.	 	ENUREMENT
	 
	 	 	This Agreement will enure to the benefit of and be binding upon each of the Landlord and the
Tenant and their respective successors and permitted assigns.




IN WITNESS WHEREOF the Landlord, the Tenant and the Indemnifier have executed this Agreement as of
the date first above written.




	 	 	 	 	 	 	 	 	 	 	 
	855 HOMER STREET INC.	 	 	 	(LANDLORD)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Per:
	 	/s/ Suki Sekhon 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	Authorized Signatory	 	 	 	 	 	 
	 

	 	Print Name:	 	Suki Sekhon	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	BUSINESS OBJECTS CORP.	 	 	 	(TENANT)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Per:	 	/s/ Susan J. Wolfe	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	Authorized Signatory	 	 	 	 	 	 
	 

	 	Print Name:
	 	Susan J. Wolfe	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	BUSINESS OBJECTS AMERICAS	 	 	 	(INDEMNIFIER)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Per:	 	/s/ James R. Tolonen	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	Authorized Signatory	 	 	 	 	 	 
	 

	 	Print Name:
	 	James R. Tolonen	 	 	 	 	 	 






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SCHEDULE “A”




PLAN OF ADDITIONAL PREMISES AREA










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