EXHIBIT 10.35
FIFTH AMENDMENT
THIS FIFTH AMENDMENT (the "Amendment") is made and entered into as of
the 15th day of August, 2000, by and between EOP-BAY PARK PLAZA, L.L.C., a
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Delaware limited liability company ("Landlord") and CROSSWORLDS SOFTWARE, INC.,
a Delaware corporation ("Tenant").
WITNESSETH:
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A. WHEREAS, Landlord (as successor in interest to Bay Park Plaza
Associates, L.P., a California limited partnership) and Tenant (as
successor in interest to CrossRoads Software, Inc., a Delaware
corporation) are parties to that certain lease dated the 6th day of
December, 1996, for space currently containing approximately 51,274
rentable square feet (the "Original Premises") described as Suite Nos.
210, 230, 500, 600, 650 and 800 on the 2nd, 5th, 6th and 8th floors of
the building commonly known as Bay Park Plaza and the address of which
is 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxx (the "Building"),
which lease has been previously amended by instruments dated November
13, 1997 (the "First Amendment"), March 16, 1998, March 29, 1999,
January 28, 2000 and June 28, 2000 (collectively, the "Lease"); and
B. WHEREAS, Tenant has requested that additional space containing
approximately 20,670 rentable square feet consisting of (i)
approximately 4,266 rentable square feet described as Suite No. 185
(the "Suite 185 Space") on the 1st floor of the Building shown on
Exhibit A-1 hereto, (ii) approximately 4,000 rentable square feet
described as Suite No. 450 (the "Suite 450 Space") on the 4th floor of
the Building shown on Exhibit A-2 hereto (the Suite 185 Space and the
Suite 450 Space are sometimes referred to herein as the "Seventh
Expansion Space"); and (iii) approximately 12,404 rentable square feet
(the "Eighth Expansion Space") described as Suite No. 200 on the 2nd
floor of the Building shown on Exhibit A-3 hereto (the Seventh
Expansion Space and the Eighth Expansion Space are sometimes referred
to herein as the "Expansion Spaces") 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. Expansion and Effective Date. Effective as of the Seventh Expansion
Effective Date (as hereinafter defined), the Premises, as defined in
the Lease, is increased by 8,266 rentable square feet on the 1st and
4th floors by the addition of the Seventh Expansion Space, and from and
after the Seventh Expansion Effective Date, the Premises, as defined in
the Lease, shall be deemed to include the Seventh Expansion Space.
Effective as of the Eighth Expansion Effective Date (as hereinafter
defined), the Premises as defined in the Lease (and as amended by this
Amendment), is increased by 12,404 rentable square feet on the 2nd
floor by the addition of the Eighth Expansion Space, and from and after
the Eighth Expansion Effective Date, the Premises, as defined in the
Lease (and as amended by this Amendment), shall be deemed to include
the Eighth Expansion Space. The Term for the Seventh Expansion Space
shall commence on the Seventh Expansion Effective Date and end on the
Expiration Date (i.e., April 30, 2008). The Term for the Eighth
Expansion Space shall commence on the Eighth Expansion Effective Date
and end on the Expiration Date. The Seventh Expansion Space and Eighth
Expansion Space are 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 Seventh Expansion Space and the Eighth Expansion Space, as the
case may be.
A. 1. The Seventh Expansion Effective Date shall be August
15, 2000.
2. The Seventh Expansion Effective Date with respect to
the Suite 185 Space and the Seventh Expansion
Effective Date with respect to the Suite 450 Space
shall be delayed to the extent that Landlord fails to
deliver possession of the Suite 185 Space or the
Suite 450 Space, as the case may be, for any reason,
including but not limited to, holding over by
prior occupants. Any such delay in the Seventh
Expansion Effective Date with respect to the Suite
185 Space or the Suite 450 Space, as the case may be,
shall not subject Landlord to any liability for any
loss or damage resulting therefrom. If the Seventh
Expansion Effective Date is delayed for the Suite 185
Space or the Suite 450 Space, as the case may be, the
Expiration Date under the Lease shall not be
similarly extended. Tenant hereby acknowledges that
Landlord will not and is not required to
substantially complete on or before the Seventh
Expansion Effective Date either (i) the Suite 185
Landlord Work described in Exhibit B-1 attached
hereto or (ii) the Suite 450 Landlord Work described
in Exhibit B-2 attached hereto.
B. 1. The Eighth Expansion Effective Date shall be December
1, 2000.
2. The Eighth Expansion Effective Date shall be delayed
to the extent that Landlord fails to deliver
possession of the Eighth Expansion Space for any
reason, including but not limited to, holding over by
prior occupants. Any such delay in the Eighth
Expansion Effective Date with respect to the Eighth
Expansion Space shall not subject Landlord to any
liability for any loss or damage resulting therefrom.
