EXHIBIT 10.34
FOURTH AMENDMENT
THIS FOURTH AMENDMENT (this "Amendment") is made and entered into as of
the 17 day of July, 2000 by and between EOP-Bay Park Plaza, L.L.C, a Delaware
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limited liability company ("Landlord"), and CROSSWORLDS SOFTWARE, INC., a
Delaware corporation ("Tenant").
WITNESSETH:
A. WHEREAS, Landlord and Tenant (as successor in interest to Crossroads
Software, Inc.) are parties to that certain lease dated the 6th day of
December, 1996 (the "Original Lease") for space currently containing
approximately 44,492 rentable square feet (the "Original Premises")
described as Suite Nos. 800, 500, 600, 210 and 230 on the 8th, 5th, 6th
and 2nd floors of the building commonly known as Bay Park Plaza and the
address of which is 577 Airport Boulevard, Burlingame, California 94010
(the "Building"), which lease has been previously amended or assigned
by instruments dated March 16, 1998, March 20, 1999, April 13, 1999 and
January 28, 2000 (collectively, the "Lease"); and
B. WHEREAS, Tenant has requested that additional space containing
approximately 6,782 rentable square feet described as Suite No. 650 on
the 6th floor of the Building shown on Exhibit A hereto (the "Sixth
Expansion Space") be added to the Original Premises and that the Lease
be appropriately amended and Landlord is willing to do the same on the
terms and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. Sixth Expansion and Effective Date. Effective as of the Sixth Expansion
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Effective Date (as hereinafter defined), the Premises, as defined in
the Lease, is increased from 44,492 rentable square feet on the 8th,
5th, 6th and 2nd floors to 51,274 rentable square feet on the 8th, 5th,
6th and 2nd floors by the addition of the Sixth Expansion Space, and
from and after the Sixth Expansion Effective Date, the Original
Premises and the Sixth Expansion Space, collectively, shall be deemed
the Premises, as defined in the Lease. The Term for the Sixth Expansion
Space shall commence on the Sixth Expansion Effective Date and end on
the Expiration Date (as such term is defined in the Basic Lease
Information attached to the Original Lease). The Sixth Expansion Space
is subject to all the terms and conditions of the Lease except as
expressly modified herein and except that Tenant shall not be entitled
to receive any allowances, abatements or other financial concessions
granted with respect to the Original Premises unless such concessions
are expressly provided for herein with respect to the Sixth Expansion
Space.
A. Subject to Section VI of this Amendment, the Sixth Expansion
Effective Date shall be the earlier to occur of (i) the date
which is 14 days after delivery of possession of the Sixth
Expansion Space to Tenant, and (ii) the date upon which Tenant
first commences to conduct business in the Sixth Expansion
Space. As used herein, "delivery of possession" of the Sixth
Expansion Space shall be deemed to have occurred on the day
immediately following the later to occur of (i) the
termination of the existing lease of such Sixth Expansion
Space, and (ii) the vacation of such Sixth Expansion Space by
the prior occupant thereof. The Sixth Expansion Effective Date
is anticipated to occur on July 15, 2000 (the "Target Sixth
Expansion Effective Date").
B. The Sixth Expansion Effective Date shall be delayed beyond the
Target Sixth Expansion Effective Date to the extent that
Landlord fails to deliver possession of the Sixth Expansion
Space for any reason (other than delays by Tenant), including
but not limited to, failure by Landlord to terminate prior
existing leases or holding over by prior occupants. The
occurrence of the Sixth Expansion Effective Date and the
expansion of the Premises by the Sixth Expansion Space shall
be conditioned upon the termination of any and all prior
existing leases affecting the Sixth Expansion Space. Any delay
in the Sixth Expansion Effective Date or any failure of the
Sixth Expansion Effective Date to occur shall not subject
Landlord to any liability for any loss or damage resulting
therefrom. If the
Sixth Expansion Effective Date is delayed, the Expiration Date
under the Lease shall not be similarly extended.
II. Monthly Base Rent.
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In addition to Tenant's obligation to pay Base Rent for the Original
Premises, Tenant shall pay Landlord. Base Rent for the Sixth Expansion
Space in accordance with the schedule as set forth below.
