EXHIBIT 10.38
SEVENTH AMENDMENT
THIS SEVENTH AMENDMENT (the "Amendment") is made and entered into as of
the 23rd day of March, 2001, by and between EOP-BAY PARK PLAZA, L.L.C., a
Delaware limited liability company ("Landlord"), and CROSSWORLDS SOFTWARE, INC.,
a Delaware corporation ("Tenant").
RECITALS
A. Landlord (as successor in interest to Bay Park Plaza Associates, L.P.,
a California limited partnership) and Tenant (as successor in interest
to Crossworlds Software, Inc., a Delaware corporation) are parties to
that certain lease dated December 6, 1996 for space currently
containing approximately 71,944 rentable square feet (the "Original
Premises") as described as Suite Nos. 185, 200, 210, 230, 450, 500,
600, 650, and 800 on the 1st, 2nd, 4th, 5th, 6th and 8th floors of the
building commonly known as Bay Park Plaza I located at 577 Airport
Boulevard, Burlingame, California (the "Building"), which lease has
been previously amended by instruments dated November 13, 1997 ("First
Amendment"), March 16, 1998, March 29, 1999, January 28, 2000, July 17,
2000, Fifth Amendment dated August 15, 2000 and Sixth Amendment dated
October 13, 2000.
B. Tenant has requested that additional space containing approximately
1,416 rentable square feet described as Suite No. 220 on the 2nd floor
of the Building shown on Exhibit A hereto (the "Suite 220 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
following terms and conditions.
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. Suite 220 Expansion and Effective Date. Effective as of the Suite 220
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Expansion Effective Date (defined below), the Premises, as defined in
the Lease, is increased by the addition of the Suite 220 Expansion
Space, and from and after the Suite 220 Expansion Effective Date, the
Suite 220 Expansion Space, shall be deemed to be part of the Premises,
as defined in the Lease. The term for the Suite 220 Expansion Space
shall commence on the Suite 220 Expansion Effective Date and end on the
Expiration Date. The Suite 220 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 Suite 220 Expansion Space.
A. The Suite 220 Expansion Effective Date shall be the date which
is 14 days after the date Landlord tenders possession of the
Suite 220 Expansion Space to Tenant. Landlord and Tenant
anticipate that the Suite 220 Expansion Effective Date shall
be April 9, 2001 be ("Suite 220 Target Expansion Effective
Date").
B. Subject to Section IX.A. below, the Suite 220 Expansion
Effective Date shall be delayed to the extent that Landlord
fails to deliver possession of the Suite 220 Expansion Space
for any reason, including but not limited to, holding over by
prior occupants. Any such delay in the Suite 220 Expansion
Effective Date shall not subject Landlord to any liability for
any loss or damage resulting therefrom. If the Suite 220
Expansion Effective Date is delayed, the Expiration Date shall
not be similarly extended.
II. 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 Suite 220
Expansion Space as follows:
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Months of Term Annual Rate Annual Monthly
or Period Per Square Foot Base Rent Base Rent
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Suite 220 Expansion
Effective Date -
4/30/01 $ 75.00 $ 106,200.00 $ 8,850.00
5/1/01-4/30/02 $ 78.00 $ 110,448.00 $ 9,204.00
5/1/02-4/30/03 $ 81.12 $ 114,865.92 $ 9,572.16
5/1/03-4/30/04 $ 84.36 $ 119,453.76 $ 9,954.48
5/1/04-4/30/05 $ 87.74 $ 124,239.84 $ 10,353.32
5/1/05-4/30/06 $ 91.25 $ 129,210.00 $ 10,767.50
5/1/06-4/30/07 $ 94.90 $ 134,378.40 $ 11,198.20
5/1/07-4/30/08 $ 98.70 $ 139,759.20 $ 11,646.60
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All such Base Rent shall be payable by Tenant in accordance with the
terms of the Lease.
III. Additional Security Deposit. Intentionally omitted.
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IV. Tenant's Share. For the period commencing with the Suite 220 Expansion
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Effective Date and ending on the Expiration Date Tenant's Share for
the Suite 220 Expansion Space is 1.0122%.