If the Eighth Expansion Effective Date is delayed,
the Expiration Date under the Lease shall not be
similarly extended. Tenant hereby acknowledges that
Landlord will not and is not required to
substantially complete the Eighth Expansion Landlord
Work described in Exhibit B-3 attached hereto prior
to the Eighth Expansion Effective Date. The Suite 185
Landlord Work, the Suite 400 Landlord Work and the
Eighth Expansion Landlord Work are sometimes
collectively referred to herein as the "Landlord
Work".
II. Monthly Base Rental. In addition to Tenant's obligation to pay Base
Rent for the Original Premises, Tenant shall pay Base Rent for the
Seventh Expansion Space and the Eighth Expansion Space in accordance
with the following schedules:
A. Seventh Expansion Space From Seventh Expansion Effective Date
Through Expiration Date. As of the Seventh Expansion Effective
Date, the schedule of monthly installments of Base Rent
payable with respect to the Seventh Expansion Space through
the Expiration Date is the following:
Period Annual Rate Annual Monthly
------ Per Square Foot Base Rent Base Rent
--------------- --------- ---------
8/15/00 - $75.00 $619,950.00 $51,662.50
4/30/01
5/1/01 - 4/30/02 $78.00 $644,748.00 $53,729.00
5/1/02 - 4/30/03 $81.12 $670,537.92 $55,878.16
5/1/03 - 4/30/04 $84.36 $697,319.76 $58,109.98
5/1/04 - 4/30/05 $87.74 $725,258.88 $60,438.24
5/1/05 - 4/30/06 $91.25 $754,272.48 $62,856.04
5/1/06 - 4/30/07 $94.90 $784,443.36 $65,370.28
5/1/07 - 4/30/08 $98.70 $815,854.20 $67,987.85
All such Base Rent shall be payable by Tenant in accordance
with the terms of Section 3 of the Lease.
Landlord and Tenant acknowledge that the foregoing schedule is
based on the assumption that the Seventh Expansion Effective
Date for the Suite 185 Space and the Suite 450 Space is August
15, 2000. If, as a result of Landlord's failure to deliver
possession of the Suite 185 Space or the Suite 450 Space, as
the case may be, as set forth in Section I.A.2. above, the
Seventh Expansion Effective Date with respect to the Suite 185
Space or the Suite 450 Space, as the case may be, is other
than August 15, 2000, the schedule set forth above with
respect to the payment of any installment(s) of Base Rent with
respect to the Suite 185 Space or the Suite 450 Space, as the
case may be, shall be appropriately adjusted on a per diem
basis to reflect the actual Seventh Expansion Effective
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Date with respect to the Suite 185 Space or the Suite 450
Space, as the case may be, and the actual Seventh Expansion
Effective Date with respect to the Suite 185 Space or the
Suite 450 space, as the case may be, 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 Seventh Expansion Effective Date with respect to the Suite
185 Space or the Suite 450 Space, as the case may be, as
provided above.
B. Eighth Expansion Space From Eighth Expansion Effective Date
Through Expiration Date. As of the Eighth Expansion Effective
Date, the schedule of monthly installments of Base Rent
payable with respect to the Eighth Expansion Space through the
Expiration Date is the following:
Period Annual Rate Annual Monthly
------ Per Square Foot Base Rent Base Rent
--------------- --------- ---------
12/1/00 - 4/30/01 $75.00 $ 930,300.00 $ 77,525.00
5/1/01 - 4/30/02 $78.00 $ 987,512.00 $ 80,626.00
5/1/02 - 4/30/03 $81.12 $1,006,212.48 $ 83,851.04
5/1/03 - 4/30/04 $84.36 $1,046,401.44 $ 87,200.12
5/1/04 - 4/30/05 $87.74 $1,088,326.92 $ 90,693.91
5/1/05 - 4/30/06 $91.25 $1,131,864.96 $ 94,322.08
5/1/06 - 4/30/07 $94.90 $1,177,139.64 $ 98,094.97
5/1/07 - 4/30/08 $98.70 $1,224,274.80 $102,022.90
All such Base Rent shall be payable by Tenant in accordance
with the terms of Section 3 of the Lease.
Landlord and Tenant acknowledge that the foregoing schedule is
based on the assumption that the Eighth Expansion Effective
Date is December 1, 2000. If, as a result of Landlord's
failure to deliver possession of the Eighth Expansion Space as
set forth in Section I.B.2. above, the Eighth Expansion
Effective Date is other than December 1, 2000, the schedule
set forth above with respect to the payment of any
installment(s) of Base Rent for the Eighth Expansion Space
shall be appropriately adjusted on a per diem basis to reflect
the actual Eighth Expansion Effective Date and the actual
Eighth 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 Eighth Expansion Effective Date as provided above.
III. Additional Security Deposit. Upon Tenant's execution hereof, Tenant
shall pay Landlord the sum of $154,808.00, 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 $66,610.00 to $221,418.00.