Period Annual Rate Annual Base Rent Monthly Base
Per Square Foot Rent
7/15/00-4/30/01 $ 63.00 $ 427,266.00 $ 35,605.50
5/1/01-4/30/02 $ 65.52 $ 444,356.64 $ 37,029.72
5/1/02-4/30/03 $ 68.14 $ 462,125.48 $ 38,510.46
5/1/03-4/30/04 $ 70.86 $ 480,572.52 $ 40,047.71
5/1/04-4/30/05 $ 73.70 $ 499,833.40 $ 41,652.78
5/1/05-4/30/06 $ 76.65 $ 519,840.30 $ 43,320.03
5/1/06-4/30/07 $ 79.92 $ 542,017.44 $ 45,168.12
5/1/07-4/30/08 $ 83.12 $ 563,719.84 $ 46,976.65
All such Base Rent shall be payable by Tenant in accordance with the
terms of Article 3 of the Lease.
Landlord and Tenant acknowledge that the foregoing schedule is based on
the assumption that the Sixth Expansion Effective Date is the Target
Sixth Expansion Effective Date. If the Sixth Expansion Effective Date
is other than the Target Sixth Expansion Effective Date, the schedule
set forth above with respect to the payment of any Installment(s) of
Base Rent for the Sixth Expansion Space shall be appropriately adjusted
on a per diem basis to reflect the actual Sixth Expansion Effective
Date and the actual Sixth Expansion Effective Date shall be set forth
in a confirmation letter to be prepared by Landlord. However, the
effective date of any increases or decreases in the Base Rent rate
shall not be postponed as a result of an adjustment of the Sixth
Expansion Effective Date as provided above.
III. Additional Security Deposit. Upon Tenant's execution hereof, Tenant
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shall pay Landlord the sum of $35,605.50 which is added to and becomes
part of the Security Deposit, if any, held by Landlord as provided
under the Lease as security for payment of Rent and the performance of
the other terms and conditions of the Lease by Tenant. Accordingly,
simultaneous with the execution hereof, the Security Deposit is
increased from $66,832.00 to $102,437.50.
IV. Tenant's Share. For the period commencing with the Sixth Expansion
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Effective Date and ending on the Expiration Date, Tenant's Share for
the Sixth Expansion Space is 4.85%.
V. Additional Rent. For the period commencing with the Sixth Expansion
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Effective Date and ending on the Expiration Date, Tenant shall pay
Additional Rent applicable to the Sixth Expansion Space in accordance
with the terms of the Lease, provided, however, during such period the
Base Year for the computation of Additional Rent applicable to the
Sixth Expansion Space is 2000.
VI. Improvements to Sixth Expansion Space.
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A. Condition of Sixth Expansion Space. Tenant has inspected the
Sixth Expansion Space and agrees to accept the same "as is"
without any agreements, representations, understandings or
obligations on the part of Landlord to perform any
alterations, repairs or improvements, except as may be
expressly provided otherwise in this Amendment.
B. Cost of Improvements to Sixth Expansion Space. Provided Tenant
is not in default, Tenant shall be entitled to receive an
Improvement allowance (the "Sixth Expansion Improvement
Allowance") In an amount not to exceed $33,910.00 (i.e., $5.00
per rentable square foot of the Sixth Expansion Space) to be
applied toward the cost of performing initial construction,
alteration or improvement of the Sixth Expansion Space,
including but not limited to the cost of space planning,
design and related architectural and engineering services. In
the event the total cost of the initial improvements to the
Sixth Expansion Space exceeds the Sixth Expansion Improvement
Allowance, Tenant shall pay for such excess upon demand. The
entire unused balance of the Sixth Expansion Improvement
Allowance, if any, shall accrue to the sole benefit of
Landlord. Landlord shall pay such Sixth Expansion Improvement
Allowance directly to the contractors retained to perform the
construction, design or related improvement work to the Sixth
Expansion Space.