V. Operating Costs and Taxes. For the period commencing with the Suite 220
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Expansion Effective Date and ending on the Expiration Date, Tenant
shall pay for Tenant's Share of Additional Rent applicable to the Suite
220 Expansion Space in accordance with the terms of the Lease,
provided, however, during such period, the Base Year for the
computation of Tenant's Share of Operating Costs and Taxes applicable
to the Suite 220 Expansion Space is 2001.
VI. Improvements to Suite 220 Expansion Space.
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A. Condition of Suite 220 Expansion Space. Tenant has inspected
the Suite 220 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 and
Section 7 of the Lease.
B. Responsibility for Improvements to Suite 220 Expansion Space.
Provided Tenant is not in default, Landlord agrees to
contribute the sum of $5,340.00 (the "Allowance") toward the
cost of performing the construction, alterations or
improvements (the "Improvements") in preparation of Tenant's
occupancy of the Suite 220 Expansion Space. The Allowance
shall be paid to Tenant within 30 days following receipt by
Landlord of all receipted bills used in the Improvements. The
Allowance shall be disbursed in the amount reflected on the
receipted bills meeting the requirements above.
Notwithstanding anything herein to the contrary, Landlord
shall not be obligated to disburse any portion of the
Allowance during the continuance of an uncured default under
the Lease, and Landlord's obligation to disburse shall only
resume when and if such default is cured. Any Improvements to
the Suite 220 Expansion Space shall be by Commercial Interior
Contractors ("CIC") and shall be governed in all respects by
the terms set forth in Section 6 of the Lease. Tenant may
contract directly with CIC and may, with Landlord's reasonable
prior approval, select its own architect. In addition,
Landlord shall have the right to select and/or approve of any
subcontractors used in connection with the Improvements. In
any and all events, the Suite 220 Expansion Effective Date
shall not be postponed or delayed if the initial improvements
to the Suite 220 Expansion Space are incomplete on the Suite
220 Expansion Effective Date for any reason whatsoever. Any
delay in the completion of initial improvements to the Suite
220 Expansion Space shall not subject Landlord to any
liability for any loss or damage resulting therefrom.
VII. Early Access to Suite 220 Expansion Space. During any period that
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Tenant shall be permitted to enter the Suite 220 Expansion Space prior
to the Suite 220 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 Rent as to the Suite 220 Expansion Space. If
Tenant takes possession of the Suite 220 Expansion Space prior to the
Suite 220 Expansion Effective
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Date for any reason whatsoever (other than the performance of work in
the Suite 220 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
Rent as applicable to the Suite 220 Expansion Space to Landlord on a
per diem basis for each day of occupancy prior to the Suite 220
Expansion Effective Date.
IX. Other Pertinent Provisions.
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A. Contingency. This Amendment is contingent upon Landlord's
delivery of the Suite 220 Expansion Space on or before April
9, 2001. If Landlord has not delivered the Suite 220 Expansion
Space on or before April 9, 2001, then either party may
terminate this Amendment with respect to the Suite 220
Expansion Space by providing written notice thereof to the
other party on or after April 9, 2001, whereupon, this
Amendment shall be null and void and of no force or effect and
the Lease shall continue in full force and effect as if this
Amendment had not been executed.
B. Parking. Effective as of the Suite 220 Expansion Effective
Date, and without reducing the number of parking spaces made
available to Tenant with respect to the Original Premises as
provided in the Lease, as amended, 4 additional unreserved
parking spaces shall be made available to Tenant for parking
by Tenant and its employees, free of charge, for the period
commencing on the Suite 220 Expansion Effective Date and
ending on the Expiration Date.
X. 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.
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 other than CB Richard Ellis ("Broker") in
connection with this Amendment. Tenant agrees to indemnify and
hold Landlord, its trustees, 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
(other than Broker) 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 trustees, 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.
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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: Senior Vice President
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TENANT:
CROSSWORLDS SOFTWARE, INC., a Delaware
corporation
By: /s/ JAMES W. BUDGE
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Name: James W. BUDGE
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Title: Sr. Vice President & CEO
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By:
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Name:
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Title:
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LEGAL OK
AJH
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EXHIBIT A
OUTLINE AND LOCATION OF SUITE 220 EXPANSION SPACE
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[GRAPHIC APPEARS HERE]
---------SUITE 220
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BAYPARK PLAZA I /
577 AIRPORT BLVD.
SUITE 220
BURLINGAME, CA
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