IV. Tenant's Share.
A. Seventh Expansion Space. For the period commencing with the
Seventh Expansion Effective Date and ending on the Expiration
Date, Tenant's Share for the Seventh Expansion Space is
5.9085% (i.e., Tenant's Share is 3.0493% with respect to the
Suite 185 Space and 2.8592% with respect to the Suite 450
Space).
B. Eighth Expansion Space. For the period commencing with the
Eighth Expansion Effective Date and ending on the Expiration
Date, Tenant's Share for the Eighth Expansion Space is
8.8663%.
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V. Additional Rent.
A. Seventh Expansion Space. For the period commencing with the
Seventh Expansion Effective Date and ending on the Expiration
Date. Tenant shall pay the Additional Rent applicable to the
Seventh Expansion Space in accordance with the terms of the
Lease, provided, however during such period, the Base Year
used for the computation of the Additional Rent payable by
Tenant for the Seventh Expansion Space is 2000.
B. Eighth Expansion Space. For the period commencing with the
Eighth Expansion Effective Date and ending on the Expiration
Date, Tenant shall pay the Additional Rent applicable to the
Eighth Expansion Space in accordance with the terms of the
Lease, provided, however, during such period, the Base Year
used for the computation of the Additional Rent payable by
Tenant for the Eighth Expansion Space is 2000.
VI. Improvements to Expansion Spaces. Tenant has inspected the Expansion
Spaces (i.e., the Seventh Expansion Space and the Eighth 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, subject to
Landlord's obligation to perform the applicable Landlord Work as
described in Exhibit B attached hereto. Tenant hereby acknowledges that
Landlord shall perform the applicable Landlord Work while Tenant is in
possession of the applicable Expansion Space, and Tenant hereby agrees
to cooperate with Landlord to allow Landlord to complete the applicable
Landlord Work as expeditiously as reasonably possible and Tenant hereby
accepts any and all inconveniences associated with the performance of
the applicable Landlord Work (including reasonable interference with
Tenant's business operations, paint fumes, noise and dust) and agrees
that the performance of the applicable Landlord Work shall not
constitute a constructive eviction.
VII. Early Access to Expansion Space. During any period that Landlord shall
permit Tenant to enter (i) the Suite 185 Space or the Suite 450 Space,
as the case may be, prior to the Seventh Expansion Effective Date
and/or (ii) the Eighth Expansion Space prior to the Eighth Expansion
Effective Date to perform alterations or improvements, Tenant shall
comply with all of the terms and provisions of the Lease, as amended by
this Amendment, except those provisions requiring payment of Base Rent
or Additional Rent for the Suite 185 Space, the Suite 450 Space and the
Eighth Expansion Space, as the case may be. If Tenant takes possession
of the Suite 185 Space or the Suite 450 Space prior to the Seventh
Expansion Effective Date or the Eighth Expansion Space prior to the
Eighth Expansion Effective Date, as the case may be, for any reason
whatsoever (other than the performance of work in the Xxxxx 000 Xxxxx,
Xxxxx 000 Space or Eighth Expansion Space, as the case may be, with
Landlord's prior approval), such possession shall be subject to all the
terms and conditions of the Lease, as amended by this Amendment, and
Tenant shall pay Base Rent and Additional Rent as applicable for the
Suite 185 Space, the Suite 450 Space or the Eighth Expansion Space to
Landlord on a per diem basis for each day of occupancy prior to the
Seventh Expansion Effective Date or Eighth Expansion Effective Date, as
the case may be.
VIII. Other Pertinent Provisions. Landlord and Tenant agree that, effective
as of the date hereof (unless different effective dates are
specifically referenced in this Section), the Lease shall be amended in
the following additional respects:
A. Landlord's Address for Payment of Rent. Landlord's Address for
Payment of Rent set forth on page 2 of the Basic Lease
Information in the Lease is hereby amended to reflect that
Rent shall be made payable to the order of Equity Office
Properties and addressed as follows:
"EOP Operating Limited Partnership
as agent for EOP-Bay Park Plaza, L.L.C.
File 72845 X.X. Xxx 00000
Xxx Xxxxxxxxx, XX 00000-0000"
B. Landlord's Address for Notices. Landlord's Address for Notices
set forth on page 2 of the Basic Lease Information in the
Lease is hereby amended to reflect that notices to Landlord
shall be addressed as follows:
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XXX-Xxx Xxxx Plaza, L.L.C., a Delaware limited liability
company
c/o Equity Office Properties
000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Property Manager
with a copy to:
EOP-Bay Park Plaza, L.L.C., a Delaware limited liability
company
c/o Equity Office Properties Trust
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Regional Counsel - Pacific Region"
C. Letter of Credit. Upon execution of this Amendment, Tenant
shall deliver to Landlord, subject to the provisions of
Paragraph 2 of the Additional Provisions Rider to the Lease
(except that the Additional Letter of Credit, as hereinafter
defined, shall not be allowed to reduce during the Term of the
Lease) and this Section VIII(C), in addition to the existing
Letter(s) of Credit, an additional irrevocable letter of
credit (the "Additional Letter of Credit"), which Additional
Letter of Credit shall: (a) be in the amount of $963,095.20;
(b) be issued on the form attached hereto as Exhibit C; (c)
name Landlord as its beneficiary; (d) be drawn on an FDIC
insured financial institution satisfactory to the Landlord;
and (e) expire no earlier than 60 days after the Expiration
Date.