C. Responsibility for Improvements to Sixth Expansion Space.
Tenant shall retain Commercial Interior Contractors ("CIC") to
perform any construction, alterations or improvements to the
Premises and such construction, alterations or improvements
shall be governed in all respects by the provisions of Article
6 of the Lease.
VII. Early Access to Sixth Expansion Space. During any period that Tenant
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shall be permitted to enter the Expansion Space prior to the Sixth
Expansion Effective Date (e.g., to perform alterations or improvements,
if any), Tenant shall comply with all terms and provisions of the
Lease, except those provisions requiring payment of Base Rent or
Additional Base Rent as to the Sixth Expansion Space. If Tenant takes
possession of the Sixth Expansion Space prior to the Sixth Expansion
Effective Date for any reason whatsoever (other than the performance of
work in the Sixth Expansion Space with Landlord's prior approval), such
possession shall be subject to all the terms and conditions of the
Lease and this Amendment, and Tenant shall pay Base Rent and Additional
Base Rent as applicable to the Sixth Expansion Space to Landlord on a
per diem basis for each day of occupancy prior to the Sixth Expansion
Effective Date.
VIII. Other Pertinent Provisions. Landlord and Tenant agree that, effective
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as of the date hereof (unless different effective date(s) is/are
specifically referenced in this Section), the Lease shall be amended in
the following additional respects:
A. Notwithstanding anything to the contrary set forth in the
Lease, Operating Expenses shall include, to the extent
permitted by applicable laws, a fee for the services provided
by Landlord in connection with the selection of utility
companies and the negotiation and administration of contracts
for electricity, provided that such fee shall not exceed 50%
of any savings obtained by Landlord.
B. Parking. During the term for the Sixth Expansion Space,
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Landlord shall provide Tenant, free of charge on an
unassigned, non-exclusive and unlabelled basis, up to 23
additional parking spaces in the Parking facility in
accordance with all of the provisions of Paragraph 1 of the
Additional Provisions Rider to the Lease.
C. Letter of Credit. Upon execution of this Amendment, Tenant
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shall deliver to Landlord, subject to the provisions of
Paragraph 2 of the Additional Provisions Rider to the Original
Lease, either (i) an amendment to the existing Letter of
Credit increasing the amount of the existing Letter of Credit
by $316,177.00 or (ii) in addition to the existing Letter of
Credit, a new Letter of Credit in the amount of $316,177.00.
IX. Miscellaneous.
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A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There
have been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to
any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any similar
economic incentives that may have been provided Tenant in
connection with entering into the Lease, unless specifically
set forth in this Amendment.
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B. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain unchanged and
in full force and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment
shall govern and control.
D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for
such an offer by Tenant. Landlord shall not be bound by this
Amendment until Landlord has executed and delivered the same
to Tenant.
E. The capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease to the extent that
such capitalized terms are defined therein and not redefined
in this Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt
with no broker in connection with this Amendment. Tenant
agrees to indemnify and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors,
employees, mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively, the
"Landlord Related Parties") harmless from all claims of any
brokers claiming to have represented Tenant in connection with
this Amendment. Landlord hereby represents to Tenant that
Landlord has dealt with no broker in connection with this
Amendment. Landlord agrees to indemnify and hold Tenant, its
members, principals, beneficiaries, partners, officers,
directors, employees, and agents, and the respective
principals and members of any such agents (collectively, the
"Tenant Related Parties") harmless from all claims of any
brokers claiming to have represented Landlord in connection
with this Amendment.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
LANDLORD:
EOP-BAY PARK PLAZA, L.L.C., a Delaware
limited liability company
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its
sole member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ ROBERT E. DEZZUTTI
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Name: Robert E. Dezzutti
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Title: Vice President
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TENANT:
CROSSWORLD SOFTWARE, INC.,
a Delaware corporation
By: /s/ MARK KENT
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Name: Mark Kent
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Title: CFO
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By:
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Name:
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Title:
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EXHIBIT A
Attach Floor Plan
Showing Sixth Expansion Space
[GRAPHIC OF BAY PARK PLAZA APPEARS HERE]
BAY PARK PLAZA SIXTH FLOOR