D. Inapplicable Section. The cost of living adjustment, as set
forth in Section 10 of the First Amendment, shall not apply
with respect to the Seventh Expansion Space and the Eighth
Expansion Space.
E. Parking.
1. During the term of the Lease for the Seventh
Expansion Space, Landlord shall provide Tenant, free
of charge on an unassigned, non-exclusive and
unlabelled basis, up to 28 additional parking spaces
in the Parking Facility in accordance with all of the
provisions of Paragraph 1 of the Additional
Provisions Rider attached to the Lease as Exhibit D.
2. During the term of the Lease for the Eighth Expansion
Space, Landlord shall provide Tenant, free of charge
on an unassigned, non-exclusive and unlabelled basis,
up to 41 additional parking spaces in the Parking
Facility in accordance with all of the provisions of
Paragraph 1 of the Additional Provisions Rider
attached to the Lease as Exhibit D.
F. Contingencies.
1. This Amendment as it pertains to the Seventh
Expansion Space only is specifically contingent upon
the modification of that certain lease dated February
8, 1999 (the "First Prior Tenant Lease"), by and
between Landlord (as successor in interest to Bay
Park Plaza Associates, L.P., a California limited
partnership) and Pacific Gateway Exchange, a Delaware
corporation ("First Prior Tenant"), pursuant to which
the First Prior Tenant is currently leasing the Suite
185 Space and the Suite 450 Space. Landlord currently
is negotiating the terms of an agreement with First
Prior Tenant to amend the First Prior Tenant Lease
(the "First Prior Tenant Reduction Amendment")
whereby the First Prior Tenant's lease of the Suite
185 Space and the Suite 450 Space will be terminated.
This Amendment as it respects the Seventh Expansion
Space shall have no force or effect unless and until
the First Prior Tenant Reduction Amendment is fully
executed. This Section VIII.F.1. shall have no
application whatsoever with respect to Tenant's lease
of the Eighth Expansion Space.
2. This Amendment as it pertains to the Eighth Expansion
Space only is specifically contingent upon the
termination of that certain lease dated February 1,
1994 (the "Second Prior Tenant Lease"), by and
between Landlord (as successor in interest to Bay
Park Plaza Associates, L.P., a California limited
partnership), and United States Postal Service
("Second Prior Tenant"), pursuant to which the Second
Prior Tenant is currently leasing the Eighth
Expansion Space. Landlord currently is negotiating
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the terms of an agreement with Second Prior Tenant to
terminate the Second Prior Tenant Lease (the "Second
Prior Tenant Termination Agreement"). This Amendment as
it respects the Eight Expansion Space shall have no
force or effect unless and until the Second Prior Tenant
Termination Agreement is fully executed. This Section
VIII.F.2. shall have no application whatsoever with
respect to Tenant's lease of the Seventh Expansion
Space.
IX. Miscellaneous.
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 Agreement.
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 Agreement. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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/ XXXXXX X. XXXXXXXX
-------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------
Title: Vice President
----------------------
TENANT:
CROSSWORLDS SOFTWARE, INC., a Delaware
corporation
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------
Title: President & CEO
----------------------------
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
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EXHIBIT A-1
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Attach Floor Plan
Showing Suite 185 Space
[GRAPHIC APPEARS HERE}
Bay Park Plaza
First Floor
EQUITY XXXXXX
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
(000) 000-0000
EXHIBIT X-0
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XXXXXXX X-0
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Attach Floor Plan
Showing Suite 450 Space
[GRAPHIC APPEARS HERE]
BAY PARK PLAZA FOURTH FLOOR
------------------------------------------------
EXHIBIT X-0
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XXXXXXX X-0
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Attach Floor Plan
Showing Eighth Expansion Space
[GRAPHIC APPEARS HERE]
BAY PARK PLAZA SECOND FLOOR
------------------------------------------------
EQUITY XXXXXX
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
(000) 000-0000
EXHIBIT X-0
-0-
XXXXXXX X-0
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WORK LETTER
-----------
[Maximum Amount: Plans Completed]
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This Exhibit is attached to and made a part of the Lease dated
the 15th day of August, 2000, by and between EOP-BAY PARK PLAZA,
---- ------
L.L.C., a Delaware limited liability company ("Landlord") and
CROSSWORLDS SOFTWARE, INC., a Delaware corporation ("Tenant") for space
in the Building located at 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx,
California.
1. Landlord shall perform improvements to the Suite 185 Space
substantially in accordance with the plans prepared by TSH
Architects, dated July 21, 2000 (the "Suite 185 Space Plans").
The improvements to be performed by Landlord in accordance
with the Suite 185 Space Plans are hereinafter referred to as
"Suite 185 Landlord Work." It is agreed that construction of
the Suite 185 Landlord Work is intended to be "turn-key" and
will be completed at Landlord's sole cost and expense (subject
to the Suite 185 Maximum Amount and further subject to the
terms of Section 4 below) using Building Standard methods,
materials and finishes. Landlord and Tenant agree that
Landlord's obligation to pay for the cost of Suite 185
Landlord Work (inclusive of the cost of preparing Space 185
Space Plans, obtaining permits, a construction management fee
equal to 5% of the total construction costs, and other related
costs) shall be limited to $21,330.00 (the "Suite 185 Maximum
Amount") and that Tenant shall be responsible for the cost of
Suite 185 Landlord Work, plus any applicable state sales or
use tax, if any, to the extent that it exceeds the Suite 185
Maximum Amount. Landlord shall enter into a direct contract
for the Suite 185 Landlord Work with Commercial Interior
Contractors. Landlord shall have the right to select and/or
approve of any subcontractors used in connection with the
Suite 185 Landlord Work. Landlord's supervision or performance
of any work for or on behalf of Tenant shall not be deemed a
representation by Landlord that such Suite 105 Space Plans or
the revisions thereto comply with applicable insurance
requirements, building codes, ordinances, laws or regulations,
or that the improvements constructed in accordance with the
Suite 185 Space Plans and any revisions thereto will be
adequate for Tenant's use, it being agreed that Tenant shall
be responsible for all elements of the design of Tenant's
plans (including, without limitation, compliance with law,
functionality of design, the structural integrity of the
design, the configuration of the Suite 185 Space and the
placement of Tenant's furniture, appliances and equipment).
2. In the event Landlord's estimate and/or the actual cost of the
Suite 185 Landlord Work shall exceed the Xxxxx 000 Xxxxxxx
Xxxxxx, Xxxxxxxx, prior to commencing any construction of
Suite 185 Landlord Work, shall submit to Tenant a written
estimate setting forth the anticipated cost of the Suite 185
Landlord Work, including but not limited to labor and
materials, contractor's fees and permit fees. Within three (3)
Business Days thereafter, Tenant shall either notify Landlord
in writing of its approval of the cost estimate, or specify
its objections thereto and any desired changes to the proposed
Suite 185 Landlord Work. In the event Tenant notifies
Landlord of such objections and desired changes, Tenant shall
work with Landlord to reach a mutually acceptable alternative
cost estimate.
3. In the event Landlord's estimate and/or the actual cost of
construction shall exceed the Suite 185 Maximum Amount (such
amounts exceeding the Suite 185 Maximum Amount being herein
referred to as the "Suite 185 Excess Costs"), Tenant shall pay
to Landlord such Suite 185 Excess Costs, plus any applicable
state sales or use tax thereon, upon demand. The statements of
costs submitted to Landlord by Landlord's contractors shall be
conclusive for purposes of determining the actual cost of the
items described therein. The amounts payable by Tenant
hereunder constitute Rent payable pursuant to the Lease, and
the failure to timely pay same constitutes an event of default
under the Lease.
4. If Tenant shall request any revisions to the Suite 185 Space
Plans, Landlord shall have such revisions prepared at Tenant's
sole cost and expense and Tenant shall reimburse Landlord for
the cost of preparing any such revisions to the Suite 185
Space Plans, plus any applicable state sales or use tax
thereon, upon demand. Promptly upon completion of the
revisions, Landlord shall notify Tenant in writing of the
increased cost In the Suite 185 Landlord Work, if any,
resulting from such revisions to the Suite l85 Space Plans.
Tenant shall, within one (1) Business Day, notify Landlord In
writing whether it desires to proceed with such revisions. In
the absence of such written authorization, Landlord
EXHIBIT B-1
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shall have the option to continue work on the Suite 185 Space
disregarding the requested revision. Tenant shall be
responsible for any Delay in completion of the Suite 185 Space
resulting from any revision to the Suite 185 Space Plans. In
the event such revisions result in an increase in the cost of
Suite 185 Landlord Work, such increased costs, plus any
applicable state sales or use tax thereon, shall be payable
by Tenant upon demand. Notwithstanding anything herein to the
contrary, all revisions to the Suite 185 Space Plans shall be
subject to the approval of Landlord.
5. This Exhibit B-1 shall not be deemed applicable to any
additional space added to the Premises (including, without
limitation, the Suite 185 Space) at any time or from time to
time, whether by any options under the Lease or otherwise, or
to any portion of the Premises (including, without limitation,
the Suite 185 Space) or any additions to the Premises,
(including, without limitation, the Suite 185 Space) in the
event of a renewal or extension of the original Term of this
Lease, whether by any options under the Lease or otherwise,
unless expressly so provided in the Lease or any amendment or
supplement to the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Exhibit
as of the date first written above.
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/ XXXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------
Title: Vice President
--------------------------
TENANT:
CROSSWORLDS SOFTWARE, INC., a Delaware
corporation
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------
Title: President & CEO
----------------------------
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
EXHIBIT X-0
-0-
XXXXXXX X-0
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WORK LETTER
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(Maximum Amount: Plans Completed)
---------------------------------
This Exhibit is attached to and made a part of the Lease dated the 15th
day of August, 2000, by and between EOP-BAY PARK PLAZA, L.L.C., a Delaware
limited liability company ("Landlord") and CROSSWORLDS SOFTWARE, INC., a
Delaware corporation ("Tenant") for space in the Building located at 000 Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, California.
1. Landlord shall perform improvements to the Suite 450 Space
substantially in accordance with the plans prepared by TSH Architects,
dated July 21, 2000 (the "Suite 450 Space Plans"). The improvements to
be performed by Landlord in accordance with the Suite 450 Space Plans
are hereinafter referred to as the "Suite 450 Landlord Work." It is
agreed that construction of the Suite 450 Landlord Work is intended to
be "turn-key" and will be completed at Landlord's sole cost and expense
(subject to the Suite 450 Maximum Amount and further subject to the
terms of Section 4 below) using Building Standard methods, materials
and finishes. Landlord and Tenant agree that Landlord's obligation to
pay for the cost of Suite 450 Landlord Work (inclusive of the cost of
preparing Suite 450 Space Plans, obtaining permits, a construction
management fee equal to 5% of the total construction costs, and other
related costs) shall be limited to $20,000.00 (the "Suite 450 Maximum
Amount") and that Tenant shall be responsible for the cost of Suite 450
Landlord Work, plus any applicable state sales or use tax, if any, to
the extent that it exceeds the Suite 450 Maximum Amount. Landlord shall
enter into a direct contract for the Suite 450 Landlord Work with
Commercial Interior Contractors. Landlord shall have the right to
select and/or approve of any subcontractors used in connection with the
Suite 450 Landlord Work. Landlord's supervision of performance of any
work for or on behalf of Tenant shall not be deemed a representation by
Landlord that such Suite 450 Space Plans or the revisions thereto
comply with applicable insurance requirements, building codes,
ordinances, laws or regulations, or that the improvements constructed
in accordance with the Suite 450 Space Plans and any revisions thereto
will be adequate for Tenant's use, it being agreed that Tenant shall be
responsible for all elements of the design of Tenant's plans
(including, without limitation, compliance with law, functionality of
design, the structural integrity of the design. the configuration of
the premises and the placement of Tenant's furniture, appliances and
equipment).
2. In the event Landlord's estimate and/or the actual cost of the Suite
450 Landlord Work shall exceed the Xxxxx 000 Xxxxxxx Xxxxxx, Xxxxxxxx,
prior to commencing any construction of Suite 450 Landlord Work, shall
submit to Tenant a written estimate setting forth the anticipated cost
of the Suite 450 Landlord Work, including but not limited to labor and
materials, contractor's fees and permit fees. Within three (3) Business
Days thereafter, Tenant shall either notify Landlord in writing of its
approval of the cost estimate, or specify its objections thereto and
any desired changes to the proposed Suite 450 Landlord Work. In the
event Tenant notifies Landlord of such objections and desired changes,
Tenant shall work with Landlord to reach a mutually acceptable
alternative cost estimate.
3. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Suite 450 Maximum Amount (such amounts exceeding the
Suite 450 Maximum Amount being herein referred to as the "Suite 450
Excess Costs"), Tenant shall pay to Landlord such Suite 450 Excess
Costs, plus any applicable state sales or use tax thereon, upon demand.
The statements of costs submitted to Landlord by Landlord's contractors
shall be conclusive for purposes of determining the actual cost of the
items described therein. The amounts payable by Tenant hereunder
constitute Rent payable pursuant to the Lease, and the failure to
timely pay same constitutes an event of default under the Lease.
4. If Tenant shall request any revisions to the Suite 450 Space Plans,
Landlord shall have such revisions prepared at Tenant's sole cost and
expense and Tenant shall reimburse Landlord for the cost of preparing
any such revisions to the Suite 450 Space Plans, plus any applicable
state sales or use tax thereon, upon demand. Promptly upon completion
of the revisions, Landlord shall notify Tenant in writing of the
increased cost in the Suite 450 Landlord Work, if any, resulting from
such revisions to the Suite 450 Space Plans. Tenant shall, within one
(1) Business Day, notify Landlord in writing whether it desires to
proceed with such revisions. In the absence of such written
authorization, Landlord
EXHIBIT B-2
-1-
shall have the option to continue work on the Suite 450 Space
disregarding the requested revision. Tenant shall be responsible for
any Delay in completion of the Suite 450 Space resulting from any
revision to the Suite 450 Space Plans. In the event such revisions
result in an increase in the cost of Suite 450 Landlord Work, such
increased costs, plus any applicable state sales or use tax thereon,
shall be payable by Tenant upon demand. Notwithstanding anything herein
to the contrary, all revisions to the Suite 450 Space Plans shall be
subject to the approval of Landlord.
5. This Exhibit B-2 shall not be deemed applicable to any additional space
added to the Premises (including, without limitation, the Suite 450
Space) at any time or from time to time, whether by any options under
the Lease or otherwise, or to any portion of the Premises (including,
without limitation, the Suite 450 Space) or any additions to the
Premises, (including, without limitation, the Suite 450 Space) in the
event of a renewal or extension of the original Term of this Lease,
whether by any options under the Lease or otherwise, unless expressly
so provided in the Lease or any amendment or supplement to the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Exhibit
as of the date first written above.
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/ XXXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------
Title: Vice President
--------------------------
TENANT:
CROSSWORLDS SOFTWARE, INC., a Delaware
corporation
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------
Title: President & CEO
----------------------------
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
EXHIBIT X-0
-0-
XXXXXXX X-0
-----------
WORK LETTER
-----------
(Maximum Amount: Plans Not Yet Completed)
-----------------------------------------
This Exhibit is attached to and made a part of the Lease dated the 15th
day of August, 2000, by and between EOP-BAY PARK PLAZA, L.L.C., a Delaware
limited liability company ("Landlord") and CROSSWORLDS SOFTWARE, INC., a
Delaware corporation ("Tenant") for space in the Building located at 000 Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, California.
1. This Work Letter shall set forth the obligations of Landlord and Tenant
with respect to the preparation of the Eighth Expansion Space for
Tenant's occupancy. All improvements described in this Work Letter to
be constructed in and upon the Eighth Expansion Space by Landlord are
hereinafter referred to as the "Eighth Expansion Space Landlord Work."
It is agreed that construction of the Eighth Expansion Space Landlord
Work is intended to be "turn-key" and will be completed at Landlord's
sole cost and expense, using Building Standard methods, materials, and
finishes. Notwithstanding the foregoing, Landlord and Tenant
acknowledge that the Eighth Expansion Plans (hereinafter defined) for
the Eighth Expansion Space Landlord Work have not yet been prepared,
and, therefore, it is impossible to determine the exact cost of the
Eighth Expansion Space Landlord Work at this time. Accordingly,
Landlord and Tenant agree that Landlord's obligation to pay for the
cost of Eighth Expansion Space Landlord Work (inclusive of the cost of
preparing Eighth Expansion Plans, obtaining permits, a construction
management fee equal to 5% of the total construction costs, and other
related costs) shall be limited to $62,020.00 (the "Maximum Amount")
and that Tenant shall be responsible for the cost of Eighth Expansion
Space Landlord Work, plus any applicable state sales or use tax, if
any, to the extent that it exceeds the Maximum Amount. Landlord shall
enter into a direct contract for the Eighth Expansion Space Landlord
Work with Commercial Interior Contractors. Landlord shall have the
right to select and/or approve of any subcontractors used in connection
with the Eighth Expansion Space Landlord Work.
2. Tenant shall be solely responsible for the timely preparation and
submission to Landlord of the final architectural, electrical and
mechanical construction drawings, plans and specifications (called
"Eighth Expansion Plans") necessary to construct the Eighth Expansion
Space Landlord Work, which plans shall be subject to approval by
Landlord and Landlord's architect and engineers and shall comply with
their requirements to avoid aesthetic or other conflicts with the
design and function of the balance of the Building. Tenant shall be
responsible for all elements of the design of Tenant's plans
(including, without limitation, compliance with law, functionality
of design, the structural integrity of the design, the configuration of
the premises and the placement of Tenant's furniture, appliances and
equipment), and Landlord's approval of Tenant's plans shall in no event
relieve Tenant of the responsibility for such design. If requested by
Tenant, Landlord's architect will prepare the Eighth Expansion Plans
necessary for such construction at Tenant's cost. Whether or not the
layout and Eighth Expansion Plans are prepared with the help (in whole
or in part) of Landlord's architect, Tenant agrees to remain solely
responsible for the timely preparation and submission of the Eighth
Expansion Plans and for all elements of the design of such Eighth
Expansion Plans and for all costs related thereto. Tenant has assured
itself by direct communication with the architect and engineers
(Landlord's or its own, as the case may be) that the final approved
Eighth Expansion Plans can be delivered to Landlord on or before
October 2, 2000 (the "Eighth Expansion Plans Due Date"), provided that
Tenant promptly furnishes complete information concerning its
requirements to said architect and engineers as and when requested by
them. Tenant covenants and agrees to cause said final, approved Eighth
Expansion Plans to be delivered to Landlord on or before said Eighth
Expansion Plans Due Date and to devote such time as may be necessary in
consultation with said architect and engineers to enable them to
complete and submit the Eighth Expansion Plans within the required time
limit. Time is of the essence in respect of preparation and submission
of Eighth Expansion Plans by Tenant, (The word "architect" as used in
this Exhibit B-3 shall include an interior designer or space planner.)
3. In the event Landlord's estimate and/or the actual cost of the Eighth
Expansion Space Landlord Work shall exceed the Maximum Amount,
Landlord, prior to commencing any construction of Eighth Expansion
Space Landlord Work, shall submit to Tenant a written estimate setting
forth the anticipated cost of the Eighth Expansion Space Landlord Work,
including but not limited to labor and materials, contractor's fees and
permit fees.
EXHIBIT B-3
-1-
Within three (3) Business Days thereafter, Tenant shall either notify
Landlord in writing of its approval of the cost estimate, or specify
its objections thereto and any desired changes to the proposed Eighth
Expansion Space Landlord Work. In the event Tenant notifies Landlord of
such objections and desired changes, Tenant shall work with Landlord to
reach a mutually acceptable alternative cost estimate.
4. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Maximum Amount (such amounts exceeding the Maximum
Amount being herein referred to as the "Eighth Expansion Excess
Costs"), Tenant shall pay to Landlord such Eighth Expansion Excess
Costs, plus any applicable state sales or use tax thereon, upon demand.
The statements of costs submitted to Landlord by Landlord's contractors
shall be conclusive for purposes of determining the actual cost of the
items described therein. The amounts payable by Tenant hereunder
constitute Rent payable pursuant to the Lease, and the failure to
timely pay same constitutes an event of default under the Lease.
5. If Tenant shall request any change, addition or alteration in any of
the Eighth Expansion Plans after approval by Landlord, Landlord shall
have such revisions to the drawings prepared, and Tenant shall
reimburse Landlord for the cost thereof, plus any applicable state
sales or use tax thereon, upon demand to the extent that the cost of
performing such revisions cause the cost of Eighth Expansion Space
Landlord Work to exceed the Maximum Amount. Promptly upon completion of
the revisions, Landlord shall notify Tenant in writing of the increased
cost, if any, which will be chargeable to Tenant by reason of such
change, addition or deletion. Tenant, within one (1) Business Day,
shall notify Landlord, in writing, whether it desires to proceed with
such change, addition or deletion. In the absence of such written
authorization, Landlord shall have the option to continue work on the
Eighth Expansion Space disregarding the requested change, addition or
alteration, or Landlord may elect to discontinue work on the Eighth
Expansion Space until it receives notice of Tenant's decision, in which
event Tenant shall be responsible for any delay in completion of the
Eighth Expansion Space resulting therefrom. In the event such revisions
result in a higher estimate of the cost of construction and/or higher
actual construction costs which exceed the Maximum Amount, such
increased estimate or costs shall be deemed Eighth Expansion Excess
Costs pursuant to Paragraph 4 hereof and Tenant shall pay such Eighth
Expansion Excess Costs, plus any applicable state sales or use tax
thereon, upon demand.
6. Following approval of the Eighth Expansion Plans and the payment by
Tenant of the required portion of the Eighth Expansion Excess Costs, if
any, Landlord will cause the Eighth Expansion Space Landlord Work to be
constructed substantially in accordance with the approved Eighth
Expansion Plans. Landlord shall notify Tenant of substantial completion
of the Eighth Expansion Space Landlord Work.
7. This Exhibit B-3 shall not be deemed applicable to any additional space
added to the Premises (including, without limitation, the Eighth
Expansion Space) at any time or from time to time, whether by any
options under the Lease or otherwise, or to any portion of the Premises
(including, without limitation, the Eighth Expansion Space) or any
additions to Premises (including, without limitation, the Eighth
Expansion Space) in the event of a renewal or extension of the original
Term of this Lease, whether by any options under the Lease or
otherwise, unless expressly so provided in the Lease or any amendment
or supplement to the Lease.
EXHIBIT B-3
-2-
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Exhibit
as of the date first written above.
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/ XXXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------
Title: Vice President
--------------------------
TENANT:
CROSSWORLDS SOFTWARE, INC., a Delaware
corporation
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------
Title: President & CEO
----------------------------
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
EXHIBIT B-3
-3-
